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lers are presumed to have been founded are not considered satisfactory yon, it is equally in your power to revoke them. Until, however, it all be deemed advisable to do this, extra rations are, I apprehend, propy issuable to all those specified in the document to which I have refer, as commanding at posts in the ordinary military acceptation of that in, and to those to whom, by the special order of the President, the same ve been directed to be issued. Of the right of the Surgeon General and Paymaster General to fuel d quarters.-Fuel and quarters are allowances not specifically granted
law, but made under the authority of the War Department. The check tained by Congress is exercised in giving or withholding the appropriion; to obtain which, estimates are submitted by the Department to the ays and Means of the House, and to the Finance Committee of the Senate. hese allowances, thus subjected to the scrutiny of Congress, have been retolore made to both of these officers, in pursuance of the regulation of e War Department, until, in conformity to a decision of the late Second mptroller, they were withheld from the Paymaster General; and the iking similarity between this case and that of the Surgeon General has duced the inquiry whether, in relation to the latter also, these allowances ght not to be stopped. They are both military officers; that is, officers existing by force of the t of 1821, entitled “ An act to reduce and fix the military establishment the Uvited States.” Their rank, though neither lineal nor assimilated reto, is recognised as equal in the general regulations of the army. aey are both salaried officers, receiving the same ainount of compensation. ch is at the head of his respective department, actually performing his Actions at headquarters; while each is also liable to be sent elsewhere by
orders of the commander-in-chief; and the allowance of fuel and quars, heretofore made to them under the authority of the War Department, s been equal. I confess myself unable to distinguish between the claims. Both of these icers appear to me to be entitled, and equally entitled, to these allowances. The length to which this communication is unavoidably drawn out, in sidering the various subjects referred to me, makes me unwilling to spass upon your time, or unnecessarily to employ my own, by an extended gument on this question. I am the more induced to dispense with such argoment, concurring as I do in the opinion expressed by my predeces
in the case of the Surgeon General, and believing, as I have before d, that the same rule ought to be applied to both these officers. I have honor to present here with a copy of that opinion from the records of S office. It may not be improper, however, to remark, that the late Second CompHer appears to have erred, in point of fact, in supposing that the salary of
Paymaster General was payable quarterly at the Treasury, and to have sconceived the effect of the argument of the committee of the House of presentatives to which he has referred, confounding the idea of an officer he civil staff of the army with a civil officer not attached to it; and that en the error, in point of fact, to which I have referred, is corrected, his nion in the case of the Paymaster General is, in principle and fact, in cise conflict with that which he had previously given in the case of the Tgeon General. would add, that there is nothing in the term salary which, in my opinconfines it to civil officers, or exclndes the allowances which are the
subject of this inquiry. It is not necessarily an annual, but merely a gen riodical compensation ; and may as well be applied, according to the ins: pretation given to it by lexicographers, to the monthly, as to the anna pay of our military officers. A brigadier general, to whom Congren should give $3,000 per annum, would be no more a salary-officer than the same result were produced by providing for him a monthly paye $250; and there is, I apprehend, no principle on which fuel and quarters could be allowed in the last case, on which it could be refused in the firs The distinctive characteristic of salary is, that it is a certain stated cor pensation; and it is thus equally applicable to both these modes of com pensation.
It is a mistake, too, to suppose that the term is applicable universal's a exclusively to the compensation of civil officers. Their remuneration frequently contingent, depending on fees of office; and, though the invas tigation for the purposes of this inquiry is scarcely worth the trouble.se those who make it will find that the term salary, in its origin, was striedy applied to the military stipend of the soldier.
My own opinion on this subject is, that fuel and quarters are allore, in a principle which has no sort of connexion with the question of geosiy pecuniary compensation. They are furnished in kind to cfficers in the field ; and this, from the necessity of the thing. If, on the peace-esta lishment, a commutation be resorted to, it is equally due to all those werden are liable to take the field, because they are equally within the pricipe on which it is specifically given when there.
of the puy, emoluments, and allowances of the marine corps. I lan attentively perused the very full and elaborate report of the Fourth Audita on this subject, and such suggestions as the officers of the marine corp have thought proper to submit; and have carefully examined the legisla tive origin and subsequent history of this corps, with a view to enable to to fulfil the expectations which induced this reference. I regret to saç tha this investigation has been extremely unsatisfactory; that the legislation e Congress and the continued (perhaps unavoidable) usage of the executir department seem to me to be little consonant to the principle which is com sidered so important in our Government--namely, that the money of the public should not be applied to any object but under the sanction of an en press specific appropriation.
