Sec. 1. The Congress of the Confederate States of America do enact, That the pay and allowances due to any deceased volunteer, non-commissioned officer, musician or private, in the Army of the Confederate States, shall be paid to the widow of the deceased, if living; if not, to the children, if any; and in default of widow or children, to the father, if living, and if not, to the mother of such deceased volunteer.

SEC. 2. The pay and allowances due as aforesaid shall be paid by the paymaster or proper officer charged with the payment of the troops, to the person or persons entitled to the same, or to his or her authorized agent, attorney or guardian, upon the pay-roll made out and certified by the captain or commanding officer of the company to which the deceased was attached, which pay-roll the captain or commanding officer, as aforesaid, shall make out and deliver to the person or persons entitled to such pay and allowance, or to his, her or their authorized agent, attorney or guardian, and shall state in such pay-roll the name of the deceased volunteer, the company and regiment to which he was attached, and the date of his enlistment and death; and the paymaster or officer to whom said pay-roll shall be directed shall pay the same according to the tenor thereof, and shall file such pay-roll with the pay-rolls of the army.

An act supplementary to the above, passed Oct. 3, 1862, provides that “the claims due to deceased non-commissioned officers and privates for pay, allowances and bounty, may be audited and paid without the necessity of the parties entitled producing a pay-roll from the captain or commanding officer, when there is other official evidence of the amount due satisfactory to the Second Auditor, under such regulations as he has or may prescribe, with the approval of the Secretary of War.” And that“the claims of deceased commissioned officers shall be paid to their heirs or representatives in the same manner as similar claims of non-commissioned officers and privates are now or may be directed by law to be paid.”

SIR—I have received the letter of Mr. Taylor, Second Auditor of the Treasury, together with that of Col. Myers, Quartermaster General, asking for a construction of the Act of Congress, No. 402, approved 15th February, 1862,“concerning the pay and allowances of deceased soldiers.” These letters you have referred to me for my opinion.

Before answering the specific questions propounded to me, I deem my duty to the officers who seek a construction of the Act of the 15th of February, 1862, and to the government, to express my opinion of the law itself.

I have examined, with some care, the laws of Congress in existence before the 15th of February, 1862, on the subject of the effects and arrearages of pay belonging to deceased soldiers; and I have examined with like care the Act of the 15th Feb., to which special attention is called in the letter of the Second Auditor.

The laws of the United States in force on the 1st of November, 1860, not inconsistent with the constitution of the Confederate States, were adopted by our Congress at its first session. (See Acts p. 36.) And the Rules and Regulations of War of the United States, with some unimportant amendments, were adopted likewise by our Congress on the 6th of March, 1861. (See Acts p. 78.) By these laws and rules and regulations of war, thus adopted by us, the effects and pay and allowances of deceased soldiers were required to be preserved by designated officers, and delivered or paid to the “personal representatives” of the deceased soldiers. This was the law at the time most of our soldiers entered into the service of the Confederate States. This law may be considered as a part of their contract with the government.

By the laws of the respective States, from which the soldiers came and in which their domicils were, the proper persons entitled to receive, administer and distribute estates of deceased persons were designated. The law of Feb. 15, 1862, so far as it operates retrospectively—that is, so far as it provides for the payment to widows or others not the personal representatives of the deceased soldiers who had enlisted before its passage, is in my judgment unconstitutional. So far as it operates or attempts to operate, on past contracts, it affects vested rights. As to all sums due to soldiers deceased at the time of its passage, it certainly does operate on vested rights. It undertakes to make a disposition of the effects of a dead man's estate; which estate, as to its administration and distribution is governed by the laws of the domicil of the soldier. To the several States composing the Confederacy, and not to Congress, properly belongs the right to pass laws for the administration and distribution of the estates of deceased persons.

The laws in existence before the passage of that of the 15th of Feb., 1862, must govern in the payment of arrearages due to soldiers who enlisted and died before its passage. The law of the l5th Feb., 1862, may be considered as valid, as to all soldiers who entered the service since its passage. I will not undertake to say that the government cannot provide in its contract with the soldier that his pay for services should be paid to his widow or children excluding his personal representative. But after the contract has been made by the enlistment of the soldier, and rights have become vested under it and the soldier is dead, leaving thus no person to consent to a change of the contract, the government has no longer any power over it, except to provide for its payment to the personal representative of the dead man.

