period of enlistment on which the accused relied, should have been annexed to, or formed part of, the record; and not a merely inferential statement derived by the court from an inspection of that evidence. The correctness of the inferences which a court-martial may draw from the evidence, and on which it founds its judgment, forms peculiarly a subject for the examination of the officer who is to decide on the propriety of its proceedings; and, therefore, the mere statement of those inferences, unaccompanied by the evidence itself, is a serious defect in the record.

There is also another defect that cannot be overlooked. Not only is the evidence from which the court deduced its inference omitted, but the statement of it which is given in lieu of the evidence itself, is insufficient to justify the conclusion to which they come. Their conclusion is, that the court had no jurisdiction; and they state two facts to support it: first, that the accused enlisted before the passage of the act of 2d March, 1837; and, secondly, that his term of service expired on the 20th October, 1839, which was eight days before he committed the act specified in the charge. Now the act of the 15th May, 1820, authorizes an enlistment "during the continuance of the cruise," provided it does not exceed three years; and as the cruise in this instance was certainly not terminated, it was necessary that the time at which the enlistment commenced should appear in evidence upon the record, in order that the officer revising the proceedings of the court might be satisfied of the correctness of the finding that it had expired by reason of the limitation in the other clause. Yet we are not only without any evidence upon that point, but there is not even a statement of the fact by the court.

On these grounds, therefore, I am of opinion that the commanding officer acted properly in declining to approve of the proceedings of the

court.

It would not, in my opinion, be proper for the revising authority to make any decision in regard to the effect of the act of Congress of 2d March, 1837, on this case, when the record is thus defective in presenting, in the usual and legal form, the facts on which the correctness of such a decision must depend.

To the SECRETARY OF THE NAVY.

H. D. GILPIN.

ERROR IN PROCEEDINGS BEFORE COURTS-MARTIAL.

Where a naval court-martial tried a master-at-arms for desertion, on a charge headed with a caption styling the accused "master-at-arms," and discharged him on the ground that since his arrest he had not been borne on the ship's books as such, and that the charge could not at that stage of the trial be revised-HELD, that the decision was erroneous, and that those grounds were insufficient to deter the court from proceeding to judgment on the merits.

ATTORNEY GENERAL'S OFFICE,

June 24, 1840.

SIR: I had the honor to receive your letter of the 18th instant, enclosing the record of the proceedings of a court-mrrtial held on board the United States ship Fairfield, at Montevideo, on the 5th November, 1839, in the case of Shubal Palmer, and requesting my opinion in regard to them.

In reply, I have to state that, in my opinion, the decision of the commanding officer, in not approving of the judgment of the court, was correct. It appears that the accused was tried on a charge and specification set forth in the record in the following terms:

"Charge and specification preferred by Thomas Bruce against Shubal Palmer, master at arms on board the United States ship Fairfield.

"CHARGE-desertion.

"Specification. In this: that the said Shubal Palmer did, on or about the 20th day of January, 1839, desert from the United States ship Fairfield, then at anchor off the harbor of Montevideo, and continued so till apprehended and delivered on board the said ship Fairfield, on or about the 18th September, 1839.”

This charge and specification were read to him; and, after they were read, he pleaded guilty." The court, notwithstanding this plea, proceeded to hear the evidence produced by the judge advocate; and the accused questioned both the witnesses in his own behalf, offering no objection at any time to the proceedings. In the course of the testimony, Lieutenant Tilton deposed as follows: "The prisoner's rate on the ship's books was master at arms previous to his desertion; he is now rated in the same situation in which he shipped in Bahia-I believe an ordinary seaman. We had no man rated as master-at-arms since his desertion.' This evidence was given on an inquiry made by the court. None was offered to show that the accused had been formally dismissed from the rank of master-at-arms. When the evidence was concluded, the accused submitted a written de fence, in which he still admitted the truth of the fact charged, and relied on no other ground than his general good character and certain mitigating

circumstances.

After the case was thus closed, and the record of these facts made up, the court came to the following decision: "The court was then cleared, and proceeded to consider the subject matter before them. But, when about to pronounce judgment, it was discovered that, through hurry or inadvertency, an error had taken place in the title of the prisoner; it appearing from the evidence that he is not, and has not been since his return, master-at-arms on the books of the United States ship Fairfield, as named in the charge; and the court being of opinion that the action of this court has proceeded too far to admit of their revision of the charge, do adjudge that the said Shubal Palmer be discharged, and be regarded as standing in the same situation as before the commencement of these illegal proceedings."

