21st Congress.] 

No. 423. 

[1st Session.



Treasury Department, Fourth Auditor's Office, May 28, 1829.


In obedience to your request I have the honor to submit to you the following statement relative to the pay and emoluments of the officers of the marine corps.

By the Constitution, the power is vested in Congress "to raise and support armies," and "to provide and maintain a navy." To that body, under this grant, belongs all legislation relative to the raising, organization, government, and payment of the army and navy of the United States. The duty of the Executive is to carry into effect the system which Congress establishes. It is not within the rightful power of the President to raise more troops than are authorized by acts of Congress, to adopt a different organization, or a different system of government, or to increase or diminish their pay or emoluments. He must cause them to be paid the monthly pay which Congress prescribes; he must see that they receive the number of daily rations which Congress has allowed, or an equivalent; the lawful allowance for forage; quarters to shelter them; clothing to cover them; and fuel to keep them warm. But he cannot rightfully, under pretence of commutation, pay them more for articles or accommodations, as are allowed by law, than they are really worth, and thus add to the emoluments which Congress have prescribed.

By these obvious principles let us test in detail the pay and emoluments lately allowed to the officers of the marine corps.

The office of lieutenant colonel commandant of marines was created by act of Congress, passed April 22d, 1800, (U. S. Laws, vol. 3, page 344,) which declares that he "shall be entitled to the same pay and emoluments as a lieutenant colonel in the army of the United States." An act of March 3d, 1799, (U. S. Laws, vol. 3, page 292,) has fixed the pay and emoluments of a lieutenant colonel in the army at $75 per month, 6 rations per day, and $12 per month for forage, when not received in kind. These, therefore, become the lawful pay and emoluments of the lieutenant colonel commandant of marines, as effectually as if they had been enumerated in the act creating this office; and not having since been


altered or repealed in relation to him, they still constitute his rightful pay and emoluments. Comfortable quarters, and. a sufficiency of fuel, he was entitled to as a matter of course, as well as a waiter from the line of his corps.

Yet, he has recently received $75 per month, 12 rations per day, at 20 cents each; $356.16 per year for two servants; $384 per year for forage for four horses; $231 for thirty-three cords of wood, and twelve cords for an office; in addition to which he is allowed a clerk at $20 per month, and occupies a capacious house belonging to the United States, as quarters. His annual receipts from the treasury, in money, are $2,747.16, to which add twelve cords of wood, and house rent, and the value of his pay and allowances will exceed $3,000 per annum. It will be perceived that his monthly pay has not been increased, but he has long, and I believe always since the present incumbent entered upon the office, received double rations. An act of March 3d, 1797, (U. S. Laws, vol. 2, page 587-8,) provides that each officer in the army, when commanding a separate post, shall be entitled to double rations. This act remained unrepealed in 1800, and would apply to the lieutenant colonel commandant of marines, provided he could be brought within the circumstances entitling a lieutenant colonel in the army to double rations. But, as he is commander-in-chief of the corps, and his command, wherever he may be located, extends throughout all the Union, embracing all posts, stations, and detachments, I cannot comprehend how he can be said to be in command of a separate post. It is true that his head-quarters are at the Marine barracks in this city, where there are eleven privates, with one captain, two first lieutenants, four staff officers, five sergeants, and two corporals to command them, besides five musicians and fourteen boys learning music! But would not this head-quarters be equally a separate post if located at any other place? Could he possibly be placed in a situation where he would be less entitled to double rations? Or, if the whole 949 officers, musicians and privates, contained in the corps, united in one body, would he then, as his responsibilities increased, cease to be entitled to his double rations, by ceasing to command a separate post? If the prevailing construction be correct, he can never cease to be entitled to double rations, and his rations are those of a lieutenant colonel in the army in 1800, as the law says they shall be but double that number. It is inconceivable, that when Congress declared that his regular rations should be six, they meant twelve; I therefore conclude that the lieutenant colonel commandant is, by law, entitled to receive only six rations per day.

All the officers are allowed 20 cents for each ration. The rations for the privates is estimated by the quartermaster at 12 cents, and he informs me that it costs less than 11. The lieutenant colonel commandant, therefore, has not only been allowed double rations, but almost a double price for them. The money paid him for 12 rations would purchase 22 soldiers' rations. The law makes no difference between the ration of an officer and a private. There is no law commuting the ration in the marine corps, or fixing the commutation price. It is done wholly by Executive authority. Has the President the power, without the authority from Congress, when the daily rations of an officer would cost only $1.32, to pay him $2.40, thereby increasing his emoluments at the rate of $1.08 per day? If he possesses the power, ought he not, in justice, to pay 9 cents per day to the soldier, and thus make his ration equal to his officer's? Or is the law to be construed so as to give, by the same words, 11 cents to the soldier and 20 to the officer?

