the present day, has not entirely passed away. Witness the appropriation for privateer pensioners in the deficiency bill of the last session. This want of uniformity in making pension appropriations in general, for the fiscal year, is sufficiently noted at page 134, sequel; therefore, there need be no more said respecting that particular here. But there are two or three irregularities in the initiatives of appropriations for pensions that deserve a passing notice; one of which is alluded to at the end of the aforesaid note. We purpose noticing that more particularly, after making a remark respecting the others-which consist in making pension provisions, and likewise bounty land provisions, in different ratios, and sometimes omitting any provision for the one or for the other, and at other times providing for neither, in the proper acts for raising new military corps. The irregularities in the ratios of the provisions for pensions actually made, are sufficiently obvious from the terms of the act of the 24th April, 1816, which equalizes invalid pensions, at somewhat increased rates, as there specified; and, it adds: "but the said rates shall not diminish the pension of any person entitled to a higher rate by special provision of law. Also, the act of the 26th July, 1813, gives to one and the same corps, the sea fencibles, a different rate of pension, as invalids of the army, or invalids of the navy, according to the service of either in which they may be disabled-avowing at the same time that the invalids of the army and the invalids of the navy have different rates of pension. For the like diversities in the ratios of bounty lands, the tabular and other statements, under that head, ante, may be consulted. And, in regard to the irregularities manifest in omissions to make provision either for pensions or for bounty lands, and for neither, they are sufficiently specified in the note at page 344, sequel.

But the institution of a different mode of providing for the invalids of the navy from that of the invalids of the army set on foot by the act of April, 30, 1790, "for regulating the military establishment," and consummated in 1790 and 1800, by the establishment of the navy pension fund, followed by the institution of the privateer pension fund in 1812, were the remote causes of the different ratios of pensions for invalids of the two arms of the national defence, and of the subsequent bankruptcy of the two said funds the former, more immediately by means of the improvident act alluded to at the end of the note at page 134, for which that fund afforded the temptation; and the latter, more immediately by means of its own insufficiency for the objects of its establishment. The improvident departure from the customary caution of Congress in making appropriations alluded to in said note, was the act of the 3d March, 1837, (page 267,) alleged to be "for the more equitable administration of the navy pension fund," known by the familiar cognomen of JARVIS' ACT, (as we have before said;) which, although not an appropriation act, in terms, was the initiative, not the cause, of the distribution of about a million and a half from the navy pension fund, among persons having not a shadow of title to it. Though the said act was afterwards denounced, by legislative repeal, in the acts of August 16, 1841, p. 288, and August 23, 1842, p. 289, it had already, forthwith from its date, consummated the bankruptcy of the fund that had been instituted and set apart for other purposes, from which it could not be legally diverted. The only mode left open in the act creating it, for legislative interference in the application of the fund, was, under the pledge of the public faith to supply its deficiencies, should any occur. In the spirit of which pledge, and without any deficiency having occurred, or being then likely to occur, the 3d sect. of the act of March 2d, 1831, ("for the preservation of live oak," &c.) devoted half the penalties and forfeitures that might accrue from the execution of that act to the navy pension fund. The first section of Jarvis' act required to be placed on the pension rolls all persons having husbands or fathers who had died or shall die in the navy, though contrary to the express object of the fund when the death occurred without disability in the line of duty-that fund being instituted especially for the relief of invalids of the navy, and

