parts of the two hundred and fifty new cadets who are authorized by the third section, you will find no part of the description which applies to the ten cadets who had been previously attached to the corps of engineers; for these ten had not been heretofore appointed in the service of the United States," either of artillery, cavalry, riflemen, or infantry; the corps of engineers having been by the previous laws erected into a corps distinct from them all, and known by a different name; nor were those ten cadets, already appointed, included in the only remaining part of the description of those who may in future be appointed in the manner hereinafter provided." Whatever might have been the intention of Congress, it is very clear, to my judgment, that they have, by this third section, anthorized the President to add to the establishment two hundred and fifty cadets, exclusive of the ten who had been previously appointed under the act of 1802. But to proceed directly to the point in question: the cadets embraced in the third section were to be attached, at the discretion of the President, to the military academy; and when so attached, they were to be subject to the established regulations thereof. What is the meaning of this phrase, attached to the military academy? What is meant by the military academy? Does it mean the buildings in which the military education was taught? No; Congress have not left us in the dark on this point; they have expressly defined what they mean by the phrase, the military academy. By the 27th section of the act of 1802 they have expressly declared that the corps of engineers shall constitute this military academy; and by the 2d section of the act immediately under consideration, they have repeated "that the military academy shall consist of the corps of engineers," &c. By attaching these cadets, therefore, to the military academy, is clearly meant attaching them to the corps of engineers, with their train of professors who constitute that academy; and, while so attached, they compose a part of that corps. Being thus identified with the corps, if this were a case in which implication could be suffered to speak, it might be fairly held that they became, by irresistible consequence, subject to all the laws which bound that corps. Congress, however, with their habitual caution, have saved us the necessity of collecting their intention by inference, in this respect, by expressly declaring that the cadets thus attached to the pre-existing military body, known by the name of the military academy, should be subject to the established regulations of that body. What were these regulations? One of them was (under the act of 1802) that that body should be subject at all times to do duty in such places and on such service as the President should direct. Another was (under the act of 1806) that that body should. be governed by the rules and articles of war, and be subject to be tried by courts-martial; and the section under consideration expressly declares that the two hundred and fifty cadets shall be subject to the same regulations.

It is said, however, by Colonel Hindman, that the 96th article of the rules and articles of war embraces only the case of cadets in the service of the artillery and corps of engineers; and that these cadets, not being in the service of either of those corps, or of any other corps, are not comprehended by that article. In answer to this, it might be very fairly insisted, that those cadets, after their attachment to the corps of engineers, come within the very description of the 96th article-being persons who receive pay in the service of the corps of engineers. But let it be admitted

that the new cadets are not within the description of the 96th article: ca it be denied that the original body who composed the military academ were within that description? For if they were, the act of 1812 place the new cadets precisely on the same footing, by subjecting them expressl to the same established regulations.

Lest it should be thought that this phrase established regulations has narrower sense than that which I have assigned to it-that it alludes, fo example, to the allotment of the hours for study, for exercise, for relaxa tion and refreshment, for sleep, &c.-it may not be amiss to observe tha "the same rules and regulations" are the terms employed by Congress in parallel cases, with an unquestionable reference to a subjection to mar tial law. In support of this, see chap. 376, § 2, (vol. iv, p. 405,) chap 532, § 2, p. 541. In chap. 599, § 4, (vol. iv, p. 645,) the phrase here is, that the new troops shall be placed, in every respect, on the same foot ing as the other regular troops of the United States. But if this phrase "established regulations" is to have the restricted sense which I have supposed, then the new cadets are not subject to do duty when and where and how the President shall direct. The construction which would subject them to this duty cannot fairly avoid the other.

It is suggested by Colonel Hindman, on behalf of the court-martial, that these cadets are merely students. In one sense they are so; and so was the old corps known under the name of artillerists and engineers; so was the original corps of engineers who constituted the military academy. For both books, instruments, and apparatus for study," were expressly provided by law; yet this character of students did not exempt them from a liability to martial law. But if the suggestion is intended to place these cadets on the footing of civil students, clothed with all their civil privileges and immunities, it is proper to remark that these cadets occupy a very different ground. They are enlisted soldiers; they engage, like soldiers, to serve five years, unless sooner discharged; they receive the pay, rations, and emoluments of sergeants; they are bound to perform military duty in such places and on such service as the commander in chief of the army of the United States shall order; and, finally, by the act of the 3d March, 1815, fixing "the military peace establishment of the United States," the corps to which they were attached, and of which they form a part, is expressly recognised as a part of that military establishment. (See the act, vol. 4, Laws United States, p. 825.)