I should say that the payment of the sums due to deceased soldiers could be legally made at the seat of government, to their legal representatives or to the agent or attorney of such legal representatives.

Wherever the law of Feb. 15th, 1862 governs, I see nothing which would prevent such payment. That portion of it which requires the captain to deliver the pay-roll to the person entitled to such pay or allowance, or to his or her authorized agent or attorney or guardian, is not to be considered as a condition precedent to the payment. The neglect of the captain to discharge his duty in this respect cannot deprive the party entitled, of the pay due the deceased soldier. This part of the law is merely directory. If the pay-roll is certified by the captain or commanding officer of the company to which the deceased was attached, the fact of its being deposited in the proper office of the war department instead of being delivered to the person entitled to such pay or allowances cannot defeat, and ought not to postpone the payment. The payment should be made upon and not without audit.

“REGULATIONS for the payment of claims for arrears of Pay and Allowances due to Deceased Officers and Soldiers of the Confederate Army, per Act No. 402, approved Feb. 15th, 1862, and Act No. 25, approved Oct. 3d, 1862,” were announced Nov. 9th, 1862, by the Second Auditor, in which he states that payment will be made under the following rules approved by the Secretary of War:

“1st. If the child or children be minor, payment will be made the guardian, upon the production of the proper certificate of guardianship under the seal of the court.

“2d. The claimant must produce his or her affidavit, and that of one disinterested witness, stating the relationship. Far instance, if the claimant be a mother, the affidavit must state that there is living neither wife, child or father of the deceased; if the father, that there is neither wife or child; and if the child, that there is no widowed wife*

“The magistrate or other proper officer must testify to the credibility of the witness, and the clerk of the court must certify, under the seal of the same, that he is such magistrate.

“The aforegoing instructions must be strictly complied with— Powers of attorney or assignment, which will seldom be necessary, may be executed before a magistrate, or in the presence of two respectable witnesses. Claims prepared as herein directed, and transmitted to the Second Auditorby mail or otherwise, will receive as prompt attention as the business of his office will allow; and always in the order of their presentation. The amounts found due will be remitted by the auditor, to the parties entitled as they may direct.”

With regard to claimants other than those named in the Act or designated in the foregoing “regulations,” Art. 45 of the “Comptroller's Decisions” fixes the rule that “claims of deceased soldiers who had enlisted before the passage of the Act of 15th February, 1862, (which directs payment to be made to the heirs,) may be paid to the administrators, upon proper certificates, under seal of the court. The opinion of the Attorney General of May 9th, 1862, regards this act as unconstitutional, so far as it interferes with the established principles of the law in relation to enlistments made previously to its passage. Those principles required all assets to be paid to the personal and legal representatives of the deceased.”

And it is now decided in the practice of these settlements that—

1st. Where the deceased soldier enlisted previous to February 15, 1862, and died either before or after that date, and widow, child, father or mother, claims as such, as if under the Act of February 15, 1862, the claim is allowed thus without reference to the unconstitutionality of the Act as cited.

2d. Where deceased enlisted previous to 15th Feb., 1862, administrators can claim whether they are of either of the degrees of relationship named in the Act or not: so that brothers, sisters, &c., can claim in such cases through letters of administration.

3d. In no case can a brother or sister claim as such, but only as administrator, &c., when authorized to do so.

4th. A child can claim, or several children jointly; but all the children must join in any case and appear in the affidavit, and must state that “there is no other child and no widow of deceased living.”

5th. If deceased enlisted on or after Feb. 15, 1862, administrator or executor cannot claim in any instance, unless it is shown that there is neither wife, child, father or mother of the deceased living.

6th. Where a claimant as a relative under the law of 15th Feb., 1862 files claim and dies before settlement, the right passes to the next living relation under the law, in succession, until they are exhausted, and finally to the administrator, &c., of the deceased officer or soldier and not of any of the relatives mentioned.