other subsidiary purposes. [The act of 1799, included widows also; that of 1800, dropped them.-See sec. 8 of both acts.] There are other anomalies in Jarvis' act, such as requiring these so misnamed pensions to commence from the time of the death of the husband or father; and, in the latter case, (of orphans,) to continue until twentyone years of age; while the second section requires that the pensions which had already been granted to invalids, under former acts, shall now run back to the date of disability— in contravention of the practice of the Pension Office, under former laws, restricting them to the time of completing the evidence, and the peremptory inhibition, of the act of May 24, 1828, (page 151, sequel,) restricting the commencement of all pensions to the time of completing the evidence of claim. It would seem, then, on mature reflection, that the disbursements under Jarvis' act, were more clearly in violation of law, than it would be to disburse the funds, that might be estimated for the execution of a treaty, without the ceremony of an appropriation, the objects being fully recognized in the treaty. There are many instances, however, of the disbursements of funds constructively appropriated by acts that should be regarded as initiatives only of what may be called for and required (as in the case of treaties) to be supplied by legal appropriations thereafter. Such instances may be found under the head of indefinite appropriations, in the Work on the Treasury, vol. 2, page 38, to which a reference may be made with advantage for a more thorough development of the subject of indefinite appropriations, among which even this act of March, 3, 1837, seems not to have been recognized at the Treasury as an indefinite appropriation, the fund having been already set apart by the act creating it, which the Secretary of the Navy might draw by requisition, for the purpose of executing any act he might construe to be sufficient authority for his doing so, in conformity to the purposes set forth in said act. Here, then, is the point of responsibility: could the Secretary of the Navy, with all due discretion, make requisitions on the navy pension fund to pay pensions (spurious or real) clearly not within the purview of the act creating it and defining its objects, totally different from those defined in the act in question? Assuredly not. Nor could the Commissioner of Pensions have issued pension certificates with due propriety in such cases without clearly ascertaining the proper appropriation out of which they could be paid in strict conformity to law. Yet the whole disbursement was made without ever raising the question of appropriation, for the advisory opinion of the Attorney General. Possibly with the example of Jarvis' act before our eyes, it might not be an extravagant presumption to suppose the consequences of an act that should assume the title, "for the more equitable administration of pension claims, arrearages of pensions shall be allowed and granted to the heirs of revolutionary officers, soldiers, seamen, and marines, by the Secretary of the Interior, under such regulations as he may adopt, with the approbation of the President, to commence from the conclusion of the revolutionary war, and to continue during the life time of such heirs." It would be the counterpart of Jarvis act on a somewhat larger scale! and it would be carrying out the equitable allowance of arrearages with a vengeance!!

This surmise is surely not too far fetched to come home to the appropriate legislative committees and commend itself to their attention. Moreover, it is hardly to be believed that, without the temptation of the navy pension fund, as fair game, under the plausi ble purpose of a more equitable administration of it, a proposition for an appropriation direct from the Treasury for a million and a half for such a purpose would have met with any other fate than a prompt and summary rejection.

Such are some of the consequences of setting apart particular funds, (which are in the Treasury, nevertheless, whether regarded as indefinite appropriations or not,) all of which are apt to be considered as beyond the sphere and the restraints of the general policy of appropriations from the Treasury!!

Returning from this seeming digression, a further reason to regret this disseverment

of the homogeneous subject of a provision of law for army and navy pensions, as formerly, in the same act, is-that no invidious distinction ought to be made between the worthy patriots in those two institutions for the common object of our national defence, not to speak of the embarrassments that have arisen in the administration of those separate codes of laws in the same office, rendered complicated in the extreme by contrarieties and other causes requiring discriminations between them, which it is often very difficult to bear in mind or to maintain.

But the most galling and afflicting to one of the parties is, the distinction made between the military and naval establishments, which enures altogether to the benefit of the former, and the entire exclusion of the latter, to be found in the bounty land system, from the benefits of which the navy is debarred, from the beginning to the end of the chapter. It is no mitigation of this unjust oversight, to say that the prize system of the acts of 1799 and 1800 was any substitute for bounty lands, or scrip in their stead. For if there was any virtue in the prize system, over and above what the patriotic daring of the naval service in making captures justly entitle them to, (which we opine not,) yet this would be too partial, in the number of possible prizes, to mete out adequate justice to those who shall not be so fortunate as to have opportunities to make captures. Moreover, the injustice commenced years before the institution of the prize system; say as far back as the first act for conferring bounty lands on the military service alone, that of the 16th September, 1776, but three weeks after the naval service had been very properly associated on an equal footing with the army in the pension provisions of the 26th August preceding. Furthermore, the bounty land provisions not only teemed forth on the army throughout the revolution, (as they have done to the present day,) but also in all manner of practicable ways, to Canadian refugees, and, as temptations to deserters from the enemy, &c. &c.: while it never seemed to have crossed the minds of the proper authorities, the rightful guardians of the public service in all its branches, that to the worthies of the navy, bounty land scrip would be an acceptable substitute for the land itself, if there might be any objection to a naval officer or seaman having lands granted to them, least they should be tempted to leave the service to locate them. The scrip would suffice to put them on a footing with the other branch of the service; and that is the point of equitable issue required to be adjusted, to satisfy the demands of justice, and to efface the odious imputation of partiality.

