the same pay, subsistence and allowance to which he may be entitled whilst in the actual service of the United States: Provided, That nothing herein contained shall be construed to entitle any prisoner of war of the militia to the pay and compensation herein provided after the date of his parole other than the traveling expenses allowed by law.

Under the twelfth section, act of April 24, 1816, officers are allowed pay for servants and forage for horses "actually kept in service," and by the first section, act of July 17, 1862, that condition as to forage for horses in defined thus: "Actually kept by them when and at the place where they are on duty," and to the facts officers are required to certify, as in form 3, page 359, Army Regulations. Several decisions of Attorneys-general virtually affirm that the service named must be public service by declaring as a well-settled legal principle that the "pay is fixed of course by laws and intended for service. ") Attorneys-General Decisions, Volume 1, pages 528 and 547; Volume 2, pages 228 and 638.) Comptroller A. K. Parris nearly twenty years since decided that this service was designed to mean the public service. He also decided in 1849 that cavalry troops were not entitled to pay for the use and risk of horses which they were not permitted to retain while in captivity, although by section 9, act of May 13, 1846 (Volume 9, page 9, U. S. Statutes), they were entitled to it if having horses while in actual service.

It would thus appear that under acts of March 30, 1814, and April 24, 1816, non-commissioned officers and privates of the Army, officers, non-commissioned officers, and privates of volunteers and militia were entitled to pay and allowances while in captivity, upon the same conditions which regulated them whilst in actual service, provided that militia could receive only traveling expenses after parole. By analogy between the sea and land service another limitation to the continuance of pay might perhaps, without injustice, be added, viz, that by the decision of a court-martial or otherwise captives shall appear to have done their utmost to prevent defeat and capture as set forth in section 4, act of April 25, 1800 (Volume 2, page 52, U. S. Statutes). This provision in the navy laws involves the presumption that certainty of continued pay while in captivity might possibly act as a bounty on cowardice and treachery, or at least that the conditioning of pay upon bravery might have its proper effect upon timidity. By General Orders, Numbers 9, current series, paragraph 2-

The Secretary of War directs that officers and soldiers of the United States who are or may be prisoners of war shall during their imprisonment be considered entitled to and receive the same pay as if they were doing active duty.

The similarity of phraseology in this order with that employed in the act of March 30, 1814, furnishes no evidence that it is intended to be construed otherwise than as subordinate to the explanatory principles embraced in the several decisions of the Comptroller, those of Attorneys-General, and the positive language of the first section, act of July 17, 1862, as herein before referred to. A construction against which this 1862, as hereinbefore referred to. A construction against which this office has contended, but the reverse of that which was unavoidable under these decisions and laws has, however, been widely given to the words 'actually kept in service," and under that gloss the practice of charging the receiving pay for all the servants and horses allowed to be kept in service by existing regulations, irrespective of the number actually employed "at the time when and at the place where they are on duty" is believed to have generally obtained among officers of the Army.

In view of my official duty in the supervision of paymasters' accounts I most respectfully ask for advisement as to the intent and meaning of