opening a claim, disposed of by his predecessor. (See U. S. Bank vs. Bank of Metropolis, 15 Peters, 377, 401.) Mr. Ewing supposed such cause to exist in the case, and that therefore all inquiry was not foreclosed as against the claimants, and, a fortiori, that it was not foreclosed against the Government. Accordingly, he referred the claim to the Attorney General for the precise and sole purpose of having it examined on its legal merits, in deference to the supposed recommendation of Congress. Then, the Attorney General's attention not being fastened upon the only point referred to him, namely, the merits of the case, and with an erroneous impression upon his mind of the action of Congress, he unfortunately took up the idea that the supposed resolutions of Congress were of such legal force and exigency as to preclude all further inquiry on the subject, pro or contra, and to conclude the conscience of the Government.

Thus it happened that the Gibbs claim, notwithstanding all its adverse antecedents, got to be allowed and paid without final examination of its merits, by extraordinary good luck; the good luck of its being assumed in two departments, that of the Interior and the Attorney General, that a resolution of one or the other house of Congress, existed in a certain sense, whilst it did not exist at all, or existed in the opposite sense, and then acting upon such erroneously assumed resolutions as repealing an act of Congress.

In the infinite variety and complexity of the business of the Government, errors like this must of course occur from time to time, in the Departments. But the error, committed in this instance, has a special application here. For it is not possible to imagine a stronger illustration of the dangers and inconveniences of looking beyond the statute-book for the law, and seeking it in the labyrinth of the journals, reports, and other documents of Congress.

I do not scruple to express the most unhesitating and confident belief, that if Mr. Attorney General Johnson were now to revise the case of Churchill Gibbs, in the light of the records, which are before me, he would come to the same conclusion that I do, and would clearly perceive that, instead of being a precedent and a rule of law to guide us, that case was a mere accident or mistake, a solitary fact of warning and admonition, addressing itself alike to Congress and to the executive officers of the Government.

Upon these views of the case of Churchill Gibbs, the necessary conclusion is, that the opinion of the Attorney General, therein, cannot aid the claim of Bowman.

Thus far, Bowman's case has been discussed by me, as if there existed resolutions of either House assuming to coerce regarding it, and to control the judgment of the Secretary. It is not so. The resolutions in Bowman's case are simply resolutions of reference to the Secretary. To consider them as concluding his con

749

science would not only be to make such resolutions equal to a law, but even superior to it; for if either of the resolutions before me had been solemnly enacted into an act of Congress, it would not be mandatory on him in its legal effect. Neither House undertook to pass declaratory resolutions, mandatory on him; and it is presumable that, if asked to do so, they would have refused. If asked to pass a resolution declaratory of the construction of the general law and mandatory in its legal effects, and if disposed to do so, we may assume that they would have proceeded in the forms of the Constitution, by a joint resolution to be submitted to the President. This they have not done. What they did, was merely to commend to the Secretary the consideration of the favorable opinions of their committees. It is the precise contingency, succinctly, but truly, described by Mr. Ewing, in the case of Gibbs, where he says, in regard to mere opinions of committees, adverse to a previous decision of the competent officers of the Government: "This, in my judgment, affords a sufficient reason for the re-consideration of the case by the (proper) officer of the Government, though not a substantial ground for the admission of the claim." I accept unequivocally, as the sound law of the question, this declaration of Mr. Ewing.

I think, then, that the opinions, expressed in Bowman's case by the committees of the two Houses, and the consequent action of those bodies therein, require of you to re-consider carefully, and in the spirit of the most respectful deference to those opinions, the claim of Bowman, in all its parts and relations; but, that if, upon such candid and full reconsideration of the case, you come again to the conscientious conclusion that it is not within the provisions of the general law, then your official duty imperatively demands that you adhere to your former decision. That, in my judgment, is the only view of the subject, compatible with the Constitution, or with genuine respect for the two Houses. If Congress shall afterwards, on its own reconsideration of the case, think otherwise, it will signify that conclusion in the constitutional form of a law for the relief of Bowman.

I am, very respectfully,

ING.

C. CUSHING.

[6.]

In the case of Lieut. Brownell, of the navy, claiming a pension for disability incurred in the line of duty, the Attorney General maintains and shows: 1. That a naval officer, seaman, or marine, who, in the line of duty, is disabled from sea service, and accepts lower service, may receive a pension sufficient to make a sum, with his reduced service pay, equal to what he had received as his lowest duty pay. 2. But, that if the disability of such officer, seaman, or marine, be not sufficient to prevent his promotion and receiving the full pay of his rank, whether in active service, waiting orders, or on furlough, he shall not receive a pension for such inferior disability, which opposes no impediment to his service or his emoluments.

ATTORNEY GENERAL'S OFFICE, 14th September, 1854.

Hon. ROBERT MCCLELLAND, Secretary of the Interior.

SIR: Your communication of the 7th of April last referred to me the claim of Lt. Brownell, of the navy.

It appears from the papers in the case, that Mr. Brownell acted as a sailing master on board of the Lawrence, under Commodore Perry, in 1813, and received injury, but not such as to bring his case within the general provisions of law. Thereupon he applied to Congress for special legislation in his behalf; and a private act was passed in 1842, giving him the pension of his grade, $10 per month, from 1827 to 1840: the provision being that he should be "placed on the roll of navy pensioners at a certain rate, for a disability incurred by him while in the discharge of his duty as a master on board the Lawrence." (6 Stat. at Large, p. 869.)

Subsequently, in 1847, Mr. Brownell obtained from Congress another special provision in the premises, as follows:

"Be it enacted, &c., That the name of Thomas Brownell be placed upon the roll of navy pensioners, and that he be paid ten dollars a month, commencing on the first day of October, eighteen hundred and forty, for disability incurred by him while in the discharge of his duty as master on board the Lawrence, &c., the payment of said pension to be subject to the provisions of the second section of an act passed August 16th, 1841, entitled 'An act for the payment of navy pensions.' (9 Stat. at Large, p. 684.)

