1825, during the recess, Mr. Binney was appointed by the President to the office above mentioned. Here, then, was a vacancy which occurred during the session; was known to have taken place; was left unfilled at the close of the session and was afterwards during the recess filled up by the President. I know of no precedent in favor of the opposite construction. And as a vacancy in the office of register of the land office for the Mount Salus district until the next meeting of Congress would produce serious inconvenience to the public, and the vacancy is, in my judgment, one of that character which the constitution contemplated in the grant of power before mentioned, I respectfully advise that the appointment be made. To the PRESIDENT OF THE UNITED STATES. R. B. TANEY. PENSIONS. Persons who served on board of privateers are not embraced by the pension law of 1832 The language used in the act applies to those only who were in the immediate service the government, and formed a part of the public naval service. ATTORNEY GENERAL'S OFFICE, July 21, 1832. SIR: The question I understand proposed to me in Captain Connor' case, is, whether persons who served on board of privateers are embraced by the pension law of 1832. I think they are not included. The fift section gives the pension to the officers, non-commissioned officers, mar iners, and marines who served "in the naval service" for the term men tioned in the act of Congress. The language used can apply to thos only who were in the immediate service of the government, and formed part of the public naval force, and not to those who were engaged in pri vate armed ships. To the SECRETARY OF WAR. R. B. TANEY. 1 DUTIES OF ATTORNEY GENERAL. It is not the duty of the Attorney General to give official opinions except in cases defined by the laws, as the government might thereby be connected with controversies in which it has no concern, and with which it ought not to interfere. ATTORNEY GENERAL'S OFFICE, July 23, 1832. SIR: My absence from Washington, and some pressing official engage ments since my return, have prevented me from replying sooner to your letter of the 6th instant. of Ever since I have filled the office I now hold, I have declined express ing an opinion, officially, in any case that did not fall within the scope my duties as marked out by law; and the case stated in your letter is not on which an opinion could properly be given from this office. Any therefore, which I might say in relation to it would be nothing an the advice of any other counsel you might choose to consult. tter is perhaps intended to ask my opinion in that character; but cumstances you state induce me to decline advising you, even as vidual, on the course proper for you to pursue; because, in the reI stand to the government, an opinion from me on this subject be looked upon as an official one, and thus connect the government n individual controversy in which it has no concern, and with it ought not to interfere. will, therefore, excuse me for declining to advise in this matter. I am, sir, very respectfully, your obedient servant, JOHN M. McCALLA, Esq. R. B. TANEY. PENSIONS TO WIDOWS. ow of John M. Gardner, who died of a disease contracted during the war of 1812, and received a pension under the act of 1817, which was continued under the acts of 1819 324, cannot be required to refund the moneys, though the same were erroneously paid , which she received under the last-mentioned acts; nor can they be set off against the on which she is entitled to receive under the act of 1832. 3 are not debtors to the public for what they may have erroneously received under des of the tribunals established to decide on their rights. OFFICE OF THE ATTORNEY GENERAL, October 24, 1832. It appears from the papers before me, that John M. Gardner, who master commandant in the navy of the United States, died shortly he close of the war, of a disease contracted during the war; and that idow, Sophia Gardner, was placed on the pension list by the comners of the navy pension fund, under the act of 1817. Under this he was clearly entitled to the pension. Her certificate was afterrenewed, and the pension continued to her under the acts of 1819 824. The act of 1828, which continued the navy pensions for five longer, gives pensions to the widows of persons who were killed in , or died in service, "during the last war;" and under this act it lecided by the commissioners of the navy fund that the case of Mrs. her was not embraced by its provisions, and she was dropped from ll. The language of the acts of 1819 and 1824, before mentioned, same in effect with that of 1828 in this respect, and gives the pento those who were killed in battle, or died in service, during the var." And if the construction placed on the act of 1828 was the one, then the pension of Mrs. Gardner ought not to have been coned under the acts of 1819 and 1824. is unnecessary in this case to decide whether the construction given e act of 1828 was the true one or not. I find, on examination, that Wirt and Mr. Berrien differed in opinion on this point. But, assuming the opinion given by Mr. Wirt is the correct interpretation of the law, that the pension of Mrs. Gardner ought not to have been continued er the acts of 1819 and 1824, it does not follow that she is to be re garded as a debtor to the government for the amount received under these two acts. On the contrary, I think that, inasmuch as the tribunal to whom the construction of these laws was confided by the government decided that Mrs. Gardner was embraced by their provisions, and the pension was paid to her under that decision, she is entitled to hold the money. The interpretation then given by the competent authority having jurisdiction of the subject, cannot now be revised or reversed by their successors in the same office, so as to affect the rights of those who have received pensions, although the construction then given should now be deemed erroneous. The case would be different if any mistake of fact had been committed, or the government imposed on by false testimony. The act of the last session of Congress in relation to these pensions, conforms, in its language, to the act of 1817; and Mrs. Gardner is entitled to a pension under this law. Being so entitled, she has, in my opinion, the right to receive her pension; and the money which was paid to her under the laws of 1819 and 1824 cannot be set off against it. She is not debtor to the public for what she has before received under the decision of the tribunal established by the government to decide on her rights; and that sum cannot, therefore, be retained as a set-off against the money which, under the late law, is due to her from the public. To the SECRETARY OF THE Navy. R. B. TANEY. NAVAL COURTS-MARTIAL. Although naval courts-martial shall have been organized with five members only, under the orders appointing them, their sentences are not invalid for that reason. The discretion vested in officers appointing courts-martial being merely directory to the officer appointing the court, his determination whether more than five members can be conveaed without manifest injury to the service, is conclusive. ATTORNEY GENERAL'S OFFICE, SIR: The objection made by Lieutenant Carpenter to the validity of the naval court-martial