THE WAR DEPARTMENT FROM 1789. UNDER THE AUTHORITY OF THE CONSTITUTION AND THE LAWS PASSED IN PURSU 1 ANCE THEREOF. The Secretary at War under the ordinance of February 7, 1781, became the legal costodian in place of the old Board of War, whose functions ceased when the Secretary entered upon the execution of the duties of his office, of all the warlike stores of the country and of their depositories, and became thereafter the executive officer of the Confederation in all that related to the military service. Vested with authority" to carry into effect all ordinances and resolves of Congress for raising and equipping troops for the service of the United States," and "to direct the arrangement, destination, and operation of such troops," subject to the orders of Congress, or of the Committee of the States in the recess of Congress, it will be perceived that he was endowed with functions in respect to military matters little short of those vested in the Chief Executive under our present Constitution. By this latter instrument, adopted in 1789, the President of the United States was made the "Commander-in-Chief of the Army and Navy." In the organization of the Government under this new instrument, Congress proceeded, in 1789, to the establishment of the various great Executive Departments by whose agency the details of the public business were to be transacted, and on August 7 it enacted2 "that there shall be an Executive Department, to be denominated the Department of War; and that there shall be a principal officer therein, to be called the Secretary for the Department of War, who shall perform and execute such duties as shall, from time to time, be enjoined on or intrusted to him by the President of the United States, agreeable to the Constitution, relative to military commissions or to the land or naval forces, ships, or warlike stores of the United States, or to such other matters respecting military or naval affairs as the President of the United States shall assign to the said Department or relative to the granting of lands to persons entitled thereto for military services rendered to the United States, or relative to Indian affairs; and, furthermore, that the said principal officer shall conduct the business of the said Department in such manner as the President of the United States shall from time to time order or instruct." The fourth section of the act directed that the Secretary should "forthwith, after his appointment, be entitled to have the custody and charge of all records, books, and papers in the office of Secretary for the Department of War heretofore established by the United States in Congress assembled." 1 Jour. Cong., vol. 3, p. 683; vol. 4, p. 8. 21 Stat. Large, 49. It will thus be seen that the new Secretary of War was to supplant the old Secretary at War under the Confederation; and was to take possession of and be installed in his very office-even the records, books, and papers of that office being taken into his hands; and that, under the direction of the President, he was, in addition to business relating to Indian affairs and pensions, to perform such duties relative to "matters respecting military or naval affairs," as should from time to time be enjoined on or intrusted to him by the President. The superior executive functions respecting military affairs which were vested in the Secretaryship under the Confederation being absorbed into the higher office of President under the new Constitution, without any provision being made by law for the discharge of the remaining duties of the old Secretary except by the new Secretary under this law, it is reasonable to presume that the new Secretary's functions were allowed by the President to remain the same as those of the old Secretary, so far as the latter were not inconsistent with the Constitution or the supremacy of the President as the chief executive power. Any subsequent alteration of these functions and duties, therefore, must be sought for in the laws of Congress and the Presidential orders affecting the Secretary's office. An act of May 8, 1792,1 directed that all purchases and contracts for supplying the troops in the service of the United States with provisions, clothing, supplies in the Quartermaster's Department, military goods, Indian goods, and all other supplies or articles for the use of the Department of War, should be made by, or under the direction of, the Treasury Department, and in 1795, the office of Purveyor of Public Supplies was erected in the Treasury Department for the purpose; but in 17983 the Purveyor was placed under the orders of the Secretary of War for the procuring and providing of all kinds of military stores and supplies. In March, 1794, an act was passed providing for the fortification, under the direction of the President, of certain ports and harbors on the eastern seaboard of the United States, and for the procurement of 100 32-pounders, 100 24-pounders with carriages and implements, and carriages and implements for 150 other cannon, and also 250 tons of cannon shot. The act also authorized the reception by the United States of lands ceded by the several States for sites for said fortifications. This was the first movement for the establishment of sea-coast fortifications, and the business connected with this undertaking fell under the direction of the Department of War, and was subsequently reported upon to the President by the Secretary of War.5 In December, 1793, a statement was laid before the President by the Secretary of War of the ordnance, arms, and military stores in possession of the United States. He suggested the erection of the necessary 1 Stat. Large, 280. 