tion to the claim to half pay made by the representatives of William Vawters, and other officers of the Virginia line in the revolutionary war.

By the resolve of Congress of March 22, 1783, the option was given to such officers as should become entitled to half pay for life, under the resolution of 1780, to retain their title to their half pay, or to receive, in lieu of it, five years' full pay, on the terms and conditions mentioned in the resolve. The five years' full pay was offered as an equivalent for the half pay promised, and as a substitute for it. It might prove more or less valuable than the half pay, according to the duration of the officer's life. And it depended on the officers themselves to adhere to the original contract, or to accept the commutation proposed, as they might deem to be most for their advantage.

In the act of July 5, 1832, Congress seem to have legislated on the principle that an officer who had once made his election to accept the substitute, was bound by it; and that the United States were under no obligation to give him his half pay, although it should eventually happen that the substitute accepted proved to be of less value.

I understand, from your statement, that the greater number of the judgments against the State of Virginia, in the suits instituted by the officers, have been rendered for the commutation proposed by Congress, and not for the half pay. As Virginia had promised the half pay for life, but had never agreed to become liable for the substitute offered by the United States, the judgments against her for the commutation must, presume, have been matters of compromise between her and the officers. In a contested suit, the only judgment which could have been rendered in favor of the officer, must have been on the promise made by the State, in her resolve of 1779; and that promise was for half pay, and not for such commutation as Congress should propose to give in lieu of it.

The 3d section of the act of Congress of July 5, 1832, excepts from the benefit of its provisions the claims which had been paid, "or prosecuted to judgment against the State of Virginia." The officers, therefore, who had taken judgment for the commutation, are obliged to abide by the judgments they have obtained, and cannot claim to have their accounts settled on the principles of the half pay cases decided in the Virginia courts. The only ground upon which they could have been excluded is the one above stated: that is to say, that they had made their election to accept the substitute, and were bound by it.

There is no reason for supposing that Congress meant to discriminate between those who accepted the commutation without first obtaining judgments. The same principle obviously applies to both cases; and as the officers who have obtained judgments for the commutation are, by the plain terms of the law, embraced in the exception, and excluded from the benefit of the provision contained in the 3d section, it seems to follow that the words "which had not been paid" must receive a construction equally extensive; and that those who have accepted the commutation without prosecuting their claims to judgment are equally within the exception, and equally excluded from the benefit of the provis ions contained in that section in favor of those who have not been paid, and have not prosecuted their claims to judgment against the State. In both classes of cases Congress appear to have acted on the principle that the party had made his election to take the substitute, and that the United States were thereby absolved from the performance of the original contract.

In this view of the act of July 5, 1832, it is not material to inquire whether, according to the true construction of the resolve of Virginia of 1779, the commutation can be regarded as tantamount or not to the half pay promised. Whatever may be the obligations of Virginia, Congress have only authorized the half pay to be given where the officer had not indicated by some act of his own that he had elected to accept the substitute offered.

These principles embrace the case of Lieutenant Vawters; and as the commutation has beer received by his representatives, I think they are not, under the law of July 5, 1832, entitled now to demand the half pay. R. B. TANEY.

To the SECRETARY OF THE TREASURY.

Executors or administrators are legal representatives in contemplation of the act of the 5th July, 1832, providing for the payment of revolutionary claims of deceased officers of the State of Virginia, which they are entitled to receive without the assent of the heirs; but the Department may prescribé such regulations as are necessary to determine the authenticity of the claims presented.

ATTORNEY GENERAL'S OFFICE, March 4, 1836.

SIR: In your communication of the 18th ultimo, after referring to the various provisions of the act of Congress of the 5th of July, 1832, entited "An act to provide for liquidating and paying certain claims of the State of Virginia," you propose for my opinion the two following questions, arising out of those provisions, viz:

1. Is an executor or administrator the legal representative in the contemplation of this act?

2. If he is, can the Executive, by regulation, require the assent of the heirs to the payment to him of the amount ascertained to be due?

