were, however, at all times regarded as of primary importance, and when the exigencies of the two interests or duties demanded coincident service, received the first consideration and attention, and the fact that they were ordinarily performing duty as revenue cutters did not detract from their character as armed vessels, but added to their efficiency in that respect, because they were therefore always ready for prompt response in case of emergency."

You further specify with some detail some of the services of several of the vessels thus occupied.

It is my opinion that, under these circumstances, the vessels referred to, with their officers and men, while performing duties appropriate to naval forces and constituting acts of hostility toward the public enemy, "served in the naval forces of the United States" within the meaning of the section referred to. The work of these vessels and their crews, as stated in your letter, contributed directly to the success of the arms of the United States in the war then in progress. They were equipped to capture or destroy, and in several instances contributed to the capture or destruction of hostile vessels or fortifications. If any of their personnel had fallen into the hands of the enemy they would clearly have been entitled to the status of prisoners of war, and the vessels constituted an addition to the armed forces of the Government, obviating the necessity which would otherwise probably have existed of employing vessels of the Navy to do the work which they did. It seems to me quite clear that the intention of the Congress was to place all those officers who actually took part in the civil war upon the same footing with respect to the benefits of retirement with the incidents of a higher grade, whatever may have been the designation or technical character of the public armed force to which they respectively belong. To give effect to this purpose, I think, the act approved April 16, 1908, should be construed as applicable to all officers of the Revenue-Cutter Service who were engaged in hostilities against the public enemy during the time mentioned, under the conditions of service set forth generally in your letter.

I am not to be understood, however, as holding that, if the location and character of their service were such that they did and could do nothing more during the time of the civil war than they would have done in time of peace, the mere fact that any of the officers in question were at that time in the Revenue-Cutter Service would be sufficient to establish that they had served during the civil war in the land or naval forces of the United States. The RevenueCutter Service, although a part of the public armed forces of the United States, and in time of war capable of assuming a military character, was not at that time strictly and necessarily a military service, and if the duties which any of these officers were called upon to discharge during the war were evidently and necessarily only such duties as they would have had to discharge in any event, whether there had been a war or not, I do not think their forming a part of the Service amounted to taking part in the war. The keeper of a light-house on the Maine coast might have incidently rendered a service of great utility by insuring the safety of some important vessel of our Navy, but this would not constitute a direct participation on his part in the work of suppressing the rebellion. In like manner those officers of the Revenue-Cutter Service who merely aided in assuring the collection of the public revenues and in discharging the normal and customary duties of the force, although they may have indirectly contributed to the military success of the Government, can not, in my opinion, be fairly regarded as having served in the war. If, however, the location of their vessels and the consequent range of their duties were such that they necessarily filled a place which must or would probably have been otherwise assigned to some other public armed force, then the fact that they did not take part in any engagement or actual conflict with the enemy will not deprive them of the benefits of the act of April 16, 1908.

I remain, sir,

Yours, most respectfully,

CHARLES J. BONAPARTE.

The SECRETARY OF THE TREASURY.

FILIPINOS-NATURALIZATION-HOMESTEAD LAWS.

Section 30 of the act of June 29, 1906 (34 Stat. 606), provides for the naturalization of native Filipinos owing permanent allegiance to the United States, who are residents of one of the States or Territories of the United States.

Such persons must make, or must have made, since the passage of the act of June 29, 1906 (34 Stat. 596, 606), the declaration of his intention to become a citizen, required by section 30 of that act, at least two years before his application for naturalization, and must have resided five years within one of the insular possessions of the United States.

DEPARTMENT of Justice,
July 10, 1908.

SIR: The questions presented in your note of June 30, 1908, to which I have the honor to respond, are, in. substance, whether under the act of June 29, 1906 (34 Stat. 596, 606), a native Filipino owing permanent allegiance to the United States, who is a resident of one of the States, can become, by naturalization, a citizen of the United States, so as to entitle him to the benefits conferred upon citizens of the United States and those who have declared their intention to become such, by the acts providing for preemption and homestead entries of the public lands, and, So, what steps are necessary thereto.

if

The naturalization law, as it stood at the passage of the above act of 1906, provided (section 2169, Revised Statutes) that

"The provisions of this Title shall apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent."