2 Ibid., p. 419. 3 Ibid., p. 610. 41 Stat. Large, 345. 5 Am. State Pap., Mil. Aff., vol. 1, p. 72-74 et passim. 6 Ibid., p. 44. arsenals and magazines for their proper storage, as well as the advisability of undertaking the fabrication of cannon, arms, and ammunition. This communication being laid before Congress, an act was passed April 2, 1794,1 providing for the erection, under the direction of the President of the United States, of three or four arsenals with magazines, and directing the establishment of national armories, with officers to be appointed by the President, and as many workmen as the Secretary of War might deem necessary, not over one hundred. An officer styled Superintendent of Military Stores was also directed to be appointed, whose duty it was, under the direction of the Secretary of War, to superintend the receiving, safe-keeping, and distribution of the military stores of the United States, and to call to account all persons to whom the same might be intrusted. Further appropriations were made June 23, 1797,2 for fortifying the ports and harbors of the United States; and on April 27, 1798,3 an additional regiment of artillerists and engineers was authorized for employment, in detachments or otherwise, in the field or in the fortifications on the sea coast; and the Secretary of War was directed to provide, at the public expense, under the direction of the President, all necessary books, instruments, and apparatus, for the use and benefit of the said regiment. In May, 1798,4 in anticipation of the breaking out of war between this country and France, additional appropriations for the fortifications were made, as well as a large amount for the purchase, under the direction of the President, of cannon, small arms, and ammunition, and military stores for the public safety and defense. The act authorized the President, in case the cannon and small arms could not be purchased with certainty and dispatch proportionate to the demands of service, to take, by lease or sale in fee, one or more suitable places where cannon or small arms might be advantageously cast and manufactured, and to cause suitable artisans and laborers to be employed, and to appoint persons to superintend the works, under the direction of the War Department. Congress also authorized, by act of May 28,5 of that year, the raising of a "provisional" army, and empowered the President, whenever he should deem it expedient, to appoint, by and with the advice and consent of the Senate, a "commander of the army," who, being commissioned as lieutenant-general might be authorized to command the armies of the United States "-the latter to "appoint from time to time such number of aides, not exceeding four, and secretaries, not exceeding two, as he might judge proper, each to have the rank, pay, and emoluments of a lieutenant-colonel." The same act also authorized the appointment of an Inspector-General, an Adjutant-General, a Quartermaster-General, a Physician-General, and PaymasterGeneral, with such Assistant Inspectors to "every separate portion of 11 Stat. Large, 352. p. 3 Ibid., h Ibid., p. 558. the army" as might be necessary, who should be deputy Adjutant-Generals thereof, and subinspectors to each brigade and corps, &c. The "commander of the army," and other officers to be appointed by virtue of the act, were to continue in commission during such term only as the President should judge requisite for the public service, the whole or any portion of the provisional army to be discharged whenever the President should judge the measure consistent with the public safety. On June 221 a supplementary act was approved, authorizing the President to proceed to appoint and commission as many of the officers authorized by the previous act as in his opinion the public service should more immediately require, with the proviso that the officers so appointed should not be entitled to any pay, subsistence, or other emoluments by reason of such commissions, until they should be employed in the actual service of the United States. In the emergency that was then upon the country "the opinion was universally entertained that Washington must be called on to take the command of the armies." "The weight of his name and character was of the utmost importance to produce unanimity in the leaders and to secure the confidence and support of the people." President Adams had said of him in his inaugural address in 1797: His name may still be a rampart, and the knowledge that he lives a bulwark against all open or secret enemies of his country's peace." Moved by these political considerations, therefore, President Adams wrote him at Mount Vernon, on the date of the approval of the last