I have given you all this trouble, sir, from my respect for the court. martial with whom I have been obliged to differ, as well as from the real delicacy and importance of the question; and after every allowance for the genius of our constitution and laws, and after rejecting everything like implication and inference from the consideration of this question, come to the conclusion that the corps at West Point form a part of the land forces of the United States, and have been constitutionally subjected by Congress to the rules and articles of war, and to trial by court-martial. I have the honor to be, &c.,

To the SECRETARY OF WAR.

WM. WIRT.

PRE-EMPTIONS ON MISSOURI BOUNTY LANDS.

The rights of pre-emption given to settlers by the act of the 12th April, 1814, attach to settlers on lands set apart for bounties by the act of 6th May, 1812, who settled thereon prior to the surveys; but not to those who settled thereon subsequently.

The President cannot appoint registers and receivers for the land districts, until there shall be suficient land surveyed to authorize the opening of land offices.

The pre-emption claims cannot be ascertained and decided upon by any other agency than that of registers and receivers of the land districts in which they are situate.

Legislation, to free the subject of granting patents from embarrassment, recommended.

SIR: I have adverted to the several acts of Congress to which you have referred me by your statement relative to the public lands west of the Mississippi and in the Territory of Missouri, and have now the honor to answer the questions you have submitted for my opinion.

1. Your first question is, whether the rights of pre-emption given to settlers by the act of the 12th April, 1814, can be allowed within the range of country designated for military bounties?

Answer.-The act which provides for designating the military bounty lands, passed on the 6th May, 1812, directs, among other things, that the President shall cause to be surveyed two millions of acres in the Territory of Louisiana, (now Missouri,) and provides that the lands thus sureyed (with certain exceptions, which do not touch this question) shall be set apart and reserved for satisfying the bounties. The act of the 12th April, 1814, provides "that every person (and their legal representatives) who has actually inhabited and cultivated a tract of land lying in the Territory of Missouri, which tract is not rightfully claimed by any other person, and who shall not have removed from said Territory, shall be entitled to the right of pre-emption in the purchase thereof." From the general language of this act, the right of pre-emption runs through the Whole Territory, except where the tract for which the settler contends is rightfully claimed by any other person. No such claim can, I conceive, exist as to lands which were vacant and unappropriated at the time of the settlement. The military bounty lands are set apart and reserved (i. e. appropriated) from the time of the surveys. My opinion, therefore, is, that all settlers on these lands, prior to the surveys, are entitled to the right of pre-emption, under the act of the 12th April, 1814. But not so those who have settled on them since the surveys were made; because, after the surveys, they were no longer vacant and unappropriated. From that time, a rightful claim existed in behalf of the soldiers, which a subsequent settlement could not divest. The survey was notice to all the world, and the settler was bound, at his peril, to take notice of it; but, with regard to those who made their settlements before the surveys, they had no such notice, and stand upon the same ground of merit with other

settlers.

2. Your second question is, Can the President now proceed to the appointment of the registers and receivers of the land districts created by the act of the 17th February, 1818; no public lands, distinct from the military lands, having been surveyed in those districts?

Answer. The first section of this act announces the purpose for which the new land offices were to be opened; it was for the disposal of the lands of the United States west of the Mississippi river, in the Territory

of Missouri. When we look to the previous laws which establish the system for the sale of public lands, we can have little doubt what kind of disposal was here intended; it is the phrase constantly used, either in the title or body of those laws, when provision is made for a general sale of all the lands within the district designated. The first section of the act immediately before us having arranged the land districts for which the new offices were to be opened, the second section gives to the President the authority in question: "So soon as, in the opinion of the President, there shall be a sufficient quantity of the public lands surveyed, within all or either of the land districts hereby established, to authorize the opening of all or either of the land offices aforesaid, he shall cause the same to be opened, and proceed, from time to time, to appoint, by and with the advice and consent of the Senate, for each of the said offices, a register and receiver." Here, the power of the President to appoint does not arise until there shall have been a sufficient quantity of the public lands surveyed to justify opening the offices. This is not the language which would have been used, if military surveys had been intended; and even if this could be a question, all doubt is removed when we proceed to the third section, wherein the President is authorized, on opening any one of these land offices, to direct so much of the public lands lying in such district as shall have been surveyed according to law, to be offered for sale-which most certainly could not have been intended as to military bounty lands. It is to my judgment, therefore, very clear that the single case in the contemplation of Congress, as being that on which the President's power of appointment is to arise, was the return of surveys of such of the public lands as are for sale; and that any appointment made by him previous to such returns would be void, as being made without authority.

