as a condition of its surrender to the U. S. authorities. XXI, 479, June, 1866. 664. Sec. 218, Rev. Sts., in requiring the Secretary of War to collect, &c., "all such flags, standards and colors as are taken by the army from the enemies of the United States," is believed to have reference. to the flags of the enemy. So advised, that a flag of a Massachusetts regiment, captured by the enemy, and retaken at the end of the war at Richmond, was not to be considered as one of the class placed by the statute under the charge of the Secretary of War, and might therefore properly be returned to the State or the regiment, if origi nally belonging to or furnished by the same. Otherwise, if furnished by the United States: in such case the flag is property of the United States disposable only by Congress. 58, 119, February, 1893. 665. Sec. 5586, Rev. Sts., authorizes the delivery to the Smithsonian Institution of certain kinds of property, to be delivered to such persons as may be authorized by the Board of Regents to receive the same. Upon a request from the secretary of the institution that a small Spanish cannon captured in the trenches before Santiago, Cuba, by U. S. volunteers and brought by them to Washington, D. C., be assigned to the U. S. Museum at the institution, held, that the provisions of Sec. 5586 did not apply to the property named; that the same being public military stores captured from the enemy was property of the United States, and that the power to dispose of all property of the United States was exclusively vested by the Constitution in Congress. Card 5033, September, 1898. 666. All property captured from the enemy becomes the property of the United States subject to disposition by Congress. Where it inures to the benefit of individuals it is in consequence of a grant by Congress. But there is no act of Congress which extends to members of the army, regular or volunteer, the right to share in prize money resulting from captures by the navy of public or private vessels of the enemy, though the army may have aided in the operations which led to the capture. Card 5250, November, 1898. CERTIFICATE OF MERIT. 667. Held, under Sec. 1216, construed in connection with Sec. 1285, Rev. Sts., that the President was authorized to grant a certificate of merit only to a soldier belonging at the time of the grant to a regiment of the army; that he was not empowered to grant such a certificate to a discharged soldier and civilian, on account of services rendered while he was a soldier.' XLI, 168, April, 1878. See, to a similar effect, the opinion of the Attorney General in 16 Opins., 9; also the subsequent G. O. 28, Hdqrs. of Army, 1878. 668. Held, under Sec. 1216, Rev. Sts., as amended by the act of Feb. 9, 1891, c. 122, as follows: 1. A certificate of merit may now be granted to "any enlisted man of the army," noncommissioned officer as well as private.' 2. It may be granted for distinguished conduct prior to the date of the act of February 9, 1891, as well as since. 3. The grantee must belong to a regiment. 4. While the recommendation of the regimental commander is necessary, this recommendation may be based upon any fact or facts deemed by him to justify it, such as the recommendation of the company commander, or any other officer (whether of the regiment or not) cognizant of the circumstances of the case, or upon any other authentic information brought to his (the regimental commander's) knowledge. 5. That the declaration of A. R. 177 (197 of 1901), that the recommendation "must originate with an eye witness," is an interpolation not authorized nor called for by the original statute (Sec. 1216, Rev. Sts.), or by the recent amendment of 1891, and an instance of quasi legislation unwarranted in an army regulation. 47, 152, May, 1891. 669. Sec. 1216, Rev. Sts., as amended by the act of March 29, 1892 (27 Stats., 12), provides "that when any enlisted man of the army shall have distinguished himself in the service the President may, at the recommendation of the commanding officer of the regiment or the chief of the corps to which such enlisted man belongs, grant him a certificate of merit." Held, that a retired enlisted man is an "enlisted man of the army" within the meaning of this statute and therefore eligible for a certificate of merit. The recommendation required should come from the commanding officer of the regiment or the chief of the corps to which such enlisted man belonged. Card 8445, June, 1900. 670. The law provides that a certificate of merit may be given to any enlisted man who "shall distinguish himself in the service." This is not limited to distinguished service in battle. Held, therefore, where an enlisted man distinguished himself by the part he took in subduing a fire which threatened to destroy public property, that he could legally be given a certificate of merit for such service. Card 4108, May, 1898. 671. The pay of general service clerks and messengers is fixed by the act of July 29, 1886. While this statute restricted them to cer 1 In Bell v. U. S., 28 Ct. Cls., 462, it was held that a soldier, to whom, when a member of an infantry regiment, had been granted a certificate of merit, was entitled to continue to receive the additional pay after re-enlisting in the "general messenger service." 2 See McNamara v. U. S., 28 Ct. Cls., 416, where it is held that the act of Feb. 9, 1891, is retroactive, and entitles the beneficiary to the additional pay from the date of the service for which the certificate was awarded. tain pay as such clerks and messengers, it left unaffected their rights as enlisted men under Sec. 1285, Rev. Sts., as amended by the act of February 9, 1891, by which all enlisted men who have received certificates of merit are entitled to “additional pay" at the rate of two dollars per month. This "additional pay" is a mere gratuity and not pay, &c., in the sense of the above act of 1886, such pay, &c., being compensation for services rendered. Held, therefore, that a general service clerk or messenger, being an enlisted man, is entitled, when holding a certificate of merit, to the monthly merit pay, calculated from the date of the service for which he received his certificate. 59, 347, May, 1893. CESSION OF JURISDICTION. 