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PENSIONS GRANTED TO WIDOWS, &c., BY ACT OF MARCH 3, 1845.

The pensions granted to widows, &c., by the act of 3d March, 1845, commence from the period of their cessation under the former acts of 1834, 1837, and 1841, respectively.

ATTORNEY GENERAL'S OFFICE,

March 19, 1845.

SIR: In your communication of the 14th instant, you request my opinion on a question submitted to you by the Commissioner of Pensions in relation to the proper construction of the naval pension act of 3d March, 1845. The Commissioner states the question to be: "Whether the pensions granted by this act shall commence when the last five years' pensions ended, or when the last pensions, under the act of 1837, were paid to the pensioners respectively." The act of 3d March, 1845, embraces only the cases of those widows whose husbands have died under circumstances to entitle them to pensions under the provisions of the pension act of 30th June, 1834. Pensions granted by that act terminated in 1839. By the act of 1837, a provision was made for pensions to widows of officers, seamen, and marines, who had died in the naval service, without specifying the mode of the death. Its terms were more comprehensive, and embraced many cases which were not within the provisions of the act of 1834; while those entitled under the act of 1834 were clearly entitled under the act of 1837; and many thus entitled applied and received the benefit of this act. The question submitted depends on the inquiry whether the act of 1837 may be regarded as a renewal of the pensions previously granted. If it be not so construed, a widow whose pension expired in 1839, granted under the act of 1834, may have received, under the act of 1837, her pension, by reason of the death of her husband, from the 30th June, 1839, to the 31st August, 1842; and by the act of 3d March, 1845, receive the same pension for the same cause, during the same time; thus receiving a double pension for the same period of time. This cannot be presumed to have been the intention of Congress; nor will such a construction give effect to the proviso to the act under consideration. I am, therefore, of opinion that the act of 1837 was a renewal of the pensions previously granted for five years, within the mean. ing of the act of 3d March, 1845; and that widows' pensions, under this act, shall commence from the period at which they ceased, whether under the act of 1834, or that of 1837, or the act of 16th August, 1841. I have the honor to be, very respectfully, sir, your obedient servant, J. Y. MASON.

Hon. GEORGE BANCROFT,

Secretary of the Navy.

EXPENSE OF PRESENTS TO FOREIGN GOVERNMENTS-HOW DEFRAYED.

The expense of recasting cannon, &c., to be presented to the Imaum of Muscat in return for presents received, may be defrayed from the appropriation for the contingent expenses of foreign intercourse.

This appropriation is placed at the disposal of the Executive, who is charged with the care and management of all our foreign relations.

And as it has been the practice of our government, from its earliest history, to interchange presents with the semi-barbarous nations of Asia and Africa, and as the Executive is vested with a discretion respecting the manner in which friendly relations with them can be best maintained, it follows that if he shall be of opinion that the public interests will be promoted by tendering a present in return for one received, he may legally do so, and cause the expense thereof to be defrayed from the funds thus placed at his disposal.

ATTORNEY GENERAL'S OFFICE,

April 11, 1845.

SIR: I have had the honor to receive your communication of the 10th instant, requesting my opinion, Whether there be any authority of law to make payment of $2,737 08 to meet the expenses of recasting cannon, &c., as a present to the Imaum of Muscat? and if there be such authori ty, from what fund appropriated by Congress can the payment be made? The papers accompanying your letter show that the present has been made in return for one made by the Imaum to the President of the United States. In the intercourse of our government with the semi-barbarous nations of Asia and Africa, it seems to have been the practice, from the earliest periods of our history, to interchange presents, and it has been a question for the President, in his discretion, to decide how far the public interests would be injuriously affected by declining to receive the presents offered, and to make others in return. While the constitution denies to him the right to appropriate them to his own use, it has been deemed important not to decline them; and they have been deposited in the public offices, or sold by order of Congress, without any disapprobation of the Execu tive conduct in receiving them. Annual appropriations have been made, without change of terms, for the contingent expenses of foreign intercourse. The objects of expenditures under this head of appropriation have never been enumerated or defined in the act appropriating, or in the estimates from the department. The contingent expenses of foreign missions have not been chargeable on these appropriations, but on others specifically made in the same acts for that object. With the Imaum of Muscat an interchange of presents was made in 1834 and in 1840 The presents received by the President were in each case disposed of agreeably to a resolution of Congress, and those sent to the Imaum in return were purchased under the direction of the State Department, and charged to the appropriation "for contingent expenses of foreign intercourse. The President is charged with the conduct of our foreign relations. To enable him to perform this duty, this appropriation is placed at his disposal. If in its performance he shall be of opinion that the public interests will be promoted by returning a present, which he has deemed it proper not to decline, I am of opinion that he has the power to make such present, and, to defray the expense, resort may be had to the appropria tion for contingent expenses of foreign intercourse. He cannot exceed the amount so appropriated, but within that limit his power is full. If I had doubts on the subject, the uniform practice of the Executive, and the continued annual appropriations by Congress, with a knowledge of the