In my opinion, this decision of the court was erroneous on three grounds: 1. The error in the addition or designation of the accused was not made in the charge or specification on which he was tried, but merely in the general heading. 2. It is admitted that the accused was master-atarms when the offence alleged in the charge was committed, and there is no conclusive proof that he had been dismissed from that rank when the charge was preferred. 3. Supposing this, however, to have been clearly established; yet the facts of his having pleaded to the charge, of his never having, in any way, made such an exception or defence, and of there being no dispute whatever as to the identity of the person, would have pre

vented the aced himself from taking advantage of the error at this stage of the case. Of course, it afforded no ground for the court to refuse to proceed to judgment on the merits. H. D. GILPIN.

Toe SECRETARY OF THE NAVY.

COMPENSATION OF VOLUNTEERS IN FLORIDA WAR ACTING AS TEAM

STERS.

The compʻrgatio of mamsters, &c., in the Florida service, was not provided for in the act of 1819, prow diay for fatigue duty in the regular army, but has been provided for specially by Congress, & may be made to the volunteers selected for that service, with the approbation of the young general.

ATTORNEY GENERAL'S OFFICE,

June 26, 1840.

Sin I had the honor to receive your letter of the 18th instant, enclosing.certainers relative to the settlement of the quartermaster's account growing of the Florida service, and requesting my opinion. "whether an allowance of more than the fifteen cents per diem, granted by the act of 2 of March, 1819, and the act of 19th of March, 1836, can be made to non commissioned officers or privates of volunteer companies regularly mustered into the service of the United States, who are employed as teamsters?"

From the papers enclosed, it appears that during the Florida war, in the year 1838, it became necessary to select and employ, from among the volunteers, those who were thought to be best qualified to perform the duty of teamsters, in lieu of the private persons who had been previously hired, but found to be inefficient. This course was approved by the commanding general, as a measure "needful to the service;" and it certainly tended to protect the public property, facilitate the military movements, and save the United States from heavy losses. The commanding general also approved the terms on which the quartermaster agreed to pay the volunteers so selected. These were thirteen dollars a month, in addition to their pay proper, so as to make the whole allowance barely equal to the lowest rate of hired labor: that is, twenty-five dollars a month. This sum was accordingly paid, and the whole amount for which the quartermaster now claims credit is $384 62. The accounting officers doubt the propriety of allowing the credit, from an impression that the act of 2d of March, 1819, limits the compensation of a soldier employed as a teamster to fifteen cents a day in addition to his pay.

The act of 2d of March, 1819, regulates "the pay of the army when employed on fatigue duty;" and provides, that "whenever it shall be found expedient to employ the army at work on fortifications, in surveys, in cutting roads, and other constant labor of not less than ten days, the non-commissioned officers, musicians, and privates, so employed, shall be allowed fifteen cents per day while so employed;" and thus, in pursu ance of this law, the extra pay to the soldiers in the regular army, for fatigue duty, has been established for more than twenty years, with as much certainty as their monthly pay and other allowances. Accordingly, we now find in the annual appropriation acts for the pay of the regular

army, in addition to the appropriation for monthly pay and other allowances, an appropriation expressly made to cover "extra pay to soldiers under the act of 2d of March, 1819 " Whether or not the selection of particular soldiers to perform a special trust in time of war, requiring peculiar fitness and evincing more than ordinary confidence in the individual selected, ought to be considered as an employment on "fatigue duty," either under the rules which govern the regular army, or within the terms and meaning of this act, is rather a military than a legal question. At all events, in the view I take of the point submitted to me, it is not necessary to decide it; and I shall, therefore, express no opinion upon it.

