PENSIONS TO WIDOWS AND CHILDREN OF OFFICERS, SEAMEN, AND MARINES. Widows and children of officers, seamen, and marines, who have died since the late war, of wounds received during the war, are entitled to a renewal of their pensions under the act of 1819. OFFICE OF THE ATTORNEY GENERAL, SIR: I have received your letter of this date, and proceed to answer your inquiry. The act of 1813 provides that a pension shall be allowed to the widow, and, if there be no widow, to the child or children (being under sixteen years of age) of any officer of the navy or marines, who shall be killed, or die by reason of a wound received in the line of his duty. This act, it will be observed, is confined to the widows and children of officers; and simply requires that the death, or wound from which death has ensued, shall have been received by such officer "in the line of his duty." The act of 1814 extends the provision prospectively to the widows and children of "seamen" and "marines;" and then, including officers, provides retroactively for all deaths which may have occurred since the 18th June, 1812, the date of the declaration of war against Great Britain; using the same words to describe the nature of the death which shall entitle to pension that is to say, that it shall have been occasioned by a wound received in the line of duty-as are used in the act of 1813; and, like that act, not requiring that the death shall occur prospectively, within any specified time. It is the purpose of the act of 1817, which is amendatory of the preceding act, to give to this provision a still greater extension; and, accordingly, in relation to the same class of persons, it provides for deaths which shall occur, or shall have occurred since the 18th June, 1812, "in consequence of 'disease contracted,' or of 'casualties,' or 'injuries received,' while in the line of duty." The former acts provided only for cases of death in consequence of wounds; while this extends the provision to cases where death has ensued from "disease contracted," or "casualties or injuries received." In neither of the acts is there any prospective limitation of the time when the death must occur to entitle the widow or children to the benefit of the pension. These three acts, it will have been seen, provide, permanently, for the allowance of a pension to the widow, or child or children under sixteen years of age, (if there be no widow,) of every officer, seaman, or marine of the navy of the United States, who has died since the 18th June, 1812, or who shall die after the date of the acts, in consequence of wounds, diseases, casualties, or injuries, received or incurred in the line of his duty; that is, as I understand it, who shall come, or who shall have come to his death, since the prescribed period, in whatever manner, and either presently or remotely, in the discharge of his duty. Prospectively, the provision is unlimited. Retrospectively, it is restrained to the 18th June, 1812. These are the several acts which relate to the original grant of pensions. Those which follow provide for the renewal of them. We are now prepared to examine the act of 1819, to which your inquiry relates, and concerning which you ask, in substance Whether, to entitle a widow, or child, to the renewal of a pension under that act, it is necessary that the officer, seaman, or marine, through whom it is claimed, should have been wounded during the war, and should also have died during the war? The act under consideration provides, "that in all cases where provi. sion has been made by law for five years' half-pay to the widows and children of officers, seamen, and marines, who were killed in battle, or died of wounds received in battle, or who died in the naval service of the United States, during the late war, the said provision shall be continued,' &c. If I were required to interpret this act strictly, with a view to narrow, as much as its terms would permit, the bounty which it provides;—if Í were obliged (overlooking what I conceive to be the spirit and intention of the act, to found my answer on its letter) and to construe that most strongly against the grantee,-I should perhaps be constrained to acqui. esce in the opinion given by my predecessor to yours, on the 22d July, 1828, which is before you. But, after a very careful and anxious consideration of the subject, I cannot divest myself of the conviction that such was not the intention of Congress, and that the words of the act are fairly susceptible of a different interpretation. I do not propose to trouble you with an elaborate argument on this question, but will content myself with such an exposition of my views as may suffice to render them intelligible. In framing the act of 1819, Congress had it in view to provide for an extension of the bounty which had been theretofore granted to the widows or children of certain persons who had died in the public service." This intention is expressed in the title of the act, which, although it cannot be used to extend the provisions of the enacting clauses, ought not to be wholly disregarded in searching for the intention of the lawmakers. The mode resorted to, to carry this intention into effect, was by an enactment which should, in terais, extend the provisions of the former pension laws. Congress, in the act of 1819, have not enacted substantively that the widows, &c., of officers, &c., who were killed in battie, or who died of wounds received in battle, or who died in the naval service of the United States during the late war, shall receive five years' additional pension. But, referring to the former