There is a beaming light of hope, however, in a recent fact, in the nature of an approach to a bounty land provision for the whole naval service proper and its auxiliaries, wherein bounty land has been awarded to the marines engaged in the Mexican war by the joint resolution of the 10th August, 1848. This may not be admitted, nevertheless, to be any rule for the like to follow in regard to the whole naval establishment, because, although the marine corps have always been regarded and classed with the naval service, ever since the resolution of the 26th August, 1776, associating them with the navy in its provisions for invalid pensions, and the act of July 1st, 1797, providing a naval amendment, and that of the 2d March, 1799, providing for the government of the navy, as likewise that of the 23d April, 1800, providing for the better government of the navy, and continued to be so associated to the present day, (see act 11th August, 1848, page 294); yet they have been subject to occasional land service under the authority of the act of the 11th of July, 1798, (p. 242,) and were so engaged in the war with Mexico: granted, all: nevertheless, the subject seems entitled to consideration on the general merits, and on the various accounts already mentioned.

Again: it is observable that until the act of the 18th April, 1814, the revenue cutter service, which is to all intents and purposes a part of the naval service, but detailed to the special duty of guarding the revenue interests within four leagues at sea, and therefore is virtually co-operating at all times with the navy-which is charged, in

general, with the protection of all commercial and other national interests, on the ocean and within ports at home and abroad, when necessary and so ordered. It is therefore scarcely conceivable why the revenue service never before had any special provision for disabilities incurred in the line of duty, or why it should have been deemed necessary now to make special legislation for that purpose, as if the navy pension laws could not have been construed to apply to them by a much smaller stretch of constructive license than is frequently practised in the adjudication of other claims.

There is also a further and stronger encouragement to this reform, in the fact that the naval officers and seamen taking part “in the military service of the United States, in California, during the war with Mexico," entitles them to bounty land under the act of August 5, 1854, (page 716, [4],) notwithstanding their naval cast. And why should not their services at sea entitle them to the same consideration? Or, is it that sea service, the hardest of all, though rendered with distinguished gallantry by the same men, should exclude them?

7. The pension business still divided—Judicial and accounting functions confounded.— The disability of individuals to institute suit against the government, has imposed the legal necessity of vesting the higher executive officers with a limited or quasi judicial power in adjudicating claims to a considerable, though rather indefinite extent-the chief portion of it being reserved by Congress, though in some rare cases their inaction, or negative, is disregarded by an executive department. Although there are very few instances in which the heads of departments are explicitly clothed with judicial functions, one is to be found in the appellate jurisdiction given to the Secretary of the Treasury, in supervising the adjudications of certain claims of individuals by the judges of the Superior Courts of Florida, growing out of the treaty of cession of that territory. Yet, independent of special instances of the delegation of such judicial function, it may fairly be declared to exist in virtue of the inherent attributes of a head of department, or at least by constructive inference from the fact that subsidiary officers are explicitly endowed with judicial functions, as commissioners, under the supervision and instruction of their respective heads of departments; such as a (former) Commissioner of Claims, the Commissioner of Patents, the Commissioner of the Land Office, the Commissioner of Customs, the Commissioner of Pension Claims, the Commissioner of Indian Affairs, &c. But it most unfortunately happens, that there is not a sufficient discrimination maintained between the judicial functions of commissioners created expressly for the adjudication of claims against the government, and the accounting functions of auditors and other accountants created for the declared purpose of settling the accounts of disbursing officers—so essentially distinct in character, and requiring so different an order of attainments and ability.