It is asked, whether the law cannot be so construed as to intend the appointment whenever there are duties for the register and receiver to perform? The answer is, that Congress have clearly limited the power of appointment to a single and a different contingency, to wit: the survey of a sufficient quantity of the public lands to justify opening the offices for sale. Their language clearly indicates this as the single contingency on which the power is to arise; and the legal maxim is, that whenever the language of a law is free from doubt, there is no room for construction. At the same time, there can be little question, that if Congress had looked to the case which has occurred, of pre-emption rights within the range of the military bounty lands which required to be acted on by the register and receiver, by the provisions of the act of the 12th of April, 1814, they would have authorized their appointment in time to meet that contingency.

3. Another question is, whether the pre-emption claims can be ascertained and decided upon by any other agency than that of the registers and receivers of the land districts in which they are situate?

Answer. I think not. The power is expressly given to them, without any power of revision elsewhere. The language of the law is, that "in every case where it shall appear, to the satisfaction of the register and receiver of public moneys of the land office, that any person who has deliv ered his claim of notice is entitled, according to the provisions of this act, to a preference, such person so entitled shall have a right to enter the same, on his producing a receipt from the receiver," &c.

1

1

4. If the register and receiver of public moneys cannot now be appointed, shall the issuing of military patents be now suspended until the public lands shall be surveyed, or until legislative interposition can be had? Or,

5. Shall the lottery and issue of patents be continued, without regard to the pre-emption claims which may exist in the range of country designated for the location of the military bounties?

These are questions rather of expediency than of law. I will, however, beg leave respectfully to suggest, that if the Executive concur in the opinion, that settlements prior to the surveys of the military lands give the settlers a right of pre emption in those lands, they will find themselves in the predicament of being called on to execute two conflicting laws; and cannot proceed to allot and grant the military lands throughout, without the danger (and, indeed, the certainty) of counteracting that which secures the right of pre emption. The obligation on the Execu tive to execute both laws is equal; and since it is impossible to execute both without the aid of registers and receivers, (whom, as yet, the President is not authorized to appoint,) I would, with great deference, advise the suspension of the lottery and issue of military patents, until the legis lature can clear the course by a new law.

I have the honor to be, &c.,

To the SECRETARY OF THE TREASURY.

WM. WIRT.

COURTS-MARTIAL.

A plea before a court-martial of a former arrest and discharge is bad; a former trial, only, is a defence under the 87th article of the Rules and Articles of War.

As to the perspicuity and precision of the charges, if the description of the offence is sufficiently clear to inform the accused of the military offence for which he is to be tried, and to enable him to prepare his defence, it is sufficient.

OFFICE OF THE ATTORNEY GENERAL,

August 29, 1819. SIR: I have examined the proceedings of the general court-martial held at Detroit last month, in the case of Lieutenant Gassaway, and have now the honor to hand you my opinion on the points of law made by the lieu

1

tenant in his defence.

He offered, first, a plea in bar to the trial, setting forth a former arrest on the same charges, and a discharge without trial. His plea was not well founded. The only provision on the subject is that which is contained in the 67th article of the Rules and Articles of War: "no officer, noncommissioned officer, soldier, or follower of the army, shall be tried a second time for the same offence." But a mere arrest is no trial; and

the case,

therefore, is not within the provision. The reference made in the plea to the 7th article of the amendments to in the copyist; the article intended is, I presume, the 5th amendment, the constitution of the United States, is an error either in the pleader or which provides that no person shall be subject, for the same offence, to

be twice put in jeopardy for life or limb."

But a mere arrest, even in

cases punishable in life or limb, is not considered as constituting this jeo