NAYAL. 
AN EXAMINATION 
OF THE 
LEGALITY OF THE GENERAL ORDERS 
WHICH CONFER 
ASSIMILATED RANK 
ON OFFICEKS OF 
THE CIVIL BKANCH 
OF THE 
UNITED STATES NAVY. 
A SURGEON. 
PHILADELPHIA: 
C. SHERMAN, PRINTER. 
1848. NAVAL. 
AN EXAMINATION OF THE LEGALITY OF THE GENERAL OR- 
DERS WHICH CONFER ASSIMILATED RANK ON THE CIVIL 
BRANCH OF THE NAVY. 
It is asserted that the President of the United States, or the 
Executive, has transcended the power, which the Constitution 
designed he should exercise, by issuing the General Orders, 
dated Navy Department, August 31, 1846, and May 27, 1847.* 
These General Orders, confer on medical officers and pursers in 
the navy, a relative or assimilated rank ; or in other words, these 
General Orders simply define the position, determine with what 
classes or grades of officers of the line, officers of the civil branch 
of the navy shall be arranged in their social relations, and on 
occasions of ceremony; but carefully announce that the officers 
* GENERAL ORDER. 
Surgeons of the Fleet, and surgeons of more than twelve years, will rank with 
commanders. 
Surgeons of less than twelve years, with lieutenants. 
Passed assistant surgeons, next after lieutenants. 
Assistant surgeons not passed, next after masters. 
Commanding and Executive officers, of whatever grade, when on duty, will take 
precedence over all medical officers. 
This order confers no authority to exercise military command, and no additional 
right to quarters. 
Navy Department, August 31, 1846. 
George Bancroft. 
GENERAL ORDER. 
Pursers of more than twelve years will rank with commanders. 
Pursers of less than twelve years, with lieutenants. 
Pursers will rank with surgeons according to date of commission. 
Commanders and Executive officers of whatever grade, when on duty, will take 
precedence of all pursers. 
This order confers no authority to exercise military command, and no additional 
right to quarters. 
Navv Department, May 27,1847. 
J. Y. Mason. 4 
of the civil branch are not to exercise any military authority, or 
to be released from proper obedience to it. The General Orders 
in question do not effect any change in the actual organization 
of the navy; they neither take away nor give power to any 
grade of persons in the naval community. 
The General Order of the Secretary of the Navy, dated August 
14, 1846,* makes a change in the organization of the navy, and 
virtually creates a newT grade in the service. It provides for 
appointing, by warrant, the oldest passed midshipmen to the grade 
of master, and places the grade of masters in the line of pro- 
motion. 
Up to this time, officers of the military branch of the navy, 
have not expressed any suspicion of the legality of this order, or 
doubted the authority of the Executive to issue the order. 
The General Order of the Secretary of the Navy, dated August 
17, 1846,* also makes an important and valuable change in the 
organization of the naval service. It provides that no naval 
constructor shall be appointed in the navy, without previous ex- 
amination and approval by a Board, convened for the purpose, 
under authority of the Department. This General Order also 
provides, that no boatswain, gunner, carpenter,f or sailmaker 
shall be appointed, without previous examination and approval by 
a Board designated for the purpose. 
But the legality of this order stands as unquestioned by the 
military branch of the navy as the other. 
Then, by what authority can the Executive issue General 
Orders, or Regulations affecting the organization of the naval 
service, in face of that article of the Constitution which declares, 
that Congress shall have power “ To make rules for the govern- 
ment and regulation of the land and naval forces'?” Is Congress 
competent, under the Constitution, to delegate its power; or is it 
absolutely necessary that the rules and regulations for the go- 
vernment of the army and navy, must be made by the same 
process, and under the same formalities as those observed in the 
enactment of statute laws ? 
Those who are opposed to the existence of an assimilated rank 
for officers of the civil branch of the service, place great re- 
liance on this clause of the Constitution, which they have inter- 
preted to suit their own views on the occasion. In support of 
their opinions they appeal to the act of April 23, 1800; and to 
the act of February, 7, 1815. The latter act, “to alter and 
amend the several acts for establishing a Navy Department, 
by adding thereto a Board of Commissioners,” authorizes 
this Board, “ by and with the consent of the Secretary of the 
* See Navy Register. 
t See Navy Register. 5 
Navy,” to prepare rules and regulations, for certain purposes, 
namely, to secure “ an uniformity in the several classes of ves- 
sels, and their equipments, and for repairing and refitting them, 
and for securing responsibility in the subordinate officers and 
agents,” but not for every and all purposes ? The act provides 
further that these “ regulations, when approved by the Presi- 
dent of the United States, shall be respected and obeyed, until 
altered and revoked by the same authority.” It may, therefore, 
be fairly inferred from this act, that the President has power to 
“ alter” or “ revoke” any rules which may have been adopted 
previously by himself, or by his predecessors in office? The 
Navy Commissioners were merely to act in the matter of rules 
and regulations, under the sanction of the Secretary of the Navy 
and President, who are expressly authorized in the act, at any 
lime to revoke or alter any of said regulations, and by inference, 
to issue new rules and regulations, touching the objects con- 
templated in the law. 
