From James McHenry
November 12th: 1799.
I received your letter dated the 25th. ulto: at Trenton, when the business of the Office, had closed there and preparations were making to return to the Seat of Government.
This letter relates to claims against the United States for Services rendered by Lieutenant Campbell Smith,1 which are stated to be of two kinds. 1st: For Services as Judge Advocate for more than two years previous to the law authorizing that appointment. 2nd. For the legal emoluments of the Office of Judge Advocate, in virtue of an appointment of the Commanding General, on the basis of that Law.
The first claim I am not sufficiently informed respecting. No General or Special Order of appointment appears upon the files of the Office. No Certificates are presented to shew that the duties of the Office of Judge Advocate were permanently performed. The circumstances on which its equity is grounded are not before me. If the appointment was not permanent, but applied only to particular cases, and not to all—and did not oblige to perform the duties of the Office at every Military Court—or at least every General Court Martial held at or near the Army where the Officer served, I should apprehend no precedent authorizes the claim, and that its allowance would introduce a train of inconveniences, for would not every Officer who has acted or shall act in the same capacity on any military Court, and how many have done, and are daily doing so, become likewise entitled to the same measure of compensation, for the time he performed or shall perform the same duties? In such case, the whole amount of claims equally founded, I can form no Estimate of.
As however no law sanctions this claim, as to do so would be contrary to past and present practice, unless the duties said to have been enjoined by the Appointment, were obligatory, permanent and general—as no expectations have ever been indulged by other Officers, who have heretofore or lately acted on Military Courts in the same Office, and the allowance of the claim, if for temporary Services would introduce serious inconvenience, I think proper to decline having any thing to do with it.
If on the other hand the appointment was intended to be permanent, and to enjoin general duties applicable to all Military Courts held at or near the Army with which this Officer served—altho’ I should then think the Claim equitably founded, for compensation for the time Services were performed under it—Yet as the appointment was not provided for and no law established the Office, I incline to suppose a legislative allowance would be most regular, and comformable to the course heretofore pursued in similar cases, of which Captain Lewis’s claim as Volunteer Aid, is an instance.2
The second claim is for the legal emoluments of the Office of Judge Advocate, in virtue of an appointment of the Commanding General on the basis of a law authorizing the appointment, relative to which you say it has been stated to you. The Attorney General has given an opinion, that the appointment was a regular one, under the law, and that this opinion is understood, to have been heretofore acted upon in this Department, but that Lieut: Smith 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 time of such absence.
Proceeding on the Statement made to you, as your data, you give your opinion on the second claim as follows, viz: “Considering the appointment as regularly made under the law the emoluments continue of course, until the Office has been abdicated, or superceded the non-exercise of it, for any period, to the contrary notwithstanding.”
It will be proper to go into some detail respecting the second claim, and to shew you that the opinion of the Attorney General, by no means establishes the appointment of Lieut. Smith by the Commanding General, on the basis of the law authorizing the appointment of a Judge Advocate, as regular but the contrary. It however considers Lieut: Smith under all circumstances, as equitably entitled to compensation for the Services he had actually performed as Judge Advocate, altho’ under an irregular appointment, and recommended, the allowance fixed by law, to this Office, as the best rule for the compensation, and the contingent as the proper fund out of which it should be paid.
When this claim was presented to me, I transmitted it, with those of two other Gentlemen, similarly circumstanced, to the Attorney General, and requested his opinion. A copy of his opinion dated the 10th. February 1798, I now enclose.
On the 12th. of February, I wrote to the Accountant,3 “I enclose the opinions of the Attorney General of the United States, on the claims of Lieut: Campbell Smith, Lieut. Webb,4 and Major Cushing5—I concur in them.”
Referring to the Accountant’s Office I find that Lieut: Smith was settled with, upon the principles of, and agreeably to the rule recommended by the Attorney General’s opinion, from the 1st: of March 1797 to the 30th: April 1798.