If the power to commute the rations of the marines exists, it is in the President. Not conceiving that the accounting officers have the right to call in question the exercise of his discretionary power, I have paid, and shall continue to pay, the present commutation price of rations to the marine officers until otherwise directed by his authority.

In July, 1812, (United States Laws, vol. 4, page 479,) an act passed allowing each officer in the army, in lieu of waiters taken from the line, the pay and emoluments of as many private soldiers as they were entitled to have waiters under existing regulations. In 1813, more than a year after the act passed, the Secretary of the Navy addressed to the accountant of the Navy Department the following letter:

Navy Department, September 15, 1813.


I hereby authorize an allowance to be made in the settlement of the accounts of the officers of the marine corps, while doing duty on shore, for the pay, clothing, and subsistence of waiters, not taken from the corps, equal to that which is allowed to officers of the infantry, in the army of the United States, of the same grade, agreeably to the fifth section of the act making further provisions for the army of the United States, and for other purposes, passed July 6th, 1812.


Thomas Turner, Esq., Accountant of the Navy Department.

If the act of 1812, relative to the army, applied to the marine corps, this authority from the Secretary was unnecessary; if not, it was inadequate to the object. That the Secretary did not consider the act sufficient authority, is presumed by his language—" I authorize," &c., &c. Surely, if it required the power of Congress to make a law for the army, the power of the Secretary was inadequate to make a similar law for the marine corps.

But, in March, 1814, (U. S. Laws, vol. 3, page 667-8,) another act passed requiring that the servants of officers "shall be mustered with some corps of the army, and that, on the muster rolls, formed in consequence thereof, payments shall be made in money to the officers employing them, in lieu of wages, subsistence and clothing," &c., &c. If the act of 1812 was applicable to the marine corps, so was this. Here is an explicit provision, that the servants must be actually employed and enrolled. Although the marine officers claim servants only by virtue of the army laws, this provision has been entirely dispensed with in relation to their claims, and they have been required to certify only that they have kept only the specific number of servants. It is well understood, that in many, if not most instances, this certificate is a mere form. An officer travels from place to place, and changes from tavern to tavern, without any other waiters than those found in public houses; and, on the ground that they are always ready to wait on him when he wants them, he certifies that he actually employs a servant or servants. If the law of the army applied to them, this is a palpable evasion of its provisions; if not, they are not entitled to the allowance.

The grounds, however, on which I have put a stop to the allowance was, that it was wholly unauthorized by law, as the Secretary of the Navy has no rightful power to apply the laws of the army to the marine corps.

The lieutenant colonel commandant occupies a capacious house, furnished by the government, and


of course charges nothing for quarters. But such is not the case with other officers. A commutation for quarters has been allowed, the latest regulation in relation to which is as follows, viz:

The following allowances will be made to the officers of the marine corps, when they are so situated that no public quarters can be assigned them:

To a lieutenant colonel, major, and staff of the corps, per annum $288; to a captain, per annum $200; to a lieutenant, per annum $104.

Let the foregoing be regarded as the rule for allowing house rent from February 11th, 1828.


June 6, 1828.

Congress has left it to the Executive to provide quarters for the officers of the marines, as well as other officers of the army and navy, but it would seem that his power extends only to furnishing them with public quarters, or causing them to be furnished with private quarters at the public expense. In this light the subject is considered by the army regulations. No. 1,042 declares, "No officer shall be entitled to the allowance of fuel or quarters, at any post, unless regularly assigned to duty there; nor then, unless he shall have complied with the regulations by making a written requisition for those allowances on the quartermaster, if there be one stationed at the post. Should there not be a quartermaster at the station, the officer will himself procure those allowances, and will be entitled to the sum actually paid for the same, on producing regular vouchers for the payment, accompanied by satisfactory proof that the quarters were actually rented, and the fuel purchased at the most reasonable rate."

No such regulation exists in relation to the officers of the marine corps, and they are allowed a gross sum for quarters, without voucher or inquiry. Is not this an increase of their emoluments? Is it within the rightful power of the Executive? An act of April 16th, 1814, (U. S. Laws, vol. 4, page 685,) allows captains and subalterns, when appointed staff officers, "thirty dollars per month, in addition to their pay in the line, in full of all emoluments." This regulation of the Secretary allows a lieutenant, when appointed to the staff, $184 increase of house rent, and a captain $88, in addition to their allowances in the line. Is not this an increase of emolument? Is it not in violation of law?

But as quarters is a matter wholly of Executive regulation, I have not thought proper to interfere with it. My duty is discharged by calling your attention to it. I believe it may be safely asserted, that the government is taxed a sum for quarters for the officers of the army and navy residing in this city, far above the just rent of such rooms as at the several stations are appropriated for, to officers of like grades. By ascertaining the number who now draw house rent from the treasury, and the aggregate amount drawn, it would probably appear to be the interest of the government to build and furnish them with public quarters.