Thus far, then, Congress has delegated its Constitutional power 
of making rules and regulations for the government of the land 
and sea forces, to the Executive. Will the opponents of assimi- 
lated rank now call in question the right, ability, or power of 
Congress to delegate its power in this matter? We think not, 
because they advocate the legality and force of the so-called 
“ Commissioners’ regulations.” They seem to have overlooked 
the fact, that this act of February 7, 1815, while it gave au- 
thority to make rules and regulations, also gives authority to 
alter, annul, or substitute other rules and regulations in their 
place, requiring only, in spirit, that whatever the rules and re- 
gulations might be, they should be prepared by the Commis- 
sioners, with the consent of the Secretary of the Navy, and 
approbation of the President of the United States. Therefore, 
this act absolutely gives full power over the subject, so long as 
the Board of Commissioners was in existence, or up to the pas- 
sage of the act of August 31, 1842. If the commissioners were 
subordinate in the power to make regulations, their exclusive 
acts have no force; and if co-ordinate, their power was inherited 
by the President and Secretary of the Navy, when they officially 
died on the 31st August, 1842. But the entire control of the 
whole subject actually rests with the Secretary of the Navy 
and President of the United States; the Navy Commissioners 
were merely to suggest, but nothing more. No power was given 
to them in the premises exclusively; and it is probable that they 
were associated with the Executive, simply on the ground that 
the subject was technical, and they were presumed to possess the 
proper knowledge to enable the Executive to act. As it is, the 
code of Commissioners’ Regulations has become obsolete from 6 
desuetude, and from the fact that many of the rules have been 
superseded by others. The Commissioners’ Regulations gra- 
dually fell into disuse from their impracticability, and from the 
changes which time has brought about in many branches of the 
naval service. We look into this code in vain to find anything 
applicable to steamers for their government, equipment, and re- 
pairs ; or responsibility of naval officers and others serving in 
them. 
If there be any naval officer so bold as to question the right of 
Congress to delegate its power to the Executive, we commend to 
his attentive study the concluding paragraph of the eighth section 
of the Constitution : namely—Congress shall have power—“ To 
make all laws which shall be necessary and proper for carrying 
into execution the foregoing powers vested by this Constitution in 
the government of the United States, or in any department or 
office thereof.” 
But there is another view of the question of Executive power 
in the premises. 
The Constitution provides that “ The President shall be com- 
mander-in-chief of the army and navy of the United States.” But 
it is presumed, the framers of the Constitution did not design that 
he should ever take the field in person, or the sea, under the flag 
of chief admiral, or alternate between ship and shore, as did a 
commander-in-chief recently on the coast of California. The title 
of commander-in-chief, as applied to the President, must not be 
taken in the ordinary acceptation of the term. The title gives 
him powers which no commander-in-chief, as the term is or- 
dinarily understood, ever possessed, or ever attempted to exercise. 
The President’s power, as commander-in-chief, extends to abso- 
lute and unlimited control over the commission of every officer 
in the army and navy of the United States. Gentlemen may 
ascertain this fact by reading their commissions; they will find 
they are to be in force only during the pleasure of the President 
of the United States. The President may strike off the name of 
any officer from the list of the army or navy. 
A major proposition must always include the minor, or those 
necessarily subordinate to it. The President cannot be com- 
mander-in-chief of the army or navy in the sense designed, without 
also possessing the power and authority incident to, and necessary 
to the exercise of this part of his official duties. It was not neces- 
sary for the Constitution to provide that all officers of the army 
and navy shall obey the commander-in-chief, because obedience 
from them is incident to the office of supreme control. Various 
powers are necessarily incident to the commander-in-chief; and 
if deprived of these incident powers, his efforts to command would 
be abortive. It is competent for the President, as we have seen, 7 
to annul a commission, with or without assigning his reasons for 
so doing. He may nominate a midshipman to the office of cap- 
tain in the navy, and, with the consent of the Senate, set aside 
all rules of promotion; and in the same manner, promote a 
second lieutenant from one arm of military service to be a 
colonel in another. Or, he may place a citizen in command of 
an army, or fleet provided the Senate approve his nominations. 
All this has been done, in virtue of the President being com- 
mander-in-chief of the army and navy; he is supreme, under 
the Constitution and laws. 
It would be gratuitous, idle to contend that a commander-in- 
chief of an army, as Lord Wellington at Waterloo, or General 
Scott in Mexico, because entitled commander-in-chief, possesses 
the same powers as the President of the United States in his 
capacity of commander-in-chief of the army: or that, the senior 
officer of a squadron or fleet on a distant station, acting as com- 
mander-in-chief, has the same powers as the President in his 
capacity of commander-in-chief of the navy of the United States. 