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objects of expenditure to which they have been applied without disapprobation or modification, would have great influence in removing them. I have the honor to be, respectfully, sir, your obedient servant, J. Y. MASON.

To the PRESIDENT.

PENSIONS GRANTED TO WIDOWS, &c., BY THE ACT OF MARCH 3, 1845.

The act of March 3, 1845, extends a pension for five years to those widows who received pensions under former acts in consequence of the death of their husbands having been occasioned by wounds received, or by accident, or by disease contracted, whilst acting in the line of their duty as officers, seamen, or marines.

The act of 1837 was a renewal of pensions previously granted to widows entitled under the act of 1834, within the meaning of the act of March 3, 1845.

The fact of their being placed on the pension roll by virtue of the more comprehensive terms of the act of 1837, does not affect their rights under the act of March 3, 1845. The terms of the act are fully satisfied by extending its provisions to cases which were within the act of 1834, although the pensions were granted for an indefinite period; and this, whether the pensions were granted by the Commissioner of Pensions under the act of 1834 or that of 1837, provided the pensions granted were authorized by the act of 1834.

ATTORNEY GENERAL'S OFFICE,

April 14, 1845.

SIR: I have considered the general question presented in your letter of the 10th instant, as to the effect of the act of March 3, 1845, renewing certain naval pensions for the term of five years, and its application to the particular case of Mrs. Ann J. Ross, widow of Lieutenant Ross of the marine corps, who was killed in battle with the Seminole Indians in the month of December, 1836, the facts of whose case are set forth in the letter addressed by the Commissioner of Pensions to the Secretary of the Navy on the 3d instant. In the letter which I had the honor to address to you on the 19th ultimo, I expressed the opinion that the act of 1837 was a renewal of the pensions previously granted to widows entitled under the act of 1834 within the meaning of the act of March 3, 1845. By the death of her husband in battle, Mrs. Ross was entitled under the act of 1834. The fact of her being placed on the pension roll by virtue of the more comprehensive terms of the act of 1827, does not affect her rights under the act of March 3, 1845. The purpose of Congress was manifestly to extend a pension for five years to those widows who had previ. ously received pensions in consequence of the death of their husbands, (being officers, seamen, and marines,) who had been killed in battle, or who had died by reason of a wound received in the line of their duty, or who had died from disease contracted, or of a casualty by drowning or otherwise, or of injury received, while in the line of their duty. This intention would be defeated in cases of the most meritorious character, if the words employed be construed to embrace only such cases of pension as were granted for five years. The terms of the act are fully satisfied by extending its provisions to cases which were within the act of 1834, although the pensions were granted for an indefinite period; and I am of opinion that this may be done whether the pensions were granted by the Commissioner of Pensions under the act of 1834, or under that of 1837, provided the pension granted would have been authorized by the act of

1834: Mrs. Ross is, therefore, entitled to the benefit of the act of March 3, 1845, subject to its restriction.

I have the honor to be, respectfully, sir, your obedient servant,

Hon. GEORGE BENCROFT,

Secretary of the Navy.

J. Y. MASON.

APPOINTMENT OF JUDGES, &c., FOR IOWA AND FLORIDA.

The President cannot appoint district judges, attorneys, and marshals, during a recess of the Senate, for newly-admitted States, where the offices were created and took effect during the session of that body.

