received in the line of his duty, his widow and children should have the provision made by the act. According to this construction, the only dif erence between the two cases consists in the officer's being killed imnediately upon the spot, or dying some time afterwards, in consequence of the wound. But, in both cases, the death is to be produced by a round;-by a wound received how? The act answers, in the line of is duty. Does this mean a wound in battle, and does it mean such round only? The act does not say so, unless he can be considered in he line of his duty only while he is engaged in battle. But the line of is duty is much more extensive and diversified. It extends to all the perations of the ship, whether civil or military; and takes in the whole. f her navigation, during the entire cruise. The officer who is killed, or lies by reason of a wound received by the falling of a spar in a tempest, s as entirely within the description of being killed, or dying by reason of a wound received in the line of his duty, as the officer who is killed or lies by a wound in battle. But the punctuation is, in my opinion, erroeous, and throws a false construction upon the act. It should, I think, e thus: "If any officer of the navy or marines shall be killed, or die by eason of a wound received, in the line of his duty," &c.-that is, if any fficer shall, 1st, be killed in the line of his duty; or, 2d, die by reason of a wound received in the line of his duty;-so as to embrace the case fall officers who are killed in the line of their duty, whether killed in attle or in storm, by wounds or drowning, or any other cause growing ut of their duty, and inflicting death. Now, according to this construcion, the widows and children of all officers who have perished by either of the causes set forth in the above three questions, would be entitled to he provisions prescribed by that act, because those questions do, one and all, put the case of persons killed in the line of their duty; unless it an be said, with truth, that a man who is drowned is not killed. If this ct were to be considered in itself, and it were important, for the benefit of the widows and children of the officers of the navy, to insist upon this construction which I have indicated, I should have no hesitation in loing so; more especially when it is considered that the humane and iberal policy in which these acts originated justifies and demands a liberal interpretation of them. The next act upon the subject is that of the 4th March, 1814, "giving pensions to the widows and orphans of persons slain in the public and private armed vessels of the United States." The first section relates to private armed vessels, and embraces the case of officers, seamen, and marines, who shall die, or shall have died, since the 18th day of June, 1812. The second section, which alone relates to the navy, or public armed ships, is curiously constructed, and is in these words: That if any seaman or marine belonging to the navy of the United States shall die; or, if any officer, seaman, or marine, shall have died since the 18th day of June, 1812, by reason of a wound received in the line of his duty, leaving a widow," &c. So that this act makes no provision for the case of officers who should be slain thereafter: the whole provision for the future being confined to the case of seamen and marines; while, with regard to the past, (back to the 18th day of June, 1812,) it provides for the case of officers, seamen, and marines, who had been slain in the pub'ic vessels of the United States, (according to the language of the title,) or who had died by reason of wounds received in the line of their duty. With regard to seamen and marines, this is the first act which

provides for their widows and children; and the provision is clearly confined to the widows and children of such as had been, or should be, slain in the public armed vessels of the United States; or, according to the language of the enactment, such as had died, or should die, by reason of wounds received in the line of their duty;-language too precisely fixed by usage to embrace the cases put in the questions, of persons who ha been drowned. By this law, therefore, no provision is made for the wid ows and children of seamen or marines who had been, or should be drowned in the line of their duty. With regard to officers, I do not con sider this act as altering their condition under the act of the 20th Jan uary, 1813, except so far as it looks back before that act, up to the 18t June, 1812. For the act of the 20th January, 1813, was entirely pro spective, and consequently made no provision for the case of officers wh had been killed theretofore since the day of the declaration of war, (th 18th June, 1812.) This omission is supplied by the act of the 4th March 1814, so far as relates to officers who had died in that interval of wound received in the line of their duty, but does not embrace the case of thos who had been drowned in that interval. But after the 20th of January 1813, the act of that date took effect in behalf of the widows and child ren of officers who had either been killed in the line of their duty, or ha died of wounds received in the line of their duty. This act is not repeale by the act of the 4th March, 1814, either expressly or impliedly; for thet is no express repeal, and no incompatibility between the provisions of th two acts-the act of the 4th March, 1814, only repealing one of the pro visions of the act of the 20th January, 1813, leaving the other cases pro vided for by that act untouched; and the act of the 4th March, 1814 dealing only with the past cases of officers, and making no provision fo future cases, but leaving the future to stand solely upon the provisions the act of the 20th January, 1813. But whatever doubt may have es isted as to the construction of the antecedent acts, seems to have bee removed by the act of the 3d March, 1817, passed for the express pu pose of amending and explaining the act of the 4th March, 1814, as it title declares; and produced, no doubt, by the case of the Epervier,-th recent knowledge of whose loss had awakened a strong feeling of sym pathy in the community, as is evinced by the act of the same date, fo the temporary relief of the widows and children of those who had bee lost in that vessel.

