visions, made by the law, of 40, 80, and 160 acres, and not attempt by a combination of two of them to make a new subdivision of 120 acres. You will, therefore, regard this as the regulation of the department on this point.

TO JAMES E. HEATH, Esq.

[116.]

A. H. H. STUART.

Troops called out by the President cannot claim land bounty, (nor pension,) unless they were mustered into the service of the United States.

DEPARTMENT OF THE INTERIOR, February 3, 1851.

In reply to your letter of the 29th ultimo, in relation to claimants under the recent bounty land law, I have the honor to inform you that, under my construction of the act, troops called out by a proclamation of the President of the United States, must have been mustered into the service of the United States, to entitle them to the benefit of the law.

J. A. PEARCE, U. S. Senate.

[117.]

A. H. H. STUART,

Non-commissioned officers and soldiers engaged in the war with the Creeks, called Creek disturbances, from the 5th of May, to the 30th of September, 1836, entitled to bounty land under the act of September 28, 1850.

DEPARTMENT OF THE INTERIOR, February 26, 1851.

SIR: After a careful examination of the second or explanatory letter from the Adjutant General, and a personal interview with the Secretary of War on the subject, I am satisfied that what the Adjutant General in his first letter termed "Creek disturbances no war," was really an Indian war, within the meaning of the act of September 28, 1850; and, therefore, that those persons and the representatives of such as are dead, who were engaged in it, are entitled to bounty land under its provisions.

I find that the Creek nation was in a state of open hostility to the whites, that large bodies of men were mustered into the service of the United States, under their officers, to repel the attacks of the Indians; that several engagements took place, and many lives were lost in battle; and that provision was made by the United States government for the payment of the expenses of the campaign; and, indeed, that it possessed all the characteristics of a war, except a formal declaration. Having thus a firm and legal ground to stand upon, I take great pleasure in stating to you, that I am of the opinion, that the provisions of the bounty land law of September 28, 1850, apply to those non-commissioned officers and soldiers engaged in the Creek war, which commenced May 5, 1836, and ended September 30, 1836.

Hon. H. HARALSON, H. of Reps.

A. H. H. STUART.

[118. ]

The location of the bounty land, under the act of 28th September, 1850, must be on land that has been actually offered at public sale before the 2d March, 1851.

DEPARTMENT OF THE INTERIOR, March 17, 1851. SIR: In reply to your letter of the 13th instant, I have to state that, under an act of Congress, approved 3d March, 1851, no bounty land warrant issued under the act of 28th September, 1850, or by virtue of any prior law granting bounty land, can be located on any land which had not prior to the passage of the act of the 3d of March last, been brought into market, and which was not then subject to private entry; so that the land applicable to the satisfaction of all warrants, not yet located, must have been surveyed, proclaimed for sale by the President, and actually offered at public sale prior to 2d March, 1851.

T. H. SPINDLE.

A. H. H. STUART.

[119.]

1. Land bounty is not granted by provision of any law, to volunteers engaged in removing Indians from North Carolina in 1838 or 1839.

2. Military land warrants cannot be located on pre-emption lands, nor on lands actually settled and cultivated, without the consent of the pre-emptioner, and the settler, satisfactorily proven.

DEPARTMENT OF THE INTERIOR, March 19, 1851. SIR: In reply to your letter of the 27th ultimo, I have to inform you that there is no law granting bounty land to the volunteers, engaged in removing the Indians from the west part of North Carolina in the year 1838 or 1839. Military land warrants cannot be located on pre-emption claims without the consent of the preemptioner, nor upon lands upon which there shall be an actual settlement and cultivation, except with the consent of such settler, to be satisfactorily proven to the proper land officer.

H. T. JOHNSON, Esq.

A. H. H. STUART.

[120. ]

The constructive service of an officer of the revolution after he had retired as a supernumerary, will not entitle his widow, with whom he had intermarried after he had retired, to a pension under the 3d section of the act of July 4, 1836: the terms of the act of June 7, 1832, to which that section refers, contemplate actual service performed, before the expiration of which the marriage should have taken place.

"DEPARTMENT OF THE INTERIOR, April 19, 1851. SIR: I have examined the claim of the representatives of Paulina LeGrand, presented in your letters of the 8th and 11th instant.

The 3d section of the act of July 4, 1836, under which the claim is made, provides, that if any person who served in the war of the revolution in the manner specified in the act of 7th June,

1832, have died leaving a widow, whose marriage took place before the expiration of the last period of his service, such widow shall be entitled, &c.

In this case the husband of the applicant served in the war of the revolution, but became a supernumerary some eight or ten months before he intermarried with the applicant's intestate. The right of the pension depends upon the construction which may be placed on the words "before the expiration of the last period of his service." Do they contemplate actual service only, or do they also embrace the constructive service of a supernumerary? If the former, then the pension must be denied; but if the latter, the widow or her representatives is clearly entitled.

