rected to be engaged for three years, by voluntary enlistment, and were incorporated with the previous corps of artillery then in the service of the United States, the joint body being thereafter to be denominated the corps of artillerists and engineers; the entire number, exclusive of commis sioned officers, being nine hundred and ninety-two. By the 3d section of this law, the whole body was organized into four battalions, each battalion consisting of four companies; and to each company were attached (among others) two cadets, with the pay, clothing, and rations of a ser geant. The 5th section made it the duty of the Secretary of War to provide, at the public expense, under the direction of the President, the ne cessary books, instruments, and apparatus for the use of the corps. The 6th section authorizes the President to cause such proportion of the said corps as he should deem consistent with the public service, to serve in the field, on the frontiers, or in the fortifications of the seacoast. The 4th section expressly provided that the whole body should be governed by the rules and articles of war which have been or may be by law estab lished.

Hence there is nothing in the character of the service, in the circumstance of their being cadets, nor in that of their being furnished with the necessary books, instruments, and apparatus for study, which, at that time, was deemed sufficient to exempt cadets, among the rest, from the operation of the rules and articles of war. The act of 3d March, 1795, continues this incorporation and organization of the corps of artillerists and engineers; and, in the 14th section, repeats their subjection to the rules and articles of war. The act of 30th May, 1796, makes no change in the situation of the corps of artillerists and engineers. The act of 27th April, 1798, "to provide an additional regiment of artillerists and engineers," directs three battalions, of four companies each, to be raised for this purpose, by enlistment for five years, unless sooner discharged; at. taches two cadets to each company; directs the Secretary of War to furnish all necessary books, instruments, and apparatus; and, in like manner, subjects the whole corps to the rules and articles of war. The act of 16th July, 1798, "to augment the army of the United States, and for other purposes," after authorizing the raising and organization of twelve additional regiments of infantry and six troops of light dragoons, proceeds, in the 7th section, to authorize the President to appoint any number not exceeding four teachers of the arts and sciences, necessary for the instruction of the artillerists and engineers, at the monthly pay of fifty dollars and two rations per day. The 8th section subjects the officers, non-commis sioned officers, and privates, raised by virtue of this act, to the rules and articles of war; but does not embrace in that provision the teachers ap pointed by the President, unless they come under the denomination of officers, non-commissioned officers, musicians, or privates, which I do not think was intended; because the previous sections of the law sufficiently indicate who were meant by those terms.

Next in order comes the act of the 16th March, 1802, by which the establishment at West Point was erected. As this act bears directly on the subject of inquiry, it will be necessary to give it a more minute attention. It is entitled "An act fixing the military peace establishment of the United States." And the 1st section declares that, after the 1st of June next fol lowing the date of the act, the military peace establishment of the United States "shall be composed of one regiment of artillerists and two regi

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ments of infantry, with such officers, military agents, and engineers, as the are hereinafter mentioned. The 2d section is employed in organizing the regiment of artillerists (not of artillerists and engineers) and the regiments ms of infantry. All the succeeding sections are confined exclusively to these regiments of artillery and infantry (with the appendages of paymasters and military agents, with their assistants, and of surgeons, with their mates) bed till we come down to section 9, by which the President is required "to cause to be arranged the officers, non-commissioned officers, musicians, and privates of the several corps of troops now in the service of the United States, in such manner as to form and complete out of the same the corps aforesaid"-that is to say, the corps composed of the regiment of artillery and the two regiments of infantry; and the next section (the 10th) provides that the officers, non-commissioned officers, musicians, and privates of the said corps shall be governed by the rules and articles of war. This section, therefore, does not embrace. the engineers, of whom, as yet, nothing had been said. The sections succeeding the 10th are wholly em ployed, as the preceding ones had been, in regulations confined to the regiments of artillery and infantry, till we come down to section 26th, where, for the first time, the subject of the engineers is taken up. That section authorizes and empowers the President, when he shall deem it expedient, to organize and establish a corps of engineers, to consist of one engineer, with the pay, rank, and emoluments of a major; two assistant engineers, with the pay, rank, and emoluments of captains; two other assistant engineers, with the pay, rank, and emoluments of first lieutenants; two other assistant engineers, with the pay, rank, and emoluments of second lieutenant; and ten cadets, with the pay of sixteen dollars per month and two rations per day;-with a power to make promotions, so as not to exceed one colonel, one lieutenant colonel, two majors, four captains, four first lieutenants, four second lieutenants, and so as that the whole corps shall at no time exceed twenty officers and cadets. The 27th section provides that the said corps, (composed solely of officers and cadets,) when so organized, shall be stationed at West Point, in the State of New York, and shall constitute a military academy; and that the engi Deers, assistant engineers, and cadets of the said corps, shall be subject, at all times, to do duty in such places, and on such service, as the President of the United States shall direct. The 28th section assigns the su perintendence of the academy to the principal engineer, and authorizes the Secretary of War, under such regulations as the President should direct, to procure the necessary books, &c., for the use of the institution. The 29th section is a repealing one; and here the law stops. There is no provision that this corps shall be subject to the rules and articles of war. It is here worthy of observation, that this is the first time that a separate corps of engineers had been raised by our laws; that there is no instance in the annals of Congress in which a new description of troops ject to the rules and articles of war; that in this very law there is, in the has been authorized without an express provision that they shall be subpreceding part of it, such a provision in relation to the artillerists and infantry, which gives this omission with regard to the engineers tenfold Significance; and that, although a military character has been impressed peace establishment, yet that character is, comparatively speaking, rather Pastors, as well by their name as their being fixed as part of the of an equivocal cast; whereas, in every other case where the most dis