The powers of the President are of the nature of those of the 
throne of Great Britain: all the military and naval authority in- 
directly emanates from him; it is his signature which gives 
validity to every commission in the service. But such power 
does not rest with our commanders-in-chief in the army or 
navy; they are all subordinate, and have no necessity for such 
powers; they can neither give nor take away commissions arbi- 
trarily, and the acting appointments occasionally given by them, 
ex necessitate rei, are always subject to the approval or dis- 
approval of the Executive. 
To descend to smaller matters:—The President has entire 
control over the costume worn by all persons serving in the 
army and navy, and may change the uniform dress, as he does in 
fact, from time to time, without the legality of his act being 
even questioned or questionable. But a general, serving as com- 
mander-in-chief of an army, or a captain, commanding in chief 
a fleet or squadron, could not regulate the uniform dress of the 
officers serving under him. Such an assumption of power would 
be quickly questioned, and an early attempt made to resist it. 
The right to regulate the uniform dress of the army and navy by 
the President, is incident to his power as commander-in-chief, 
and up to this time, no one has suggested that it was the duty of 
Congress to prescribe the “ uniform,” under the clause of the 
Constitution which gives Congress the power to make rules and 
regulations for the government of the land and sea forces. 
The Executive has the right, under the Constitution, to do any 
thing, issue any order, or regulation which may be necessary to 
enable him to efficiently discharge his duty as commander-in- 8 
chief. He may direct, for example, the youngest colonel of the 
volunteers, to march with his regiment, or without it, in advance 
of the oldest colonel of the army. He may place the youngest 
captain in the navy, in command of the largest and finest ship in 
the service; he can order passengers of every class and descrip- 
tion to be carried in our public ships, and designate the apart- 
ments they shall occupy ; and further, he can order citizens to be 
received with military honours, and to be treated as captains, or 
commanders, or lieutenants in the navy, as he may deem proper, 
without being required under the law to assign his reasons. There 
is no legal impediment to prevent him from giving the cabin to 
the midshipmen, and the steerage to the captain; or the ward- 
room to the civil branch of the service exclusively, and place the 
captain and lieutenants in the same mess. It is true, there is a 
regulation by the Navy Commissioners on tfye subject, but the law 
of February 7, 1815, authorizes the President to “alter” or“ re- 
voke” all these regulations. But the Executive will never do 
any thing unreasonable or absurd, to demonstrate to the service 
the extent of the powers incident to him as commander-in-chief. 
In the creation of assimilated rank then, wherein has the 
Executive exceeded his constitutional powers 1 The word or 
term “ assimilated rank,” is technical, and simply means classifi- 
cation, or comparative classification. To say a surgeon has the 
assimilated rank of a major in the army, does not mean that the 
surgeon has the same authority, power, grade or rank of the 
major, but that the surgeon is classed or placed in the same class 
as the major, and the latter is in fact the criterion or measure by 
which the surgeon’s military respectability is measured. He is 
a major in every respect, except in the right to command soldiers 
in the field, the right to be promoted to a higher grade; and 
although the surgeon may, in consequence of seniority, take pre- 
cedence of the major on occasions of ceremony, &c., the major 
is never subject to obey him for any strictly military duty. 
It is contended by the opponents of the Executive, that rank 
has been regulated by clear and precise law. But when called 
upon to produce any “ clear and precise law” on the subject, they 
answer, we do not know that any statutory enactment, defining 
the rank of officers can be found in any code; but we believe 
that the rank of officers is determined by the military common 
law. They define the military common law of the navy to be, 
“ the usage of the sea,” “ the laws and customs of the sea,”—and 
to support this position quote the acts of March 2, 1799, and of 
April 23, 1800. Both these acts simply provide punishments for 
various crimes and offences, and then, after specifying several 
crimes, they both conclude, to cover all omissions and defects of 
knowledge in the legislators of the time, with a sweeping clause to 9 
the effect that all crimes “ not specified in the foregoing articles shall 
be punished according to the laws and customs in such cases at 
seaall of which reminds one of the conclusion of a weary 
auctioneer’s inventory, “and other articles too numerous to men- 
tion.”—The defects of the naval laws, their indefinite terms, even 
puzzled the Supreme Court, which expressed the grave opinion, 
that if there was no law for the formation of a court-martial, it 
must be formed in accordance with some precedents, or the 
custom on like occasions. There was good sense in this, because 
it is quite clear, if there be no law to govern special action, the 
action must be had, if at all, without reference to anything but 
the best lights we have in the absence of law. It is related of a 
grave doctor who was refused calomel when he asked for it, that 
he declared the case was very plain:—if you have not got it, 
you cannot be expected to give calomel to your patients—“ if 
you can’t get calomel, you don’t give calomel, that’s all.” 
