The first question depends upon the construction to be given to the act of the 30th June, 1834, and the previous laws upon the same subject. The first section of the act of 1834 provides "that all the provisions and benefits of the act of the twenty eighth of June, one thousand eight hundred and thirty two, entitled 'An act further to extend the pension heretofore granted to the widows of persons killed or who died in the naval service,' be continued for another term of five years to all those widows who have heretofore had the benefit of the same; and the same are hereby extended to the widows of officers, seamen, and marines who have died in the naval service since the first day of January, one thousand eight hundred and twenty four, or who may die in said service by reason of disease contracted, or of casualties by drowning or otherwise, or of injuries received while in the line of their duty; and the pensions of such widows shall commence from the passage of this act.

The effect of that provision was, first, to continue all the provisions and benefits of the act of 1832 for another term of five years to all those widows who have heretofore had the benefit of the same; secondly, to extend those provisions and benefits to the widows of officers, seamen, and marines who have died in the naval service since the 1st day of January, 1824; and, thirdly, to extend the same provisions and benefits to the widows of officers, seamen, and marines who may die in the naval service by reason of disease contracted, or of casualties by drowning or otherwise, or of injuries received while in the line of their duty.

It is insisted that, by a liberal interpretation of the act, Mrs. Heberd's case may be included in the third class. To effect this object, it is contended that the act should be regarded as prospective in a double aspect; that it applies to offices subsequently created in the naval service, as well as to subsequent appointments to offices previously authorized by law. No doubt the pension, being annexed to the office, inures as fully to the widows of officers subsequently appointed as to those whose husbands were in the service at the date of the act. It embraces not only the widows of those officers, seamen, and marines, who have died in the naval service since the first day of January, 1824; but the widows of those who may die in said service, under the circumstances therein mentioned. It is clear, therefore, that it includes subsequent appointments to offices then recognised by law. Whether it can be extended to other employments in the naval service, unknown to the law at the passage of the act, must depend in a great degree upon the nature and character of the previous acts, whose provisions and benefits were continued and extended by the act under consideration. The language of the act of 1834 is peculiar, and should be kept distinctly in view. Whatever may be its effect, it is reasonable to presume that it was based upon the offices in the navy as they existed at that time. It must be admitted that it does not, in terms, purport to include those not in existence. The legislation of Congress, in relation to pensions, does not favor that conclusion. It has not been the habit of Congress to legislate upon this subject in advance. The pension acts, which are very numerous, have generally been limited in their operation to short periods, and carefully restricted to cases of urgent demand. The truth of this remark is strikingly exemplified by the act of 1832, to which I now invite your attention. The first section provides that in all cases where provision has been made by law for five years' half-pay to widows and children of officers, seamen, and marines, who

were killed in battle, or who died in the naval service of the United States, and in all cases where provision has been made for extending the term of five years, in addition to any term of five years, the said provision shall be, and is hereby, extended for an additional term of five years, so far as respects widows only, to commence at the end of the current or last expired term of five years in each case, respectively. All will admit, I presume, that the provisions of these two acts must be considered together, in order to collect the true meaning of the act of 1834. It will be perceived that pensions under the law of 1832 were strictly limited to cases where provision had been previously made, or the term extended, for the five years' half pay of widows. The act of 1834, in adopting that act as its basis, adopts the same limitations which clearly restrict its ope ration to the offices in existence at the time of its passage. No one will pretend that any provision was ever made for the widows of engineers prior to that time.

The phrase "in all cases where provision has been made" is twice repeated in the law of 1832, and cannot be regarded as insignificant or without meaning; and unless it be so, it is impossible, it seems to me, to maintain the construction assumed by the claimant. The prospective words in the act of 1834 are fully satisfied without extending their appli cation to offices subsequently created. The words "may die" unquestionably refer to time to come; but they have reference in this case to the death of the husband, and not to the office which he filled. In other words, widows whose husbands may die after the passage of the act of 1834 are entitled to a pension, whether the husband was appointed before or after that time, provided he filled an office in the navy which was in existence at the date of the act. In other cases, pensions cannot be allowed, unless they are authorized by the act creating the office. The contrary rule would produce this absurdity-that, whenever a new office is created in the navy, silence on the part of Congress would be equivalent to the granting of a pension. No office could be created without this result, unless Congress saw fit to negative the inference by express enactment. In my judgment, no such interpretation of the act of 1834 should ever receive the sanction of the department. These views will be much strengthened by reference to the second section of the act of the 24th August, 1842, which provides that all pensions to officers and seamen in the naval service shall be regulated according to the pay of the navy as it existed on the first day of January, one thousand eight hundred and thirty-five. At that time, there was no corps of engineers attached to the navy; and of course the pension in this case, if one were allowed, could not be adjusted in accordance with the requirements of that act. There being no other law upon the subject, the department is left without any guide. It cannot be admitted that Congress has authorized a pension without presenting some mode to ascertain the amount. The rule contended for by the claimant (half the present pay) might be a very good one, if it had any legal sanction; but, unfortunately for the argument, it reposes upon no authority of law. The conclusion, it seems to me, is irresistible, that no pension can be allowed, there being no law prescribing at what rate such pensions shall be paid. Probably, at the suggestion of the department, Congress will at once correct the omission.

