within the act, and that, consistently with its provisions, brevet commissions may be issued to the officers designated therein. The only point which suggests itself in connection with this branch of the subject is whether promotions made during Indian hostilities may be viewed as conferred "in time of war" within the meaning of the law. That Indian tribes are capable of maintaining relations of peace and war with the United States is recognized in numerous treaties made with them; and accordingly, where hostilities break out between any of those tribes and the Government, a state of war may, with propriety, be said to exist. Indeed, such hostilities have been so described by the legislature. Thus the act of April 20, 1818 (3 Stat., 459), made provision for the pay of militia called into service "in prosecuting the war with the Seminole tribe of Indians." So that brevet promotions made during the existence of Indian hostilities for distinguished service in the presence of the enemy are to be deemed as made in time of war within the meaning of the statute.

The foregoing opinion of the Attorney-General contains nothing to justify the claim that he was of the opinion that the act of March 1, 1869, permitted the issue of brevet commissions in time of peace. It is true that his use of language is somewhat indefinite when he says that "brevet promotions" made during the existence of Indian hostilities are to be deemed as made in time of war, but he was, of course, aware that a brevet "promotion" could not be made without an appointment, and he stated distinctly in a preceding paragraph of his opinion that "to constitute the latter [brevet appointments] it required the issue of commissions in pursuance of the previous nominations after confirmation by the Senate."

It seems clear that the Attorney-General based his opinion upon the assumption that, at the time when he rendered the opinion and when it was proposed to issue certain brevet commissions, Indian hostilities were then in progress, as evidenced by the "recent engagements with the Indians" mentioned at the beginning of the opinion. It is inconceivable that, in the face of the plain and positive terms of the act of March 1, 1869, he should have taken the view that brevet commissions could be issued when no hostilities were in progress-when there was no "time of war"-even though such commissions had been earned by service rendered during previously existing hostilities, during a prior "time of war." Such a holding would be equivalent to declaring that brevet commissions may be conferred for service rendered in the presence of the enemy in any past war, no matter how remote, notwithstanding the limitation imposed by the act of March 1, 1869, which provides that "from and after the passage of this act brevet commissions shall only be conferred in time of war."

The reasons for the enactment of section 2 of the act of March 1, 1869, are well known. It is notorious that during the latter part of the civil war and for several years afterwards brevet commissions were issued in such numbers and so indiscriminately that great dissatisfaction and considerable scandal had arisen. Many brevets were awarded to officers for "faithful and meritorious" service at desks in the War Department and elsewhere in capacities that involved no conflict with the enemy and none of the dangers and hardships of war. At the time of the passage of the act a large number of brevet nominations were before the Senate, although the war had ended nearly four years before, and there was good reason to believe that for many years to come the flood of brevet appointments for civil war service would continue unless stopped by legislative action.

It was to correct two flagrant abuses that section 2 of the act of March 1, 1869, was enacted. One of these abuses was the issue of brevet commissions long after the rendition of the service for which

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they were supposed to be conferred, and the other was the conferring of brevet rank for service not rendered in the presence of the enemy. Both of these abuses were rendered impossible in future by section 2 of the act, which provided that thereafter brevet commissions should only be conferred in time of war and for distinguished conduct and public service in the presence of the enemy. To read into that act, as it has been proposed to do, words that would make it possible to issue brevet commissions in time of peace would defeat one of the principal purposes of the act and would open the door to a renewal of one of the chief abuses that it was the intent of Congress to correct.

It may be true, as has been alleged, that some hardship is occasioned by the requirement that brevets, if conferred at all, shall be conferred during war, and that it is very desirable that the War Department and the President shall have a reasonable time after the close of a war in which to determine the merits of cases in which the award of brevets is recommended. But while all this is perhaps a good reason for an amendment of the existing law by Congress, it is not ground for so interpreting that law as to defeat its plain intent.

It has also been contended, in support of the pending brevet nominations, that the interpretation said to have been placed on the statute by the Attorney-General (to the effect that brevet commissions may be issued in time of peace for services rendered in time of war) was accepted by the War Department and "has governed its subsequent action in respect to nomination of officers for appointment by brevet," and that "for more than thirty years there has been a substantial unanimity of view as to the operation of the section under consideration." As before stated, no such interpretation was placed upon the law by the Attorney-General, and consequently no such interpretation could have been adopted by the War Department.