The lieutenant colonel commandant is allowed four and a half cords of wood per month for six months, from 1st November to 30th April, and one cord per month during the other six months, amounting in all to thirty-three cords. A commutation at $7 per cord has been adopted, which yields him $231 per year, in addition to which he charges for twelve cords for an office. The other officers receive the number stated in the enclosed table 1. Formerly they were allowed only the actual cost of their wood. Some years ago, I am informed, the officers at Norfolk proposed to commute for their wood at $3.50 per cord, which was allowed. Then a commutation was allowed for each station at the usual market price. Finally, a general commutation was adopted, which has varied at different times, having been sometimes $8, sometimes $6, and at this time $7. At most of the stations, $7 is more than the wood costs; but at Boston, the officers alleged that it would cost $8, and I believe they have been allowed that sum in the settlement of their accounts. In this city the cost of wood does not exceed $4.50, so that the officers gain at least $2.50 upon every cord of wood allowed them. By these means the emoluments of the lieutenant colonel commandant are increased more than $80 per year, and those of all the other officers and staff in proportion. It is submitted to your consideration, whether the Executive possesses any such rightful power, or whether the commutation, if one must be made, ought not to be the actual market price of wood at each station? If the Executive can, under the name of commutation for wood, increase the emoluments of an officer $80 per year, what limit is there to his discretion?

This also is a subject upon which there is no legislation. I do not, therefore, feel authorized to interfere with existing regulations, or rather customs; but I have felt it my duty to put you in possession of the foregoing facts.

The lieutenant colonel commandant has been allowed for forage eight dollars per month for four horses, amounting to $384 per year. By the act of March 3, 1799, a lieutenant colonel in the army was allowed twelve dollars for forage when he did not receive it from the public. This was the lawful allowance to the lieutenant colonel of marines in 1800; and as the law in relation to him has not been changed, I conceive that it is the only proper allowance which can be made to him still. It will be perceived that the pay and emoluments heretofore received by the lieutenant colonel commandant of marines are those of a colonel in the army. In 1800, the lieutenant colonel commandant was the highest regimental officer in the army. By a change in the organization, colonels have since been introduced into the regiments, and the lieutenant colonel has become a second grade. The lieutenant colonel commandant of marines, though paid as a colonel, ranks only as a lieutenant colonel in the army. Were there any propriety in applying to him the laws of the army passed since 1800, his pay and emoluments would certainly be regulated by those of the corresponding rank in the army. But every increase of emoluments allowed to a colonel in the army has been also allowed to him; so that he has presented the singular anomaly of being a lieutenant colonel in rank, and a colonel in pay and emoluments. But the law gives him a grade of compensation different from those of both these ranks in the army, and it is not for me to question its propriety.

There are five lieutenant colonels by brevet in the marine corps, all of whom have been receiving the pay and emoluments of a lieutenant colonel in the army. There is not, either in law or practice, any such grade of compensation in the line of the marine corps. It has been often decided, that the President cannot create by brevet a rank which does not exist in the line of the corps. Surely he has as little power to create by brevet a grade of pay and emoluments not known in the line. It is obvious that, when these brevet lieutenant colonels are entitled to brevet pay at all, it must be that of their rank in their own corps. Their rank is that of their lieutenant colonel commandant. Their brevet pay and emoluments must therefore be the same which he is entitled to receive in the line.


The act of April 16, 1814, (United States Laws, vol. iv., p. 685,) authorizes the President to confer brevet rank in the marine corps, and provides that "nothing herein contained shall be so construed as to entitle officers so brevetted to any additional pay or emoluments, except when commanding separate stations or detachments, when they shall be entitled to and receive the same pay and emoluments which officers of the same grades are now or hereafter may be allowed by law."

Were it a question of the first impression, I might doubt whether the act "to fix the peace establishment of the marine corps," passed March 3d, 1817, (United States Laws, vol. vi., page 219,) did not supersede the act of 1814, and. take from the President the power to confer brevet rank. But perhaps the power has been too universally conceded and generally practiced to be brought into question now.

Pour of the five lieutenant colonels by brevet are in command of separate stations, and a fifth is under arrest. In March last, Lieutenant Colonel Wainwright's command at Charlestown, Massachusetts, consisted of 53 officers, musicians, and privates; Lieutenant Colonel William Anderson's, at Norfolk, 48; Lieutenant Colonel S. Miller's, at Philadelphia, of 64; and Lieutenant Colonel John M. Gamble's, at New York, of 45; while Lieutenant Colonel Richard Smith is under arrest. All of them are receiving the pay and emoluments of their brevet rank; it having been decided by the late Secretary of the Navy, that an officer under arrest shall receive all the allowances of station he held at the time of his arrest, until discharged. Disposed to allow them every lawful claim, and believing that, by the language of the law, they are entitled to it, I have decided that this compensation is the same as that of their lieutenant colonel commandant. Yet it must be confessed that, according to this construction, they can hardly be placed in any situation in the present circumstances of the corps, where they would not equally be entitled to brevet pay and emoluments.