“Where a soldier dies leaving both father and mother, but no widow or children, and where the father dies before making his claim for the arrears of pay, leaving a widow and children, the widow claiming is entitled to draw the pay under Act of 15th Feb., 1862, directing payment to be made as follows: 1st, to widow; 2d, to the children; 3d, to the father; 4th, to the mother, &c. The object and intent of this law is generally understood to be that of facilitating the payment of these claims to the indigent families and heirs of deceased soldiers, and to obviate the necessity for obtaining letters of administration. The provisions of this law, which expressly direct that these claims “shall be paid” to such heirs, (in the order above stated,) constitute the terms of the contract under which the soldier has enlisted subsequent to the date of that Act, and by that contract his claim is to be governed.”—Comptroller's Decisions.

7th. Where the deceased officer or soldier leaves neither wife, child, father or mother, or where the last entitled of these shall die before making claim, or afterwards, before its audit and allowance, the administrator of such deceased officer or soldier is entitled to claim as such, but must show that neither of the parties named under the law of Feb. 15th, 1862 is living.

8th. Where widow or mother of deceased marries again she does not forfeit her rights as claimant, but can claim under her new name as that “she was the wife and late widow,” or “is the mother,” &c.

9th. An attorney cannot claim as such, though named in the Act as one to whom payment may be made. All the formula of the claim must be perfected by the original claimant, and then, upon a power of attorney duty executed either before or after settlement payment is made to the “attorney for the claimant.”

And also appeared before me, a Justice of the Peace as aforesaid, , who is well known to me, and whom I certify to be a person of veracity and credibility, who, having been duly sworn, says, that is well acquainted with , the claimant, and also well knew, for years, , the deceased soldier herein mentioned, and that the statement made under oath by said the claimant, as to relationship to the said deceased soldier, is true and correct in every particular, to the best of knowledge and belief, and that , the said , is wholly disinterested.

Sworn to and subscribed before me, J. P. [Signed] .

STATE OF , COUNTY, to-wit:

I hereby certify that , before whom the foregoing affidavits of and appear to have been made, and whose genuine signature is subscribed thereto, was, at the time of making and signing the same, a Justice of the Peace in and for the County and State aforesaid, duly commissioned and sworn, and to all whose official acts as such, full faith and credit ought to be given, as well in Courts of Justice as thereout.

In testimony whereof I have hereunto set my hand and affixed the seal of County Court, this day of , [SEAL] Anno Domini, eighteen hundred and sixty- .

, Clerk of County Court.

If within their knowledge, claimants should state where the officer or soldier was born, and when and from what cause he died, distinguishing those who were killed in battle, from those who died of disease.

When there is an administrator, a certificate of the fact by the proper officer of the court granting the same, under his seal of office, will be all that is necessary.

The law, and these regulations applying as well to conscripts as to volunteers, with respect to the former, claimants and witnesses will be required to swear to the regiment and commander to which the conscript belonged. They will name the captains and companies when they can do so, as this information will greatly facilitate the settlements.

Claimants should always endorse on their papers their address, naming Post Office, County and State.

The foregoing forms, etc., have also been approved by the Secretary of War.

W. H. S. TAYLOR, Second Auditor, C. S.

The application described simply serves to identify the claimant, and to establish the connection with the deceased soldier, and the legality of the claim. Evidence then must be adduced, from sources unconnected with these affidavits, to show that such a soldier did exist and die in the service; when he enlisted; when he died; and whether the government is indebted to him or his representatives, and if so, for what, and to what amount. The asseverations of the claimant are not regarded as conclusive on these points, and only serve to indicate where such evidence may be obtained.

The natural and proper source for this information would be the Rolls and Records on file in the War Department; but these are either wanting or so imperfect as to be almost totally unavailable for this purpose. Even the man's name is sometimes omitted from the rolls; very often the date of enlistment is not given; more frequently the fact and date of death cannot be ascertained therefrom; the last payment is rarely to be found with certainty; the clothing account is never stated on them with the accuracy required, and the other allowances are frequently inaccurately indicated or never mentioned. Especially where men have died in hospitals, the necessary chain of evidence is too often effectually disrupted. These imperfections sometimes accrue from the exigencies of the service in loss of rolls, &c., but more often through want of information originally of military forms in our immense volunteer organization, by which the repeated orders of the Adjutant and Inspector General have not been fully appreciated and complied with. And, though not intended to be so, the result is serious to the many who must suffer from the omissions and irregularities alluded to.