These positions being avowed and recognised as the incontrovertible, both in executive and legislative theory and practice in various modes of discrimination, we will not here go into the details to show how completely, nevertheless, the higher administrative or judicial function of a head of department, or a commissioner of claims, comes often to be blended with the mere ministerial or accounting function of an auditor— sometimes by the former being delegated to an auditor or accountant by a head of department, but most frequently by the express authority of law, setting aside the authority of a commissioner, or of a head of department-whereby these two incompatible functions meet in the same individual-though rarely suited for both, or at best liable to vitiate the proper discrimination between them, by treating a claim as an account, or an account as a claim, according to the predilection and endowment of his mind for the process of arithmetical accounting, or the legal estimate of right.

One or two instances, however, having existed and continued through a long period of time, in relation to the adjudication of pension claims, while marring the concentration and unity of the pension business in the pension office proper, in charge of the

Commissioner of Pensions, notwithstanding the repeated efforts that have been made to effect that object-demand a brief notice here.

We shall first give our attention to that which has occurred in the Fourth Auditor's office. At page XVII, of the introduction to the first edition of this work, speaking of the action of the board of commissioners of the navy pension fund, in regard to their supposed regulations, under the requirements of the act of the 26th March, 1804, for administering the navy pension laws, and adjudicating the navy invalid pension claims, respecting which little information could then be procured in the Navy Department, we promised that this should be a subject of further inquiry and remark. We have accordingly made a renewed effort, by special inquiry at the Department and at the Fourth Auditor's Office; and the result has been but little more satisfactory than before. Totally failing of any information in the office of the Secretary of the Navy, where the regulations and the evidence of action on those claims were most reasonably to be found, we called to our aid the investigations made by the senior editor on a former occasion, when preparing his work on the Treasury; and turning to the chapter on the Fourth Auditor's Office, irresistible inductions as to what had been done, were manifested by the modes of accounting there set forth, from information then obtained in that office, but far different from what the law had required, and therefore had occasioned the failure of all specific inquiries on the subject. The details at page 142, of the 2d volume of that work, show a thorough amalgamation of the distinct and incompatible functions of the adjudication of claims and the settlement of accountsembracing both what should have been done in the office above, and that which should only have been done in the office below. The higher judicial function assigned by the law of 1804, to the board of commissioners of the navy pension fund, and afterwards by the act of the 3d March, 1832, to the Secretary of the Navy alone, was performed by the accounting officer of the Treasury Department charged with the settlement of the accounts of the Navy Department-of course by the delegation of power from the Secretary and there can be no doubt that the same had been the course adopted by the commissioners before him, though the "accountant" then, was an officer of the Navy Department, and therefore they were not chargeable with having delegated their high judicial function to a subordinate officer of another department; but still to an accountant. This is a legitimate inference from the facts in the same line: for exampleIn the chapter on the Fourth Auditor's Office, it is stated, at page 142, vol. 2, that "In the cases of claims presented at this office by creditors, the evidence is examined, and an account stated in an ordinary form of debit and credit, specifying the appropriation out of which the sum due is payable." Although this clause does not state specifically that the pension claims were so adjudicated by stating an account, (a fiction of office), and adjudicating it according to the evidence (there being no vouchers as in the case of accounting), and upon being allowed and finally paid by certificate to a disbursing agent, or by requisition on the Treasury, it is perfectly fair to infer that they were so, from the next passage, which states precisely that course as subsequently practised, under the manifest recognition of the Secretary of the Navy, in regard to the anomalous act of the 3d March, 1837. It says "By the act of the 3d March, 1837, for the more equitable administration of the navy pension fund, arrearages of pensions became payable to a vast number of persons dating from the antecedent death or disability, of officers, seamen, or marines; in each of which cases, when presented, an account has been stated at this office, and certified by the auditor to the Second Comptroller, and the individual entitled has been paid either by a pension agent, upon an order appended to such certificate, or by means of a requisition of the Secretary of the Navy; and the accounts thus stated and paid, have been entered in a book styled a pension register: Also a roll of all the navy pensioners is kept in this office, showing for what periods they have been paid,” &c.