To the House of Representatives of the United States:
In compliance with a resolution of the House of Representatives requesting the President of the United States to cause to be furnished to that House certain information relating to the amount of the public money paid to the Attorney-General over and above his salary fixed by law since the 1st of January, 1817, specifying the time when paid and the fund out of which such payments have been made, I transmit a paper, marked A, containing the information desired. I transmit also a paper, marked B, containing a statement of sums paid to Attorneys-General of the United States prior to the 1st of January, 1817, and in the paper marked C a like statement of sums advanced to district attorneys for services not required of them by law. These latter documents being necessary to a full view of the subject, it is thought proper to comprise them in this communication.
By the act of 24th September, 1789, instituting the office of Attorney-General, it was made his duty to prosecute and conduct all suits in the Supreme Court in which the United States should be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the head of any of the Departments, touching any matters that might concern their Departments. It will be seen, therefore, by the statement communicated that no money whatever has been paid to the Attorney-General for his services in that character, nor for any duty belonging to his office, beyond his salary as fixed by law.
It will also be shewn by the documents communicated that the construction given of the laws imposing duties on the Attorney-General and district attorneys have been invariably the same since the institution of the Government. On the same authority it was thought that the compensation allowed to the present Attorney-General for certain services, considering their importance and the time employed in rendering them, did not exceed, regarding precedents, what might fairly be claimed.
APRIL 13, 1822.
To the Senate of the United States:
Having cause to infer that the reasons which led to the construction which I gave to the act of the last session entitled "An act to reduce and fix the peace establishment of the United States" have not been well understood, I consider it my duty to explain more fully the view which I took of that act and of the principles on which I executed the very difficult and important duty enjoined on me by it.
To do justice to the subject it is thought proper to show the actual state of the Army before the passage of the late act, the force in service, the several corps of which it was composed, and the grades and number of officers commanding it. By seeing distinctly the body in all its parts on which the law operated, viewing also with a just discrimination the spirit, policy, and positive injunctions of that law with reference to precedents established in a former analogous case, we shall be enabled to ascertain with great precision whether these injunctions have or have not been strictly complied with.
By the act of the 3d of March, 1815, entitled "An act fixing the military peace establishment of the United States," the whole force in service was reduced to 10,000 men--infantry, artillery, and riflemen--exclusive of the Corps of Engineers, which was retained in its then state. The regiment of light artillery was retained as it had been organized by the act of 3d March, 1814. The infantry was formed into 9 regiments, 1 of which consisted of riflemen. The regiments of light artillery, infantry, riflemen, and Corps of Engineers were commanded each by a colonel, lieutenant-colonel, and the usual battalion and company officers; and the battalions of the corps of artillery, of which there were 8--4 for the Northern and 4 for the Southern division--were commanded by lieutenant-colonels or majors, there being 4 of each grade. There were, therefore, in the Army at the time the late law was passed 12 colonels belonging to those branches of the military establishment. Two major-generals and 4 brigadiers were likewise retained in service by this act; but the staff in several of its branches not being provided for, and being indispensable and the omission inadvertent, proceeding from the circumstances under which the act was passed, being at the close of the session, at which time intelligence of the peace was received, it was provisionally retained by the President, and provided for afterwards by the act of the 24th April, 1816. By this act the Ordnance Department was preserved as it had been organized by the act of February 8, 1815, with 1 colonel, 1 lieutenant-colonel, 2 majors, 10 captains, and 10 first, second, and third lieutenants. One Adjutant and Inspector General of the Army and 2 adjutants-general--1 for the Northern and I for the Southern division--were retained. This act provides also for a Paymaster-General, with a suitable number of regimental and battalion paymasters, as a part of the general staff, constituting the military peace establishment; and the Pay Department and every other branch of the staff were subjected to the Rules and Articles of War.