In consequence of a subsequent application as I must suppose by the same Officer, referred to me by the Accountant, I wrote to the latter on the 26th: October 17986—“Lieutenant Campbell Smith is considered upon the principles of an opinion of the Attorney General, dated the 10th. February last, Copy of which was transmitted to your Office, to be entitled, to all the emoluments, attached to the Office of Judge Advocate, for such time only, as he was actually employed by Brigadier General Wilkinson, or by orders from the Secretary of War, since the 30th. April last, in that capacity.” When I wrote thus, I knew Lieut: Smith had been employed specially, by a Warrant directed to him, as Judge Advocate pro hac, on the trial of Lieut: Parmele,7 and intended to avoid any expression which could be construed into a confirmation of his appointment to the Office of Judge Advocate generally, and to confine his compensation, to the time strictly for which he officiated in the capacity of Judge Advocate. No settlement was however made with him, after that which allowed him compensation to the 30th. April, he probably declined any settlement, other than one under his appointment by the General, and giving to him monthly emoluments.
“An Act to amend and repeal in part the Act entitled ‘an Act to ascertain and fix the Military establishment of the United States,’” passed the 3rd: March 1797, provides Section 2nd. “That there shall be one Brigadier General who may choose his Brigade Major and Inspector from the Captains and Subalterns in the line (to each of whom there shall be allowed the monthly pay of Twenty five Dollars in addition to his pay in the line, and two Rations extraordinary per day, and whenever forage shall not be furnished by the public, to ten Dollars per month in lieu thereof.) That there shall be one Judge Advocate, who shall be taken from the commissioned Officers of the line, and shall be entitled to receive two Rations extra per day and twenty five Dollars per month, in addition to his pay in the line, and whenever forage shall not be furnished by the public to ten Dollars per month in lieu thereof.”
It will be perceived, that the Section of the law cited, gives an express permission to the Brigadier General, to choose his Brigade Major and Inspector, but is silent respecting the appointment of the Judge Advocate, which is therefore conceived to rest in the president by and with the advice and consent of the Senate. The 2nd. clause of the second Section of Article 2nd: of the Constitution, among other powers vested in the president, gives that, by and with the advice aforesaid of appointing “all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior Officers as they think proper, in the president alone, in the Courts of Law, or in the Heads of Departments.”
It is proper to add, that the nomination to the Senate of an Officer to act in the capacity of Judge Advocate General was declined, from a conviction that the dispersed situations, the troops had or would assume, was incompatible with the attainment of much utility from such an Officer, and that the same cause, produced my disinclination, to give any countenance to an expectation of permanent emoluments, under what I considered, an irregular Appointment.
I have the honor to be, with great respect, Sir, Your obedt: servent,
LS, Hamilton Papers, Library of Congress; LS, letterpress copy, James McHenry Papers, Library of Congress.
2. On July 6, 1797, Thomas Lewis petitioned the House of Representatives for pay for his services as an extra aide-de-camp to Major General Anthony Wayne from July, 1794, until Wayne’s death in December, 1796 (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, 71). On February 8, 1799, “An Act for the relief of Thomas Lewis” granted Lewis “a sum not exceeding eleven hundred and fifty-seven dollars …” (6 Stat. description begins The Public Statutes at Large of the United States of America [Private Statutes] (Boston, 1846). description ends 37).
3. McHenry to William Simmons, February 12, 1798 (LS, RG 94, Adjutant General’s Office, Letters Received and Sent by the Secretary of War, National Archives). Simmons was accountant to the War Department.
4. John F. Webb of Virginia, who had been honorably discharged from his commission as captain in the Cavalry on November 1, 1796, was a lieutenant in the Light Dragoons (Heitman, United States Army description begins Francis B. Heitman, Historical Register and Dictionary of the United States Army, From Its Organization, September 29, 1789, to March 2, 1903 (Washington, 1903). description ends , I, 1011).
5. Thomas H. Cushing was a major in the First Regiment of Infantry.
6. LS, RG 94, Adjutant General’s Office, Letters Received and Sent by the Secretary of War, National Archives.
7. Samuel D. Parmele of New York was a second lieutenant in the Third Regiment of Infantry.