Without entering into a detailed examination of all the various polo so fully discussed by the Fourth Auditor, I presume I shall meet for wishes by a consideration of the following question :
1. Are laws regulating the pay, &c., &c., of the army applicable to marine corps ? I will briefly examine this subject. In the discussiou this question, recourse has been had to the term by which the corps is d signated, to its organization and tactics, to the rules prescribed for its go ernment and the mode in which they are judicially enforced, and to t several laws by which it has been created and organized, and which rel to it as a part of the military establishment, or treat of its relations to t navy, to affirm or deny the proposition that the marine corps is a part the army of the United States.
This process does not seem to me to lead to a result which is entire satisfactory, although some of its views are imposing. It is true that! terın marine indicates something appertaining to the sea ; but, ont other hand, the organization, discipline, drill, and police of the corps, a necessarily more assimilated to that of the army than the navy. Nothing,
appears to me, can be collected from the nature of the rules prescribed for ne government of the corps, nor from the manner of their enforcement, ecause these are made to depend on the nature of the service in which it. s employed; and the laws which relate to its establishment and organizaon, treating it alternately as an appendage of the army or navy, may be ited with plausibility to sustain either branch of the proposition, although hey furnish some considerations which strongly corroborate the affirmative. Still the inquiry remains, and no entirely
satisfactory conclusion is ari ved at. In an enlarged and general sense, the military establishment of he United States includes both the army and navy. Both are established with a view to military service, and differ chiefly because of the different theatre on which they are employed. English military writers define marine to be a body of soldiers raised for the sea-service, and trained to fight either in a naval engagement or in an action on shore. But they tell is also that officers of marines sit on courts martial with officers of the and forces; and the same thing was true here, as I appprehend, even beore the act of the 10th April, 1806. Indeed, this corps seems to be sui eneris, partaking of the character both of the land and sea forces, yet trictly identified with neither.
If it is necessary to determine to which arm of the military service this corps has the greater similitude, and if I must venture an opinion on a question of this kind, which your more familiar acquaintance with the ubject so much better qualities you to decide, I would say that, in sundry mportant particulars, its greater affinity is the army. This may be affirmed f its organization, which corresponds rather with that of the army than he navy. It is, in fact, a regiment composed of the material of nine comanies, having a regimental staff nearly assimilated to that of the army roper. Its discipline, drill, and police, are those of the army. The corps, 18 such, acts on shore; its headquarters are on shore; it is only in delachnent that it performs sea-service; its officers associate with those of the my on couris-martial. The regulations for the government of the navy eem to consider them as an entirely distinct corps, even when serving on oard ship. By these, marine officers are subjected to the command only f the captain and officer of the watch; and supplies furnished them by the firser of the ship are to be paid for by the officer charged with paying
Notwithstanding their indefiniteness, the several acts establishing the maine corps deserve some consideration with a view to our present inquiry. l'he corps was directed to be raised by the act of 1798, as an addition io be then existing military establishment. It is true, as has been before stated, that this ierin may include the whole military force of a country, potli on sea and land; but it is equally true, that, since the erection of the Navy Department, Congress has always practically distinguished between he two branches of military force, confided to the care of the Secretaries f War and of the Navy respectively. Again : the act of the 2d March, 1799, which authorizes the President to augment the marine corps, declares hat the persons so appointed and enlisted shall be allowed the same pay, bounty, clothing, and rations, to which the said marine corps are or shall e entitled. Now, the only pre-existing act concerning the marine corps that of 1798) provides only for pay and subsistence, and is silent as to bounty
But these were, in point of fact, allowed to the marine corps ; and Congress thus recognised the legality of their allowance. By what autbority were they so allowed? The acts to provide a naval armament
had, up to this tiine, been equally silent in relation to these allowance In regard to the navy, the whole matter seems to have been confided to ! President, except pay and subsistence. No authority for these allowance could, therefore, have been derived from considering the marine corpio part of the navy; but the converse is true as it regards the army, for boer and clothing had been expressly provided for them from the beginn These considerations may be urged to show, that, in passing the acs 1793 and 1799, above adverted to, for the establishment and augmentati of the marine corps, Congress looked rather to the army than the nary. that branch of the public service to which it might most properly be ! ferred. An argument of the same kind may be deduced from the provis in relation to brevets. The act of 16th April, 1814, wbich authorizes i President to conser brevets on the officers of the marine corps, prora that officers breveted shall not be entitled "10 any additional pay or em uments, except when commanding separate stations or detachments, will they still be entitled to and receive the same pay and emoluments et officers of the same grades are now, or may hereafter be, allowed by the This provision was entirely illusory, if the emoluments to which such officers would be entitled are to be sought for in the acts for the extelia ment or augmentation of the marine corps; and the terms used, and diversity of organization, seem to me to forbid a reference to the la Then it is only by supposing that Congress intended to refer to the ema ments allowed to officers of ihe army of the " same grades," that'any pa ucal effect can be given to this provision.