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tant and unequivocal military character has been impressed on a newl raised corps, the provision which is wanting here has nevertheless been added. It seems to me very difficult to conceive why, in this identical law, it was thought necessary that the provision should have been so expressly introduced as to the regiments of artillery and infantry, (which were most clearly of an unequivocal military character,) and yet that it should have been so palpably omitted in relation to the engineers-a new corps, who were constituted an academy, and liable to military duty only when called on by the President-unless Congress intended the exemp tion with regard to the latter corps. But whether they did in fact intend it or not, a review of all the analogous laws which they have passed, the component parts of this very law, and the principle that the trial by jury is not to be ousted by implication, do, in my opinion, justify the conclusion, that, so far as the question rests on the act of the 16th March, 1802, the members of this military academy were not subject to the rules and articles of war.

Next in order follows the act of the 25th February, 1803, in addition to the preceding act, (vol. 3, Laws U. S., p. 530.) The first section of this act contains merely a provision in relation to the regiment of artillerists. The second section authorizes the President to appoint one teacher of the French language, and one teacher of drawing, to be attached to the corps of engineers, whose compensation shall not exceed the pay and emoluments of a captain in the line of the army. The third section provides that "the commanding officer of the corps of engineers be authorized to enlist, for not less than three years, one artificer and eighteen men, to aid in making practical experiments, and for other pur poses; to receive the same pay, rations, and clothing as are allowed to the artificers and privates in the army of the United States, and the same bounty when enlisted for five years, and to be subject to the rules and articles of war. Who are to be so subject? Most clearly those who are the exclusive objects of the rest of the provisions in this section, to wit: the artificer and the eighteen men. If it should be asked what reason there can be why these men should be more subject to the rules and articles of war than the engineers and cadets who had before constituted the corps, it would be sufficient answer that Congress have so provided. But it seems to me that, if it were necessary to assign a further reason, one might be found without difficulty, in the different footing in other respects in which the two parts of this corps stand; for it is observable that the act of the 16th March, 1802, does not require the engineers and cadets to be enlisted at all, much less to be enlisted for a particular time. The language of that section is, that the President may, when he shall deem it expedient, organize and establish a corps of engineers not from the army then on hand; for, if it had been so intended, it would have been so expressed, as it was in the 9th section as to the regiments of artillerists and infantry. But there is a further reason why it could not have been intended to be drawn from the army then on hand; for, by the 9th section of the law, all the officers and privates of that army, who were not taken into the regiments of artillerists and infantry, were directed to be discharged on the 1st of April, 1802; whereas the corps of engineers were to be organized and established whenever thereafter the President should deem it expedient. Were they to be drawn from the regiments of artillerists and infantry authorized by the previous