The argument for the claimant suggests the case of passed midshipmen as furnishing a precedent in favor of this claim. Not so. It appears from

the Naval Register that the grade of passed midshipmen was recognised as early as the year 1820. No doubt it was instituted in pursuance of the authority reposed in the President to fix the pay of petty officers, midshipmen, seamen, ordinary seamen, and marines. This authority was first conferred by the seventh section of the act to provide a naval armament, approved on the 27th of March, 1794, and was embraced by subsequent provisions, till the passage of the pay law of 1835. On the 25th of June, 1827, the following general order was approved by the President: "Passed midshipmen will receive warrants as such, will take rank of all other midshipmen, and will receive the pay of twenty-five dollars per month and two rations per day." This regulation, certainly made in pursuance of law, so far as regards pay, remained unchanged on the first day of January, 1835, and continues to this time as the rule of the department, in relation to the allowance of pensions to the widows of passed midship. men under the act of 1834. Their pensions are paid at the rate of twelve dollars and fifty cents per month.

After careful investigation, I am of the opinion that none of the cases cited in the argument will justify the present claim. Assistant surgeons, mentioned in existing laws, are the same as surgeons' mates in the previous acts.

The same remark applies to commanders and masters, whose titles were changed by the act of the 3d March, 1837. It is very clear that this act furnishes no ground of argument in favor of the present claim. It provides that "such change of title shall not affect the rank, pay, or privileges of any master-commandant or sailing-master now in the service."

I am of opinion, therefore, that existing laws do not authorize the allowance of a pension to the widow of an engineer in the navy. Such being my opinion, it follows, of course, in my view of the case, that there is no law prescribing at what rate such pensions shall be paid.

In answer to the further inquiry of the commissioner, I have to remark that the practice of the department in relation to the commencement of pensions is unquestionably correct. Where the death of the husband occurred prior to the passage of the act of 1834, the pension should commence from the date of the act. In all other cases, it should commence from the time of the husband's death. Otherwise a widow might be entitled to receive a pension retroactively during the whole period her husband was in office. In some other cases, probably, as in this case, if allowed from the date of the act, the pension would commence from a period before the husband entered the service; and when a few more years have elapsed, the rule, if followed, would allow a pension to a widow to commence before her husband was born. The rule adopted by the department should be adhered to.

I have the honor to be, very respectfully, sir, your obedient servant, NATHAN CLIFFORD.

Hon. W. L. MARCY,

Secretary of War.

119

THE PRE-EMPTION CLAIM OF JAMES SLAUGHTER,

Where a settler upon certain public lands on the east bank of the Mississippi river-which, when subsequently surveyed, was designated as the southwest fractional quarter of section twenty-five-tailed to make payment therefor prior to the day appointed for the public sale of lands in that vicinity; and, by his agent, on that day refused to enter and pay for the same unless he could be permitted also to enter the southeast fractional quarter-section; and not being gratified in that respect, the land officers refusing his request, and offering all the lands at public sale, and actually selling the south east fractional quarter, and afterwards obtaining a confirmation of their proceedings,) by his agent having applied to the Secretary of the Treasury for a hearing in respect to his claim of pre-emption-DECIDED, that he abandoned his claim by refusing to make payment unless he could be permitted to enter the southeast fractional quarter-section, and that by such refusal he forfeited a'l right which he had previously acquired to the premises.

The pre-emption act of 19th of June, 1834, expressly declares that its provisions shall not be available to those who fail to make the proof and payment required before the day appointed for the commencement of the public sale.

The claim presented having no merit in law or equity, the decision of the Commissioner of the General Land Office, approving the proceedings of the register and receiver, should be affirmed.

ATTORNEY GENERAL'S OFFICE,

October 27, 1847.