Unless we are very much in error, the term common law 
simply means a rule of action, deducible from common custom or 
usage, or decisions in accordance with precedents, in cases not 
covered by statutory enactments, constituting the leges non scriptce 
of lawyers. Therefore, to establish a common law on any point, 
it is necessary first to establish that there is a usage, custom or 
habit, or general opinion on that point. Can we easily, on these 
principles, settle a military common, law for the navy] A former 
learned Secretary of the Navy declared, on one occasion, there 
was no usage in the service—that Captains observed no laws or 
rules in common, but each acting according to his own notions 
of right, different customs and usages prevailed on board of dif- 
ferent vessels—each Captain made rules and regulations for the 
internal government of the vessel for himself, and these codes 
differed widely from each other. And the exclamation of a well- 
remembered officer, long since departed to other scenes, that 
“ laws were not made for post-captains,” seems to corroborate 
the notion, that the usage of the naval service has scarcely settled 
a single point in it. It is this state of things which has led to the 
several efforts to establish a universal code of regulations, to 
cover all points, and give uniformity in the administration of 
affairs in all vessels of the navy. It was this acknowledged ab- 
sence of usage, properly so called, which led to the code of regu- 
lations, submitted by President Jackson, to Congress, for approval 
December 23, 1833, and the code of February 19, 1841, issued 
or designed to be issued by Secretary J. K. Paulding, who directs 
that these regulations “ are to be obeyed until revoked or altered 
by competent authority.” They supersede the Commissioners’ 
regulations'? Then we have the code submitted, by Secretary 
A. P. Upshur, January 13, 1843, to Congress for approval. In 10 
the mean time, various general orders have been issued to cover 
different points, but the navy is still without any code of regula- 
tions, which is generally recognised as conclusively authorita- 
tive. 
The gentlemen contend for the force of a military common 
law, and assert that they have precise rights under it. If a mili- 
tary common law exist, it is not limited to the navy, but prevails 
in all military communities. It cannot give rights to subordi- 
nates, and deny the same rights to the supreme head of a military 
organization; the practice of the crown of England, in the exer- 
cise of the functions of commander-in-chief, would, on the mili- 
tary common law principle, give similar rights to the President 
of the United States. 
The opponents of the Executive in this matter, refer to the act 
of March 27, 1794, which is obsolete, but we do not propose to 
deny them the benefit of it in the argument. This act (“ to pro- 
vide a naval armament”) authorizes the President to provide by 
purchase or otherwise four ships of 44 guns, and two ships of 36 
guns each ; and to appoint for each frigate one captain, four lieu- 
tenants, one lieutenant of marines, one chaplain, one surgeon and 
two surgeon’s mates, who are to “ be appointed and commissioned 
in like manner as other officers of the United States are.” The 
act further provides for the following warrant officers, for each 
of the frigates, “to wit: one sailing-master, one purser, one boat- 
swain, one gunner, one sail-maker, one carpenter and eight mid- 
shipmen,” &c. &c. This act provides for the pay and rations of 
officers and men, and that if “ peace shall take place,” “ no fur- 
ther proceeding be had under this act.” 
The opponents infer from this act, although not a word is said 
about rank, that the Captain is to command all, and the lieutenants 
ranking among themselves by seniority of commission, as an 
aggregate, rank all others. 
There is nothing in the act itself which authorises this inference; 
on the contrary, if we confine ourselves to the meaning of the 
words of the act exclusively, it might be inferred that all who are 
u appointed and commissioned in like manner,” are to be regarded 
as equals, at least in one sense, without special reference to the 
nature of their duties. All that can be fairly deduced from this 
act is that “ the naval armament ” was to be made up of different 
grades and denominations of officers, and different classes of ves- 
sels; but it does not follow as a necessary consequence that be- 
cause the captain was to command the whole, that the lieute- 
nants were necessarily the superiors of every other officer named 
in the law. It is not necessary to examine into the assumption of 
authority, which has been practised from that time to the present, 11 
because assumption of authority cannot affect the argument in 
any manner. 
Our opponents refer to the act of February 7,1815, which pro- 
vides for the creation of a board of navy commissioners, and in- 
fer from it that rank has been established by law, because the act 
declares the board shall consist of “ three officers of the navy 
whose rank shall not be below a post captain.” 
It is suggested that legislators are not all skilled in philology, 
and do not always use such words as will best convey their mean- 
ing. The design and purpose of this portion of the act would 
have been attained, and as clearly understood, had the framer of 
the law substituted the word grade for the word rank, which 
words are not exactly synonymous in their acceptation. If the 
act had read, “ the board shall consist of three officers of 
the navy whose grade shall not be below a post captain,” what 
effect would it have had on the constitution of said board, and 
what would have been its effect on the argument of our oppo- 
nents ? If we were to say that the military branch of the navy 
is composed of three grades or degrees, namely, the grade of 
captains, the grade of commanders, and the grade of lieutenants, 
and that the officers of these respective grades ranked, that is, 
were placed in order or arrangement, or precedence, with each 
other, according to number or date of commission, and that the 
grade of captains ranked before the grade of commanders, and 
the latter ranked before the grade of lieutenants, we should be 
clearly understood. 