In relation to captains, and other officers commanding afloat, I have not been able to find any law which entitles them to receive double rations, or authorizes the President to make such an allowance. The allowance of $180 to captains and lieutenants commanding afloat, and to a lieutenant and assistant quartermaster for issuing clothing, are also wholly, I believe, unauthorized by law. I am told this allowance has been made to these officers at sea for the express purpose of increasing their emoluments, and thus approximate to those which are allowed to them when on shore. Such has been the effect of various constructions, that a captain without command receives a greater compensation than a captain on the most arduous and dangerous foreign service; and a first lieutenant, commanding at sea, receives more than a captain under similar circumstances. An inspection of paper No. 1 will show how the former result is produced; the latter has arisen from the application of an army law to the subaltern officers of the marine corps.

The act of 1798 fixed the rations of a captain and first lieutenant at three, and those of a second lieutenant at two. In 1816 an act passed, (United States Laws, vol. vi., pp. 79-82,) which closes with a proviso, "that an additional ration be allowed to all the subaltern officers in the army." Before the passage of this act, all lieutenants in the army received two rations, and this increased them to three. Some years after, by the authority of the Secretary of the Navy, as I am informed, this act was applied to the subalterns of the marine corps, by which means the rations of a first lieutenant were increased to four, and those of a second lieutenant to three. Hence, the first lieutenant of marines claimed and received one more ration than their captains, and one more than a first lieutenant in the army. By doubling their rations were commanding afloat, they received eight, while their captains, under like circumstances, received six. Nothing could more strongly exemplify the absurdity of supposing that Congress, when legislating for the army, considered their acts as embracing the marine corps, and intended to give a lieutenant greater emoluments than are received by his captain. The act of July 11th, 1798, provides that "if the marine corps, or any part of it, shall be ordered by the President to do duty on shore, and it shall become necessary to appoint an adjutant, paymaster, quartermaster," &c., "the major or commandant of the corps is hereby authorized to appoint such staff officer or officers, from the line of subalterns, sergeants, and music, respectively," &c. The act of April 16th, 1814, provides that "the adjutant, paymaster, and quartermaster of the marine corps may be taken either from the line of captains or subalterns, and the said officers shall, respectively, receive thirty dollars per month in addition to their pay in the line, in full of all emoluments." The law in relation to their compensation has not been altered since. The present paymaster is a captain; the adjutant, a first lieutenant, and a captain by brevet; and the quartermaster, a first lieutenant. Under the law of 1814, the paymaster is entitled to $70 per month, and three rations per day; the adjutant to $60 per month, and three rations per day; and the quartermaster to $60 per month and three rations per day, with quarters and fuel to all three. For some years they have been paid according to this act, but within the last eight years it has wholly been abandoned in relation to their pay and emoluments. I will endeavor to trace the progress of these derivations in relation to the paymaster, which may serve as an illustration of those by which the other two cases have been regulated.

According to the laws of the marine corps, as they existed in 1814, the paymaster would receive $840 per annum as monthly pay, $219 for rations, making $1,059, with quarters and fuel. In 1828, he actually received the following allowance:

Pay, $60 per month

$720 00

Three rations per day, at 20 cents

219 00

Nine cords of wood, at $8

72 00

Two servants, at $14.84

356 16

$1,367 16

The paymaster was then a lieutenant: had he been a captain it would have added $10 per month to his pay, making the annual sum of his receipts $1,487.16. How an allowance for servants came to be made to the marine officers, has been already explained; but I know not how it is that a lieutenant, entitled only to thirty dollars per month, "in full of all their emoluments," came, at that day, to be allowed the emoluments of two servants.

When the present paymaster came in, he was required to give bond in the same manner as a paymaster in the army. In consequence, he maintained that he ought to be placed on the same footing, in relation to his pay and emoluments. In accordance with this suggestion, the Secretary set aside and virtually repealed the law of 1814, and directed allowances to the paymaster of the marine corps equal to those


made to paymasters in the army. These were then regulated by the pay and emoluments of a major of infantry. In 1822, therefore, without any change of law subsequent to 1814, the paymasters of the marines received the following allowances, viz:

Pay, at $50 per month

$600 00

Four rations per day

292 00

Twenty-seven cords of wood, at $8

216 00

Two servants, at $14.84, each, per month

356 16

Three horses, at $8 each

288 00

House rent, per annum

250 00

$2,002 16

No change of the laws relative to the marines, bearing upon the paymaster, has been made, so far as I know, since 1822; yet, the allowances to which he was considered as entitled in 1828, were as follows:

Pay, at $60 per month

$720 00

Eight rations per day

584 00

Two servants

356 16

House rent

288 00

Twenty-four cords of wood, at $7

168 00

Forage for four horses, at $3 per month

384 00

$2,500 16

To which add 12 cords of wood for an office, at say $6

72 00

$2,512 16

The increase of $10 in the monthly pay is claimed on the ground that it was decided in a suit by the government against Major Satterlee Clarke, a paymaster in the army, that he was entitled to the monthly pay of major of cavalry, which is $60. As the paymaster of the marine corps claims to be on the same footing with army paymasters, he considers himself entitled to the additional ten dollars per month, from the time of his appointment in 1821.

