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mere shadow of real or commission rank; that the power of organizing our armies, and all the corps of our armies, belonging to Congress, it was theirs alone to say what officers there should be; that these officers constitute the substantial commission grades or ranks of honor in the army, of which the brevets are the mere reflection; and, consequently, that the President cannot confer brevet rank, except in relation to a correspondent rank by commission, which has been previously created by Congress. I had supposed that the reason of resorting to brevets in our service, at least) was because the post to which the brevet pointed was already full; and therefore, as the President could not promote to the commission, he was authorized to confer the rank by brevet, which, beside the present honor, produced the further effect of giving the brevet officer a priority to the correlative commission, whenever it should become vacant by the death or resignation of the present incumbent.
It is said to be otherwise in the British service. Brevets are said to be conferred in that service as original appointments, and without reference to any analogous commission in the line. Thus it is said that in the British service there is no commission higher than that of colonel or lieutenant colonel; the brigadiers, major generals, lieutenant generals, and field marshals, being appointed by brevet only, (as are, it is said, various other subordinate officers in that service,) without any reference to a correspondent rank by commission in the army. All this may be true: and when it shall be shown that the President has precisely the same power over the armies of the United States which the King of Great Britain has over his armies, the British practice will deserve our serious attention. But there is a fundamental difference between these powers: in England, the sole power of raising and regulating fleets and armies belongs to the King; (1 Black. Com. 262;) in the United States this power belongs solely to Congress. Since, then, in Great Britain the sole supreme government, command, and disposition of the militia, and of all forces by sea and land, and of all ports and places of strength, is, and by the laws of England ever was, the undoubted right of his Majesty and his royal predecessors, kings and queens of England; and that both or either House of Parliament cannot nor ought to pretend to the same:'' (to use the words of the statute 13 Car. II, c. 6,) it is inanifest that the whole organization is exclusively in the hands of the King; and that he may create whatever military officers it may please him to create, and by whatever commissions, brevets, or letters patent or close, his judgment or caprice may suggest.
But in this country, Congress alone has the power “to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces.” The power to raise armies, is a power to decide the quantum of the army that shall be raised; that is to say, how many officers and privates, and of what grades the officers shall be-a power which Congress has uniformly exercised. Even the government and regulation of the army belong constitutionally, as we see, tu Congress; and the President possesses only derivative powers over this subject. The power, then, being given solely to Congress to raise the army, to mould and modify it at their pleasure, to say what offi. cers of what grades there shall be in the army—they alone are the creators of what I have called real or commission rank. To the President they have assigned the power of confirming brevet rank-rank by brevet, in contradistinction to rank by commission; the brevet rank being in every instance, as I conceive, the mere type or symbol of the commission rank; and, consequently, the representative rank existing in no case except where there is a principal or constituent rank which it may represent. It was from this view of the subject that I supposed, that when Congress had, by the act of 3d March, 1817, annihilated the office and rank of major in the marine corps, the President could not restore it by brevet. The power which they gave him to confer brevet rank, presupposes the existence of the rank, emphatically—that is to say, the rank by coinmis. sion; it is a power limited to the organization which they have created; a power to confer the type of what they had previously given the prototype. If the power be not thus limited to the demarcation of rank, as prescribed by Congress, I do not see what is to affix any limit to this power of conferring brevet rank, nor why the President may not, if he choose, confer by brevet the rank of lieutenant general or field marshal. It would be no answer to say that no such rank was ever known to our armies; because, according to this hypothesis, it is not necessary to brevet rank that there should be any analogous rank by commission in the army.
Again: Congress has said that there shall be no such rank as major in the peace establishment of the marine corps: that is to say, in effect, that they will pay no such officer the former allowance of major. Let us suppose the President to confer the brevet rank of major in the marine corps on Captain Wainwright to day, and to order him to-morrow with a de. tachment of marines to occupy Fort Washington, and take the command of it. The third section of the act of 16th April, 1814, which authorizes the President to confer this rank, declares that the brevetted officer shall receive the pay of his brevet rank when commanding separate stations or detachments: what would become of the congressional declaration virtually made by the act of the 3d March, 1817, that they would no longer allow pay to major of marines? Would not the President have so far counteracted the power and authority of Congress, and quoad hoc changed the peace establishment? These are the views which induce me to think that the President cannot confer the brevet rank of major in the marine corps.
