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tled to a pension from the navy pension 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 may belong, as an officer in the services in which he may be engaged during the year.” Here is obvious distinction of varieties in the nature of “the services” performable, by a given officer, during the year. After which, the proviso proceeds: “ So that no officer shall receive pay, at the same time, both as a pensioner and an officer in service." Now, it is impossible to give coherence and compatibility of sense to these two members of the proviso without rejecting the hypothesis of construction assumed by Lieut. Brownell.
There is another material class of considerations.
The act for the special benefit of Lt. Brownell, passed in 1847, is careful to re-enact, for his case, the proviso of 1841. But does it repeal the then existing universal prohibition of the act of 1844 ? By no means; no more than it repeals the detailed general provisions of law establishing the Navy Pension Fund, such as the jurisdiction to adjudicate in the premises, which the laws confer on particular accounting officers of the treasury.
Now, the prohibition of the act of 1844 is explicit and peremptory beyond all equivocation or cavil. The act declares, as we have seen, 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," except in a specified case not pertinent to the present inquiry. Here is a permanent, standing law, applicable in express terms to all persons, whether of the army, navy or marine corps. The Fourth Auditor states that this act is uniformly construed, and it must of necessity be construed, as suspending, with the irrelevant exception above referred to, the pension of every invalid, while receiving any rate of pay in the army, navy, or marine corps. “No person in the navy," says the law. Is not Lt. Brownell a person in the navy? Assuredly. This lieutenant is placed on the pension roll according to his original grade, by a special act of legislative grace, instead of by the general operation of law; but he is not the less a lieutenant, subject to all the ordinary provisions of law, applicable to his official condition, in common with his fellow lieutenants, and subject, as an officer, on the pension rolls, to the general provisions of law in that relation, just as much as he is to any other statute whatever, affecting the rights or duties of an officer of the navy; and he ought not to imagine it to be possible that, by any construction, forced or unforced, of a special act, he is to be placed above any and every other officer of the army, navy or marine corps.
For, as rightly intimated by the Second Comptroller, to admit the unnatural construction which Lt. Brownell ascribes to the
icers of ththin the gener: 4 long line
law, would be to impute to Congress an act of extraordinary and most incomprehensible personal partiality to him, and of the most palpably monstrous relative injustice to every other officer of the army, navy and marine corps.
The case, in that relation, stands thus: A long line of gallant men, who came clearly within the general provisions of law for the benefit of officers of the navy incurring disability in the discharge of their duty, have been recognized accordingly as entitled to a share of the navy pension fund. Not one of these officers, however exalted his personal merits, however severe the wounds he may have received or the maladies he may have contracted in service, can be allowed to draw both a pension as an invalid and the pay of his rank or station in the service, unless the disability be such as to compel him to accept employment in a lower grade, or in some civil branch of the service. Mr. Brownell did not come within the general law: he was added to the roll by an act of exceptional favor on the part of Congress. Did Congress, while granting to him this favor, design furthermore to extend to him the most unparalleled privilege of being exempted from all the general conditions of service and pay, which attach to every other pensioned officer of the army, navy and marine corps ? That his name should stand on the pension roll, a solitary exception of privilege among all the names which honor it? And for what conceivable reason should any such supernal right, any such invidious preference, have been arrogated for him over all other officers in the service? It was not so done, nor was it so intended. It would be utterly impossible to believe that Congress intended this, even though it were explicitly enacted in terms the most unequivocal: it would be necessary, in such case, for the vindication of the honor of the Government, to suppose that the law had received the votes of the two houses and the approbation of the President through mere inadvertence, or under the influence of some strange hallucination,
But no such painful necessity exists in the present case. There is not, in my opinion, the least shadow, or even penumbra, of legal right in the claim of Lt. Brownell, and it stands in flagrant conflict with all justice and equity. By the express terms of the special act for his benefit, and its manifest relation to other laws in pari materia, he is placed on the pension roll, not as a privileged person, superior to all justice and law, to have, he alone, at the same time, pension and pay while on furlough or waiting orders : on the contrary, he is, in that respect, to take his lot in common with all other officers of the army, navy and marine corps.
I am, very respectfully,
III. REGULATIONS, FORMS, AND DECISIONS RELATIVE TO BOUNTY LANDS
AND PENSIONS, SINCE THE PUBLICATION OF THE FIRST EDITION OF THIS WORK.
Rules and regulations for issuing land scrip under an act entitled “An act making - further provisions for the satisfaction of Virginia land warrants," approved August 31, 1852.
GENERAL LAND OFFICE, December 20th, 1852. 1. The act of 31st August, 1852, above mentioned, authorizes the Secretary of the Interior to “issue land scrip in favor of the present proprietors of any” “unsatisfied outstanding military land warrants, or parts of warrants issued or allowed prior to the 1st day of March, 1852, by the proper authorities of the Commonwealth of Virginia ;” and consequently embraces the 10 per centum deducted from the warrants filed under the act of March 3d, 1835; the warrants or parts of warrants located in Ohio, which conflict with previous valid locations; and also those located in Kentucky, on which that State refused to issue patents.
2. The Secretary of the Interior having charged this office with the execution of this law, it is required that all warrants or parts of warrants embraced thereby shall be filed in this office.