"

It should be observed, as explaining the occasion of this proviso, that Mr. Brownell had also received promotion to the rank of lieutenant, which he now holds.

It does not clearly appear, from the papers before me, what the precise injury sustained by Mr. Brownell was; the whole case, however, shows that the disability was not comprehended in any general rule of classification; the special act in his favor treats it as half disability only, in giving to him no more than halfpension; and the injury, instead of being such as to induce him to accept lower service or civil service, did not prevent his seeking and obtaining the appointment of lieutenant, and receiving the pay of his grade, as he may have been on duty, or waiting orders, or otherwise, according to the exigencies of the service, like other lieutenants of the navy.

The second section of the act of 1841 above referred to, is in these words:

"No officer, seaman, or marine, entitled to a pension from the navy fund, who receives pay from the public treasury, shall receive more from the same fund, than is sufficient to make the whole amount received from both the above named sources equal to the pay fixed by law for the grade to which the officer, seaman, or marine may belong as an officer in the services in which he

may be engaged during the year, so that no officer shall receive pay at the same time, both as a pensioner and an officer in service." (5 Stat. at Large, p. 440.)

The idea contained in this act re-appears in other acts of Congress. Thus, the act of April 30th, 1844, declares that "no person in the army, navy, or marine corps shall be allowed to draw both a pension as an invalid and the pay of his rank or station in the service, unless the alleged disability for which the pension was granted be such as to have occasioned his employment in a lower grade, or in some civil branch of the service." (5 Stat. at Large, p. 657.) And the act of August 11th, 1848, while declaring that the act of 1844 shall not be so construed as to exclude officers, seamen or marines from their pensions when disabled from sea-service, adds: "Provided that the whole amount received by the pensioner, including pay for his services and pension, shall not exceed his lowest duty pay." (9 Stat. at Large, p. 283.)

Here, in all these acts, is a consistent and intelligent thought, namely, a pension for disability incurred, whether total or partial; but, if that disability be not incompatible with service, then exclusion of pension in cumulation of pay.

It is not necessary to justify this thought. It may suffice for the expositor of a law to state what the law is. But the thought is a reasonable one, it assuming that full justice will be done to the disabled officer, if he continue to receive the same rate of pecuniary allowance, and no more, as though he had never been subject to disability.

In further explanation of which, it may be pertinent to note the relation of the subject to the changes of the rates of pay in the

navy.

The "act for the more equitable administration of the navy pension fund," approved March 3rd, 1847, provided, among other things, that the pension granted, or to be granted, to officers, seamen, or marines, disabled in the line of their duty, shall be considered to commence from the time of their being disabled, the amount to be regulated "according to the pay of the navy as it existed on the 1st day of January, 1835."-(5 Stat. at Large, p. 180.)

The object of this provision was to prevent any question of the rate of pensions being changed with the change of the rate of pay in the navy, enacted by the act of March 3rd, 1835, (4 Stat. at Large, p. 755.) That is, the pensions were to continue on the footing of their primitive rate, as fixed with reference to the rate of pay when the navy pension fund was established.

There was change also in the designations of the pay; for, under the act of March 3rd, 1835, three designations of pay exist; as, for lieutenants: commanding, $1,800; on other duty, $1,500; waiting orders, $1,200; whereas, by the old law, it was: when under orders for actual service, so much; when not under

orders, but waiting orders, on leave of absence, or on furlough, "no more than half their monthly pay."-(2 Stat. at Large, p. 390.)

These considerations are material to the right understanding of the intendment of Congress in its various later enactments regarding the navy pension fund.

Such is the language of the statutes; and we come now to the legal question raised by Lieut. Brownell.

His right of pension is, by the special act in his favor, expressly made subject to the condition of the act of 1841. That condition is, that "no officer shall receive pay at the same time both as a pensioner and an officer in service."

This provision is so plain, so clear, so definite, so precise, that, until instructed by the ingenious subtleties of self-interest, one is prone to wonder how any question of law can arise upon it.

But Mr. Brownell alleges that the words "an officer in service," must be construed to signify an officer on duty pay, and that an officer waiting orders, or on furlough, is not an officer in service; and claims to have the pension cumulated upon his pay as lieutenant, at all times when he is not on duty pay.

This construction is contrary to the natural sense of the words of the law.

It is contrary to their established technical signification.

It is contradicted by the general tenor of acts in pari materia, and the ascertained spirit of the statutes changing or supplying the navy pension fund.

It is contradicted by two opinions of Mr. Attorney General Clifford, one of the 24th May, 1847, and another of the 2nd of June, 1847. To be sure, in the latter of these opinions, Mr. Clifford recognized the fact, as a fact merely, that Mr. Badger, while Secretary of the Navy, had held that the exception applied only to duty pay; but this fact did not change the meaning of the law, or the reconsidered view of it as entertained, from the beginning to the end, by Mr. Clifford.

The assumed equivocation is in the phrase "an officer in service," which the construction of Lieut. Brownell alters into "an officer in active service." There is nothing in the reason or sense of the thing to justify this interpolation of the word "active" before the word "service."

And this construction forgets to consider that the proviso of the act of 1841 consists of two members, which are cumulative provisions, each of which explains the other; or, to speak more exactly, the second member is connected with the first in suchwise as to stand as its legal effect, and they are complementary one to the other. Now, it is notable, that in each of these complementary or cumulative members of the proviso, the debatable substantive occurs, but in different senses.

Let us recur to the proviso. It runs thus: "No officer, enti