Supposing, however, a soldier of the regular army, thus specially selected, to be limited in his pay for that service to an addition of fifteen cents a day; is there any law which places the same limitation on the compensation of soldiers so selected from the volunteer corps of militia. that were raised for, and engaged in, the Florida war? There is certainly no law which prescribes the amount of such extra pay, in terms, as the act of 2d of March, 1819, does in regard to the regular troops. When we turn to the act of 19th of March, 1836, which regulates the pay of volunteers and militia, and is expressly applicable to those employed in Florida, we find this provision: "that the officers, non-commissioned officers, musicians, artificers, and privates of volunteers and militia corps, who have been in the service of the United States at any time since the 1st of November, 1835, or may hereafter be in the service of the United States, shall be entitled to receive the same monthly pay, rations, clothing, or money in lieu thereof, and forage, as may be provided by law for the officers, musicians, and privates of the infantry of the army of the United States." It will thus be seen that no provision is made by which volunteers or militia are to receive, or can be entitled to, extra pay for fatigue duty, which is provided by law for soldiers in the regular army. Again: when we turn to the special appropriation acts of the 12th of June, 1838, and 3d of March, 1839, which provide for the payment of these volunteers and militia, and refer in terms to the act of 19th of March, 1836, as regulating their pay and allowances, we find no appropriation to cover any extra pay for fatigue duty, as in the appropriations for the regular army. On the contrary, we find a special clause in each of these acts, but which is not found in the army appropriation acts, providing a distinct fund "for the hire of a corps of mechanics, laborers, mule drivers, teamsters, wagon masters, and other assistants."

This comparison of the acts regulating the pay and making appropriations for the regular army, and for the volunteers and militia who have been in the service of the United States since 1835, clearly shows, in my opinion, that it was not the intention of Congress to make the provisions of the act of 2d of March, 1819, applicable to the latter, even if you should be of opinion that they are applicable to soldiers specially se lected, in time of war, from the regular army, to act as teamsters.

To the SECRETARY OF WAR.

H. D. GILPIN.

DEFICIENCY OF LANDS GRANTED TO OHIO FOR ERIE AND WABASH CANAL

The deficiency of lands granted Ohio in act of 29th May, 1830, to make up the full quantity previously granted for the construction of a canal from Lake Erie to the Wabash, must be supplied from the alternate sections reserved to the United States, or out of other lands in the neighborhood near to the canal.

Those parts of sections which are cut by the parallel line, five miles distant from the canal, may be located; and quantities equal to the computed area of the cut sections may be located according to any of the usually recognised minor subdivisions of a section among the alternate sections accruing to the State along the exterior limits of the belt.

If obstacles shall be found to exist to the location of sufficient land on the exterior limits of the belt in minor divisions, the complement may be made up from full alternate sections. But no sections nor subdivisions are to be excluded because they happen to be cut by and protrude beyond the exterior line of the belt.

ATTORNEY GENERAL'S OFFICE,

June 26, 1840.

SIR: I had the honor to receive your letter of the 25th of May, enclosing certain papers from the Commissioner of the General Land Office, relative to the claim of the State of Ohio to certain lands for the purpose of constructing the canal between the river Wabash and Lake Erie; and requesting my opinion on the construction of the first section of the act of the 2d of March, 1827, the fourth section of the act of 24th May, 1828, and the first section of the act of 30th June, 1834.

The first of these acts granted to the State of Indiana, for the purpose of aiding in opening the canal, "a quantity of land equal to one half of five sections in width, on each side of the canal;" and reserved each alternate section to the United States, to be selected by the Commissioner of the General Land Office, under the direction of the President, from one end thereof to the other. The second act authorized the State of Indiana to convey and relinquish to the State of Ohio, upon such terms as those States might agree upon, all the right and interest granted to the former by the first act, upon the same conditions of aiding in the construction of the canal. The third act provided that, in lieu of any of the lands included in these grants, which might have been sold or otherwise disposed of by the United States, an equal quantity might be selected from the alternate sections, which would otherwise belong to the United States, or from lands recently acquired by purchase from the Indians, or from other lands in the neighborhood, near the line of said canal.

It appears by the papers transmitted to me, that the General Assembly of Indiana, on the 1st of February, 1834, conveyed and relinquished to the State of Ohio all the right and interest of the State of Indiana to any land within the limits of Ohio, to which Indiana was entitled under the act of the 2d March, 1827.

On the 7th October, 1836, the Commissioner of the General Land Office proceeded, at the instance of the governor of Ohio, to carry these laws into effect. With this object, he caused two lines to be drawn on the official map one on each side of the canal, where it was laid out in the State of Ohio, at a distance of five sections (or miles) therefrom, and parallel thereto. Within these limits he subsequently proceeded to set off, alternately to the State of Ohio and to the United States, all the full sections of land contained therein. He also apprized the governor of Ohio that he considered the State to be entitled to one half of all the lands included within these limits; that is, as I understand it, to a quantity of land equal to one-half of the entire quantity embraced therein.