above-mentioned act (June 22, 1798): "We must have your name, if you will in any case permit us to use it. There will be more efficacy in it than in many an army." The Secretary of War, on June 26, wrote: "You see how the storm thickens, and that our vessel will soon require its ancient pilot. Will you may we flatter ourselves that, in a crisis so awful and important, you will-accept the command of all our armies? I hope you will, because you alone can unite all hearts and all hands." Answering the President and Secretary of War on July 4, 1798, General Washington, referring to his age and his retirement from pub. lic life, intimated his unwillingness to remain an idle spectator in case of "actual invasion of our territorial rights." Without waiting for his reply, however, the President had, on the 2d of the month, nominated him "to be lieutenant-general and commander-in-chief of all the armies raised, or to be raised, in the United States." The Senate advised and consented to the appointment, "agreeably to the nomination," on July 3, and the President, in communicating to him on the 7th the step he had ventured to take, said: "If it had been in my power to nominate you to be President of the United States, I should have done it with less hesitation and more pleasure." In his letter of acceptance of July 13 General Washington said: "I have finally determined to accept the commission of Commander-in 11 Stat. Large, p. 569. Chief of the armies of the United States, with the reserve only that I shall not be called into the field until the army is in a situation to require my presence, or it becomes indispensable by the urgency of circumstances;" and further, in pursuance of the proviso in the act of June 22, he said: "I take the liberty, also, to mention that I must decline having my acceptance considered as drawing after it any immediate charge upon the public, and that I cannot receive any emoluments annexed to the appointment before entering into a situation to incur expense." The act of March 3, 1799,2 for "the better organizing of the troops of the United States, and for other purposes, enacted, by its ninth section, "that a commander of the army of the United States shall be appointed and commissioned by the style of General of the Armies of the United States,' and the present office and title of Lieutenant-General shall thereafter be abolished." To understand this legislation and its legal effect, we must have recourse to the history of the times, which may be found succinctly stated by the Attorney-General in an official opinion delivered August 24, 1855,3 as follows: I have said that this series of acts appertained to the hostilities between the United States under the administration of President Adams and the French Republic under that of the Directory. It was a state of partial or imperfect war; that is, war with limited range, and objects wholly maritime. (Bas rs. Tingy, 4 Dallas, p. 37-43.) We had broken off ordinary diplomatic relations with France. A special mission to that country from the United States had failed by reason of misconduct of the Directory. We had annulled all existing treaties with France. We were capturing one another's ships. We were engaged on one side in earnest preparation for the moment when the partial war should become a perfect one by land as well as by sea. The War Department had, for greater efficiency, been subdivided, and the Navy Department organized. [Act of April 30, 1798.] Congress was placing at the disposal of the President all the means, material and personal, of raising a large army for the defense of the United States; and General Washington was called from his retirement of Mount Vernon to be commander of this army, with the rank and title of Lieutenant-General. Such was the notorious history; but in the less notorious, and, so to speak, the internal history, is to be found the true explanation of events. What was heretofore imperfectly known is now thoroughly understood by means of the published correspondence of Washington, Jefferson, Hamilton, Pickering, Walcott, and lastly of Adams, viz, that while the Cabinet of the President was earnest for active and complete war he held back; that he looked to the renewal of negotiations, which they strenuously opposed; that some of them labored under the extraordinary delusion that the Bourbons were on the immediate eve of being restored by the arms of England; and that he, with fuller knowledge and clearer perception of the state of things in Europe, already discerned in the horizon the rising star of Napoleon; and finally that they differed on this very point of the military title of the person to command the army, he preferring "Lieutenant-General " to "General of the Armies of the United States," which, in his view, touched, in it did not encroach upon, the constitutional functions of the President. General Washington died in office under this commission [Lieutenant-General]; the proposed new appointment of General was not conferred upon him. (Am. St. Pap., Mil. Aff., vol. 1, p. 147.) The Executive journals show this, and also that on the 1 Hickey's Constitution, pp. 231–239. 21 Stat. Large, 749. 37 Opin., 453. * |