Still, Captain Wainwright is, by the act of 16th April, 1814, entitled to brevet promotion: how can he be promoted in that corps, but by giving him the brevet of a lieutenant colonel ? But this, it is said, will be to give him two steps instead of one. Not so: on the present organization of that corps, there is but one step from the post of captain to that of lieutenant colonel; the former interniediate step of major having been abolished by Congress: it being in the power of Congress to modify the army at pleasure, they may give it any form they please. They may have, if they choose, only three grades in the army; making the captain the first grade, the colonel the second, and the general the third. Thus, in the present instance, they have exercised their power by abolishing the intermediate grade of major, and making the lieutenant-colonelcy the proximate grade to the captaincy. And who shall gainsay them? Suppose the promotion was by commission, instead of brevet: must not the captain step at once froni the post of captain to that of lieutenant colonel ? and would not all the inconveniences follow which are urged against this pronotion by brevet ? Sțill it is said that, by this course, Captain Wainwright will step over the heads of those who had been brevetted as majors
under the act of 1814, and while the corps was yet on the war establishment. The answer is, that this is the effect of the law, which the President must execute as it stands, and not as he would wish it. Besides, what should hinder him from advancing the brevet majors in that corps to the rank of lieutenant-colonel also ?
But it is again objected, that this would be unjust towards the rest of the army, because those brevetted lieutenant-colonels, when the marine corps comes to be united with any part of the army (proper) for service, will take the command of majors, who have been much longer in the service, and are perhaps better entitled to promotion. The answer is, again, that this is the effect of the law, which the President must execute as it stands, without being at all responsible for consequences.
At the same time, I admit this inconvenience; and, if a legal remedy can be found for it, I think it ought to be adopted. In looking to the opinions of the military gentlemen, I find that they are not entirely in harmony with each other. Colonel Drayton thinks, with me, that the promotion, if to be made in the marine corps, must be to the grade of lieutenant-colonel, which, under the law as it stands, is the proximate grade to that of captain. The other gentlemen think that the brevet should be for the rank of major; because they say that, although there is no such rank in that corps, the brevet will not take effect in that corps, but only when that corps is called to do service in unison with other corps of the army. Then why should the brevet be as major in thut corps ? "I see no objections to the President's giving Captain Wainwright the brevet of major in the army of the United States,
because there is such a commission rank as major in the army of the United States; and all the objections I have urged against a brevet as major in the marine corps, would be inapplicable to such a brevet in the army of the United States; and as, according to these military gentlemen, the brevet is only to take effect when that corps is united in service with the army, or a portion of it, I should suppose it would answer every purpose to Captain Wainwright, without being open, so far as I can discern, to any objection. One military gentleman of great experience, with whom I have conversed on the subject, seems to think a brevet as mujor in the army of the United States free from all objection. The major general of the army of the United States is here, and is certainly inuch more competent to decide on this subject than I can presume to be. I observe that he is among those who recommend the brevet rank of major for Captain Wainwright. He does not say the brevet rank of major in the murine corps; I should rather sup. pose he meant that of major in the army of the United States, from the reasons which he assigns, to wit: that, although the grade does not exist in the marine corps, it exists in all kindred establishments of which the organization is full. This is a very good reason for conferring the brevet rank in those kindred establishments, but is certainly none for conferring it in the marine corps.
1 possibly look at this subject with too much of the strict technicality of a lawyer. It is my opinion, however, that the only brevet rank of major which the President can safely confer under the law, as it stands, is that of major in the army of the United States. There may be objections to this course, which, for the want of practical military knowledge, I may not see. This knowledge, however, is easily commanded here, and there will be no hazard of error from this defect. If this rank cannot be conferred, then my opinion is that Captain Wainwright should be brevetted as a lieutenant colonel in the marine corps, be the consequences what they may. I have the honor, &c.,
WM. WIRT. To the SECRETARY OF THE Navy.
RATES OF SALVAGE.
The rate of salvage to which recaptors of an American versel from pirates are entitled, is
governed by the act of Congress of 3d March, 1800, giving, where the vessel shall have been sent forth and armed as a vessel of war, one-half of the vessel, but only one-sixth of the cargo. (See case of the Adeline, 9th Cranch, 287, Wheaton on Captures, 237; 1 Cranch, 28.) The only general rule that can be suggested is one-sixth, and half of the vessel, if she
shall have been armed after her capture. If the recaptured vessel had been long in the hands of pirates, and had been used as their own,
a higher salvage ought to be allowed than if she were recaptured in the moment of her cap. ture, having jusi struck, and her crew still in a capacity to make resistance.