This is the present law, except as modified by section 30 of that act. This section seems to have been framed expressly for the people of our insular possessions, who are there accurately described and to whom alone the section can refer. It is as follows:

"That all the applicable provisions of the naturalization laws of the United States shall apply to and be held to authorize the admission to citizenship of all persons not citizens who owe permanent allegiance to the United States. and who may become residents of any State or organized Territory of the United States, with the following modifications: The applicant shall not be required to renounce

allegiance to any foreign sovereignty; he shall make his declaration of intention to become a citizen of the United States at least two years prior to his admission; and residence within the jurisdiction of the United States, owing such permanent allegiance, shall be regarded as residence within the United States within the meaning of the five years' residence clause of the existing law."

This describes exactly the status of inhabitants of the Philippine Islands. They are not aliens, for they are not subjects of, and do not owe allegiance to, any foreign sovereignty. They are not citizens, yet they "owe permanent allegiance to the United States," since they owe and can owe it to no other sovereignty. The applicant is not to be required to renounce allegiance to any foreign sovereignty, because he owes none.

It is my opinion that this section authorizes the naturali zation of the persons to whom you refer, they being residents of one of the States or Territories of the United States.

Your further question is as to the steps to be taken by a Filipino thus resident in order to secure such naturalization.

The law, before the act of 1906, excluded Filipinos from the right of naturalization, and therefore all proceedings to that end must have been taken after the passage of that act and according to its provisions; and a declaration previously made of intention to become a citizen, being unauthorized by any law when made, was and is of no force or efficacy and will not serve as the preliminary declaration required by the present statute.

All persons intending to become naturalized under section 30 of the act of June 29, 1906 (34 Stat. 606), must make, or must have made, since its passage, the declaration there required of intention to become a citizen at least two years before their application for naturalization. Then five years' residence in any of our insular possessions will be, under that section, a compliance with the clause requiring five years' residence in the United States.

Respectfully,

CHARLES J. BONAPARTE.

The SECRETARY OF THE INTERIOR.

ARMY OFFICERS-RETIREMENT-INCAPACITY-COURT

MARTIAL.

An officer of the Army found by a retiring board, duly organized and convened, to be "incapable of performing the duties of his office," may be, and ought to be, retired in accordance with the provisions of sections 1245 to 1252, Revised Statutes, without regard to the causes which may have led to such incapacity on his part.

To be "incapable," within the meaning of the law, the officer must be either no longer responsible for his own actions or subject to infirmities or disabilities which make the reasonable fulfillment of his military duties impossible for him, notwithstanding an honest desire and firm purpose on his part to fully discharge them. An officer of the Army can not be retired for incapacity, under the provisions of law, if he can properly be brought to trial by courtmartial for the same acts or omissions which are alleged as evidence of the incapacity justifying his retirement. Even though such officer display impatience or irritability, imperfect control of his temper, indolence, indecision, and want of alertness in the performance of his duties to such an extent as to destroy or greatly impair his usefulness as an officer, he does not thereby necessarily become incapable of discharging his duties in such a sense as to justify his retirement.

The punishment of an officer of the Army for willful failure to discharge his duty can not be legally effected through the agency of a retiring board.

DEPARTMENT OF JUSTICE,

**

*

*

July 10, 1908.

SIR: I have the honor to acknowledge the receipt of your letter of the 3d instant, in which you request"An expression of opinion * as to whether an officer comes within the operation of the statutes governing retirement for disability, who is found, by a retiring board, to be "incapable of performing the duties of his office," such incapacity being the result of * infirmity of temper, of a gradual but serious loss of self-control, of impatience or irritability while exercising the functions of his office and in dealing with the officers and enlisted men in his command, of physical or mental deterioration due to indolence, excesses in eating and drinking, to impairment of vigor, or to indecision and want of alertness in the performance of the duties with which he is habitually charged by law and regulations."