The increase of his rations from four to eight, and the increase of his forage from three to four horses, were made last year. The authority on which they were made was a decision of the Secretary of the Navy, making like allowances to the adjutant and inspector. The ground of that decision I am unable distinctly to perceive. Probably all that can be said in its favor is contained in papers marked 2, herewith submitted. The reasons stated in these papers have failed to satisfy my mind in relation to these allowances; and I can view the letter of the late Secretary of the Navy in no other light than as an act of direct legislation, increasing the emoluments of the staff of the marine corps. The paymaster has justly concluded that, if he is entitled to those allowances at all, he is entitled to them from the year 1821, when he was appointed, and laid in claims accordingly. But if the Secretary of the Navy can thus, at will, increase the emoluments of the agents, there is an end to those principles of popular representation, on which I have always supposed our government to be founded.

The increase of $38 in house rent, was also made by order of the Secretary of the Navy, issued in June last.

Under this regulation, all the brevet lieutenant colonels and the staff officers consider themselves entitled to $288 per annum, as house rent. The paymaster claims the additional $38 ($250 only having been the amount received by him) from the time of his appointment in 1821, on the ground that a major in the army has received $288 per year, and that he is entitled to the same amount.

The wood allowed to the paymaster in 1822 was 21 cords, at $8 per cord, amounting to $216; now he is allowed 24 cords, at $7, and 12 cords for an office, making in all 36 cords, for which he is paid about $240.

The means by which the emoluments of the adjutant and quartermaster have been augmented, are so similar in their nature, as to render a detail unnecessary. The allowance of a sum of money, now $150, to the latter, as superintendent of the armory, though without authority of law, is of ancient date; but that of $360 as commissary of subsistence, has originated since 1822. No such officers or salaries are known to the law.

The adjutant is a captain by brevet, and a first lieutenant in the line; his lawful allowances as a staff officer would be $60 per month, and three rations, and other allowances as a first lieutenant in the line. Yet, he has been allowed 8 rations, while a first lieutenant has received but 4; he has been allowed $288 for house rent, and a first lieutenant $105; he has been allowed 15 cords of wood, and 12 for an office, and a first lieutenant 7 1/2 in all; he has been allowed forage for two horses, and a first lieutenant none at all. This has been done, while there is on the statute book a positive law, that he shall receive $30 per month, in addition to his pay in the line, in full of all emoluments.

Similar results are produced by the allowances made to the quartermaster and paymaster.

A regular allowance of $20 per month has been made for several clerks in the corps. The lieutenant colonel commandant has one, the adjutant one, the quartermaster two, and the paymaster one To a messenger for the office of paymaster there has been allowed regularly $7 per month. For none of these things do I find any law.

The act of March 3d, 1817, (U. S. L., vol. 6, p. 219,) fixes the music of the marine corps at "forty-two drums and fifes." In March last, the adjutant reported forty-three, under the head of "music." The drums and fifes at the barracks in this city are composed, I believe, of a great variety of musical instruments. There seems, also, to be a music school there; for, under the head of "privates," are reported 14 "boys learning music." These boys, I understand, are received at various ages, from 5 or 6 to 16 or 17, and bound by their parents of guardians to the drum major. They are enrolled as privates of the corps, and all the pay and emoluments of privates paid to their parents or guardians. It often happens that, after learning music a year or two, at an expense of some hundreds of dollars to the United States, they


are discharged as wholly unfit for musicians or any other marine duty. Most of them, when their indentures expire, quit the corps, without rendering any other service to the United States than learning* music, and doing such other duty at the barracks as boys of their ages are capable of doing. It is said to be nearly two years, in general, before they are reported as fit for duty; and it may well be conceived of what duty boys of 8 or 9 years old are capable. Are these boys such "privates" as the law contemplates? It would be an insult to Congress and common sense to suppose so. Are they such "drums and fifes" as the law authorizes? Then there are 57 "drums and fifes" in the corps, being 15 more than the law allows. Indeed, I am informed that the number of "boys learning music" sometimes exceeds 20. In any point of view, the establishment appears to me to be wholly illegal, almost useless, very expensive, injurious to the public service in diminishing the efficient strength of the corps, and, in fine, a contrivance to support a few poor children out of the Treasury.