As the intention of the law is not varied by the substitution of a 
word, it cannot be inevitably inferred that rank was fixed by law, 
as the term is understood by our opponents. We might even sup- 
pose the word class substituted for rank in the law, and still per- 
ceive that the intention of the act could not be misconstrued, 
namely, that the board should be constituted of three post cap- 
tains ; consequently, although we contend that the Executive has 
a constitutional right to declare that surgeons and parsers shall 
have assimilated rank with post captains, it would not follow that 
he could legally regard surgeons and pursers as members of the 
grade or class of post captains, and therefore be authorised to 
substitute surgeons and pursers for post captains, as navy com- 
missioners. The premises are false; such argument is absurd. 
It is contended that the operation and objects of a navy are 
purely military; and, therefore, all persons serving in a navy, 
no matter what may be their vocation, must be subject to 
military laws, either statutory or common. And for this rea- 
son, it is proper that the position of every man in it, should be 
clearly defined, relatively to all others of the same community. 
But we do not admit that all rights, privileges, and courtesies, 12 
belong of right exclusively to the purely military branch. It is 
against this violent assumption we contend, and not against any 
right or privilege, which is clearly necessary to the discharge of 
duty by military officers in the navy. 
The opponents of the Executive on the question before us, urge 
upon our consideration the long apprenticeship necessary to edu- 
cate the military officers of the sea in their duties. The govern- 
ment receives the boy, and pays him, and instructs him at consi- 
derable expense, through a series of years, before he is competent 
to return an equivalent in service for the money spent upon him. 
And this fact is brought forward as a reason, why they should 
be entitled to precedence on all occasions, of those unfortunate 
men who are educated and instructed at their own expense, or 
that of their parents, and render an equivalent for their pay from 
the first hour of their admission into the navy. Our opponents 
intimate that officers for the civil branch of the service can be 
picked up anywhere, and at any time among citizens, who are 
all well enough instructed for the purpose. Consequently, they 
should be regarded as inferiors in rank, that is, in relative posi- 
tion. 
They appeal to the early period of our history, but forget that 
the commercial marine furnished us with our naval heroes,—Paul 
Jones, Hull, Decatur, Bainbridge, and the rest; and, therefore, 
do not imagine that the present merchant marine contains as 
accomplished seamen as the world ever saw, men who could 
be converted into efficient officers in the course of a few months, 
if a necessity for their services should arise. 
Our opponents contend that because surgeons and pursers are ex- 
cluded from the exercise of military command, they are necessarily 
released from military obedience ! and, consequently, since they 
have assimilated rank, they can no longer be held amenable to mili- 
tary authority at the mess table,—that there is no place where the 
assertion of military superiority and authority is so necessary as 
at mess, and that no point is of more acknowledged importance 
and necessity; and, therefore, it is here that assimilated rank 
operates most injuriously to the discipline of the service. 
This is the purest piece of pretension and assumption. What! 
Is it possible that a mess, a company of gentlemen cannot be as- 
sembled around the social—the family board—without the neces- 
sity of the exertion of military authority by the lieutenants of the 
mess! Is it indeed true, that the assumption of military autho- 
rity has been habitually exerted, and that all come to table 
like officers on parade, or soldiers on drill. Is there a manual 
of table exercise!—handle your spoons, dip, eat away! How 
can liberal gentlemen, even jestingly admit that this is the case, 
and forget that the caterer, the head of the mess in fact, is cho- 13 
sen by the whole, and that the surgeon, purser, chaplain, or marine 
officer, as frequently acts in this capacity as a lieutenant ? But 
admitting that military authority is exerted by the lieutenants at 
mess-table, it forms in itself, a sufficient reason why all officers 
of the civil branch should be protected by an assimilated rank. 
In the British army, all officers of a regimental mess meet at 
table on an equality—military rank is for the time laid aside, and 
all assemble at table simply as gentlemen, and to prevent even the 
semblance of difference of military rank, the dress of all the 
officers is precisely the same in many, if not in all regiments. 
Each officer in turn, serves a week, as President and Vice- 
President at table; and the youngest ensign as President will be 
as respectfully appealed to by the senior officer, as the Colonel 
himself when it becomes his turn to preside. But according to 
the opponents of an assimilated rank, the mess-table is to afford 
no relaxation from the formal requirements of a military organi- 
zation, and the whole period on board ship, sleeping or waking, 
eating or dressing, from the beginning of the cruise till its termi- 
nation, must necessarily be passed in military parade, and in 
humble submission to military authority, no matter by whom ex- 
erted. What man from civil life would cheerfully consent to be 
pent up in a ship on such terms! 
The gentlemen of the opposition side of the question urge that 
the General Order of the Secretary of the Navy is inexpedient, 
on account of the clause which gives precedence to executive 
and commanding officers of whatever grade, before any medical 
officer or purser, without regard to the degree of his assimilated 
rank. They suppose instances, to show the difficulties to which 
this exception in favour of the military branch may lead. 