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sections of the act of 1802? It is not so said; and the inference is excluded by the precision in point of number, and the compact and separate form into which those regiments had been previously organized. I understand the 26th section, then, as authorizing the President to organize and establish this new corps by a new and original contract with the members who were to compose it; they were not to be enlisted, but engaged for the price stipulated by the law. It is not said for what length of time they were to be engaged; nor is it even said that they were to be commissioned; they were rather an anomalous species of body, to be called into being whenever the President should deem it expedient, and to be formed into a school-an academy for military instruction; whereas the artificer and the eighteen men here authorized are enlisted for three years, and put, in all respects, on a footing with the artificers and privates of the army. Why is the provision of subjection to the rules and articles of war expressly made as to these men, and again omitted as to the engineers and cadets, as well as to the teachers of French and drawing here authorized, unless the omission was intended? Would it not be a most arbitrary construction which should impute to Congress the intention to subject the original corps of engineers, and the masters now added, to military law, when, on two occasions, most obviously inviting them to the expression of that intention, if it existed, they should, nevertheless, decline that expression, and leave it to be gathered by an inference-an inference, too, unwarranted by their whole course in analogous cases? I cannot think that such an interpretation of the laws would be sound; and, therefore, as yet, I see nothing which subjects the engineers, cadets, and teachers at West Point, to the rules and articles of war. leave this part of the subject, I will observe, that, if I am wrong in supposing that the original corps of engineers at West Point was not to be drawn from the then existing army, or from the regiments of artillery and infantry which were thereafter to constitute the peace-establishment of the United States; and if, on the contrary, they were (according to Colonel Hindman's suggestions) to be drawn from the different arms of the army," (composing the peace establishment, I suppose he means,) it would not yet follow that, because while belonging to the artillery and infantry they were subject to the rules and articles of war, they would, therefore, be subject in their new character of engineers. On the contrary, every inference would still follow, from the very palpable omission of Congress so to subject them; and, not to multiply instances of the manner in which Congress have legislated in parallel cases, I will call your attention to one only: it is that which you will find in chapter 532, vol. 4, Laws of the United States, page 541. This act, providing for the law, and by that previous law expressly subjected to martial law, because destination of a part of the troops authorized to be raised by a previous it so far changes that destination from the general purposes of war as to limit it to the defence of the sea board, expressly repeats their subjection to the rules and articles of war, lest from the mere change of destination they should be considered as being absolved from their liability to those mes and articles under the original law.

Before I

The 96th article of these rules and articles is in these words: "All offi. and articles for the government of the armies of the United States." We come now to the act of the 10th April, 1806, " for establishing rules cers, conductors, gunners, matrosses, drivers, or other persons whatsoever,

receiving pay or hire in the service of the artillery or corps of engineers of the United States, shall be governed by the aforesaid rules and articles, and shall be subject to be tried by courts-martial, in like manner with the officers and soldiers of the other troops in the service of the United States." At the passage of this law there was no corps of engineers ex cept that at West Point; they must, therefore, have been intended; and this is rendered the more clear by the consideration that the article in the old rules and articles, from which this is copied, has not the words "or corps of engineers."-(See 1st Graydon, appendix, p. 155, § xvi, art. 1.) These words, therefore, being in the year 1806 for the first time interpolated by Congress, and there being no body to fit the description except the corps of engineers at West Point, I do not see how the conclusion can be fairly avoided, that it was intended to apply to them. They were a corps of engineers; they received the pay of the United States; they were in the service of the United States-as much so as any other troops on the peace establishment: therefore, that corps, and all other persons in its service, now became subject to martial law; not only the engineers, cadets, artificers, and eighteen privates, who constituted the corps, but the masters or teachers of the French and drawing, who were in the service of that corps. So stood the law when the act of the 29th of April, 1812, was passed, entitled "An act making further provision for the corps of engineers." This act, by the first section, provides that certain offi cers be added to the corps of engineers, and that there be attached to that corps a company of bombardiers, sappers, and miners. The 2d section provides that the military academy shall consist of the corps of engineers (including, of course, the ten cadets who had been originally attached, and then formed a part of it) and certain new professors, in addition to the teachers of the French language and drawing, already provided. (I will merely remark, in passing, that these new professors, thus attached to the corps of engineers, come within the description of the 96th article of the permanent act of 1806, establishing the rules and articles of war, as persons receiving pay in the service of that corps.) The 3d section of the act of 1812 provides, that "the cadets heretofore appointed in the ser vice of the United States, whether of artillery, cavalry, riflemen, or infantry," (omitting in the enumeration those who had been theretofore appointed in the service of the corps of engineers,)" or that may in future be appointed, as hereinafter provided, shall at no time exceed two hun dred and fifty; that they may be attached, at the discretion of the Presi dent, to the military academy, and be subject to the established regulations thereof; that they shall be arranged into companies," &c. The section, after going on to describe the discipline of the cadets, proceeds to direct the manner of appointment and qualifications of the cadets thereafter to be appointed. If it were material to the decision of the question which you have submitted to me, I should say that I differed with Colonel Hindman and the court-martial in the opinion, that, by the 3d section, the cadets who had previously constituted a part of the corps of engineers were abolished, or amalgamated with the two hundred and fifty authorized by that section to be attached to the academy; for by the second section it is expressly declared that "the military academy shall consist of the corps of engineers'—that is, the existing corps expressly composed, in part, under the act of 1802, of the ten cadets, who, so far from being abolished, are hereby confirmed; and when you come to examine the component