[shall be recognised, as far as the same shall be found applicable to the service; subject, however, to such alterations as the Secretary of War may adopt, with the approbation of the President."

In the exercise of this power, the Secretary of War, on the 1st of March 1825, with the sanction of the President, promulgated certain "genera regulations for the army;" and a document now before me, purporting to contain a statement of the "brevet officers who received pay according to their brevet rank, within the year 1828," shows the repeated exercise of this power by the same authority, in the establishment of other genera regulations, and also of specific decisions in particular cases, as they oc curred.

Confining our view to the term post, which it is most important to cor sider, and looking to the definition of that term as heretofore given, would seem to result from the very nature of the thing, and without any special legislative authority, that the President, as commander-in-chief of the army, must be empowered to designate those particular stations la which this term should apply; or, in other words, to prescribe the poins which posts should be established; and, consequently, that every or having brevet rank would be entitled, according to the provisions of the act of 1812, to the increased pay and emoluments of his brevet rank, wher commanding at a separate post, which had been designated as such by the Secretary of War, with the approbation of the President of the United States.

But this proposition is in some degree modified by the provisions of the act of the 16th April, 1818. It is not necessary to contend that this ac repeals that of 1812; but, to the extent in which they conflict, the latter act must be subjected to the operation of the rule, leges posteriores pr ores contrarias abrogant. Now, they are not in perfect accordance with each other. The act of 1812 gives brevet pay to officers commanding separate posts, &c.—that is, as I apprehend, in chief command of such separate posts; and this without regard to the aptitude of their command to their brevet rank, or (using the phraseology of the subsequent statute without making it necessary that they should have " a command according to their brevet rank." But the act of 1818 declares that they shall be enti tled to the pay and emoluments of their brevet rank, when on duty, and having a command according to their brevet rank, and at no other time. It is not, therefore, I apprehend, sufficient, since the passing of this act, to entitle a brevet officer to additional pay and emoluments, that he should be in command of a separate post, but that command must also be according to his brevet rank.

Thus far the operation of the act of 1818 is to restrict that of 1812 but it has the effect, also, in another respect, to enlarge the provisions of the last mentioned act.

If I am right in my apprehension of the act of 1812, it gave brevet pay only to officers having the chief command of separate posts, districts, c detachments. The act of 1818 dispenses with this requisition, and extends the allowance to all brevet officers on duty, and having a command a cording to their brevet rank." It does not limit the allowance to the office! commanding in chief at a separate post, but extends it to all brevet officers having commands appropriate to their brevet rank. In this particular. it enlarges the provisions of the act of 1812.

According to this view, under the act of 1812, a brevet colonel commanding a separate post would have been entitled to brevet pay, although

no more than a battalion was stationed there; and a brevet captain, actually commanding one of the companies of which that battalion was composed, would, under the same act, have been denied such additional allowance; while, according to the terms of the act of 1818, the latter would be entitled, and the former excluded. It is the fact of having the command of a separate post, which gives the brevet pay under the act of 1812. It is the fact of the aptitude of the command to the brevet rank of the officer, which gives it under the act of 1818. It is not required that such command should be in virtue of, but must be according to, his brevet rank: that is, such a command as his brevet commission entitles him to.

This exposition of the acts of 1812 and 1818 must be understood to relate solely to those cases in which, by the operation of existing laws, brevet rank can take effect. Thus, when it is said, in the words of the act of 1818, that officers having brevet commissions are entitled to brevet pay when on duty, and having command according to their brevet rank, although not commanding a separate post, district, or detachment, the proposition is of course stated in subjection to those legal rules by which the cases are specified in which brevet rank shall operate. It is not for a moment imagined that the acts regulating brevet pay were designed, in any degree, to control those rules. These determine when brevet rank shall take effect--that is, when the officer holding a brevet commission shall have a command according to, or in virtue of, his brevet; and when this is ascertained, the acts of 1812 and 1818 apply the rule of compensation. The 61st article of the rules and articles of war still excludes the operation of the brevet in the regiment, troop, or company, to which the brevetted officer belongs.

I would adopt the view of the Secretary of War, and say that the act of 1812 still operates, proprio vigore, to give brevet pay to all officers in command of separate posts, disregarding the question whether such command is according to their brevet rank; and that the act of 1818 superadds the allowance to all other brevet officers having a command according to their brevet rank; but for the fact that this last mentioned act, after declaring under what circumstances the officers of the army who have received brevet commissions (which includes all officers of the army who have received such commissions) shall be entitled to the pay and emoluments of their brevet rank, immediately superadds the express inhibitory words, "and at no other time." In my opinion, therefore, the act of 1818 restricts, enlarges, and thus virtually supersedes, the act of 1812.