The case assumed is nearly, if not precisely this. Commander 
No. 50 is an executive officer at a navy yard, and commander 
No. 40 (therefore senior to the other), is on duty on the station, 
but not as an executive officer. Surgeon No. 20, whose assimi- 
lated rank gives him precedence of both these commanders, is 
also on the same station. These three officers are placed on 
duty as a Board for a special purpose; and the point is, which 
of the three, under the order in question, shall preside! The 
junior commander, No. 50, it is contended, in virtue of acciden- 
tally being an executive officer, has a right to precedence of the 
surgeon, but the surgeon has, under the order, right to precedence 
of the senior commander, No. 40. Now, although captain 40 
might yield to surgeon 20, he cannot, in consequence of his lineal 
rank, yield to captain 50, This is quite an intricate case, and 
shows pretty clearly, that the General Order, would have operated 
better if the exception had not been made in favour of executive 
officers, since captain 50 cannot perceive that the instant he be- 14 
comes member of a board for a special purpose, he necessarily 
ceases to be executive officer for the time, and should therefore 
yield, with captain 40, to surgeon 20, the proper President of the 
Board, thus constituted. 
When an executive officer, first or senior lieutenant of a ship, 
is appointed a member of a court martial, his functions as execu- 
tive officer necessarily cease during the session of the court. 
He takes bis place in virtue of his lineal rank; his office of exe- 
cutive officer is not recognised. The same is true of a lieutenant 
acting as commander, a lieutenant-commanding ; he takes his 
place in the court in virtue of his lineal rank; the accident of 
temporary command does not elevate him in the contemplation 
of the law, above the grade of his commission. 
This will seem, no doubt, a very monstrous opinion, unless it 
be admitted, that if the duty required of the Board be of such a 
character that a surgeon is qualified to take an equal part in it 
with two commanders, there can be no very imperative reason 
why his seniority should be set aside. The duty on which such 
a Board would be convened, would not be purely military; and 
if seniority were given precedence, as should be the case in such 
mixed Boards, it is not apprehended that the public service could 
possibly suffer, or that any such tangled instance would occur. 
The authority assembling a mixed Board would generally be able 
to select officers of the proper lineal and assimilated rank to pre- 
vent difficulty or collision of the nature suggested, and thus relieve 
the sensitive commander or lieutenant from the chance of direction 
by an experienced or aged surgeon or purser; and if he could 
not, what harm would arise to the service? 
If the General Orders conferring assimilated rank made no ex- 
ceptions in favour of the military officers, but was permitted to 
take effect according to date of commission, no difficulty could 
arise. Assimilated rank does not claim to release surgeons and 
pursers from discharging their respective duties; and it is not 
likely that the discipline or efficiency of a ship would be injured, 
even if both the surgeon and purser of the vessel were entitled by 
their assimilated rank to descend to the boat after the first lieu- 
tenant, and to reach the deck before him. In cases of mixed 
Boards, there could be no case requiring the services of surgeon 
or purser, which could not be as efficiently and faithfully attended 
to under the direction of either as under that of a military 
naval officer. It is not very probable that any case can occur in 
which the authority ordering the Board could not avoid all diffi- 
culty by judiciously selecting his men. 
On courts martial, the law requires that officers shall take 
position according to date of commission; that the senior shall 
preside, and the junior vote first. There has been one court 15 
martial in the navy at which medical officers and pursers sat as 
members. The charge tried was murder; the prisoner was sen- 
tenced and executed. The majesty of the law was as fully de- 
fended, and justice as faithfully executed, as if all the members of 
the court had been exclusively military officers of the navy. 
There is no very cogent reason why commissioned officers of 
any grade or class, in a military community, should be excluded 
entirely from sitting as members of courts martial. There are 
certain crimes which all can appreciate, and all are competent to 
decide upon, according to testimony; and the authority convening 
a court should have sufficient discrimination to know when to 
assemble a mixed court. A mixed court would be competent, 
for example, to try the charges of drunkenness, murder, perjury, 
violating seals, desertion, fraud, &c.; all of which, unfortunately, 
are recorded among the occasional crimes in the navy. In a case 
where the charge involved the professional knowledge or capacity 
solely of an officer of the military branch, the court should be 
exclusively made up from the military branch ; but if the prisoner 
be a medical officer or purser, he should be tried by a court, one- 
third of whose members, at least, should be of his own grade. 
It is suggested by the opposition, deprecatingly, that if the 
Executive have authority to regulate assimilated rank, it is 
possible that a court martial composed of surgeons and pursers 
might be directed to inquire into the military acts of the senior 
captain in the navy, or, as a court martial, sentence him to 
lose his commission for want of skill in the management of his 
ship. This seems horrible to contemplate; but it would not be 
more outrageous than to employ a court martial of captains to 
determine the professional skill of a surgeon in the management 
of the sick and wounded, or the religious doctrine or theological 
ability of a chaplain to instruct seamen in their moral duties. 