In answer to the first of these questions, I have the honor to state, that, in my opinion, the executors or administrators, (as the case may be,) duly constituted, are the legal representatives contemplated by the act of Congress, of all deceased officers included in the act,

This construction is not only called for by the words used in the act of Congress, but is agreeable to the act of Assembly of Virginia, referred to therein, under which the judgments assumed by the United States were obtained; the suits in which those judgments were recovered having been prosecuted, in the case of deceased officers, as I learn from the Virginia reports and other authentic sources of information, in the names of their executors or administrators.

The second question must, in my opinion, be answered in the negative. The act of Congress has not made the assent of the heirs, or next of kin, a condition precedent. In the exercise of a sound discretion, the Executive may, by regulation, prescribe such forms, and create such guards, as are necessary to determine the authenticity of the claims presented under the law, and to prevent frauds on the Treasury; but when the "legal representatives" are once satisfactorily ascertained, they are entitled, under the positive provisions of the law, to the moneys directed to be paid to them. To the SECRETARY OF WAR.

B. F. BUTLER.

"Commutation for five years' full pay are not included in and provided for by the 3d section of the act of 1832. By that section, the Secretary of the Treasury is only required to adjust and settle the claims of certain regiments and corps for half pay for life which had not been prosecuted to judgment against the State of Virginia, and for which the State is bound, on the principles decided in the Supreme Court of that State in other cases. The question, moreover, is regarded as adjudicated, and therefore not properly open for examination, except by Congress."

ATTORNEY GENERAL'S OFFICE, April 8, 1844.

SIR: I had the honor, on the 18th day of January last, to receive a communication from your predecessor in relation to a claim preferred by Mr. Green, the agent of the State of Virginia, against the United States, for the sum of $58,148 66 paid by that commonwealth to the representatives of George Walls and others, for commutation claims for revolutionary services, the answer to which has been delayed by my necessary engagements in the Supreme Court and other engrossing duties, which left me until recently without the leisure required for the satisfactory examination of the subject to which it refers.

The question submitted to me is, whether, under the 3d section of the act of Congress of the 5th July, 1832, the liability of the United States is for the "half pay for life to the persons therein named, or whether it extends to the commutation for five years' full pay, they having died within ten years after the close of the revolutionary war?" The first section of the act of Congress referred to provided for refunding to the State of Virginia the sum of $139,543 66 for payments made by said State to the officers commanding in the Virginia line in the war of the revolution on account of half pay for life promised the officers aforesaid by that commonwealth. The 2d section directed to be paid to the State of Virginia $241,345, to be applied to the payment of five classes of judgments that had been recovered against said State, and were then unsatisfied. The 3d section, upon which the question under consideration arises, is in the following terms: "That the Secretary of the Treasury be, and he is hereby, directed and required to adjust and settle those claims for half pay of the aforesaid regiments and corps which have not been paid or prosecuted to judgments against the State of Virginia, and for which said State would be bound on the principles of the half pay cases already decided in the Supreme Court of Appeals of said State; which several sums of money herein directed to be settled or paid, shall be paid out of any money in the treasury not otherwise appropriated by law." On the part of Virginia, it is insisted that by the true interpretation of this section, the claims now preferred are embraced by the act of Congress, whilst, by the decision of the late Secretary of War, it is affirmed that it extends only to half pay claims, and not to cases of commutation for five years' full pay. The question is not altogether free from difficulty; and if it were an open one, I should feel myself called on, in any opinion I might express, to give a very full and particular statement of the reasoning by which that opinion was controlled. But in view of the uniform action of the several Departments of the Government, founded upon an interpretation placed on the law by an eminent jurist then at the head of the Treasury Department, immediately after its passage, and fortified by the subsequent decisions of a Secretary of the Treasury, and an Attorney General no

less distinguished, I regard the matter as having passed into judgment; and the construction of the law to which the late Secretary of War has conformed his decision, so far as the executive departments of the government are concerned, as fixed, and as properly subject to modifications or change by the power of Congress alone.

I am of opinion, therefore, that the claim in question ought not to be paid without an act of Congress to authorize it. JNO. NELSON.