By the act of March 2, 1821, it was ordained that the military peace establishment should consist of 4 regiments of artillery and 7 of infantry, with such officers of engineers, ordnance, and staff as were therein specified. It is provided that each regiment of artillery should consist of 1 colonel, 1 lieutenant-colonel, 1 major, and 9 companies, with the usual company officers, 1 of which to be equipped as light artillery, and that there should be attached to each regiment of artillery 1 supernumerary captain to perform ordnance duty, thereby merging the regiment of artillery and Ordnance Department into these 4 regiments. It was provided also that each regiment of infantry should consist of 1 colonel, 1 lieutenant-colonel, 1 major, and 10 companies, with the usual company officers. The Corps of Engineers, bombardiers excepted, with the topographical engineers and their assistants, were to be retained under the existing organization. The former establishment as to the number of major-generals and brigadiers was curtailed one-half, and the office of Inspector and Adjutant General to the Army and of adjutant-general to each division annulled, and that of Adjutant-General to the Army instituted. The Quartermaster, Paymaster, and Commissary Departments were also specially provided for, as was every other branch of the staff, all of which received a new modification, and were subjected to the Rules and Articles of War.
The immediate and direct operation of this act on the military peace establishment of 1815 was that of reduction, from which no officer belonging to it was exempt, unless it might be the topographical engineers; for in retaining the Corps of Engineers, as was manifest as well by the clear import of the section relating to it as by the provisions of every other clause of the act, reference was had to the organization, and not to the officers of the Corps. The establishment of 1815 was reduced from 10,000 to about 6,000 men. The 8 battalions of artillery, constituting what was called the corps of artillery, and the regiment of light artillery as established by the act of 1815, were to be incorporated together and formed into 4 new regiments. The regiments of infantry were to be reduced from 9 to 7, the rifle regiment being broken. Three of the general officers were to be reduced, with very many of the officers belonging to the several corps of the Army, and particularly of the infantry. All the provisions of the act declare of what number of officers and men the several corps provided for by it should thenceforward consist, and not that any corps as then existing or any officer of any corps, unless the topographical engineers were excepted, should be retained. Had it been intended to reduce the officers by corps, or to exempt the officers of any corps from the operation of the law, or in the organization of the several new corps to confine the selection of the officers to be placed in them to the several corps of the like kind then existing, and not extend it to the whole military establishment, including the staff, or to confine the reduction to a proportional number of each corps and of each grade in each corps, the object in either instance might have been easily accomplished by a declaration to that effect. No such declaration was made, nor can such intention be inferred. We see, on the contrary, that every corps of the Army and staff was to be reorganized, and most of them reduced in officers and men, and that in arranging the officers from the old to the new corps full power was granted to the President to take them from any and every corps of the former establishment and place them in the latter. In this latter grant of power it is proper to observe that the most comprehensive terms that could be adopted were used, the authority being to cause the arrangement to be made from the officers of the several corps then in the service of the United States, comprising, of course, every corps of the staff, as well as of artillery and infantry, and not from the corps of troops, as in the former act, and without any limitation as to grades.
It merits particular attention that although the object of this latter act was reduction and such its effect on an extensive scale, 5 new offices were created by it--4 of the grade of colonel for the 4 regiments of artillery and that of Adjutant-General for the Army. Three of the first mentioned were altogether new, the corps having been newly created, and although 1 officer of that grade as applicable to the corps of light artillery had existed, yet as that regiment was reduced and all its parts reorganized in another form and with other duties, being incorporated into the 4 new regiments, the commander was manifestly displaced and incapable of taking the command of either of the new regiments or any station in them until he should be authorized to do so by a new appointment. The same remarks are applicable to the office of Adjutant-General to the Army. It is an office of new creation, differing from that of Adjutant and Inspector General, and likewise from that of adjutant-general to a division, which were severally annulled. It differs from the first in title, rank, and pay, and from the two latter because they had been created by law each for a division, whereas the new office, being instituted without such special designation, could have relation only to the whole Army. It was manifest, therefore, that neither of those officers had any right to this new station nor to any other station unless he should be specially appointed to it, the principle of reduction being applicable to every officer in every corps. It is proper also to observe that the duties of Adjutant-General under the existing arrangement correspond in almost every circumstance with those of the late Adjutant and Inspector General, and not with those of an adjutant-general of a division.
To give effect to this law the President was authorized by the twelfth section to cause the officers, noncommissioned officers, artificers, musicians, and privates of the several corps then in the service of the United States to be arranged in such manner as to form and complete out of the same the force thereby provided for, and to cause the supernumerary officers, noncommissioned officers, artificers, musicians, and privates to be discharged from the service.
In executing this very delicate and important trust I acted with the utmost precaution. Sensible of what I owed to my country, I felt strongly the obligation of observing the utmost impartiality in selecting those officers who were to be retained. In executing this law I had no personal object to accomplish or feeling to gratify--no one to retain, no one to remove. Having on great consideration fixed the principles on which the reduction should be made, I availed myself of the example of my predecessor by appointing through the proper department a board of general officers to make the selection, and whose report I adopted.