Practically, the same result which would have been produced if the two acts had been allowed to operate, may have been attained by the power exercised by the War Department, under the direction of the President of the United States, of prescribing, in relation to each class of brevet officers, what shall constitute "a command according to their brevet rank."

To effect this, certain general regulations have been from time to time promulgated by the Department of War; and in particular cases, to which the application of these general regulations was doubtful, or which were hot thought to fall within their scope, specific orders have been issued.

I do not propose to go back beyond the regulations of the 1st March, 1825. In the volume in which these are promulgated, (page 284, art. 71, sec. 1124,) there is the following provision: "Brevet officers shall receive the pay and emoluments of their brevet commissions, when they exercise command equal to their brevet rank." For example: a brevet captain must command a company; a brevet major and a brevet lieutenant colonel, a bat

talion; a brevet colonel, a regiment; a brevet brigadier general, a brigade; a brevet major general, a division.

The first part of this order, with an exception which I will note presently is but a reiteration of the law, and is therefore merely superfluous, since the enactment of Congress had already given the rule. The object of the sec ond is to define what is the appropriate command of the several classes of officers holding brevet rank; and this is done by specifying, in military technical language, as company, battalion, regiment, brigade, division, the part or portion of the army which oflicers of the respective classes must command. Indeed, this also is but an annunciation of the existing law; what constitutes a company, battalion, &c., is left to be collected from the acts of Congress in this behalf.

The only difference between the regulation and the law is to be found in the omission of the word "according," and the substitution of the less appropriate word "equal." The difference is merely verbal. He who exercises a command "according" to his rank, agreeing with his rank, exer cises a command which is equal" to such rank, so far as equality may be affirmed to exist between things so dissimilar. Speaking with greater ac curacy, it is equal to that which his rank authorizes.

All that would seem to remain, to discover when an officer is entitled to brevet pay, under the acts of which I have spoken, and the regulations just referred to, is, to ascertain what constitutes, by law, a company, battalion, &c.

The act of 1799 declares that a division, in the ordinary arrangement of the army, shall consist of two brigades, and be commanded by a major general; and a brigade of two regiments, and be commanded by a brigadier general. I am not aware that in these particulars any different arrangement has been subsequently made.

The act of 1821, to reduce and fix the military peace establishment, provides that a regiment of artillery shall consist of certain specified regimental officers, and of nine companies; and that each company, besides officers, commissioned and non-commissioned, artificers, and musicians, shall contain forty-two privates; and that a regiment of infantry shall consist of certain specified regimental officers, and of ten companies; and each com pany, besides officers, commissioned and non commissioned, and musicians, shall contain forty-two privates.

The act of 1790 requires that a battalion of artillery shall consist of certain specified officers, and of four companies.

The act of 1792 made a battalion of infantry to consist of certain commissioned officers, and of three hundred and twenty non-commissioned officers, privates, and musicians. And the act of 1799, which authorized the President to raise a battalion of riflemen, required that it should consist of the same number of officers and men as a battalion of infantry f the line.

By the act of 1802, the battalion or command of a lieutenant colonel, or major, was made to consist, in the artillery of four, and in the infantry of five companies. Passing over intermediate acts, that of 1821, we have seen. makes a regiment of artillery to consist of nine, and a regiment of infantry of ten companies; and provides in each case for a colonel, lieutenant colonel, and major. This arrangement seems to have commenced in 1802, previ ously to which, the regimental staff consisted of a lieutenant colonel commandant, and two majors, &c.; but at that time the command of a major, and subsequently that of a lieutenant colonel or major, seems to have been of a battalion, or half of a regiment, which, in the infantry, we have seen,

would have consisted of five companies, and in the artillery of four. The organization of the infantry into battalions eo nomine, appears to have been abandoned some time before; but this, it is presumed, could not affect the question I am considering. The number of companies which should constitute a regiment being given, and the staff of that regiment being desig nated, the command which would be according to the rank of the respective officers would seem to be distinguished with sufficient clearness.

If I am right thus far in the view taken of this subject, it is ascertained that the command, according to his rank of major general, is a division, consisting of two brigades; that of a brigadier general, a brigade, consisting of two regiments; that of a colonel, a regiment, consisting in the infantry of ten, and in the artillery of nine companies; that of a lieutenant colonel or major, a battalion, or one half of such regiment; that of a captain, a company, consisting, exclusive of officers, commissioned and non-commissioned, of forty-two privates. Such, I apprehend, has been the state of things since the organization of the staff of the regiments in 1802; and, if so, the act of 1818, regulating brevet pay and emoluments, must, of course, have been passed with a view to it.