Hon. WILLIAM WILKINS, Secretary of War.

"The claim made in behalf of Virginia by Thomas Green, Esq., agent of that State, is just, and falls within the provisions of the 2d section of the act of 1832; and the balance of the appropriations made by that act would be applicable to the payment of it, were it not that it has been carried to the surplus fund, from which it cannot be withdrawn except by act of Congress."

ATTORNEY GENERAL'S OFFICE, April 8, 1844.

SIR: The Hon. James M. Porter, your predecessor in the Department of War, by letter dated the 6th of February last, submitted for my examination the accompanying application of Thomas Green, Esq., agent of the State of Virginia, (which, with the papers transmitted, numbered from 1 to 8, inclusive is herewith returned,) upon which he desired my opinion-1st, whether the claim thereby presented is one for which the government of the United States is liable, under the act of Congress of the 5th July, 1832? and, 2d, whether, if such liability exists, it will not be necessary for Congress to make an appropriation before it can be paid, the unexpended balance appropriated by the second section of that act having been carried to the surplus fund?

Upon the first question, I am clearly of opinion that the claim is just, and falls within the provisions of the 2d section of the act of 1832; that the exceptions taken to it by the Commissioner of Pensions cannot be sustained, and that the balance of $9,414 66 of the appropriations made by that act, if now within the control of the department, would be applicable to the payment of the demand. But the difficulty suggested by the second question is, I think, insuperable. The balance above indicated was, under the circumstances of the case, properly carried to the surplus fund, from which it can be withdrawn by the appropriating power of Congress alone. Hon. WILLIAM WILKINS, Secretary of War.

JNO. NELSON.

"All declarations for pensions made prior to the act of 30th of April, 1844, restricting widows to only such part of the five years' pension as their husbands did not receive, are free from the influence of the restriction. From its passage to January 23, 1845, they were subject to the restriction; but subsequently to the latter date they were again free from it. Widows who prepared their declarations prior to 30th April, 1844, and filed them before 23d January, 1845, from whom any part was withheld on account of payment to their husbands, are entitled to the whole amount."

ATTORNEY GENERAL'S OFFICE, May 9, 1845.

SIR: Your communication of the 11th ultimo was duly received, with the statement of the Commissioner of Pensions and accompanying papers. I have been prevented from giving the subject an earlier attention by the pressure of other engagements. The question presented is so involved in its terms that I have had some difficulty in comprehending its precise purport. But I understand it to relate to the extent to which the act of 20th February, 1845, operates on the applications of widows of revolutionary officers or soldiers for the benefit of the pension acts of 1836 and of 1838. At the date of the appropriation act of 30th April, 1844, it was the settled construction of existing laws that widows entitled to the benefit of these pension laws should have five years' pension from the 4th day of March, 1836, notwithstanding their husbands may have enjoyed the benefit of the act of 1832 to a period later than the 4th March, 1836. The effect of this construction was to give the same amount of pension to the husband while living, and the widow, after his death, for so much time as he had survived beyond that date. The restriction of the act of April, 1844, arrested this practice, and deducted from the widow's pension so much as was paid to the husband after the 4th of March, 1836. The joint resolution of 23d January, 1845, suspended the operation of this restriction, and declared that its provisions should not affect a widow's claim, whose application for a pension, or arrear of pension, at the passage of that resolution, had been made and filed in the Pension Office, awaiting the decision of the Commissioner of Pensions thereon. The term "arrear of pension" must mean so much of pension as had been withheld for the period after the 4th March, 1836, in which the husband had been paid. The act of 20th February, 1845, supersedes the act of 30th April, 1844, and settles, definitively, that from its passage a pension shall not be granted to any widow for or during any part or portion of the time her husband may have received one, whose declaration therefor shall not have been made on or before the 30th day of April, 1844, and shall not have been received at the Pension Office on or before the 23d January,