If "for more than thirty years there has been a substantial unanimity of view" that the act of March 1, 1869, permits the issue of brevet commissions in time of peace, provided that they have been earned in time of war, there should be evidence of this unanimity of opinion in the records of commissions issued. But the records do not afford any such evidence until very recently. The act of March 1, 1869, had the effect, as it was intended to have, of putting a stop to the issue of brevet commissions, and for many years thereafter Congress and the War Department recognized the fact that there was no law under which brevet commissions, even though earned in battle, could be issued. On account of this condition, the act of February 27, 1890 (26 Stat. L., 13), authorizing a limited issue of brevet commissions for service against hostile Indians, was passed.

After the few cases that were pending when the Attorney-General rendered his opinion of April 24, 1869, were disposed of, not a single brevet commission was issued under the general law, so far as can be ascertained, for fully thirty years. As recently as the year 1900, however, a few brevet commissions were issued for gallant service in the Philippines, the appointments having been confirmed by the Senate on January 4, February 26, and March 3 of that year. And it is understood that in 1901 certain brevet commissions were issued to officers of the Marine Corps for distinguished service in Cuba and in China. (Section 1604 of the Revised Statutes provides that "commissions by brevet may be conferred upon commissioned officers of the Marine Corps in the same cases, upon the same conditions, and in

the same manner as are or may be provided by law for officers of the Army.")

The issue of these brevet commissions in 1900 and 1901 was not only without authority of law, but was in direct violation of law, unless it was a "time of war" when these commissions were actually conferred. In all probability the nominations for these brevet appointments were made to and confirmed by the Senate without the attention of either the Executive or the Senate being called to the law in the case. But, however this may be, it is not the making or confirming of brevet nominations that is prohibited by the law. It is the actual conferring of the brevet commissions-an Executive act-that is prohibited in time of peace.

It has been asserted that the Senate has concurred in the "long continued practical interpretation" by the War Department of the statute, which provides that "the President, by and with the advice and consent of the Senate, may, in time of war, confer commissions by brevet," etc., by reading into it the words "for services rendered" before the words "in time of war," so as to make the whole read "the President, by and with the advice and consent of the Senate, may, for services rendered in time of war, confer commissions by brevet, etc."

But, as before stated, no evidence has been found to show that the War Department has placed any such "long continued, practical interpretation" upon the statute, or that for fully thirty years prior to 1900 any person dreamed of reading into that statute words that nullify one of its most important provisions. So far as can be ascertained, no brevet commissions were issued under the general law (sec. 1209, Rev. Stat.) from 1870 to 1900. All those that were issued during that period appear to have been issued under the limited act of February 27, 1890, for service against hostile Indians.

The records of Congress show conclusively that, with the exception of confirming the brevet nominations made in 1900 and 1901, the Senate has at no time in the past thirty years indicated its concurrence in the view that either the act of February 27, 1890, or section 1209, Revised Statutes, authorizes the conferring of brevet commissions in time of peace. On the contrary, the records show clearly that the military committees of both the Senate and the House of Representatives have taken the opposite view of the law.

A bill (S. 219) proposing to amend the second section of the act of March 1, 1869, by providing that it "shall not be held to embrace officers who were confirmed by the Senate for brevet appointments on March 3, 1869," was introduced in the Forty-sixty Congress. The report of the Senate Committee on Millitary Affairs on this bill (adverse) is printed as Senate Report No. 130, Forty-sixth Congress, second session. That report contains a copy of a letter of the AdjutantGeneral of the Army, dated April 30, 1879, transmitted by the Secrebill to him by the committee. tary of War December 30, 1879, in response to the reference of the

In the act of March 1, 1869, should be so construed as to affect only those confirmed March 3, 1869, and not other officers," the Adjutant-General states, in the letter referred to above, "that it has not been so construed, and no nominations have been made since the passage of the act that did not come within its

provisions."