OFFICE OF THE ATTORNEY GENERAL,
December 9, 1822. Sir: I understand your letter of the 6th instant (received on the night of the ith-Saturday night) to relate to recaptures from pirates; and the instructions you are about to give our armed vessels, to relate to the quantum of salvage which they may demand from vessels recaptured from pirates, so as to save the delay and expense of bringing in such re. captured vessels, to have the rate of salvage judicially settled. You are certainly right in the opinion that salvage may be rightfully demanded for recapture from pirates. In the case of Talbot vs. Seeman, (1 Cranch, 29,) the Chief Justice, delivering the opinion of the Supreme Court, says: “Salvage is a compensation for actual service rendered to the property charged with it. It is demandable of right for vessels saved from pirates, or from the enemy.”—(See also Wheaton on Captures, 237, sections 10 and 11; and the references cited in note m.)
With regard to the rate of salvage, it would be no ground of complaint, either to our own or foreign merchantmen, to consider it as governed by the act of Congress of 3ū March, 1800; because this act seems to look to property captured in a regular course of war aniong civilized nations, and,
therefore, not in such desperate peril of ultimate loss as when in the - hands of lawless pirates. That the quantum of salvage is affected by this consideration, by the regulations of other nations,
will be seen by reference to the above-cited page et seq. of Wheaton on Captures. Look. ing to this act, therefore, as giving the most moderate standard of sal.
i. As to American vessels recaptured by our public armed ships, oneeighth part of the vessel and cargo; or, where the vessel shall have been sent forth and armed as a vessel of war, one-half of the vessel, but still only one-sixth of the cargo:-adjudged in the case of the Adeline, 9th Cranch, 287.
2. As to vessels and goods of other persons resident within the territory, and under the protection, of any foreign prince, government, or state in amity with the United States, the rate of salvage given by the
vage, it is
act is such proportion of the true value of the vessel or goods so to be restored, as by the law or usage of such prince, government, or state, &c., shall be required on the restitution of any vessel or goods of a citizen of the United States, under like circumstances of recapture made by the authority of such foreign prince, government, or state; and where no such law or usage shall be known, the same salvage shall be allowed as is provided by the first section of this act”--that is, one eighth (as stated under 1st head) where the recapture is hy a public armed ship; one-sixth, where by a privateer of the United States.
If this principle of retribution were strictly applied, it would, with regard to some nations, go to the entire confiscation or appropriation to the captor of the whole subject rescued from the pirates. Such was the law of Venice and of Holland, and is understood to be still the law of Spain. (Grotius, lib. 3, c. 9. $S 16 and 19, with the notes of Barbeyrac; see also 2 Valin. lib. 3, tit. 9, Des Prises, art. 9; and Wheaton on Captures, 237.) But until some nation shall have first applied this rule of total confiscation to American property rescued from pirates, it would not comport with our character, nor the spirit of the act just quoted, to commence so discourteous a proceeding,
Instead, then, of applying to this case the rules of foreign nations as they bore on property rescued from pirates, let us examine the rates of salvage allowed by them in recaptures made in a course of regular war among civilized nations, and see whether we can find in them a satisfactory standard.
i. France allows one-third of vessel and cargo; and applies this rule to recaptures of vessels and effects of her allies-(2 Valin. lib. 3, tit. 9, Des Prises, art. 8; Wheaton on Captures, 214.) She allows the same on re. captures from pirates.-(Wheaton, 297; 2 Valin. lib. 3, tit. 9, Des Prises, art. 9.)
2. Wheaton says the law is the same as to Spain; he does not cite his authority, and I am not in possession of the ordinances of Spain on this subject.-(Wheaton, 245–6.)
3. By the Portuguese ordinance of May, 1797, the rate of salvage on recaptures was established for ships-of-war at one-eighth, and one-fifth for privateers.—(Wheaton, 246.) The ordinance is not in my possession; and I suspect that it was a mere regulation as to recaptures of Portuguese merchantmen by Portuguese ships of war and Portuguese privateers: a domestic regulation merely, and therefore no proof of the standard they would adopt with regard to salvage to be paid by a foreign ship rescued by them from enemies.
4. Denmark gives one-half on the recapture of a Danish ship, if she has not been twenty-four hours in the enemy's possession; if she has been twenty-four hours in the enemy's possession, the recaptor takes the whole.-(Wheaton, 246.)
5. By the Swedish ordinance of 1767, the recaptor takes two-thirds, and one-third only is restored to the owners, without regard to the time the property has been in possessisn of the enemy.—(Wheaton, 246.)
6. Great Britain has no fixed rule as to the quantum of salvage on a foreign vessel. Her statutes (33 George III, c. 66, and 45 George III, c. 72) provide merely for recaptures of British ships and cargoes by British national ships or British privateers. With regard to foreign ships, she acts upon the strict rule of retaliation, not only with regard to the rate of