On a court composed of grades from both the military and 
civil branches of the navy, the precedence of the grades should 
be first determined, because the law designs that precedence 
among those of the same grade shall be according to date of 
commission. The precedence of the grades of the military branch 
is soon determined; but it is not so easy to settle the position of 
the grades of the civil branch, so long as it is asserted that officers 
of the civil branch of the service have no rank, or even the 
shadow of military character. The difficulty vanishes the 
moment they are assigned an assimilated rank; they then fall 
naturally and easily into their places, and the business of the 
court, or mixed board, may go forward without hindrance. 
If it be determined, for example, that surgeons and pursers shall 
be assimilated in rank as commanders, and assistant surgeons 
and assistant pursers as lieutenants, to rank, take precedence ac- 16 
cording to date of commission, a mixed board or court would as 
readily “ come to order” as if it were constituted of one grade 
exclusively. 
The necessity and propriety of establishing an assimilated rank 
must be obvious when we see the difficulty of settling without it 
the relative position of members of a court martial, who may be 
drawn from different branches of the naval service. The same 
is true of boards of survey on persons or property; where, although 
there is nothing in the nature of the duty which would disqualify 
a citizen for discharging it, officers of the line in the navy con- 
tend that all duty is military, and therefore it is improper for an 
officer of the civil branch of the service to preside, because the 
very first step on a board of survey or inquiry, requires the pre- 
siding officer to command, give an order when and where and 
how the board shall proceed to discharge the duty assigned to it; 
that it would be monstrous to permit a surgeon or purser, no 
matter what might be his age and experience, to have the right 
to say to two young lieutenants, associated with him, for example, 
to determine whether a barrel of beef or pork were putrescent— 
they contend it would be monstrous, ruinous to the service, to 
permit a surgeon to say in such a case, “ Gentlemen, we will 
examine the beef at twelve o’clock on deck—and still more 
terrible would it be to permit the old surgeon or purser to place 
his signature to the joint report before the others. They contend 
that this kind of precedence is de facto military command, and 
endeavour to sustain their position by reference to the General 
Order of the Department, which declares “ This order confers no 
authority to exercise military command.” 
It is suggested that the meaning is, that no medical officer, in 
virtue of his assimilated rank, has a right to order an officer of 
the line to muster his division at quarters, to exercise great guns 
or small arms, “ to make or take in sail,” or interfere in any 
manner with his nautical or military duties. But it cannot mean 
that he shall not have precedence, in virtue of his assimilated 
rank, when associated with officers of the line on special duty, 
such as boards of inquiry, survey, or courts martial. Although 
belonging to the civil branch, surgeons, pursers, &c., are not 
civilians, but military in character; and all their duties must be 
discharged as military men, and not simply as citizens. Although 
it is not their duty “to point the guns,” or trim the sails of the 
ship to the wind, they are important parts of the military organi- 
zation of the navy, governed by military laws, and partake of a 
full share of the inconveniences of military life at sea, and may, 
without incurring the charge of presumption, claim to have de- 
fined, according to military rule, their position, rights, and privi- 
leges. 17 
We beg to refer to our own army to illustrate our propositions 
in the premises; but before doing so, it is necessary to examine 
an assumption brought forward by the opponents of the Execu- 
tive. 
It is understood that these gentlemen declare that, having 
made proper inquiry, and diligently investigated the whole 
matter, they are surprised to find that surgeons and paymasters 
do not enjoy the assimilated rank of major—that nothing of the 
sort has ever been conferred upon them, or ever attempted, 
either by the President of the United States, or the Secretary of 
War—that the articles of war, and army general regulations, 
old and new, are all equally silent on the subject—they have 
anxiously inquired at the Adjutant-General’s office, and to their 
astonishment discover that, in spite of all that has been said on 
the subject, it is not true. 
In reply to this assertion, the gentlemen are confidently re- 
ferred to the “ General Regulations for the Army or Military 
Institutes,” revised by Major-General Scott, and printed at Wash- 
ington, 1825. It is believed, these regulations were first promul- 
gated under the administration of the War Department, by the 
Hon. J. C. Calhoun, and subsequently under the administration of 
the Hon. James Barbour. Reference may be made also to the 
“ General Regulations for the Army of the United States, 1841.” 
But the following extracts from the acts of the second session of 
the 29th Congress, may be regarded as conclusive testimony on 
this disputed question. 
In the eighth section of an act, entitled, “ An act to raise for 
a limited time an additional military force, and for other pur- 
poses,” and approved February 11, 1847, may be found the fol- 
lowing words; “that the rank of the medical department of the 
army shall be arranged on the same basis which at present de- 
termines the amount of their pay and emoluments, Provided, 
That the medical officers shall not, in virtue of such rank, be 
entitled to command in the line or other staff department in the 
army.” 