After due consideration of the language and the objects of the law, I am of the opinion that the law was intended to apply only to cases of actual service, and to marriages before the expiration of the last period of actual service.

that

If the constructive service of a supernumerary is embraced by the law, then it will embrace the cases of all supernumeraries up to the close of the war, for they were all constructively in service up to the close of the war. If Congress had meant that, a much more simple mode of expressing it would have been, to say, the widows of all soldiers actually or constructively in service up to the close of the war should be entitled. Again: if that kind of service was contemplated, what are we to do with the words "before the expiration of the last period of his service." This evidently contemplated distinct periods of service, between which there were intervals of non-action; and it gives the benefit of the act to all whose marriages took place before the expiration of the last period of his service.

Now if the constructive service of a supernumerary were embraced, as it was continuous and unbroken up to the close of the war, there were no periods in it.

You would therefore give the widows of all supernumeraries who were married before the close of the war, pensions, whilst the widows of those who were in actual service fighting the battles of their country, would be entitled only when the marriage took place before the expiration of the husband's last period of service. In other words, supernumeraries would stand on higher grounds than those who actually remained in the field whilst there was fighting to do. In my opinion neither the policy nor the language of the law warrants any such construction. The case of Lilly, in my opinion, has no bearing on the question involved here. That was a case turning on the phraseology of the Virginia law. But if I were to apply the principles expressed particularly by Judge Carr, on page 529, to the construction of the act of Congress, they would fortify me in the conclusion I have arrived at.

The act of May, 1779, provides "that all such officers who shall

serve from thence forward, or from the time of their being commissioned, to the end of the war, and all such officers who have or shall become supernumerary," &c.

The introduction of the latter clause would seem to indicate that, without it, the prior provision would not have embraced the case of supernumeraries. Judge Carr, in commenting on this law, after citing the first clause, says, "if the law had stopped here, there would have been no doubt. All officers found in service at the close of the war would have been clearly entitled. But there was another class for whom the assembly thought it just, and felt it important to provide "all such officers who have and shall become supernumerary," &c. Here then the distinction is clearly recognized, even under the Virginia law, between officers in service and supernumeraries, in the act making provision for them. Construing the act of Congress by the same rule, it would seem to be proper to understand the term service as having the same meaning in that act that it has in the Virginia law.

Without extending the argument further, I am clearly of the opinion that under the act of 4th July, 1836, a supernumerary was not in service in the sense in which the words are there used. A. H. H. STUART.

JAMES E. HEATH, Esq

[ 121.]

Bounty land warrants cannot be located in Oregon under the restrictive proviso of the act of the 3d March, 1851.

DEPARTMENT OF THE INTERIOR, May 2, 1851.

SIR: In reply to your inquiry, propounded in your letter of the 28th ult., whether bounty land warrants can be located on the public lands in Oregon, I have to state, as the act of Congress, approved 3d March last, prescribes that no such warrants shall be satisfied out of any public lands not heretofore brought into market, and then subject to entry at private sale under existing laws, and as there is no public land in Oregon which was on the 3d March last, subject to entry at private sale, it follows that warrants cannot at any time be located in Oregon under existing laws, J. J. CRITTENDEN, Acting Secretary.

[122.]

Erasure and re-writing, noted as having occurred before issuing a warrant, or even a patent or deed, do not vitiate the instrument.

DEPARTMENT OF THE INTERIOR, May 20, 1851.

SIR: As the warrant does not constitute a part of the legal title, and as it is not an assignable subject, I do not think it necessary

to cause those sent to me to be cancelled. If erasures had occurred in patents which are muniments of title, and not mere matters of inducement to the grant, the case would have been different. To avoid any difficulty, the Commissioner would doubtless make a note to the effect that the erasure and re-writing occurred before issuing the warrant, which would cure all defects even in a deed or patent. A. H. H. STUART.

J. S. GALLAGHER.

[123.]

The action of the Secretary on pension claims is only by appeal from original decisions below, which belong to the Commissioner of Pensions.

DEPARTMENT OF THE INTERIOR, September 26, 1851.

SIR: Your letter of this date, enclosing an application of the children of Jas. Dale, deceased, for a pension, and asking my opinion on the merits of the case, has been received. Your request being at variance with the established rule of action in such cases, I must decline complying with it. Should you desire it, the papers will be referred to the Commissioner of Pensions; in the event of an adverse decision from whom, you could then bring the case properly before me in the nature of an appeal. A. H. H. STUART.

[124.]

The pension to the survivor of several children entitled to it, should suffer no deduction on account of the deceased children.

DEPARTMENT OF THE INTERIOR, October 2, 1851.

SIR: I herewith return the papers relating to the claim of Sally H. Lane, which accompanied your letter of the 2d August last. I agree with you in regarding the mode in which her claim was originally adjusted irregular and erroneous, and that the claimant, as surviving child of James Woodbury, should suffer no deduction on account of other children who died before the passage of the law granting the pension.

The general practice of your office is correct, and this case should be made to conform to it. A. H. H. STUART.

COMMISSIONER OF PENSIONS.

[125. ]

1. The interval between the expiration of an act granting pensions, and an act reviving the same, is not available to pension claims, that were not vested during the first term of the revived act: such claims must be considered under the act revived.

2. A debtor for money erroneously paid him or her by the United States, (as a pension, for example,) is properly chargeable with interest on the same, to be calculated