If, now, we consider the situation in which the officers of the mar corps would be, unless the provisions made for the army are exter:ded them, or unless the President, through the Secretary of the Navy, exert their behalf the same power which is exerted through the Secretary of in favor of the army, the argument of the officers of the marine corps receive, perhaps, some additional strength. Confining our views to the i relating to the marine corps, the officers of that corps, except the lieutes colonel commandant, who is declared to be entitled to the pay and em ments of a lieutenant colonel in the army, are limited, by the provision these acts, to pay and subsistence. They are deprived of all the allowed enjoyed by officers of the army. They do duty on shore, and may be tra ferred from one post or station to another, without being entitled to i allowance for transportation. They are liable to serve on courts-mar with officers of the army, to whom transportation would be allowed, et it would, unless they are considered as appertaining to the army, be deu to them. They would have no claim to servants, to forage, to fuel quarters. Even clothing is not provided for by the laws for the establi ment and augmentation of the marine corps. If it be said that some these allowances are of indispeusable necessity, and must be provided by the Government, it may be answered that this is a surrender of the a troversy. The inquiry presented to me has for its object to ascertain, what allowances are necessary and proper in themselves, but what authorized by law-either by the direct legislation of Congress, or in exercise of any power which ihey have expressly granted to the Preside or Secretary of the Navy,
II, then, there are certain allowances which are necessary and proper the marine corps, which are yet not authorized by Cougress in any having express relation to that corps, but which must, nevertheless, bepal
rided, I incline to think it will be safe to consider the acts authorizing these allowances to the officers of the army as extending to those of the marine corps, wherever the analogy is complete, rather than to assert the defectiveness of the legislation of Congress; and then, on the plea of necessity, to resort to Executive nuthority to slipply that deficiency. The exercise of constructive power ought not to be encouraged in a Government like ours; put il, in lieu of this, Executive authority is to be called into action on the notion of state necessity, our resort is to a plea which is still more averse frorn the genius of our Government, and which has long since received its appropriate designation. Nevertheless, if this construction cannot be maintalmed, such a resort may become indispensable.
If there should be error in the preceding opinion, and the laws regulating the pay, &c., of the army, cannot be applied to the marine corps, perhaps it may be my duty further to inquire whether the pay, emoluments, and allowances which are, in point of fact, received by the officers of that corps, can be sustained on the ground of usage, in virtue of any general authority in the President, or Secretary, or under the sanction of the annual stimates and appropriations by Congress.
I should be unwilling, in a Government like ours, to ascribe to usage the force and efficiency which must belong to it, to answer the first part of this question affirmatively. We are too young; our public agents are too frequently changed; above all, the nature of our institutions, whose great object it is to secure the liberly of the citizen by defining the authority of lle magistrate, forbids the doctrine that the exercise of power is justifiable in those who come after, on the ground of iis assumption by those who gone
before. Bui, speaking with precise reference to the subject before us—the compeysation of the marine corps : if Congress have, by a series of acts, authorzed the President of the United States to establish, and from time to time to augment such corps, and have charged him with its superintendence and employment;-if they have made certain necessary provisions for the support and compensation of the individuals so to be called into service, and hare omitted certain others which are allowed to be necessary and proper;-It would seem that they have invested him with the power to supply what is lefective ; that the act of imposing such an obligation on the President nost necessarily involve the grant of whatever power is indispensable to its folfilment. It is his constitutional duty to see that the laws are faithfully executed. Congress have directed the establishment of a marine corps, which they have required him from time to time to augment, organize, and employ, either on ship board or on shore. They have provided for the payment and subsistence of this corps, but have omitted provisions which are equally necessary, and certain allowances habitually made to persons employed in similar service-unless (which for the present is denied) the laws relating to the army can be extended to the marine corps. In the fulfilment of the obligation thus iinposed upon them, successive Presidents have prac. lically extended these laws to that corps, either under an impression that it was originally the intention of Congress to consider it as constituting a part of the army of the United States; or, if such was not their intention, from a belief that they were justified, from the analogy of their circumstances, in applying to those employed in this branch of the public service the same rule which Congress had applied to the other. The fact that such was their practice, has been notified to Congress in the estimates annually