I.

OPINIONS OF ATTORNEYS GENERAL

OF

THE UNITED STATES,

IN RELATION TO

PENSIONS* AND LAND BOUNTIES.

[1.]

BOUNTY LAND. A second warrant issued by inadvertence, and located after one had been issued for the same land, but not located, shall not exclude the right of the first warrantee to locate elsewhere.

WASHINGTON, March 22, 1815.

Question stated by the Secretary of War.-A military land warrant is issued, and a patent thereon duly obtained for the land, in ignorance that a former warrant, in satisfaction of the same claim, had issued and was in existence, but never located. The first warrant is then presented at the Land Office. Can it be allowed location after the regular location and patent of the second warrant?

Answer.-If the Government improvidently issue a second warrantee for a claim on which it had granted a former one, I do not think that this circumstance alone should deprive the first warrant of any of his rights. The neglect to locate is protected by the various acts of Congress which have passed from time to time, enlarging the period for the location of warrants for mili

* Mr. Wirt's opinion, No. [7,] is the first on pension laws of which any record is preserved, the opinions of Attorneys General not having been preserved anterior to the appointment of Mr. Wirt, as will be seen by the following extract from vol. A. in the Attorney General's Office:

ATTORNEY GENERAL'S OFFICE, 13th November, 1817. "Finding on my appointment, this day, no books, or documents, or papers of any kind, to inform me of what had been done by any one of my predecessors, since the establishment of the Federal Government, and feeling very strongly the inconvenience, both to the nation and myself, from this omission, I have determined to remedy it, so far as depends on myself, and to keep a regular record of every official opinion which I shall give while I hold this office, for the use of my successor.

"To make the arrangements as perfect as I can, I have prevailed on the Heads of Departments to furnish me with copies of all the Documents on which I shall be consulted, and which will be found filed and numbered, to correspond with the numbers in the margin prefixed to each opinion. A copious index to this book is also given, with references, under various heads, to each, for the greater facility of using the book." [Signed] WM. WIRT. [Other opinions obtained, however, from other sources, have been introduced.]

tary bounty lands, even down to the act of July 5, 1813, which gives until the 1st of October, 1816, for their location. If, therefore, the first warrantee, in the case stated, stands in a predicament to be entitled to his location and patent on all other grounds, I am of opinion that the fact of the second warrant and patent having been issued should not exclude him.

RICHARD RUSH, Attorney General.

[ 2.]

INVALIDS AND THEIR DISABILITY IN LINE OF DUTY.-1. The first clause of the 14th section of the act of Congress of March 16, 1802, in reference to invalid pensioners, considered. In what other way than by wounds must the disability have been incurred to entitle the applicant to the pension; various modes stated; as the act of God in a stroke of the suu; unavoidable casualties occurring in the line of duty.

2. Line of duty what: Every officer, in full commission, and not on furlough, considered in line of duty, although at the moment not employed: The same of a soldier who is kept in pay: some qualifications and exceptions. If loss of health is produced by careless, irregular, or vicious habits, or if constitution is impaired, or germ of disease is seated at the time of entering the service, then there is cause for extreme caution, or an entire exclusion from the pension: various illustrations.

WASHINGTON, April 6, 1815.

The Secretary of War having, in a letter of the 4th instant, desired my opinion on the true meaning of the first clause of the 14th section of the act of Congress, passed on the 16th of March, 1802, for fixing the military peace-establishment, I have the honor to submit the following:

1. The words of the clause are: "That, if any officer, noncommissioned officer, musician, or private, in the corps composing the peace-establishment, shall be disabled by wounds or otherwise while in the line of his duty in public service, he shall be placed on the list of invalids of the United States, at such rate of pay, and under such regulations, as may be directed by the President of the United States for the time being."

The question made is, in what other way than by wounds must the disability have been incurred, to entitle the party to the pay provided?

The words of the section are not quite so distinct as to remove all grounds for diversity of opinion; yet, unless some liberality in their interpretation be allowed, it is to be feared that the benignant intentions of the law might be in danger of being curtailed or frustrated. The expression "or otherwise" is placed in contradistinction to wounds. In its primary signification, it may be taken to import a disability brought on by the direct and apparent agency of accidents or inflictions from the hand of God or men, happening to the party while in the immediate and obvious discharge of his duty, but which could not, with technical propriety, be denominated wounds. Instances of this kind may readily be conceived;-as if an officer, exercising his men on a

hot day, should receive a stroke of the sun; a musician, while obeying an order to sound his bugle, should rupture a blood-vessel; or a soldier, while working upon fortifications, should dislocate a limb: in such, and similar cases that may be imagined, it cannot be doubted but that the disability would be brought on in a mode to meet the alternative stated in the act. It will be to enlarge it but a little more, and, as is conceived, to uphold its genuine and humane spirit, as well as its legal sense, to say that the connexion between the inflicting agent and consequent disability need not always be so direct and instantaneous. It will be enough if it be derivative, and the disability be plainly, though remotely, the incident and result of the military profession. Such are the changes and uncertainties of the military life-such are oftentimes its trials, as well as its hazards-that the seeds of disease, which finally prostrate the constitution, may have been hidden as they were sown, and thus be in danger of not being recognized as first causes of disability in a meritorious claim put forth for the bounty of the act. It would not, I think, be going too far to say, that, in every case where an officer or private loses his health while in the service, to such a degree as to be disabled from performing his duty any more, he is contemplated, prima facie, as an object of this charitable relief from the Legislature.