SIR: I have examined the papers, which you referred to me, relating to the claim of James Slaughter to certain pre emption rights under the act of 19th June, 1834, and submit the following opinion for your consideration:

It appears from the report of the Commissioner of the General Land Office, that evidence in favor of the claim was filed in the district land office on or about the 6th of June, 1836. Slaughter's affidavit, dated 16th of May, 1836, states that in the year 1833 he settled upon the east bank of the Mississippi river, about two and a half miles above the Yazoo pass or Bayou, at a place called Little Plum Orchard, on land supposed to have belonged to the Chickasaw nation; that he resided on the place with his family, in a house erected by himself, and in 1833 cultivated a small piece of ground in garden vegetables, and had continued to have the actual and absolute possession of the premises from the time of settlement to the date of the affidavit. He further says that the land had never been surveyed, which he alleges as a reason for not describing it with more particularity; but asserts that it lies between the premises of Jackson Wright and land occupied by Solomon Wyatt. Three witnesses corroborate the substance of this affidavit as above given. Additional evidence was filed on the 18th of December, 1841, in which two witness. es testify, as they say, of their own knowledge, that James Slaughter had a dwelling-house on the premises, and personally resided there with his family, and cultivated on the southwest fractional quarter of section twenty-five, township thirty, range four west, and had the same in possession and cultivation of the 19th of June, 1834, and continued to possess and cultivate the same until the fall of 1835, when he sold his right, title, and claim to said quarter-section to John Fulton; and that said place has been possessed and cultivated, under said Fulton's claim, to the date of the affidavit.

The return of the survey to the register's office was not made until the 6th of July, 1843, and for that reason no action could be taken by the land officers on the filing of this affidavit. By a copy of the survey attached to the affidavit of Slaughter, it appears that fractional section twenty-five was divided into several lots. [Here follows a diagram, which

the compiler is obliged to omit.] In the mean time, it would seem, from the report of the Commissioner, all land sales in that district had been suspended in consequence of the unsettled state of the Indian claims under the Choctaw treaty of 1830; and the land officers were directed to examine and determine upon every claim which should be presented in due time, and report the same, first requiring the parties in each case to tender an amount sufficient to pay for the claim, but not to consummate the entry without further instructions. The reasons assigned for this course are, that the want of definite knowledge relative to the Choctaw reservations rendered it impracticable for the General Land Office at that time to take any other steps to enable the claimants to secure their respective rights. Under those instructions, the Commissioner says that the then register and receiver reported their adjudication of the claim of James Slaughter, allowing him lots four and five, of section twenty-five, being the southwest fractional quarter of said section, according to the aforesaid copy of the survey. In other words, the case shows that, Slaughter having made the requisite tender, his case was adjudicated and reported in accordance with those instructions. Subsequent examination at the General Land Office having shown that none of the claims reported were interfered with by Indian locations, instructions were given to the district land officers to call upon the respective claimants to make immediate payment, and to obtain their certificates. Nothing further was heard from the claim of Slaughter until after the public sale, when the district land officers reported that Gully M. Brown, who alleges himself to be the agent of Slaughter, appeared at their office just before the time of sale, and wanted to enter not only lots four and five, comprising, as you will observe, the southwest fractional quarter-section, but also lots three and six, being the southeast fractional quarter. The four lots make in the aggregate two hundred acres. The land officers refused to permit the entry of said four lots, and the agent declining to pay for lots four and five, being those embraced in the original claim, unless he was permitted at the same time to pay for the adjoining lots, the land officers offered the whole at public sale, and lots three and six were purchased by Celia Snyder; whereupon the whole subject was referred to the General Land Office at the instance of Brown, as appears by his letter of the 23d of October, 1846, and the action of the register and receiver was approved by the Commissioner on the thirteenth of the following month.

On the 19th of March, 1847, said Gully M. Brown, as the attorney of Slaughter, made a communication to the Secretary of the Treasury, complaining of the action of the Commissioner and of the officers of the local land office in the premises, and praying the suspension of the issu ance of a patent to Mrs. Snyder, and that Slaughter may have a new hearing on his claim; that the entry of Mrs. Snyder may be formally cancelled and set aside; and that Slaughter may be ultimately permitted to make entry thereof under his pre-emption claim; and that he may have such other and further relief as he is entitled to, and as the law will permit.

The above is a summary of the facts and proceedings in relation to the original claim of Slaughter, collected from the report of the Commissioner and the accompanying documents. The depositions which have been produced, of recent date, referring to a different location, are omitted in this statement for the following reasons: First, because they contain nothing