672. Jurisdiction over territory in a State may be acquired by the United States, under the 17th clause of Sec. 8 of Article 1 of the Constitution, by the purchase of such territory, with the consent of the State, "for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." The Constitution gives Congress the power of exercising exclusive legislation over such place, and this is held to mean exclusive jurisdiction. The State's consent to the purchase for any one of these constitutional purposes invests the United States with exclusive jurisdiction, and the State can not, even by the express language of its legislation, reserve to itself any part of this jurisdiction. (The reservation of the right of serving process for causes of action arising outside such territory is not held to be an actual reservation of a part of the exclusive jurisdiction intended to be vested in the United States.) But it would seem that this is only true when the purchase is for one of the constitutional purposes. By correct construction, "other needful buildings" would mean buildings of the same character as those specified-buildings intended for military or defensive purposes. A more comprehensive meaning has, indeed, been sometimes given to the expression, but no justification for such construction is found. In Pinckney's draft of a constitution there was this clause: "To provide such dockyards and arsenals, and erect such fortifications, as may be necessary for the United States, and to exercise exclusive jurisdiction therein." (This draft was submitted May 29, 1787.) There was no corresponding provision in the Constitution reported by the committee of detail (August 6), but the committee of eleven, by report of September 5, recommended the adoption of the clause as it now reads, except that it did not have the words "by the consent of the legislature of the State." In the debate on the proposition, “Mr. Gerry contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the general government. Mr. King himself thought the provision unnecessary, the power being already involved; but would move to insert, after the word 'purchased,' the words, 'by the consent of the legislature of the State.' This would certainly make the power safe." (5 Elliot's Debates, 511.) And in the Federalist (No. 43) it is remarked: "Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it." So Story remarks (Sec. 1224): "The other part of the power, giving exclusive legislation over places ceded for the erection of forts, magazines, &c., seems still more necessary for the public convenience and safety. The public money expended on such places, and the public property deposited in them, and the nature of the military duties which may be required there, all demand that they should be exempted from State authority. In truth, it would be wholly improper that places on which the security of the entire Union may depend should be subjected to the control of any member of it. The power, indeed, is wholly unexceptionable, since it can only be exercised at the will of the State; and therefore it is placed beyond all reasonable scruple. Yet, it did not escape without the scrutinizing jealousy of the opponents of the Constitution, and was denounced as dangerous to State sovereignty." And, as observed by Judge Seaman (In re Kelly, 71 Fed. Rep., 545, 549): The rule thus stated, whereby legislative consent operates as a complete cession, is applicable only to objects which are specified in the above provision, and can not be held to so operate, ipso facto, for objects not expressly included therein. Whether it rests in the discretion of Congress to extend the provision to objects not specifically enumerated, although for national purposes, upon declaration as ‘needful buildings,' and thereby secure exclusive jurisdiction, is an inquiry not presented by this legislation (see 114 U. S., 541); and I think it can not be assumed by way of argument that such power is beyond question." In New Orleans 2. U. S., 10 Pet., 662, 737, the opinion of the Supreme Court is expressed by Mr. Justice McLean, without dissent, as follows: "Special provision is made in the Constitution for the cession of jurisdiction from the States over places where the Federal government shall establish forts or other military works. And it is only in these places, or in the Territories of the United States, where it can exercise a general jurisdiction." * And, in U. S. . Bevans, 3 Wheat., 336, 390, the claim was urged that the words "other place" would include a ship of war of the United States lying at anchor in Boston Harbor, and bring it within the statute defining murder committed" within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the sole jurisdiction of the United States;" but it was stated by the court, through Chief Justice Marshall, that "the construction seems irresistible that by the words 'other place' was intended another place of a similar character with those previously enumerated;" that "the context shows the mind of the legislature to have been fixed on territorial objects of a similar character." (See, also, The Federalist, No. 43, by Madison.) Sec. 355, Rev. Sts., prescribes that no public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, fortification, navy-yard, custom-house, light-house, or other building, of any kind whatever, until the * consent of the legislature of the State in which the land or site may be to such purchase has been given. This section. is in part based on the clause of the Constitution referred to, and in part not. The consent of the State to a purchase, given in order to satisfy the requirement of this section, would invest the United States with exclusive jurisdiction, if the purchase be for one of the Constitutional purposes; but the section provides for other purposes also, and as to these it would seem that a simple consent to the purchase (assuming that such consent, being for a purpose not falling under the clause of the Constitution, amounts to a cession of jurisdiction) would only carry with it so much jurisdiction as would be necessary for the purpose of the purchase. Probably this would be held to be concurrent. jurisdiction. Taking into consideration the fact that States cannot, under any circumstances, interfere with the instrumentalities of the Government of the United States, it may, indeed, be questioned whether, even under this view, unnecessary precautions have not been taken in regard to the acquisition of jurisdiction; and, certainly, it cannot be presumed that a State intends to part with more of its Sovereignty than is necessary. A consent to the purchase, under Sec. 355, Rev. Sts., if the purchase be for other than one of the purposes described in the clause of the Constitution, may, therefore, be accompanied with any limitations not interfering with an instrumentality of the Government of the United States. The most common way of acquiring jurisdiction, however, is by the State's expressly ceding it to the United States. In such case the State may make similar limitations, and this even if the place be used by the |