It is maintained by many officers of the marine corps, that their corps forms a part of the army of the United States, and, as such, is entitled to the benefit of all the laws passed in relation to that portion of the public force. This opinion is predicated on the first sentence of the act of 1798, which enacts "that, in addition to the present military establishment, there shall be raised and organized a corps of marines," &c. The military establishment, they say, is the army, and a corps in addition to the military establishment must be a part of the army. This construction, they maintain, is strengthened by the third section of the act, which declares that the detachment of the corps of marines "shall be made to serve on board the public ships," and that "the President of the United States may detail and appoint such of the officers of this marine corps to act on board the frigates," &c.; by the fourth section, which declares that the officers and men of this marine corps "shall take the same oath, and shall be governed by the same rules and articles of war as are prescribed for the military establishment of the United States, and by the rules for the regulation of the navy heretofore, or which shall be established by law, according to the nature of the service in which they shall be employed;" and by the sixth section, which provides "that the marine corps established by this act shall, at any time, be liable to do duty in the forts and garrisons of the United States, on the sea coast, or any other duty on shore, as the President at his discretion may direct." That the marine corps is military in its character, cannot be denied; that it is a "military establishment," I am not disposed to controvert; but that it is not a part of that "military establishment" usually called the "army," is, I think, sufficiently apparent from its history, its objects, its organization, and the circumstances which surround it.

The first marine corps was established by the Continental Congress, in 1775. (See U. S. Laws, vol. 1, page 620-27.) That this was then considered a part of the naval armament, is proven by the manner in which it is introduced.

Origin, &c., of the naval establishment of the United States.

In Congress, November 10, 1775.

Resolved, That two battalions of marines be raised, consisting of one colonel, two lieutenant colonels, two majors, and other officers, as usual in other regiments," &c.

Here was a "military establishment," corresponding in organization with a regiment in the army; yet it was considered a part of the naval establishment, and was so treated by Congress during the revolutionary war. It had then special duties assigned to it on shore, as the marine corps now has, as appears by the following resolution:

In Congress, January 8, 1780.

Resolved, That the marines of the navy of the United States, whilst doing garrison duty, be allowed the same subsistence money as is allowed to the officers and soldiers of the line of the army.

After the adoption of the Constitution, the marines were still recognized only as an arm of the naval force. United States Laws, vol. 2, page 334, there is "an act to provide a naval armament." A portion of the crew of each forty-four gun ship was to be one lieutenant of marines and fifty marines, and of each thirty-two gun ship one lieutenant and forty marines. United States Laws, vol. 3, page 5, there is another "act providing a naval armament," passed July 1st, 1797. It assigns two lieutenants and fifty marines to each forty-four gun ship, and one lieutenant and forty marines to each thirty-six gun ship. Next comes the act of July 11th, 1798. United States Laws, vol. 3, page 95-97, "An act for establishing and organizing a marine corps." It may be asserted and maintained, that the only object of this act was to furnish a more convenient mode of supplying the public vessels with marines than had heretofore existed. It had been the custom to assign to each ship a certain number of marines, by act of Congress, many of- whom, as a matter of course, must be wholly ignorant of the discipline and duties to which they were subjected. This act provided, in lieu of that system, a standing disciplined corps, from which the President was to order a sufficient quota of marines for every vessel which might be directed to sail upon the public service.

The name itself designates the object of the corps. It was called the marine corps—the sea corps— a corps for sea service. It was a military establishment, in addition to the existing military establishment, but it was, nevertheless, designed for sea service—" an arm of naval force." If this was not the character and object of the corps, what means the following provision in the 2d section of the act?

"And the enlistments which shall be made by virtue hereof, may be for the term of three years, subject to be discharged by the President of the United States, or by the ceasing or repeal of this law, providing for a naval armament."

Is it possible that a corps whose very existence depended on that of the "naval armaments," was not considered as "an arm of the naval force," but a part of the army? This provision is of itself conclusive that the Congress of 1798 considered the marine corps as a part of the navy, and not of the army. That they merely intended to substitute one system of furnishing the public ships with marines for another, is clearly proved by the 3d section, which begins as follows:

"That detachments of the corps of marines, hereby authorized, shall be made in lieu of the respective quotas of marines which have been established or authorized for the frigates and other armed vessels and galleys, which shall be employed in the service of the United States, and the President may detach and appoint such of the officers," &c.

Previously, Congress had themselves assigned quotas of the marine officers and privates to each vessel: by this act they created a permanent corps, and authorized the President to assign detachments to each vessel at his discretion.


Not only was the very existence of the marine corps dependent on that of the naval armament, hut all the shore duties to which they were subjected were, on the face of the act, shown to be contingent. They were made "liable" to do any duty on shore which the President might assign to them. But the 2d section clearly shows that these duties were expected to be only temporary in their nature. It provides that "the marine corps, or any part of it, shall be ordered by the President to do duty on shore, and when it shall become necessary, to appoint an adjutant, paymaster, quartermaster," &c., &c. "The major or commandant of the corps is hereby authorized to appoint such staff officers," &c., &c. "If they shall be ordered to do duty on shore," implies that their principal duties are on the seas, and that they may never be ordered upon shore duties, or, if so ordered, a staff may not be necessary. Here was a corps which might never be ordered upon any duties whose chief employment was on board the public vessels, and whose very existence depended on that of the naval armament. How can it be said to be a part of the army, and not an arm of the naval force?