by which he was tried, cannot, in my opinion, be sus tained; and the decision of the Supreme Court in the case of Martin rs. Mott, in 12 Wheaton, 24, 35, appears to me to remove all doubt on the question. By the 64th and 65th of the rules and articles of war enacted by the act of the 10th of April, chapter 20, it is provided "that general courts-martial may consist of any number of commissioned officers, from five to thirteen, inclusively; but they shall not consist of less than thirteen where that number can be convened without manifest injury to the service." By the 35th article of the rules and regulations for the better govern. ment of the navy of the United States, contained in the act of April 23, 1800, it is provided "that no general court-martial shall consist of more than thirteen, nor less than five members; and as many officers shall be summoned on every such court as can be convened without injury to the service, so as not to exceed thirteen." Although these two acts of Congress are not in the same words, yet they contain substantially the same provisions in relation to general courts. martial; and the discretion vested in the officer appointing the court, to regulate the number by the exigencies of the public service, is obviously of the same character in both cases. In the case of Martin vs. Mott, the Supreme Court have decided that the direction contained in the act of 1806, that a general court-martial "shall not consist of less than thirteen, where that number can be convened without manifest injury to the public service," is merely directory of the officer appointing the court; and his decision as to whether that number can be convened without manifest injury to the service, being in a matter submitted to his sound discretion, must be conclusive. The discretion vested in the officer appointing a naval court-martial, being of the same character, his decision must be equally conclusive. And the court, therefore, by whom Lieutenant Carpenter was tried, was legally constituted; and the fact that it consisted of only five members, forms no solid objection to the jurisdiction of the court or the validity of Sits sentence. R. B. TANEY. To the SECRETARY OF THE NAVY. DEVISE OF BOUNTY LAND BY IMPLICATION. Where a person entitled to bounty land deceded before he received it, leaving two heirs-at-law and a will devising certain other of his real and personal estate to one, to be in full for all interest in his estate,—HELD, that the other takes the bounty land by implication. ATTORNEY GENERAL'S OFFICE, October 25, 1832. SIR: From the statement before me, I think that Thilia Porter, as the heir and devisee of Lieutenant John Thorp, deceased, is entitled to the bounty lands due to him. The case is this: John Thorp, at the time of his death, left issue two daughters, Elizabeth Serring and Thilia Porter, who were his heirs-atlaw. The two grandsons mentioned in his will were the children of his daughter, Mrs. Serring. The bounty land is not expressly devised to any one, nor is there any express general devise of the residue of his real estate. And if there hadbeen nothing in the will to exclude Mrs. Serring from a share of the bounty lands, they would have descended equally to his two daughters, who were his heirs at law. But the testator directs that the devise of certain real and personal estate made to Mr. and Mrs. Serring should go in full satisfaction of all right,. title, interest, claim, and demand, whatsoever, which they might or could in any way pretend to have or claim to all or any part of his real or personal estate, except the bequest of the one-half of the residue of his personal estate, which, by a preceding clause in his will, he had given to her. This strong language of exclusion from everything but the property above mentioned appears to me to be, by necessary implication, a devise to Mrs. Porter, his only remaining heir at-law, of the share of the residue of his real estate, which, in the absence of this clause of exclusion, would have descended to Mrs. Serring. The bounty lands, not being devised to any one, would be left to descend to the heirs-at-law. And when the testator gives to one of his heirs the one-half of the residue of his personal estate, and excludes her in express terms from any share of the residue of his estate, the portion of that heir in the residue of the real estate is, in my opinion, by necessary implication, given to his remaining heir. And Mrs. Porter is therefore entitled to these lands. This opinion is expressed under the belief that the will of Mr. Thorp is sufficiently attested to pass real estate, and that his two daughters, Mrs. Serring and Mrs. Porter, were both living at the time of his death. The officer in charge of the Bounty Land Office will, of course, satisfy himself on these points before he acts on this opinion. To the SECRETARY OF WAR. R. B. TANEY. PAYMENT OF STATE AND TERRITORIAL MILITIA, The militia of Missouri, Indiana, and Michigan, who were ordered out to repel Indian inva sions by a competent State or Territorial authority, are entitled to be paid for their services, provided the circumstances under which the call was made were, in the opinion of the President, sufficient to justify it. OFFICE OF THE ATTORNEY GENERAL, SIR: In reply to your note of yesterday, I have the honor to state that, in my opinion, the militia of the States and Territory mentioned by you, who were ordered out by a competent State or Territorial authority during the recent hostilities with the Indians, are entitled to be paid for their services out of the appropriation made at the last session of Congress, provided the circumstances under which such call was made were, in the opinion of the President, sufficient to justify it. I do not think it necessary that they should have been called out by the government of the United States, or have been actually received into the service of the United States, in order to authorize you to pay them. The question arises under the act of June 15, 1832, entitled "An act for the re appropriation of certain unexpended balances of former appro priations, and for other purposes. The 3d section of this law appropri ates $300,000 for the purpose of paying the militia of the State of Illi nois, called into the service of the United States by competent authority, and for paying the expenses incurred in defending the frontier from a recent invasion by several bands of hostile Indians, and including the pay of the militia legally called out for the same purpose from the neighboring States and Territories." The militia called out for the purpose of defending their frontier by the public authorities of Missouri, Indiana, and Michigan, were called out legally, if there was such imminent danger of invasion as would not admit of delay. And as the law provides generally for all who were legally called out for that purpose, I do not see any reason for restricting the meaning of the general words used, confining them to militia legally called out by the authority of the United States, or actually received into their service. There are no such words of restriction in the law. And there is nothing in the circumstances under which the law was passed, nor in the usual policy of the government in this respect, that should |