To James McHenry
N. York Oct. 25th. 1799
Thinking it due to him as an Officer now under my command I trouble you with this letter.
He states that he has claims of two kinds—One for services rendered for more than two years as judge advocate previous to the law authorising that appointment,3 another for the legal emoluments of the Office in virtue of an appointment of the commanding General on the basis of that law4—that having been absent, in consequence of ill health induced by a severe wound received in the service, obstacles have occurred to the allowing of the compensation during the term of such absence—that the Atty. Genl. has given his opinion that the appointment was a regular one under the law,5 and that he understands the opinion to have been heretofore acted upon by your Department. Upon these data I submit my ideas.
I consider it to be a principle sanctionned by usage, that when an Officer is called to exercise, in a permanent way, an office of skill in the Army (such as that of Judge advocate) for which provision is not made by law he is to receive a quantum meruit, by Special discretion, for the time he officiates, which in our present system would be paid out of the fund for the contingencies of the War Department.
This applies to the first claim. As to the second, this is my opinion—That considering the appointment as regularly made under the law—the emoluments continue of course until the office has been abdicated or superseded—the nonexercise of it for any period to the contrary notwithstanding.
In the Situation in which Lt Smith was placed by his wound he would seem intitled even to a liberal application of the rule of right.
With great respect &c
Secy of War
Df, in the handwriting of Ethan Brown, Hamilton Papers, Library of Congress.
1. Smith was a lieutenant in the Fourth Regiment of Infantry. He made his “representation” to H in Smith to H, May 12, 1799 (listed in the appendix to this volume).
2. On June 11, 1798, “A memorial of Campbell Smith, a Lieutenant in the Army of the United States, was presented to the House and read, praying compensation for his services as Judge Martial and Advocate General to the said Army, from the sixteenth of July, one thousand seven hundred and ninety-four, to the thirteenth of July, one thousand seven hundred and ninety-six.…
“Ordered, That the said memorial be referred to the Committee of Claims.” (Journal of the House description begins Journal of the House of Representatives of the United States (Washington, 1826), I, II, III, IV. description ends , III, 331).
The committee postponed consideration of the memorial until the next session of Congress, when it was again referred to the Committee of Claims (Journal of the House description begins Journal of the House of Representatives of the United States (Washington, 1826), I, II, III, IV. description ends , III, 386–87, 535). On February 5, 1800, McHenry included H’s letter printed above and his answer to it on November 12, 1799, in his report to Dwight Foster of Massachusetts, chairman of the Committee of Claims (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Military Affairs, I, 145). The committee reported on February 21, 1800, and on February 28 the House “Resolved, That the proper accounting officers of the Treasury liquidate and settle the account of Campbell Smith, for his services as Judge Advocate to the legion of the United States, while he acted in that capacity under an appointment made by General [Anthony] Wayne, on the sixteenth of July, one thousand seven hundred and ninety-four; and that he be allowed such pay and emoluments for said services, as are allowed by law to officers acting in that capacity” (Journal of the House, III description begins Journal of the House of Representatives of the United States (Washington, 1826), I, II, III, IV. description ends , 608). The Senate approved Smith’s claim on March 11, 1800 (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and All the Laws of a Public Nature (Washington, 1834–1849). description ends , X, 117, 582, 683). See also ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Military Affairs, I, 144–46; “An Act for the relief of Campbell Smith” (6 Stat. description begins The Public Statutes at Large of the United States of America [Private Statutes] (Boston, 1846). description ends 40 [March 29, 1800]).
3. “An Act to amend and repeal, in part, the Act intituled ‘An Act to ascertain and fix the Military Establishment of the United States’” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845); II (Boston, 1850). description ends 507–08 [March 3, 1797]).
4. Brigadier General James Wilkinson’s general order of June 2, 1797, reads: “Lieut. Smith of the 4 Regiment, is appointed to do the duty of Judge advocate, until the will of the President be known” (LC, RG 94, Adjutant General’s Office, General Orders, General James Wilkinson, 1796–1808, National Archives).
5. Charles Lee to McHenry, February 10, 1798 (copy, Hamilton Papers, Library of Congress). McHenry sent a copy of this opinion to H on November 12, 1799.