1845. All declarations for pensions made prior to the restriction of 30th April, 1844, are free from the influence of that restriction. Up to its date, applicants had a right to five years' pension from 4th March, 1836; from its passage they had no such right until 23d January, 1845, when its influence on their cases was suspended. The reservation in the act of 20th February, 1845, was therefore made in favor of all declarations which were prepared prior to the restrictive clause and filed in the Pension Office prior to the 23d January, 1845, and the intent was to secure to the widows all the benefits which they were entitled to prior to the 23d January, to the same extent as if the act of 30th April, 1844, had never passed, with a single condition that they had prepared and filed their declarations within the periods mentioned in the act of 20th February, 1845. Without this, those widows whose cases were acted on before the 30th of April, 1844, would be paid by one rule, and those whose applications were prepared, but not acted on. would be paid by another. The term pension includes the claim for the less amount, which had been withheld by reason of payment for part of the five years to the husband. And the act of 20th February must be construed to carry that intention into effect. If a widow had prepared her declaration for a pension prior to the 30th of April, 1844, and filed it before the 23d January, 1845, praying for a five years' pension, and any part had been withheld on account of payment to her husband, her case is within the reservation of the act, and she is entitled to receive the full amount, as if the restriction had not been imposed.

Hon. WILLIAM L. MARCY, Secretary of War.

J. Y. MASON.

"The representatives of a lieutenant in a Virginia State regiment, afterwards transferred to the continental establishment, who in his lifetime obtained a judgment against said State for commutation of five years' full pay in lieu of half pay for life, and received payment thereof in 1792, are not entitled, under existing laws, to be allowed a claim for further compensation for services rendered by their ancestor. This claim was considered and rejected by the Department in 1833, on the ground that it had been paid. It is not provided for in the 3d section of the act of 1832, and cannot be allowed except under special authority from Congress."

ATTORNEY GENERAL'S OFFICE, June 2, 1847.

SIR: After considerable delay—arising, in part, however, at the instance of the agent of the claimants-I proceed to state my views upon the legal questions presented for my consideration in your letter of the 14th ultimo, enclosing the papers relating to the claim of the representatives of Churchill Gibbs.

It appears by the report of the Commissioner of Pensions, that Churchill Gibbs was a lieutenant in the first Virginia State regiment, commanded by Col. George Gibson, and that he served in that capacity to the close of the revolutionary war. The papers also show, that the State of Virginia, by an act of her Assembly, passed in May, 1779, promised half pay to certain officers therein described, who should serve until the end of the war, to commence from the determination of their command or service.

It is proper to remark, that the documents transmitted, while they show that Lieut. Gibbs was in the service, also disclose the following important facts:

The General Assembly of Virginia, in November, 1781, passed an act to adjust and "regulate the pay and accounts of the officers and soldiers of the Virginia line on the Continental establishment, and also of the officers, soldiers, sailors, and marines, in the service of this State, and for other purposes," in which, among other things, it is provided, "and the Executive is hereby empowered and required to set on foot proper inquiries to discriminate such officers, as by unworthy conduct, or by any means whatever, be thought unfit to be considered as entitled to half pay."

In pursuance of this authority, a board of officers was convened in February, 1782, and the result of their proceedings show that Lieutenant Gibbs was included in the list of discriminations for the following reasons: "Had the command of a guard at Richmond, which he quitted without leave, and went to Petersburg, where he was taken by the enemy."

It further appears that, in 1831, the State of Virginia, by her Commissioner, presented a memorial to Congress, setting forth certain claims of the State for payments made, and liabilities incurred, on account of the services of her citizens in the revolutionary war. In this memorial it is alleged, that "Virginia has paid claims of revolutionary officers since the settlement of the United States, to the amount of $139,543 66. Judg ments have been rendered against the Commonwealth on these claims to the amount of $241,354. The claims now pending against the Commonwealth, including those reported by the board of officers, which are not yet prosecuted, are estimated at $300,600, which are supposed to rest on the same principle with others on which judgments have been rendered."

