From Henry Knox
War Department, February 18th 1793
In answer to the Memorial of Captains Hughes, Mills, Cass, Cushing, Shaylor, and Haskell of the second sub-Legion of the United States,1 the following facts are stated.
First—That it has been the invariable usage relatively to promotion, that upon a vacancy the successor thereto ranks from the day the said vacancy happened, whether by death—resignation—or dismission by the sentence of a Court Martial.
Secondly—That it will appear by the Letter of Brigadier General Harmar, that on the twenty-sixth day of November 1790, he did transmit to the War Office the Commission of Captain John Mercer,2 and that the same was received at the War Office on the fifth day of January 1791.3
That immediately upon the said Mercer’s resignation, he relinquished all authority and command in the Regiment—That his resignation therefore decisively took effect on that day—that the permission of Brigadier General Harmar that he be borne on the Rolls until the first day of april 1791, was unauthorized by law, and ought not to affect the rank of his successor, who according to invariable precedent ought to rank from the resignation of the commission and command of his Successor.
Hence it will appear that the Officers of the second sub-Legion, have been misinformed upon this subject, and that they cannot in equity have any well founded Claim for the benefit of a vacancy which actually occurred several months before they had a military existence, they having come into service under the act of the 5 March 1791.4 I have the honor to be with the greatest Respect &c.
secry of War.
Copy, PHi: Large Miscellaneous Volumes.
1. The memorial, which was signed by Thomas Hughes, John Mills, Jonathan Cass, Thomas Humphrey Cushing, Joseph Shaylor, and Jonathan Haskell, reads: “The subscribers Captains in the second Regiment in the service of the United States, impressed with the idea that they have suffered injustice, either from the intrigues of an Individual, or from an inadvertency in Office, with all due deference and respect, beg leave to appeal to your candour and patronage, and, through you to submit our case to the unerring justice of the Chief Magistrate of the Nation. We hold, that a Gentleman in Arms should confine his views to three objects—To wit: the national interest, his personal fame, and private Rights. The two first, are secured by an animated and faithful discharge of the duties of his profession, and he enjoys the last in full effect by a regular course of promotion—for a Soldier of honor, acts above the vulgar pursuits of property, rests all his hopes of subsistence in youth, and competency in age, on the Emoluments of his Commission, and admits not to his bosom the sordid speculations which employ the bulk of mankind. We have offered this exordium, and urged these sentiments, which are deeply engraven on our hearts, to justify the intrusion we now make on your more important concerns, and those of the president of the United States, of the following irrefragible truths.
“1st That subsequent to the 1st of July 1787, and anterior to the 4th of March 1791, the whole army of the United States was composed of One Battalion of Artillery, and one Regiment of Infantry.
“2nd That the said Regiment of Infantry consisted of Twelve companies, which were commanded by, Captains David Zeigler, Jonathan Heart, David Strong, William McCurdy, John Mercer, John Smith, Joseph Ashton, Erkuries Beatty, Alexander Trueman, Joseph Montfort, Michael Rudulph, and Ballard Smith, who were all mustered as such, and did respectively receive the pay of Captains, until the said 4th day of March 1791.
“3d That on or about the 21st day of October 1790, Major John P. Wyllys of the said Regiment, was slain by the enemy, which event, gave promotion to David Zeigler the senior Captain, and Thomas Doyle the senior Lieutenant, and they were promoted accordingly, on the said 4th of March 1791 but, expressly to take rank from the period when the said Major Wyllis fell.
“4th That the death of Major Wyllis produced no other alteration in the Roll of Captains in the said Regiment, than Thomas Doyle, vice David Zeigler, and that no vacancy did occur in the line of the said Captains until the said 4th of March 1791, when the President of the United States was pleased to promote Captain Jonathan Heart, to a Majority in the second, and to discontinue John Mercer as a Captain in the first Regiment.
“5th That notwithstanding these undeniable facts we are informed, that John Armstrong a Lieutenant in the said Regiment, who could have no rightful claim to a Captaincy until after the promotion of Major Heart, has obtained, and still holds a Captains commission bearing date in the month of November 1790, to the great injury of each of us, who were also appointed and commissioned on the said 4th day of March 1791, earlier than which, we conceive the said Captain Armstrong can have no legal or equitable Claim to a Captaincy.
“6th That as we cannot admit the idea, that the head of the War Department would give sanction to an error, or to an act of injustice, we very fairly infer, that if the said Captain Armstrong does hold a Commission of a prior date to the 4th of March 1791, it has been obtained unfairly, and by misrepresentation. Because, independent of him, twelve Captains, the complete establishment allowed by Law, were duly mustered, Returned, and paid, until that day. One of two things therefore must follow, either the Commision said to be held by the said Armstrong must be antidated, or, it must be illegal. Relying therefore Sir, on your impartiality and justice, we, all of whom claim Rank of Capt. Armstrong, by virtue of long and faithful service, in the late Revolution, appeal to your patronage, in firm hope, and full expectation, that you will take the trouble to investigate the facts herein set forth—That finding them to rest on the broad Basis of truth, you will revoke the Commission which Captain Armstrong now holds, and furnish him with one dated on the 4th of March 1791—the day on which he became entitled to a Captaincy—the day on which he was appointed a Captain” (PHi: Large Miscellaneous Volumes).
Thomas Hughes (c.1751-1821), a Rhode Island Revolutionary War veteran, served as commander of Fort Franklin in western Pennsylvania and rose to the rank of major before resigning in 1794. Jonathan Haskell (d. 1814), a native of Massachusetts, fought in the Revolutionary War and served from 1791 to 1793 as a captain in the U.S. Army. Haskell accepted an appointment as a major in 1794; although named acting adjutant and inspector general of the army in early 1796, he resigned later that year. Revolutionary War veteran Thomas Humphrey Cushing (d. 1822) of Massachusetts rose quickly in rank. As a colonel he commanded American troops in West Florida in the early 1800s. After serving as adjutant and inspector general, Cushing was promoted to brigadier general in 1812. He resigned from the army in 1815.
2. John Mercer of New Jersey, a Revolutionary War veteran, received a commission as a lieutenant in the 1st U.S. Infantry Regiment in 1784 and a promotion to captain in 1785. He resigned on 26 Nov. 1790.
3. John Stagg, Jr.’s extract of Brig. Gen. Josiah Harmar’s letter to Knox of 26 Nov. 1790 reads: “The bearer Lieut. Armstrong will be entitled to a Captaincy on the 1st day of april 1791, by the resignation of Capt. Mercer—I have ordered him to proceed to Philadelphia to recruit his Company.
“Capt. Mercer’s Commission is enclosed—I have allowed him to be run upon the rolls until the 1st day of april next, in order to get rid of him” (PHi: Large Miscellaneous Volumes).
4. Knox is referring to “An Act for Raising and Adding another Regiment to the Military Establishment of the United States,” of 3 Mar. 1791 (1 Stat, description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 222–24). GW had nominated all six memorialists to captain in 1791 (GW to U.S. Senate, 3 Mar., 31 Oct. 1791). By mid–1794 all six men had been promoted to major, although Cushing’s promotion occurred only after Armstrong resigned in March 1793 (Executive Journal, description begins Journal of the Executive Proceedings of the Senate of the United States of America: From the commencement of the First, to the termination of the Nineteenth Congress. Vol. 1. Washington, D.C., 1828. description ends 132–34, 154–56). For GW’s response to this memorial, see GW to Knox, 19 Feb. 1793.