In transferring the officers from the old to the new corps the utmost care was taken to place them in the latter in the grades and corps to which they had respectively belonged in the former, so far as it might be practicable. This, though not enjoined by the law, appearing to be just and proper, was never departed from except in peculiar cases and under imperious circumstances.
In filling the original vacancies in the artillery and in the newly created office of Adjutant-General I considered myself at liberty to place in them any officer belonging to any part of the whole military establishment, whether of the staff or line. In filling original vacancies--that is, offices newly created--it is my opinion, as a general principle, that Congress have no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these offices from the whole body of his fellow-citizens. Without, however, entering here into that question, I have no hesitation in declaring it as my opinion that the law fully authorized a selection from any branch of the whole military establishment of 1815. Justified, therefore, as I thought myself in taking that range by the very highest sanction, the sole object to which I had to direct my attention was the merit of the officers to be selected for these stations. Three generals of great merit were either to be dismissed or otherwise provided for. The very gallant and patriotic defender of New Orleans had intimated his intention to retire, but at my suggestion expressed his willingness to accept the office of commissioner to receive the cession of the Floridas and of governor for a short time of that Territory. As to one, therefore, there was no difficulty. For the other two provision could only be made in the mode which was adopted. General Macomb, who had signalized himself in the defense of Plattsburg, was placed at the head of the Corps of Engineers, to which he had originally belonged, and in which he had acquired. great experience, Colonel Armistead, then at the head of that corps, having voluntarily accepted one of the new regiments of artillery, for which he possessed very suitable qualifications. General Atkinson, likewise an officer of great merit, was appointed to the newly created office of Adjutant-General. Brevet General Porter, an officer of great experience in the artillery, and merit, was appointed to the command of another of those regiments. Colonel Fenwick, then the oldest lieutenant-colonel of artillery, and who had suffered much in the late war by severe wounds, was appointed to a third, and Colonel Towson, who had served with great distinction in the same corps and been twice brevetted for his gallantry in the late war, was appointed to the last remaining one. General Atkinson having declined the office of Adjutant-General, Colonel Gadsden, an officer of distinguished merit and believed to possess qualifications suitably adapted to it, was appointed in his stead. In making the arrangement the merits of Colonel Butler and Colonel Jones were not overlooked. The former was assigned to the place which he would have held in the line if he had retained his original lineal commission, and the latter to his commission in the line, which he had continued to hold with his staff appointment.
That the reduction of the Army and the arrangement of the officers from the old to the new establishment and the appointments referred to were in every instance strictly conformable to law will, I think, be apparent. To the arrangement generally no objection has been heard; it has been made, however, to the appointments to the original vacancies, and particularly to those of Colonel Towson and Colonel Gadsden. To those appointments, therefore, further attention is due. If they were improper it must be either that they were illegal or that the officers did not merit the offices conferred on them. The acknowledged merit of the officers and the peculiar fitness for the offices to which they were respectively appointed must preclude all objection on that head. Having already suggested my impression that in filling offices newly created, to which on no principle whatever anyone could have a claim of right, Congress could not under the Constitution restrain the free selection of the President from the whole body of his fellow-citizens, I shall only further remark that if that impression is well founded all objection to these appointments must cease. If the law imposed such restraint, it would in that case be void. But, according to my judgment, the law imposed none. An objection to the legality of those appointments must be founded either on the principle that those officers were not comprised within the corps then in the service of the United States--that is, did not belong to the peace establishment--or that the power granted by the word "arrange" imposed on the President the necessity of placing in these new offices persons of the same grade only from the old. It is believed that neither objection is well founded. Colonel Towson belonged to one of the corps then in the service of the United States, or, in other words, of the military peace establishment. By the act of 1815-16 the Pay Department, of which the Paymaster-General was the chief, was made one of the branches of the staff, and he and all those under him were subjected to the Rules and Articles of War. The appointment, therefore, of him, and especially to a new office, was strictly conformable to law.