It also contains a special statement with respect to the regiment in which Lieutenant Gibbs served, from which I make the following extract:

"The regiment commanded by Col. George Gibson, generally known as the First Virginia Regiment, was transferred to the Continental service in October, 1777, in place of the Ninth Virginia Continental Regiment, which was captured at the battle of Germantown. Gibson's regiment was actually in the service of the United States, when it was thus transferred by law, though it had been raised for the particular defence of the State. This regiment continued in the Continental service throughout the war. It has been recognised as a Continental regiment, both by Congress and the other Departments of the Government, and its surviving officers are now receiving pay from the United States, under the provisions of the act of Congress of the 15th May, 1828. Payments have been made, by Virginia, to officers, and the representatives of officers belonging to this regiment, to the amount of about $42,000. Judgments have been rendered on similar claims against the Commonwealth to the amount of about $27,000; and those claims of the officers of this regiment, which are not yet prosecuted, but for which the State is liable, on the principles of these judgments, are estimated at $31,200."

The name of Churchill Gibbs is included in the list of payments under judgment, made by Virginia, appended to the memorial under the signature of the Auditor of the Commonwealth, and forms a part of the gross sum of $139,543 66.

The difficulty, therefore, that stands in the way of the right of his representatives to demand remuneration for the services of their ancestor, at the present time, even admitting the service to have been faithfully performed, arises from the fact, which is beyond dispute, that, in his lifetime, Lieutenant Gibbs had prosecuted his claim successfully against the State of Virginia, and recovered a judgment for commutation of five years' full pay, in lieu of half pay for life, and that the amount thus liquidated, including interest, was paid to him, and the judgment satisfied 7th May, 1792, more than forty years before the passage of the act of Congress of the 5th July, 1832, under which the claim is now preferred.

No reasonable doubt can be entertained that the memorial of Virginia, and the facts therein set forth, induced Congress to pass the act of the 5th July, 1832. It is entitled, "An act to provide for liquidating and paying certain claims of the State of Virginia," 4 Stat. at Large, 563. The first section directs "that the proper accounting officers of the Treasurer do liquidate and pay the accounts of the Commonwealth of Virginia against the United States, for payments to the officers commanding in the Virginia line in the war of the Revolution, on account of half pay for life, promised the officers aforesaid by that Commonwealth," and appropriates the exact sum which her Commissioner had claimed in his memorial under that head, including, it should be remembered, the amount of the judgment for commutation and interest on the same, allowed to the ancestor of the present claimants.

The second section requires and directs the Secretary of the Treasury to pay the amount of certain judgments remaining unsatisfied, which had been rendered against the said State on account of the promise aforesaid, not exceeding in the whole the sum of $241,345. The claimants rely upon the third section, and insist that it authorizes the allowance and payment of their claim, deducting the amount which their ancestor received from the State of Virginia. It provides, "That the Secretary of the Treasury be, and he is hereby, directed and required to adjust and settle those claims for half pay of the officers of the aforesaid regiments and corps which have not been paid or prosecuted to judgment against the State of Virginia, and for which said State would be bound, on the principles of the half pay cases already decided in the Supreme Court of Appeals of said State, which several sums of money herein directed to be settled or paid shall be paid out of any money in the Treasury not otherwise appropriated by law."

On the 28th July, 1832, the Treasury Department adopted inter alia the following regulations for the settlement of claims under the third section: "The settlement to be confined to those cases of which a list has been furnished by the Auditor of the State of Virginia as containing the names of those officers reported by the board of officers in 1782 and 1784, (including part of Col. Crockett's regiment,) whose claims for half pay have not been satisfied nor prosecuted in court, and of those cases in which judgments have been obtained against, but not paid by, the State of Virginia." In this connexion it is proper to remark, that in May, 1833, when this claim was first presented for payment, during the period that the settlement of these claims was devolved on the Treasury, it was rejected by the then Secretary, Mr. McLane, on the ground that it had been prosecuted to judgment by Lieut. Gibbs, and that the judgment, which was for commutation, had been paid with interest 7th May, 1792. That decision, it seems, was acquiesced in at the time, and does not appear to have been made the subject of controversy until the present year. A few years since a petition was presented to the House of Representatives on behalf of Mr. Gibbs, praying that he be paid commutation of five years' full pay from the United States, because the regiment to which he be