The evidence respecting commissioned officers is altogether more confused, too, than that for the private soldier. His name, rank, date of promotion and of death, either one or all are very frequently not returned; and to find his “last payment” in the multitude of “returns” in the Quartermaster's Department, is quite impracticable, through the fact that officers are paid whilst living, upon their certificates of honor, by different paymasters, who are frequently unconnected with the command to which such officers belong.

Scarcely one case in a thousand, therefore, can be settled by reference only to the rolls on file. Hence the next best evidence, and that which is chiefly relied upon, is a final statement, commonly called a descriptive list, from the commanding officer of the company in which deceased was serving at the time of his death. The law is liberal in prescribing that the accounts of deceased officers and soldiers may be audited and paid upon “other official evidence of the amount due satisfactory to the Second Auditor,” without the necessity of a pay-roll from the commanding officer; but it requires “official evidence,” and the final statement is recognized as the most available form, to be satisfactory, by which the requisite evidence can be perpetuated.

By the “Act to provide an Invalid Corps,” approved February 17, 1864, “the rank, pay and emoluments of such officers, and the pay and emoluments of such non-commissioned officers, musicians, privates and seamen” as shall be retired according to the provisions of said Act, “shall continue to the end of the war, or so long as they shall continue so retired or discharged.”

The officer or soldier honorably retired or discharged, is entitled to transportation from place of discharge to the place of his enlistment or his place of residence, or “travel pay” in lieu thereof. The allowance of travel pay to officers is at the rate of 10 cents per mile, or the actual cost of transportation, and the distance in either case is to be estimated by the shortest mail route; if there is no mail route, by the shortest practicable route.

By Paragraph I, General Orders No. 1, January 1st, 1864, “If, immediately after the death of an officer, there be no family connection or legal representative present, to whom the officer, charged by the 94th Article of War with securing his effects, may deliver them, he will turn them over, under the provisions of paragraph III, General Orders, No. 67 (1863) to the quartermaster of the regiment, or post, as the circumstances may indicate to be proper.”

The term “effects” is construed to mean such personal property (except slaves) as was in the immediate possession of the deceased, or held by the government as belonging to him at the time of his death, and which he was not prohibited from carrying with him in the army, or for which transportation was allowed. It, therefore, comprehends horses of officers, cavalrymen, couriers, &c., cavalry equipments, private arms, watches, personal jewelry, money, gold and silver coin, notes, bills, &c.

Although it is the custom to pay the amount found due for effects, or to give an order for the articles, to the claimants under the law of 15th Feb., 1862, as wife, child, father or mother, yet this does not preclude other legal representatives from claiming for such effects. The personal property with the deceased at his death, though the government is obliged by its contract with the soldier to preserve it, is neither “pay, bounty nor allowance,” but vests of right in the personal representatives, according to the lex loci of his residence, and the government only designs to protect such property from waste or destruction. Therefore, administrators, &c., can claim for these effects no matter when the soldier enlisted; and the rule of practice is to prefer, and to pay over the effects to, the claimants named in the Acts of Feb. 15th and Oct. 3d, 1862, because they receive at the same time the pay, bounty and other allowances due; but where no claim has been made by one of these parties, the claim of the administrator must be promptly audited for the effects due, although he may not state that there is no wife, child, father or mother living.

The receipts from quartermasters, and the returns and inventories of effects from the officers charged with rendering them to the Second Auditor, are recorded in ledgers opened for that purpose, and the claims filed are carefully compared therewith. An examination of these ledgers exhibits an evident remissness in the rendering of the returns, &c., required.

The value of effects is allowed by the Auditor and included in the certificate of indebtedness to the claimant in the following instances:—

1. For the appraisement of military clothing, as per General Orders Nos. 49 and 93, 1863.

2. Where sales have been made by a Council of Administration, and the amount of proceeds returned as per Army Regulations, Art. 17.

3. For “money,” as per General Orders No. 67, 1863.

4. Where it is shown to the satisfaction of the Auditor that the effects of deceased officers or soldiers have been wrongfully appropriated or mis-applied by, or lost through the neglect of, the officer, surgeon or quartermaster, in whose hands they were, or whose duty it was to take charge of them, the value proven will be allowed to the claimant, and the amount is chargeable to the account of such officer, surgeon or quartermaster. The government contracts with the soldier to make a certain disposition of his effects,—these officers are its agents for this purpose, and the government is responsible for their laches.