The act now under consideration provides that if any officer, seaman or marine, belonging to the navy of the United States, shall die, or sha have died, since the 18th day of June, 1812, in consequence of disease con tracted, or of casualties or injuries received, while in the line of his duty and which shall be satisfactorily proved to the commissioners of the nav pension fund, leaving a widow, &c.

The cases put in the three questions appear to me to be clearly an completely covered by this law, so far as officers, seamen, or marines, be longing to the navy of the United States, are concerned; for those are a cases of persons who had died while in the line of their duty, and who ha died in consequence of casualty which had occurred while in the line their duty.

If any doubt could fairly arise as to the intention of the legislature the use of language so broad and general as this, it would seem to be r moved by subsequent laws, where a different phraseology is adopted t

xpress the understanding of Congress as to the effect of this law, and to ontinue this effect.

Thus the act of the 3d March, 1819, is entitled "An act extending the rm of half pensions to the widows and children of certain officers, sealen, and marines, who died in the public service." And the 1st section rovides, that "in all cases where provision has been made by law for ve years' half pay to the widows and children of officers who were killed battle, or died of wounds received in battle, or who had died in the naval rvice of the United States during the late war, the said provisions shall e continued," &c.

So, also, the act of the 22d January, 1824, is entitled "An act further xtending the term of half pay pensions to the widows and children of ficers, seamen, and marines, who died in the public service."

And the 1st section provides, "that in all cases where provision has een made by law for five years' half-pay to the widows and children of fficers, seamen, and marines who were killed in battle, or who died in he naval service of the United States during the late war," &c.

This general language-"who died in the public service," and "who ied in the naval service of the United States,"-more especially when ken in connexion with the other classifications contained in the act of le 3d March, 1819, can have no application to any antecedent act, except lat of the 3d March, 1817, and may well be considered as a legislative xposition of that act: in which light it seems to me to place beyond conoversy death from any species of casualty occurring in the line of their uty; and thus to present an affirmative answer to all the questions abmitted for my opinion.

These questions are confined to the period between the 18th June, 812, and the 22d January, 1824, the date of the last-mentioned act; thich whole period is filled up by the operation of the act of the 3d larch, 1817: that act operating retrospectively as well as prospectively. And although it is repealed by the 2d section of the act of 22d January, 824, yet there is a saving of all pensions granted, and all rights which ad accrued under it.

Let us now consider these questions.

II. With regard to private armed vessels.

The act of the 26th June, 1812, "concerning letters-of-marque and prize goods," sets apart (by the 17th section) two per cent. on the net amount of prize-money made by privateers "as a fund for the support and maintenance of the widows and orphans of such persons as may be wounded and disabled on board of the private armed vessels of the United States in any engagement with the enemy, to be assigned and distributed in such manner as shall hereafter by law be provided."

The next act which takes up the subject of such widows and children is that of the 4th March, 1814, entitled "An act giving pensions to the widows and orphans of persons slain in the public and private armed vessels of the United States."

The 1st section of which act is confined to the cases of officers, seamen, and marines, serving on board any private armed vessel bearing a commission of letter-of marque, who "shall die, or shall have died, since the 18th day of June, 1812, by reason of a wound received in the line of his duty;" terms too precise and narrow, as already remarked, to cover presented in the questions under consideration.

the cases

Then comes the act of the 3d March, 1817, which is entitled "An ac to amend and explain an act giving pensions to the orphans and widow of persons in the public or private armed vessels of the United States; but the provisions of which are confined to "the officers, seamen, an marines belonging to the navy of the United States.

Congress, apparently aware that this language did not, strictly speal ing, reach the case of private armed vessels, passed another act, in th following session, (16th April, 1818,) entitled "An act in addition to a act giving pensions to the orphans and widows of persons slain in th public and private armed vessels of the United States." By the 2d se tion of this law, it is enacted, "that if any officer, seaman, or mari shall have died since the 18th day of June, 1812, in consequence of i accident or casualty which occurred while in the line of his duty on boa any private armed vessel, leaving a widow," &c.