2. I feel more doubtful in fixing, by any undeviating standard, what is meant by being in the line of his duty. Upon this point, I should presume, however, that every officer in full commission, and not on furlough, must be considered in the line of his duty, although, at the moment, no particular or active employment is devolved upon him. The same of a soldier who is kept in pay; for it is presupposed of both the one and the other that they are at all times prepared for duty; and it is surely of indispensable obligation upon them to keep themselves detached from other pursuits, so as to be ready at a moment to answer any call emanating from those who may be authorized to command them. Perhaps a voluntary absence, too long continued, on the part of an officer from his station, might form an exception, so as to exclude the idea of his being in the line of his duty during any accident or sickness palpably proceeding from causes while he was away. But the officer who, by reason of marches in damp or cold weather, or who, from being in garrison exposed to marshy exhalations, finds, even at some interval, his constitution broken down by rheumatism, or enfeebled by the constant recurrence of fevers, is surely as just an object of this humane stipend at the hands of the Government, as he who may have had his arm shattered by a bullet. Such cases are again put only as examples. Others may also be supposed, in which the performance of military duty, in some of the various shapes it may be made to assume, has proved the original, though it may not be admitted as the proximate, cause of the disability superinduced.

In the discretion which is vested in the President, a sufficient guard is established that an interpretation of the act, such as is indicated by the foregoing remarks, will not open the way to abuse. If the loss of health should have proceeded from careless or irregular habits in the party-much more if from vicious ones; or if he brought to the service or ranks of his country a constitution already impaired, or rankling with the germ of maladies that afterwards do nothing more than ripen into activity;-these will form occasions for caution, or from an entire exclusion from the bounty, when the executive duty comes to be performed in the way Congress has pointed out. A claimant who was suspected not to stand in lights altogether meritorious or innocent, must expect that his application would meet a severe scrutiny and certain rejection at the discovery of any thing that could taint it with unfairness or imposition. But if the sound construction be not at least as broad as I have supposed, we shall be at some loss to know what meaning the words "inferior disabilities," used in the concluding sentence of the 14th section, were intended to convey.

It may, perhaps, be said, that to earn the bounty, the disability should have been incurred by accident or sickness peculiar to the employments of military men, and such as it may reasonably be supposed would have been avoided in other occupations. But it is conceived that this would prove a vague or deceptious rule of interpretation. With what safety, or with what certainty, could it be applied? The soldier asleep in garrison may suddenly, when he wakes, find his eyesight gone, without being sensible himself, or without its being imagined by others, that the predisposing and leading cause of his affiiction was imbibed in ascending the Mississippi months before, whilst a hot and vertical sun was flashing its fires around him. Another may linger in a consumption; the consequence, perhaps, of a slight cold in the beginning, but of which the labors and hardships of his life may never have allowed him opportunity to get rid. And a third may lie bedridden under a palsy, which the change of habits and ailment after his enlistment may have been the chief though occult causes. in producing. It would be easy to multiply indefinitely such illustrations, applicable alike to the condition of officers and men.

I would remark, as giving strength to the principles which I suppose the Legislature to have had in mind in framing this section, that we find it recorded in the Digest of Justinian, that "he who has hired his services is to receive his reward for the whole time, if it has not been his fault that the service has not been performed." So, too, by the maritime law, it is well understood, that if sickness or disability overtake a seaman, which was not brought on by vicious or unjustifiable conduct, he is entitled to his full wages for the year. Nor does it make any difference whether it come on during the time he was on actual duty, or

was merely accidental while he continued in the service. These principles have been sanctioned by time; and it is hoped that it will not have been deemed out of place to advert to the analogies they hold up.

RICHARD RUSH, Attorney General. Endorsed. The opinion of the Attorney General is to govern in all cases of application for pensions.

A. J. DALLAS, Secretary of the Treasury.

JULY 29, 1815.

[3.]

BOUNTY LAND.-1. Every non-commissioned officer and soldier, enlisted since 10th December, 1814, entitled to 320 acres.

2. Minority does not create incapacity to take land bounty any more than bounty in money or pay.

WASHINGTON, August 1, 1815.

Are persons enlisted since the 10th of December, 1814, entitled to their land warrants for the additional bounty, in the same manner as those enlisted prior to that period? Are minors, regularly enlisted, entitled to their land warrants?

Answer. 1. I think that every non-commissioned officer and soldier enlisted since the 10th of December, 1814, is entitled to a bounty of 320 acres of land, provided that he obtain, on his discharge from service, a certificate from the commanding officer of his company, battalion, or regiment, that he had faithfully performed his duty whilst in service.

2. I do not think that the fact of minority creates any incapacity to take the land bounty, any more than the bounty in money or pay. The contract of the Legislature must be fulfilled in this, as in all other respects. The minor who brings himself within all the other requisites is, I think, entitled to his land warrant in like manner with persons of full age.

RICHARD RUSH, Attorney General.

[4.]

BOUNTY LAND.-1. Construction of the acts of January 11, 1812, and of April 16, 1816, granting bounty land. 2. Under act of 1816, optional with the guardian to elect either the bounty land or half pay for minor's benefit. 3. Congress has no right to extinguish or modify a right already vested in heirs.

WASHINGTON, June, 17, 1816.

The 12th section of the act of Congress of January 11, 1812, gives to soldiers enlisted for five years, or during the war, a bounty of 160 acres of land; and in case of their being killed, or dying in the service, the said bounty is to go to their heirs.

The 2d section of the act of April 16, 1816, making further appropriation for military services during the war, provides, among