Charles Lee to James McHenry8
Philadelphia 10th February 1798
Relative to the claim of Lt Smith, who was appointed Judge Advocate to the Army by the Commanding Officer Genl Wilkinson in general orders, and who for sometime as it is stated to me rendered services in that capacity to the United States it is my opinion he is equitably entitled to compensation for those services. Though Genl Wilkinson does not in my opinion possess the power of appointing the Judge Advocate as I have seen no act of Congress vesting such a power in him, Yet as the President of the United States with the advice of Senate has omitted to make the appointment which omission has been supplied by the Commanding Officer, for the good of the public service, I think the Judge Advocate should be paid for his services as in any other case not expressly provided for by law, where in justice compensation is due from the United States. For adjusting the quantum payable to Lt Smith for his services as Judge Advocate, no better rule can be suggested, than the allowances fixed by law to this office; and the contingent fund appears to me to be the proper fund for paying this claim.
These principles apply to the case of Lt Webb of the Cavalry, who formerly a Captain of the Cavalry and deranged, took the command of a Company of Cavalry by the orders of Genl Wayne, when there was no other officer holding a commission where the company was. He ought to be paid as a Captain during the period of this extraordinary service out of the Contingent fund.
The claim of Major Cushing is distinguishable from each of the former as he was appointed Brigade Major and Inspector by Genl Wilkinson, who ought not to have appointed a field Officer to either of these offices; but was directed by law to appoint to these offices, out of the Captains and subalterns of the line—Yet as these services were necessary and were rendered, the United States owe a compensation to Major Cushing, which I think may also be paid out of the Contingent fund rather than he should go unpaid.
I am sir most respectfully your obedient servant
To the Secretary at War
8. Copy, Hamilton Papers, Library of Congress.