The Senate Committee on Military Affairs, in reporting on the bill (H. R. 6758) "to authorize the President to confer brevet rank on officers of the Army for gallant services in Indian campaigns" (Senate Report No. 1943, Forty-ninth Congress, second session), adopted the report of the Committee on Military Affairs of the House of Representatives on that bill, which was in part as follows:

The existing law relating to brevet rank is contained in sections 1209 and 1210, Revised Statutes (taken from section 2 of the act of March 1, 1869), and provides that the President, "by and with the advice and consent of the Senate, may, in time of war, confer commissions by brevet for distinguished conduct and public

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services in the presence of the enemy," etc.

This law has been construed by the War Department and by the Attorney-General as authorizing the conferring of brevet commissions upon officers of the Army for meritorious services in engagements with or campaigns against hostile Indians, if made during the existence of Indian hostilities.

The War Department formerly acted upon this construction of the law, and in 1869 submitted a number of brevets for services in Indian campaigns, some of which were confirmed by the Senate. No brevet nominations have, however, been confirmed by the Senate since 1869.

In 1874 and 1875 nominations for brevet appointments, based on services rendered in the Modoc and Arizona Indian campaigns, were submitted to the Senate but were not confirmed.

In January, 1876, all these nominations were resubmitted, but the Senate again adjourned without action.

No further nominations have been made, save in one instance, that of Lieut. E. S. Farrow, Twenty-first Infantry, made in April, 1880, but not confirmed.

The Senate Committee on Military Affairs, in reporting on the bill (S. 1323) to confer brevet commissions on officers of the Army for distinguished actions in Indian warfare (Senate Report No. 790, Fiftieth Congress, first session), states that "the War Department and the Attorney-General have held that officers in Indian wars could be brevetted during the existence of Indian hostilities, and the reason assigned by the Senate for refusal to confirm has been that the Indian was not an enemy,' and that a conflict with Indians could not be termed a time of war.

The Committee on Military Affairs of the House of Representatives, in reporting on the bill (H. R. 1561) providing for brevet commissions to officers of the Army for service in Indian campaigns, House Report No. 1225, Fiftieth Congress, first session, adopts and repeats a report made by that committee in the Forty-ninth Congress, which contains the following statement:

This law has been construed by the War Department and by the Attorney-General as authorizing the conferring of brevet commissions upon officers of the Army for meritorious services in engagements with or in campaigns against hostile Indians, if made during the existence of Indian hostilities.

A similar statement appears in the report of the Senate Committee on Military Affairs on a similar bill (S. 226), printed as Senate Report No. 123, Fifty-first Congress, first session.

Appended to the report (House Report No. 79, Fifty-first Congress, first session) of the Committee on Military Affairs of the House of Representatives on the bill (H. R. 478) authorizing the President to confer brevet rank on officers of the Army for gallant services in Indian campaigns are copies of House Report No. 1225, Fiftieth Congress, first session; Senate Report No. 790, Fiftieth Congress, first session, and Senate Report No. 1943, Forty-ninth Congress, second session. Each of these reports contains the statement that the Attorney-General and the War Department have held that officers in

Indian wars could be brevetted during the existence of Indian hostilities, or that brevet commissions could be conferred "if made during the existence of Indian hostilities."

But even if it were a fact, which it is not, that the Senate, the Attorney-General, and the War Department have continuously construed the act of March 1, 1869, from the date of its approval to the present time, as authorizing the conferring of brevet commissions in time of peace, that fact would not justify further acquiescence in a construction that plainly nullifies one of the most important features of the law in question. There is no doubt that the law of March 1, 1869, as embodied in section 1209 of the Revised Statutes, was intended to prohibit, and does prohibit, the conferring of brevet commissions in time of peace, notwithstanding the fact that such commissions may have been earned by service rendered in time of war.

The only question to be decided, therefore, in connection with the pending brevet nominations is whether the present is a "time of war” within the meaning of the statute. With regard to that question there can be no reasonable doubt. No hostilities of any description are in progress within the United States. The President, by his proclamation of July 4, 1902, declared that peace had been established in all parts of the Philippine Archipelago except in the country inhabited by the Moro tribes. Although no proclamation declaring that peace exists in the Moro country has yet been issued, the hostilities that were in progress there, and appear to have ceased, were at no time of such a character as to be dignified by being called a war. They were no more serious or extensive than many of the Indian disturbances that have occurred within the United States, and, as before stated, it has long been the practice of the Senate not to regard such disturbances as constituting a state of war within the meaning of the act of March 1, 1869.