The only difference between the fifth section of the act of 1815 for reducing the Army and the twelfth section of the act of 1821 for still further reducing it, by which the power to carry those laws into effect was granted to the President in each instance, consists in this, that by the former he was to cause the arrangement to be made of the officers, noncommissioned officers, musicians, and privates of the several corps of troops then in the service of the United States, whereas in the latter the term troops was omitted. It can not be doubted that that omission had an object, and that it was thereby intended to guard against misconstruction in so very material and important a circumstance by authorizing the application of the act unequivocally to every corps of the staff as well as of the line. With that word a much wider range was given to the act of 1815 on the reduction which then took place than under the last act. The omission of it from the last act, together with all the sanctions which were given by Congress to the construction of the law in the reduction made under the former, could not fail to dispel all doubt as to the extent of the power granted by the last law and of the principles which ought to guide, and on which it was thereby made the duty of the President to execute it. With respect to the other objection--that is, that officers of the same grade only ought to have been transferred to these new offices--it is equally unfounded. It is admitted that officers may be taken from the old corps and reduced and arranged in the new in inferior grades, as was done under the former reduction. This admission puts an end to the objection in this case; for if an officer may be reduced and arranged from one corps to another by an entire change of grade, requiring a new commission and a new nomination to the Senate, I see no reason why an officer may not be advanced in like manner. In both instances the grade in the old corps is alike disregarded. The transfer from it to the new turns on the merit of the party, and it is believed that the claim in this instance is felt by all with peculiar sensibility. The claim of Colonel Towson is the stronger because the arrangement of him to the office to which he is now nominated is not to one from which any officer has been removed, and to which any other officer may in any view of the case be supposed to have had a claim. As Colonel Gadsden held the office of Inspector-General, and as such was acknowledged by all to belong to the staff of the Army, it is not perceived on what ground his appointment can be objected to.
If such a construction is to be given to the act of 1821 as to confine the transfer of officers from the old to the new establishment to the corps of troops-- that is, to the line of the Army--the whole staff of the Army in every branch would not only be excluded from any appointment in the new establishment, but altogether disbanded from the service. It would follow also that all the offices of the staff under the new arrangement must be filled by officers belonging to the new establishment after its organization and their arrangement in it. Other consequences not less serious would follow. If the right of the President to fill these original vacancies by the selection of officers from any branch of the whole military establishment was denied, he would be compelled to place in them officers of the same grade whose corps had been reduced, and they with them. The effect, therefore, of the law as to those appointments would be to legislate into office men who had been already legislated out of office, taking from the President all agency in their appointment. Such a construction would not only be subversive of the obvious principles of the Constitution, but utterly inconsistent with the spirit of the law itself, since it would provide offices for a particular grade, and fix every member of that grade in those offices, at a time when every other grade was reduced, and among them generals and other officers of the highest merit. It would also defeat every object of selection, since colonels of infantry would be placed at the head of regiments of artillery, a service in which they might have had no experience, and for which they might in consequence be unqualified.
Having omitted in the message to Congress at the commencement of the session to state the principles on which this law had been executed, and having imperfectly explained them in the message to the Senate of the 17th of January last, I deem it particularly incumbent on me, as well from a motive of respect to the Senate as to place my conduct in the duty imposed on me by that act in a clear point of view, to make this communication at this time. The examples under the law of 1815, whereby officers were reduced and arranged from the old corps to the new in inferior grades, fully justify all that has been done under the law of 1821. If the power to arrange under the former law authorized the removal of one officer from a particular station and the location of another in it, reducing the latter from a higher to an inferior grade, with the advice and consent of the Senate, it surely justifies under the latter law the arrangement of these officers, with a like sanction, to offices of new creation, from which no one had been removed and to which no one had a just claim. It is on the authority of these examples, supported by the construction which I gave to the law, that I have acted in the discharge of this high trust. I am aware that many officers of great merit, having the strongest claims on their country, have been reduced and others dismissed, but under the law that result was inevitable. It is believed that none have been retained who had not, likewise, the strongest claims to the appointments which have been conferred on them. To discriminate between men of acknowledged merit, especially in a way to affect so sensibly and materially their feelings and interests, for many of whom I have personal consideration and regard, has been a most painful duty; yet I am conscious that I have discharged it with the utmost impartiality. Had I opened the door to change in any case, even where error might have been committed, against whom could I afterwards have closed it, and into what consequences might not such a proceeding have led? The same remarks are applicable to the subject in its relation to the Senate, to whose calm and enlightened judgment, with these explanations, I again submit the nominations which have been rejected.