It is by this law that the several questions submitted to me are to 1 answered, so far as concerns private armed vessels.

The case put by the first question is that of a private armed vessel fou dered or lost at sea. And in this case it would seem to me that the of cers, seamen, and marines who are lost in her, are clearly within eve description of the act; for they are persons who have died in consequen of an accident or casualty which occurred while in the line of their du on board a private armed vessl.

The case put by the second question is that of a prize vessel order in for adjudication, but foundered or lost on her voyage in, with t prize crew on board of her; and

The case put by the third question is that of a boat of a private arme vessel ordered on duty, but upset and lost, with the hands on board her.

There can be no doubt that, in both these cases, the officers, seame and marines on board have died in consequence of a casualty or accide which occurred while in the line of their duty; the only doubt which, presume, can possibly occur in either of these cases, must arise from t expression of the law-"on board a private armed vessel." But, to constr the law in the narrow way implied by this doubt, would be to sacrific its spirit to a very narrow interpretation of its letter, and to give it a operation extremely partial and unjust to those who were equally the of jects of legislative favor. According to this construction, if a mast shoul fall and kill one man on the deck of the privateer, and, by breaking ov the gunwale of the vessel, kill two others in her boat alongside of he the wife and children of the first would be within the benefit of the lav while those of the last would not, though they were all equally in th line of their duty, and were killed by the same accident.

It cannot possibly have been the intention of the law to create a diffe ence so flagrantly unjust and revolting. If it was the policy of the la to stimulate seamen to the fearless encounter of all the perils attendant « that line of life, the same reason existed as strongly to apply the stimul to those in either of the predicaments described by the questions, as those who should remain on the deck of the privateer; since, I presum there can be no doubt that the crew sent home in charge of a prize shi and the men sent to do duty in all weathers and all situations, in t boats of the privateer, are as much exposed to casualties and acciden whether of war or of the seas, as those who remain with the privates

it the hypothetic opinion which I am opposing is not warranted even the language of the law, but is founded on a misapprehension of it. at language is not "if any officer, &c., shall have died on board any ivate armed vessel," &c.; nor is it" if any officer, &c., shall have died consequence of any casualty or accident which occurred while on board y private armed vessel," &c. Had this been the language, there would ve been some color for supposing that the person must die on board the vateer, or in consequence of some accident happening to him while he s personally on board of her, in order to entitle his wife and children. the provisions of the act. But the language is, "if any officer, &c., all have died in consequence of an accident or casualty which occurred ile in the line of his duty on board a private armed vessel;" so that the ard of the private armed vessel is referred to for the purpose of giving › measure of the line of his duty. Now, the duty of every man on ard a private armed vessel is to obey the orders of his commanding icer; it is his duty on board of such vessel to follow out those orders to atsoever distance they may carry him from such vessel; and to whatver distance he may be carried in the execution of such orders, he is I in the line of his duty on board of the privateer—in the line of his ty as an officer, seaman, or marine on board of such vessel; that is, athed to such vessel-belonging to such vessel; which is the whole meanof the law.

The British prize acts use the same form of expression. "Be it enacted the King's most excellent Majesty, &c., that the flag officers, com anders, and other officers, seamen, marines, and soldiers, on board every p and ve sel of war in his Majesty's navy, shall have the sole interest A property of and in all and every ship, vessel, goods, and merchandise ich they have taken, &c., or shall hereafter take, during the continuce of hostilities," &c. Now, according to the strict literal construction these words, none would have a right to participate in these prizes but ose who were on board of the capturing vessel at the time of the capture. it what has been the judicial exposition of these acts? It has been deled that not only those on board the capturing vessel, but those on ard another vessel of war, which was in sight at the commencement of e chase, though perhaps not so at the time of capture, are entitled to are in the prize; even vessels out of sight have, in various cases, been mitted to such participation. So those who were not on board the capring vessel, but were in her tenders and boats, at the time of the capre, and those also who were at a distance, escorting a former prize into rt, are still permitted to share in all prizes made by such ship of war, those on board the ship share in all prizes made by her boats, and ade by prize ships in transitu to the port of adjudication.

Upon the whole, I have no difficulty in answering the three questions. opounded to me in the affirmative, in relation both to the public and ivate arined vessels of the United States.

I have the honor to remain, sir, very respectfully, your obedient rvant,

To the SECRETARY OF THE NAVY.

WM. WIRT.