This brings me to the consideration of the order of the Secretary of War of the 16th June, 1827, which, conforming to the regulation of 1825 in other respects, provides, in the case of a brevet lieutenant colonel, that he shall be entitled to his brevet pay when in command of a battalion composed of not less than four companies, or when on duty as a lieutenant colonel of a regiment; and that a brevet major shall be entitled when commanding a detachment of not less than two companies, or when on duty as a major of a regiment.

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This appears to be a manifest innovation in principle of the act of 1818. The principle on which that act allows brevet pay, is, that the command of the officer is according to his brevet rank. The order I am considering dispenses with this requisition of the law, and substitutes another and an essentially different principle, namely, that the command of the officer shall equal to double his ordinary or regimental command; not according to his brevet rank, but double that of his rank in the line. Thus a captain n the line, who is a major by brevet, when in command of two companies, Jas a command which is double that which his ordinary or regimental rank habitually authorizes; but which falls short of that to which his brevet rank would entitle him, and would not, therefore, be according to such brevet rank.

The act of Congress is thus modified and controlled by the order of the War Department. Whether in principle the modification is expedient, it is not for me to say. If it is not so, the power which ordained can revoke it. But it seems to me (speaking with the diffidence which belongs to one whose attention has been so recently drawn to the details of the subject) that its operation is to defeat the intention of Congress in passing the act of 1819; and the power to do this is doubted.

That intention is, I think, sufficiently manifest on the face of the act; and the history of the transaction, if I have understood that correctly, confirms this view of the subject.

The act of 1818 gave brevet pay to every officer commanding a separate post, district, or detachment, without any other condition. The authority to designate these posts necessarily devolved upon the President, acting through the War Department, who had thus the power, in the arrangement and distribution of the army, to increase the amount of brevet pay, by mul

tiplying the number of separate posts. In point of fact, I understand that. shortly after the termination of the late war, this power was freely resorted to as a means at the disposal of the Executive, by which merit might be rewarded. Here is an example: Many captains had distinguished themselves during that war, by faithful and gallant service, for which they had been brevetted; and some of them had thus attained two degrees of rank. Such officers were arranged, under the orders of the President, in the command of separate posts. It happened that a brevet lieutenant colonel, or major, was ordered to take command of a post at which not more than two com panies, (perhaps sometimes not more than one,) were stationed. Yet such lieutenant colonel or major received the full pay and emoluments of his brevet rank, because he was in command of a separate post. It seems to me to have been the intention of Congress to arrest this course of proceeding, by the declaration, in the act of 1818, that brevet pay should be given to an officer when on duty, and having command according to his brevet rank, and at no other time. But if it be in the power of the Secretary of War, acting under the direction of the President, to define what shall constitute the command of each class of officers, and to raise or depress it below the standard at which it was estimated when the act of 1818 was passed, it is manifest that the intention of Congress may be entirely frustrated. I think this is the effect of the order of the 16th June, 1827, in its application to the case of a brevet lieutenant colonel, or major; and I am thus driven to the inquiry, if this be so, by what authority that order was passed?

I have said before, that there are certain acts which the President, as commander in chief, and without any special grant of power by Congress, for the particular purposes to which they relate, must, er rei natura, be authorized to perform; and I have instanced his right to designate posts or stations among which the army should be distributed, as necessarily incident to his com mand in chief. But if Congress thought proper to assume the power, and expressly to specify a certain number of military stations for the peace establishment, inhibiting their increase or diminution, I apprehend that the authority of the President would be superseded. The act of 1818 does not contain any designation of the appropriate command (command according to their brevet rank) of the several classes of officers; but if it was passed with reference to the condition of things existing at the time of its enace ment, it may well be doubted how far it is competent to any other authori ty so to modify and change that state of things as to defeat the intention of Congress in passing the law.

It is proper, then, to consider the nature and extent of the power of the Secretary of War, either per se, or under the direction of the President, to make regulations on this subject, as that power is given by the several acts of Congress.

In the act of 1816, before referred to, it is declared "that the regulations in force before the reduction of the army [shall] be recognised, as far as the same shall be found applicable to the service; subject, however, to such alterations as the Secretary of War may adopt, with the approbation of the President." This act adopts all pre-existing regulations which were in force; that is, as I understand, which had been legally established, and which should be found applicable to the service; and it subjects them to future modification by the President and Secretary of War; but such modification must, as I apprehend, be in the rightful exercise of the power then existing in these officers.

In examining the grant of power over this subject by Congress, it is ob