The cases will be taken up and examined in the order in which they have been or may be filed in this office; and where the evidence is satisfactory, scrip will be issued; where it is deficient, in whole or in part, the parties will be advised, and the case suzpended till the deficiency is supplied ; or, if it is ascertained that it was not fairly and justly issued, it will be rejected.
3. All warrants issued for services in the State or Continental line, or State navy, prior to June 1st, 1792, when the State of Kentucky was admitted into the Union, should be accompanied by a certificate under seal from the register of the Kentucky land office, stating that such warrants have not been patented in that State.
Continental line warrants issued since that period, and prior to January 1st, 1852, should be accompanied by a certificate from the surveyor of the Virginia Military District in Ohio, stating that no location or survey has been made of such warrants; or if a location and survey, or either, has been made, when, the amount, in whose favor, &c.
4. In all cases where a warrant has been lost, mislaid, or destroyed, the present proprietor must file a duplicate copy thereof, with a certificate from the register, that the original has not been surrendered in exchange for any other warrant or warrants. After the warrant has been filed with proofs showing the loss of the original, the present proprietor must give three months' public notice in a newspaper, published near the domicil of the party in interest, and another in the city of Washington, de
scribing the warrants, service rendered, amount, date, and number, stating the loss of the original, and the intention of applying to this office for scrip for the same. The warrants will remain three months in this office after the expiration of such notice, and, if not contested at that time, scrip will be issued on them.
5. Where warrants, having been partly satisfied by patent from the State of Kentucky, remain on file in the office of the Register of the Land Office of that State, and therefore cannot be produced, certified copies of them from the Register of the Land Office at Richmond must be produced, and be accompanied by a certificate from the Register at Frankfort, Kentucky, describing the warrant, survey, &c.
6. In view of the provisions of the act of Congress, approved July 29, 1846, all powers of attorney executed prior to the passage of this act, which authorizes the sale of scrip, will not be recognized; and all assignments of warrants made since the passage of this law, (August 31, 1852,) must be in the presence of two witnesses, acknowledged before a justice of the peace, who must certify to the identity of the assignor, and whose official character must be certified to, under seal, by the clerk of the court.
7. The scrip will be issued in pieces or certificates of eighty acres, or one hundred dollars each, except for fractions to which claimants may be entitled after deducting the eighty-acre certificates.
.“When there are more persons than one interested in the same warrant,” scrip will issue to each person "for his or her proportion of the warrant,” if desired.
8. When scrip is claimed, located, or sold by the guardian of an infant,” or the “husband of a feme covert,” the evidence of their being such guardian or husband fully authenticated, must be produced.
9. This scrip is “assignable by endorsement,” attested by two witnesses," in the following manner, upon the back of the certificate:
For value received (I, or we, as the case may be,) the present proprietor of the within certificate of scrip, do hereby sell and assign the same to and his heirs and assigns forever. Witness my hand and seal this the day of —
185 . Attest:
E. F. (SEAL.] A. B., C. D.
10. This scrip is receivable in payment of any lands owned by the United States, subject to sale at private entry," except such lands as are claimed by pre-emption, or are settled upon and cultivated, and can be applied at the rate of $1 25 per acre, in the same manner as money, in all cases where the tract applied for contains the area specified in the scrip, or more; where it contains less, the excess of the scrip cannot be refunded in money,
but may be denoted in the relinquishment as applicable to any
JOHN WILSON, Commissioner.
ALEX. H. H. STUART.
[ 2. ] [ Regulations and forms for widows and orphans' pensions, under the act of February
PENSION OFFICE, March 25, 1853. The following regulations, approved by the Secretary of the Interior, have been adopted for carrying into effect the provisions of the act of 3d February, 1853, entitled "An act to continue half-pay to certain widows and orphans:"
1. Under the provisions of the 1st section of this act, all widows and orphans who were granted and allowed five years' half-pay by the provisions of the act of 4th July, 1836, extended by the act of 21st July, 1848, and further extended by the act of 22d February, 1849, are entitled to a continuance of said half pay for a further period of five years, to commence at the expiration of the half-pay provided for by the aforesaid acts, under the restrictions and limitations in the said acts specified.
To obtain these benefits, the applicant must make a declaration, under oath, before some magistrate in the county where the declarant resides, or before some other person qualified to administer oaths, (which declaration must be duly authenticated,) according to the form appended hereto, marked “A.”
The official character of the magistrate must be duiy certified by the proper officer under his seal of office, and the magistrate, or other person, (qualified to administer oaths,) must certify that the declarant is personally known to him.
It will be observed, that in the event of the death or marriage of the widow, and where the application is made on behalf of a child or children under sixteen years of age, the 'half-pay is not continued after such child or children shall have passed the age of sixteen.
2. Under the last proviso of the 1st section, the widows of officers, non-commissioned officers, musicians, and privates of the regulars, militia, and volunteers of the war of 1812, who were not entitled by the provisions of the act of 16th April, 1816, and also in the various Indian wars since 1790, who remained to the date of their death in the service of the United States, or who having received an honorable discharge, and who have died, since their return to their usual place of residence, of wounds received, or from disease contracted, while in the line of their duty, are enti