Where the final statement or the surgeon's inventory shows that deceased left a certain sum of money, it is not allowed on this evidence immediately without further investigation; but such an admission by such officer makes him chargeable therewith, and, on failure to account for the same satisfactorily to the Auditor, may be allowed to the claimant as due from the government, it having been received by her authorized agent. So, if the final statement or inventory shows that said money was turned over to a certain Quartermaster, the same course is pursued, unless the receipt of the Quartermaster is exhibited. Claims for money left by deceased can only be allowed promptly upon the receipt of a bonded Quartermaster, that the same has been placed in his hands as belonging to deceased.

With reference to money, the Second Auditor decides, with the approval of the Secretary of the Treasury, “That the moneys of deceased soldiers should be considered in the hands of the government as soon as received by the surgeon, its authorized agent, under the orders of the War Department, and, in case of the old issue, should be returned to the Treasury in the identical notes, so that full credit may be given to the heirs of the deceased; otherwise the deduction (under the Act reducing the currency, Feb. 17, 1864,) would be made thereon.”

So with gold or other coin, and bank bills, &c., it is “in the hands of the government,” as soon as received by the surgeon, quartermaster, or other officer, and must be returned and allowed as such, and not as mere “money.”

Inventories from surgeons or other officers, or receipts from quartermasters, showing that effects (except money and clothing, as per General Orders No. 49, 1863,) to the value of a certain sum, were left by deceased, or have been turned over, &c., are not correct. These officers have no right to sell or appraise the articles. They should be disposed of by the Council of Administration. Such statements, however, are prima facie evidence of mis-application or neglect; and such officer will be required by the Auditor to account for the effects, and, on failure to do so satisfactorily, the amount is chargeable as above.—And claimants in such cases will be permitted to show that the effects were of greater value.

The inventory or final statement should enumerate the identical articles or effects which were left by the deceased, and were taken into possession by the person authorized by the government to receive them.

By Acts of Congress of February 16th and May 31st, 1864, “to aid any State in communicating with and perfecting records concerning its troops,” the agents for this purpose are “charged with the duty of obtaining from the officers in command of companies, final statements of deceased soldiers, to be filed in the Second Auditor's office, to facilitate the settlement of such claims.” The final statements, therefore, for Alabama soldiers, can be forwarded directly to me, and will receive prompt attention.

There are many thousands of unsettled claims now on file in the office of the Second Auditor that are “suspended for evidence” and cannot be settled for the want of the final statement. I have prepared a list of those from the State of Alabama according to the companies and regiments to which the soldiers belonged, and am communicating with the commanding officers as rapidly as possible in the endeavour to get the final statement speedily for every case suspended on this account. They have accumulated, however, so largely, and the active operations of the army interfere so seriously with efforts to procure them, that claimants must have patience with unavoidable delays. Assuredly I do most earnestly sympathize with the distressed parties, mainly destitute widows, mothers, &c., who constitute these claimants, and, appreciating fully the generous motive that induced the Executive of Alabama to institute this agency, I shall spare no labor to promote the prompt settlement of every claim. When it is noted, too, that the settlement of these claims will distribute in this State alone probably not less than three millions of dollars to its most needy class of population, and to other States in similar proportion, there is a further incentive, besides that of kindness to the suffering claimant, for perseverance and energy in a work so excellent for the public good.

There are numerous cases here also suspended for some material omission in the form of application. I have prepared a list of these, also, and notify the claimants in every instance ascertained.

It gives me pleasure to add that I am materially indebted to the courtesy of the officers in the Second Auditor's and Comptroller's Departments, who exhibit a commendable zeal to forward and facilitate these settlements as far as their powers extend, though obstructed by many embarrassments which can only be appreciated by contact with them. The interest and zeal of these officers has been especially manifested in the aid extended to me in the preparation and by the endorsement of this work, so necessary, not only for general information, but for the regulation of system in the settlements. And commendation is due particularly to the “Chiefs of Divisions of Deceased Soldiers' Claims,” in the respective offices, upon whom the responsibility for this class of claims mainly rests. These gentlemen have cheerfully rendered valuable assistance in this compilation, and to Mr. *J. Calvert, in the office of the Second Auditor, I am indebted more than ordinarily for the kindness with which he has given to the work the benefit of his thorough practical knowledge of the subjects embraced herein.