laws, they have declared that, where provision has been made by law for persons of that descrip. tion, their pensions shall be renewed. To give effect, then, to the act of 1819, it is obviously necessary that there should be some pre-existing laws which make such provision as it specifies. If one construction of its terms shall be found to correspond with pre-existing laws, and another not to do so;-if, according to one interpretation, the provision to which it refers has in fact been made by law, while another supposes a reference, to which no answering provision can be found to have been made by law, the former is, without doubt, to be adopted, in order to give effect to the act. With this idea in view, let us proceed in our examination. The per sons to whom this bounty had been granted before 1819 were the widows or children 1st. Of officers, seamen, or marines, who, since the 18th June, 1812, had been killed in battle. 2d. Of the same classes, who, since the same period, had died by reason of a wound received in the line of their duty. 3d. Of the same classes, who, since the same period, had died in consequence of diseases contracted, or of casualties or injuries received, while in the line of their duty. These provisions had been made by the several acts of 1813, 1814, and 1817; and it is observable, that the widows or children of these several classes of persons were entitled to the pensions provided for by the acts above referred to, without regard to the time when the death occurred, except that it must have happened after the 18th June, 1812. These were the only acts which Congress can be supposed to have had in contemplation in framing the act of 1819; and the pensions which they granted were so granted without reference to the fact whether the death had occurred in war or in peace. No such distinction was recognised by pre-existing laws. No act had made provision for five years' half-pay to the widows and children of officers, seamen, and marines, who had been killed during the war, or who had died during the war, of wounds received in battle, or who had died in the naval service of the United States during the war. It was not possible, in reading those acts, to affix such limitations to either of them. It was true, indeed, that the widows or children of persons killed during the war, or dying during the war, of wounds received in battle, or who had died in the naval service of the United States, during the war, had been placed oh the pension-list, and were in the receipt of the five years' half-pay; but this was under the more general provisions of these acts, which were equally applicable to them and to others-to those who had died in war, as well as to those who had died in peace; and they were not so placed on the pension list because these events had occurred during the war, but because they had occurred after the 18th June, 1812. If, then, it had been the intention of Congress, in the act of 1819, to limit the renewal of pensions to cases where the death had occurred during the war, it seems to me that they would have done this by a distinct and substantive enactment to that effect—not by a reference to the provisions of former laws; and for the obvious reason, that no act containing such restrictive provisions as this construction ascribes to the act of 1819 was to be found. I think, moreover, that the words of the act of 1819 are fairly susceptible of a different interpretation from that which excludes all persons except those who died during the war. These words are, "where provision has been made by law for the widows," &c., " of officers," &c., "who were killed in battle, or died of wounds received in battle," or "who died in the naval service of the United States during the late war." These latter words ("during the late war") are words of limitation-of restriction. Now, I think it may be well questioned whether their operation ought not to be confined to the last member of the sentence-whether it was intended that they should do any thing more than to qualify the grant to the third class of presons enumerated, namely, those who had died in the naval service of the United States. Then the classification would stand thus: To the widows or children-1. Of those who had been killed in battle. 2. Of those who had died of wounds received in battle. 3. Of those who had died in the naval service of the United States during the late war. In support of this suggestion, I would remark-1st. That it was obviously unnecessary to apply this restriction to the first class. The wound and the death were cotemporaneous in such cases. 2d. That no sufficient motive can be assigned for an intention, on the part of Congress, to apply it to the second. They meant to provide for the widows and children of those who died of wounds received in fighting the battles of their country; and whether the death was instantaneous, or occurred after an interval, if it could be certainly traced to the wound, the motive in either case would be the same. 3d. We may readily understand why the restriction was applied to the third class. That class includes deaths from every other cause, except wounds received in battle. To excite the crew of a national ship to deeds of heroism in time of war, Congress might be willing to allow a pension to the widow, &c., of a seaman who fell from the mast head and was killed; and yet not think proper to extend the same bounty, in a case of similar casualty, occurring in time of peaec. It would, then, be useless to apply these restrictive words to the first class. It would be improper to extend them to the