Letter, 1837 Apr. 10, Oak Lawn to Governor W[illia]m Schley, Milledgeville, G[eorgi]a / John G. Polhill

Oak Lawn
10th. Apl. [April] 1837
Dear Sir,
Your Circular of the
17th. ult. [ultimo] containing a copy of the 4th. Section of an Act of the last session of the General Assembly, "to provide for the payment of volunteers" &c [et cetera], was handed me just as I was setting out for Wilkinson Court, & I seize the first leisure moment to respond to your inquiries. That section, (you inform me) provides, "that the commanding officer of companies shall state upon their master rolls what property of said company may have been lost in battle, or in the immediate pursuit of the Indians, or while employed in actual service " &c [et cetera], and the Governor is required to pay for the same, with the proviso -- "That the provisions of this act shall not extend beyond the loss of horses & carriages and wagons, and wearing apparel of the soldier. "
You state that difficulties have arisen in the construction of the Act, & you solicit my opinion on the following questions -- "1st what did the Legislature mean by these words -- "while [added text: employed ] in actual service" ? Did they intend that the Governor should pay for every horse which died or was lost in the service, no matter from what cause, or did they mean that these words should comprehend cases of death or loss from some extraordinary service or cause, which would not be embraced in the words, "lost in battle, or in immediate pursuit of the Indians" ?"
"2nd. What construction do you place on the words "wearing apparel of the soldier?" Did the legislature intend that all accounts for wearing apparel lost, should be paid, without regard to the quality or value of the articles, or that only such amount should be paid as would cover the cost of such clothes as a soldier is all owed by law?"
I have found no difficulty in arriving at a conclusion perfectly clear & satisfactory to my own mind as to the meaning of the Legislature in the use of the terms employed in the act. They are evidently words of restriction. They have not only employed restraining words in the body of the section under consideration; but lest your Excellency might give too great a latitude to those words, they have added a proviso, in which they instruct you to pay only for certain specified articles . I hold therefore that you are bound, as the disbursing officer, to follow strictly the instructions given you in the Act. Your inquiries then are, "what are my instructions"? "What did the Legislature mean that I should pay for, & what, not?" I should therefore say, clearly, that they did not mean that you should pay for the loss of the animal, equipage [equippage], or wagon, from ordinary casualty, or disease, or negligence, or accident, nor their loss to the owner, "no matter from what cause." I take the words " lost & employed " in the act, to have technical, military, specified meanings, & not [illegible text] the general understanding of common parlance, when a man says to his neighbor, I have lost my horse &c [et cetera] meaning that he had died or was stolen, or had strayed away, or the like. The Legislature, having specified two predicaments in which the enumerated articles might be lost, to wit, " in battle & in immediate pursuit ," (which cannot be misunderstood), but believing, indeed knowing, there were other predicaments, growing out of the emergencies of the campaign, [deleted text: [illegible text] ] in which the loss of the animal, or article specified, was a conveyance of " employment in actual service -- " they intended to provide for such equitable cases, & to leave it in the sound discretion of your Excellency to judge of the soldiers' title to payment under the circumstances. As for in -- stance, a company was ordered on a forced march to arrive at a given point by a specified hour. In such an "employment in actual service," or "extraordinary service," his horse might have died on the route, or after it, from the oppressiveness of the forced march -- in the route having been indicated, it might have been necessary to ford or swim a dangerous stream in the route, in attempting which the horse may have been drowned, the wagon or equipage [equippage] lost &c &c [et cetera et cetera] . In a word, I should [added text: hold ] that the Legislature meant that you should pay for whatever of the specified property you should be convinced by the evidence was lost, as a natural consequence of any employment in any actual service . To have attempted an enumeration of all the contingencies would not only have been too tedious, but might have done injustice. [Latin: expressio unius est exclusio alterius ] , is a sound rule of construction, which may be applied to the obvious intent of the whole Act. What was not specifically enumerated, is left to your judgment, under the equitable provisions of the words, " while employed in actual service ." If the Legislature had not intended to guard the Treasury, they could very easily have directed you to pay for every thing that every soldier lost, from the time of his marching under orders till his final discharge.
And this rule of construction is confirmed by the fact, that they actually rejected several individual applications for pay, which did not fall under this rule of construction.
In regard to your 2nd. question. I am clear that the words "wearing apparel of the soldier" is a specific term. The import of the whole is fixed by the definite article the -- affixed to the word soldier in the singular number the words clearly mean not [deleted text: [illegible text] ] [added text: any ] soldier or any number of soldiers or the whole of the soldiers in the service -- (for it would have been easy for the Legislature to have said you should [added text: pay ] the soldiers for all the clothes they lost in the service -- ) but they mean, the man who bears arms in defense of his country -- the man who occupies the station of a soldier -- in a word, the man who is known in the community as a soldier, in distinction from other men holding other relations to society. When we say, "he is very much the gentleman" -- "he showed the honest man" -- every body understands us to mean, that the individual exhibited a distinctive character. So with this expression; & so it will be found that Mr Murray explains the force of the article the, when he says "it has some times a good effect in distinguishing a person by an epithet ." I can not arrive at any other conclusion, therefore, than that the Legislature meant what they said -- they must be allowed the pay of " the soldier " -- i.e. the pay [deleted text: [illegible text] ] for the clothing allowed by law to the soldier.
Presuming that your Excellency did not call on me for counsel, but for my judicial opinion of the meaning of the Act, I have hastily given you such an opinion as I should pronounce, were the questions before me upon legal [unclear text: process ] .

Very respectfully
your friend & obt st. [obedient servant]
[Signed] Jno. [John] G Polhill
Judge of the Ocmulgee District
To his Excellency Govr [Governor] Schley



Opinion
Judge Polhill
Judiciary

His Excellency Wm. [William] Schley Governor Milledgeville, Ga.

Judge Polhill's Opinion