If vacancies are known to exist during the session of the Senate, and nominations are not then made to fill them, they cannot be filled by the Executive during the subsequent recess. Nevertheless, the new States thus circumstanced are not left without their territorial judiciary; for it will not be presumed that Congress intended that the means of administering the law should be held in abeyance until other officers should be appointed.

The district attorney may, therefore, proceed with the business of the United States in the existing courts.

ATTORNEY GENERAL'S OFFICE,

April 18, 1845.

SIR: I have had the honor to receive your communication of the 12th instant referring to me a letter addressed to you by the Solicitor of the Treasury of that date, and asking my opinion, in writing, on the questions therein presented for your consideration. By the first section of the act of the 3d March, 1845, it is enacted that "the States of lowa and Florida be, and the same are hereby declared to be, States of the United States of America, and are hereby admitted into the Union on equal footing with the original States, in all respects whatsoever." The judicial system established by the laws of the United States for the Territory of Florida was in full force at the time of the passage of this act. When she became a State of the Union, and at what time the jurisdiction of these courts shall terminate-whether on the passage of the act, or when her organization shall have been completed by her own State authorities acting under her State constitution, as to all subjects within the control of her legislature, and as to others by complete organization of the federal courts authorized by the act supplemental to the act before referred toare questions of much interest. They are, however, questions for the judiciary itself, and must be settled by the courts. I will only remark that it cannot be presumed to have been the intention of Congress to have produced an abeyance of all government in Florida from the passage of the act of admission to the organization of a new order of things-that there was to be no government, executive or judicial, and no law but the fundamental law established by their constitution. Ón general principles I am clear in the opinion that this is not the result; and such has been the practice, it is believed, in at least ten of the thirteen new States heretofore admitted into the Union. I therefore entirely approve of the course indicated by the Solicitor of the Treasury, of instructing the district attor neys to proceed with the business of the United States in the existing courts. But, as I have before remarked, this is a question of judicial authority, on which my official opinion would have no controlling influence with those on whom its decision devolves. The only question involving

executive authority and action is, have you now, in the recess of the Senate, the power to appoint the district judge, the district attorney, and the marshal, whose offices were created by the act entitled "An act supplemental to the act for the admission of the States of lowa and Florida into the Union," approved 3d March, 1845? The question has often oc curred, and the interpretation of the constitution has been so well established, that I cannot doubt on it. If vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by executive appointments in the recess of the Senate. And the rule is the same where offices are created by law, taking effect during the session of the Senate, and no nominations are made. As the act referred to made no provision for the transfer of causes, it is, perhaps, fortunate, and may have been expected by the Senate, that no appointments can be made until the next meeting of Congress.

I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON.

To the PRESIDENT.

TRANSFERS OF APPROPRIATIONS MADE FOR THE WAR DEPARTMENT.

The President may, if he deems it conducive to the public interest, direct transfers of appro priations from the branch of expenditure of incidental expenses of the Quartermaster's de partment to the other branches of barracks, quarters, &c., and of transportation of officers' baggage.

ATTORNEY GENERAL'S OFFICE,

April 21, 1845.

SIR: I have the honor to acknowledge the receipt of the papers transmitted by you this day, and your written request that I would give you my opinion on the legality of a transfer of a part of the appropriation made for the Quartermaster's department of the army, under the head of incidental expenses, to the head of barracks, quarters, &c., and to that of transportation of officers' baggage. In an opinion given by Mr. Attorney General Legare, on the 3d November, 1842, he reviewed the provisions of the various laws bearing on this power of transfer of appropriations made for the army in the following words: "The act of 3d March, 1809, is a general enabling statute. The President and Secretary might make transfers of portions of appropriations, subject to one restriction only-that they must have been made within a particular department of the service; e. g., War or Navy. The act of 3d March, 1817, restricted this discretion even within the War Department, so far that money appropriated to fortifications, &c., could not be transferred to any other object of expenditure within that department-that is, as I construe it, to objects of any other class. Then came the act of 1820, which, though affirmative, ends with a repealing clause, and alters very materially the previous state of the law on this subject. This act enumerates all the branches of expenditure in the War and Navy Departments from which transfers might be made to other branches. This provision carries still further the policy of the act of 1817 in regard to fortifications, &c. It protects all other branches of expenditure, except those enumerated, from the discretionary

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