But it is argued that they are a part of the army, because the act of 1798 provides that, when doing duty on shore, they "shall be governed by the rules and articles of war." The same section provides that when doing duty on board ship, they shall be governed "by the rules for the regulation of the navy." If the former provision proves that they are a part of the army, the latter proves just as conclusively that they are a part of the navy. This section, therefore, proves neither the one or the other.

But the practice under this section is relied upon to prove that the marines are a part of the army. In the case of Col. Wharton, and perhaps others, it has been decided that naval officers cannot be detailed upon courts-martial to try marine officers for offences committed while doing duty on shore. In the government of the army and. navy, courts-martial are the judiciary. When "governed by the rules and articles of war," the marines must be tried for violations of those rules and articles by such a court as they prescribe. On the other hand, "when governed by the regulations of the navy," they must be tried for violations of those regulations by such a court as they prescribe. If naval officers cannot be detailed upon the courts to try marines when acting under the "rules and articles of war," so neither can army officers be detailed to try them when acting under the regulations of the navy. For offences on land, they are tried by military courts-martial. For offences at sea, they are tried by naval courts-martial. If the former fact proves them to be a part of the army, the latter proves them to be a part of the navy. No argument can, therefore, be predicated on these facts, tending to prove the one or the other.

This provision has been made to extend beyond the government of the marines, and apply to their pay and emoluments. Because it is provided that when doing duty on shore they "shall be governed by the rules and articles of war," some of the officers maintain that they are entitled to all the allowances made to officers of the army. "The rules and articles of war" is a definite and technical expression, well understood. It includes a single act of Congress, entitled "An act for establishing rules and articles for the government of the armies of the United States," and includes all legislation upon the organization or payment of the army. This provision, therefore, extends only to the government of the marine corps when doing duty on shore, and not to their payment. The second section of the same act contradicts the idea that, in saying the marine corps should be governed by the rules and articles of war, Congress intended that they should be paid according to the army laws; for it fixes the pay and rations of the officers, and provides that those of the non-commissioned officers and privates shall be fixed by the President, "conformably to the act entitled 'An act providing for a naval armament.'" If Congress had intended that the laws of the army should govern the pay and emoluments of the marines, they could not have fixed them in this act, and least of all on the basis of the naval armament. Indeed, it would be just as reasonable to maintain that the marine corps should be organized according to the laws of the army, as that it can be paid by those laws. There is just the same authority to add majors and a colonel to the corps, by virtue of the army laws, as there is to add a dollar or a ration to the emoluments of the officers or the men.

Frequent legislation, since 1198, speaks of the marines as belonging to the navy, while not a single instance can be found in which they are recognized as a part of the army.

In vol. 3, United States Laws, page 266, there is "An act in addition to an act for the relief of sick and disabled seamen," passed March 2, 1199, which requires the Secretary of the Navy to deduct 20 cents per month from the pay of "the officers, seamen, and marines, of the navy of the United States," to form a hospital fund; and to provide—and it provides, "that the officers, seamen, and marines, of the navy of the United States, shall be entitled to receive the same benefit and advantages as by the act above mentioned are provided for the relief of the sick and disabled seamen of the merchant vessels of the United States." If the marine corps belongs to the army, what is meant by the marines of the navy of the United States? From whose pay is the 20 cents to be deducted, and who is it that are entitled to the benefit of naval hospitals under the name of marines? Uniform practice shows that it is the very marine corps which is now claiming to be a part of the army. Under this act, 20 cents per month is now deducted from their pay, whether on shore or at sea, and they are entitled to the benefits of the naval hospitals.

In the United States Laws, vol. 4, page 125, is "An act directing the staff officers of the army to comply with the requisitions of naval and marine officers in certain cases," passed December 14, 1814. It enacts "that it shall be the duty of the several officers of the staff of the army of the United States to provide the officers, seamen, and marines, of the navy of the United States, when acting, or proceeding to act, on shore, in co-operation with land troops, upon the requisition of the commanding naval or marine officer, &c., with rations," &c. Here is an express recognition, by Congress, of the marines, as belonging to the navy, even when acting or proceeding to act on shore, in co-operation with troops.

The act of March 3, 1815, fixing the military peace establishment of the United States, (United States Laws, vol. 4, page 825,) does not speak of the marines or allude to them as part of that establishment. On the contrary, there is a separate act, passed March 3, 1817, (vol. 6, page 219,) "to fix the peace establishment of the marine corps."

There are several other acts, which speak of the marines as belonging to the navy of the United States; and I may venture to say, there is not an instance, from the first resolution of the Continental Congress to the last act of Congress of the United States, in which they are spoken of as belonging to the army, or of the army, or otherwise connected with the army, than in doing duty on shore by special order of the President.