second; but a very sufficient motive is found for their application to the third. It is fair ro presume that Congress was actuated by a corresponding intention. But let us suppose these words of restriction applicable to each of the three classes of cases specified, and not exclusively to the last;-the inquiry is, do they relate to the time of the death, or to the time when the cause occurred which occasioned it? Apply the inquiry to the second class, to which your question more particularly refers to those who died of wounds received in battle-and consider them as restricting the cases of that class to which the renewal should extend. In this case, they must be read in immediate connexion with the words which they are supposed to limit. Put these restrictive words, then, in juxtaposition with the descriptive words which relate to that class, and you will have the following collocation: "Who died [of wounds received in battle] during the late war?" Here is a sentence which consists of three members: the first," who died," relates to the death, the primary motive to the allowance of the pension; the second specifies the cause of that death, in the words "of wounds received in battle;" the third defines the time of their being received-" during the late war." It may, perhaps, be said that these last words relate to the time of the death, and not to that of receiving the wound; because the term "battle" supposes a state of war, and that a wound received in battle must have been received during the If this be conceded, I think it may be satisfactorily answered that sufficient effect may be given to the words "in battle," without ascribing to them this forced operation. A man may have received a wound during the late war which occasioned his death, and yet have furnished no meritorious claim to his widow or children to the allowance of a pension. His wound may have been received in a mutiny, from the hand of an assassin, or in private combat. To exclude such cases, the expression "in battle" is used; and the effect is to confine it to wounds received in fighting the enemies of his country. It is still open, then, to us to inquire what is the fair interpretation of this sentence? Do the restrictive words. apply to the first or last member of it? to persons who died during the last war, or to those who died--no matter when-of wounds received in battle war. during the last war? In fair grammatical construction, the last member of the sentence is the immediate antecedent, and the operation of the restrictive words cannot go beyond it. Test this by an example. If the opinion of the physicians who were consulted was correct, the late Major General Brown ultimately fell a victim to the wounds which he received on the Niagara frontier. Admitting this to be true, may it not be said of General Brown that he died of wounds received in battle during the late war?" and would any one understand the speaker to intend thereby to assert that he "died during the late war?" I think not; and yet these are the identical words of the act to which that construction has been given. If we look to the intention of Congress-to the motive which would probably influence them in granting the renewal of a pension-this construction is confirmed. What conceivable difference can it make in the justice of the claim to a pension, whether the officer, &c., dies at the instant of receiving his wound, or languishes until the end of the war, and then breathes his last? What conceivable difference is there between the two cases, as relates to the wants of his widow and children? It is the heroism which impels him to the conflict which you would reward in the person of his widow or children; and they are equally objects of your bounty in either case. I think, then, that the widow or children of an officer, seaman, or marine, who has died since the late war, of a wound received in battle during the war, is or are entitled to a renewal of his, her, or their pension, under the act of 1819; and I found this opinion upon the following con siderations: 1. That, unless this interpretation be given to that act, there are no such pre-existing laws as those to which its provisions could be made to refer. 2. That this interpretation is sanctioned by the rules of grammatical construction applicable to the sentence on which the question arises; and that such a sentence would be similarly understood in common parlance. 3. The interpretation thus deduced from the reference of the act of 1819 to pre-existing laws, and from the grammatical construction and familiar use of the sentence, is confirmed by a consideration of the motives which may reasonably be presumed to have influenced Congress in passing the act. JN. MACPHERSON BERRIEN. To the SECRETARY OF THE NAVY. AUTHORITY AND JURISDICTION OF CONSULS. Consular jusisdiction depends on the general law of nations, subsisting treaties between the two governments affected by it, and upon the obligatory force and activity of the rule of riciprocity. French consular jurisdiction in an American port depends on the correct interpretation of the treaties subsisting between his Most Christian Majesty and the United States, and which limit it to the exercise of police over French vessels and jurisdiction in civil matters in all disputes which may there arise, and provide that such police shall be confined to the interior of the vessels, and shall not interfere with the police of our ports where the vessels shall be. They provide also, that, in cases of crimes and breaches of the peace, the offenders shall be amenable to the judges of the country. |