If they belong to the army, and not to the navy, why are they not subjected to the orders of the Secretary of War, instead of the Secretary of the Navy? Why are all the appropriations for their pay-


merit and support made in acts for the support of the navy of the United States? Why are their accounts settled with those of the navy, and not with those of the army? Why are their grades of office different from those of the army? Why cannot officers in the marine corps be promoted in the army, and officers of the army in the marine corps? Why is there a provision relative to brevets in the marine corps, different from that existing in the army? Why is not the marine corps divided into companies, and organized into a regiment or regiments like the army? Why are they not subject to the orders of the commander-in-chief, and the generals and colonels of the army? Why have they a separate staff? There is but one correct answer to all these questions, and many more which might be propounded. They are not a part of the army. They are an arm of the naval force, in many respects independent, but created for the naval service. They form a considerable portion of every ship's crew which is ordered into the service, and are as effectually a portion of the naval force as the seamen themselves.

I do not think, therefore, the position, that the marine corps forms a part of the army, can be maintained. But, if it could, the consequences in many respect would be the same. It is in the power of Congress to legislate in relation to any particular corps or regiment of the army, and their legislation, as far as it goes, is valid and conclusive. They have legislated for the marine corps* specifically, and those acts must constitute the code for its organization and payment, until superseded or repealed.

There is another ground on which some of the officers claim all the allowances which have been made to them. Estimates to cover these allowances have been annually made out, in pursuance of which Congress has appropriated the money. This, they maintain, is a sanction of the allowances by Congress. Congress has confidence that the executive officers will do their duty. The only legitimate object of an estimate, is to obtain from the legislative body the means of executing existing laws. The estimates form no part of the laws, nor are they a proper guide in the expenditure of public money. The first object of the accounting officers is to ascertain whether any given species of public service is authorized or required by law; the next, whether any money has been appropriated to pay for it. If the service be authorized, and the money appropriated, then they are bound to pay for the service. They cannot look to the estimates to determine what is law. Unless there be pre-existing laws authorizing the disbursement, the appropriation bill itself must point out the specific object of each appropriation to justify the payment of money. Many regular allowances have been made to the officers of the marine corps, which have never been authorized or specified by any act of Congress, although they have been included in the estimates. For these, it seems to me, there is no lawful authority.

But it cannot be necessary to combat this position, until it is attempted to be maintained that the estimates form a part of the laws, and ought to be inserted in the statute book.

I have thus given you, sir, with some prolixity, everything material which has occurred to me in support of the positions I have taken, relative to the pay and emoluments of the marine corps. Principles of much moment are involved in the issue. Can the Executive, without the consent of Congress, authorize any fixed and regular allowance, increasing the emoluments which Congress has attached to public officers or public services by law? The affirmation, it seems to me, can only be supported by constructions, which are more dangerous, because they place a power, important to the preservation of liberty, in the hands of those who have no direct responsibility to the people. If a system be bad, let Congress give us another; if it be defective, let Congress mend it. Now is the time to return to first principles; to brush away the mistakes and abuses of years; to renew the obliterated line between Executive and legislative powers; to banish constructions, and especially those which accumulate power in the Executive head; to infuse into the government a principle, a tone, and an energy, which shall last at least for a generation.

From accumulated constructions and allowances, it has resulted that the officers of the marines receive greater emoluments when at home, than when upon the most arduous and dangerous foreign service. Every inducement which love of money, ease, and luxury, can present to the mind of man, is held out to them to avoid employment in our public ships. Here are nine officers, some of whom cannot be sent to sea, and others maintain they ought not to be, who have received about §22,000 per year. There is generally the greatest pay when there is the least service. Can it be expected, under such circumstances, that our public officers will long maintain that high sense of honor and that disinterested patriotism which are essential to the efficiency of the navy and the defence of the country? With what reluctance will they embark on long cruises, and be separated for years from family and friends, when they reflect that their country, as if in mockery of their privations, adds greater emoluments to all those domestic blessings enjoyed by drones at home? It must be felt by them as a wrong, the effect of which must be to destroy their love for active service and cool their patriotism. On the other hand, if increased emoluments attended arduous service, and drones were left to fare as drones ought, every good and glorious feeling of the brave would be formed into active exercise, and instead of seeking excuses to escape from duty, all would press forward for honorable employment.

Being new in public office, and heretofore but little conversant with the subjects which it has been my duty to investigate, I may have imbibed errors in my detail, although I am confident in the correctness of my general principles. If my opinions shall lead to investigations which will redound to the interest and honor of the country, my object will be attained. No man will with more alacrity than myself retract a discovered error, or submit to a better judgment.

I send you, herewith, such papers belonging to my office as may aid you in your investigations, together with statements and arguments handed me by several officers of the marine corps. These gentlemen have expressed to me a wish that the legal questions involved should be submitted to the Attorney General.

Very respectfully, your obedient servant,


Hon. Secretary of the Navy.