Now, what is the basis which determines the amount of the 
pay of the medical department? The act of Congress which 
regulates the pay of the medical officers of the army, says: “ the 
surgeon shall receive the pay and emoluments of a major of the 
staff; an assistant surgeon of five years’ standing, the pay and 
emoluments of a captain, and an assistant surgeon under five 
years’ date, the pay and emoluments of a first lieutenant of the 
staff.” Thus, then, the assimilated rank of the medical officers, 
relatively to the officers of other staff corps of the army, and as 
a consequence, relatively to the officers of the line of the army, 
is virtually established bv the laws of the land. 
2 18 
Again: “Chap.6l. An act making provision for an additional 
number of general officers, and for other purposes,” approved 
March 3, 1847. 
“ Sect. 13. And he it further enacted, That the officers of the 
pay department, shall have rank corresponding with the rank to 
which their pay and allowances are assimilated: Provided, 
That paymasters shall not, in virtue of such rank, be entitled to 
command in the line or other staff department of the army: 
Provided, also, That the right to command in the pay depart- 
ment, between officers having the same rank, shall be in favour 
of the oldest in service in the department, without regard to the 
date of commission under which they may be acting at the 
time.” 
We now assert, and presume that something more than has 
yet been shown must be produced to prove the reverse, that both 
surgeons and paymasters have rank in the army of the United 
States, both by regulation and law. 
The next question to be answered is what is the degree of 
assimilated rank given to medical officers by law and regulation ? 
The regulations of the army, 1841, were framed under the 
administration of the War Department, by the Hon. Joel. R. 
Poinsett. In the sth paragraph of those regulations we find that, 
“ staff officers of the army and professors and teachers, and their 
assistants of the Military Academy without military rank, are 
not entitled to military command, though they may take their 
places on Boards and Councils, according to their assimilated 
rank, and duties of appointment,” further, “ they (the staff offi- 
cers) will be classed as follows, viz.: 
The Paymaster-General, 
The Surgeon-General, &c. &c. 
As Colonels 
The Surgeons, 
The Paymasters, &c. &c 
As Majors. 
Assistant-Surgeons who have served five 
years, 
Military Storekeepers, &c. &c. 
As Captains. 
Assistant-Surgeons, under five years, 
Assistant-Teachers of the Military Academy, 
&c. 
As First 
Lieutenants. 
The opponents of the Executive on this question of assimilated 
rank, with the laws, and army regulations before them, declare 
that surgeons and paymasters have no military character or 
rank, and that they cannot in any case be appointed or sit as 19 
President of a Mixed Board, or Council. The above regulation 
says, “ they may lake their places on Boards and Councils, ac- 
cording to their assimilated rank.” 
If surgeons have no rank in the army, no military position re- 
latively to other commissioned officers, by what authority are 
they made eligible to seats on Boards of Survey and Councils of 
Administration ; why is it that they are almost invariably selected 
for this service ? 
If surgeons were without rank or military character of any 
kind they could not, to the exclusion of officers with military rank, 
present on the station, be detailed for service on Boards and 
Councils. What then is their military position or rank ? It is 
not that of second lieutenant, or they could not sit, as they do, 
above a first lieutenant on a Board or Council. It is not that of a 
first lieutenant, for then they could not sit above a captain. It 
cannot be that of a captain, for then they could not sit above a 
major. Nor can it be that of a lieutenant-colonel, or colonel, for 
the reason that they are never permitted, by courtesy or other- 
wise, to come up to those degrees of rank ! 
Now, what is the military position or rank of surgeons in the 
army ? Both the regulations and laws clearly assign to surgeons 
and paymasters the assimilated rank, or relative military position 
of majors in the army. 
One more point of the army regulations remains to be con- 
sidered. The sth paragraph says that “ officers of the army, not 
having military rank, shall in no case be appointed, or sit as 
President on a Mixed Board or Council;” but the 170 th para- 
graph of the same regulations, declares that “ the commanding 
officer of every post, shall at least once in every two months 
convene the three officers, including the medical officer, next in 
rank to himself, which body shall constitute a Council of Admi- 
nistration.” 
The meaning of these apparently conflicting regulations seems 
to be this: the surgeon may be detailed as a member of a Board 
by the military commander of a post, whenever he can sit on it 
“ according to his assimilated rank,” or in other words, whenever 
there is a senior officer with military rank present to preside. It 
is unreasonable to suppose that the army regulations contain 
anything which requires that the military rank or assimilated 
rank of any officer in the army should be violated on any oc- 
casion. The surgeon, if he sit on a board, must take his place 
“ according to his assimilated rank he must be there not as a 
physician, but as a military man, and sit in the capacity of a 
major, or not at all. It is an absurdity to suppose that the re- 
gulations of the army require a surgeon to serve one day as a 
major, another as a captain, and a third as a lieutenant; sitting 20 
at one time on a Board, between two majors, and at another 
below a second lieutenant! 
It does not follow, because a junior officer of the line, a captain 
for instance, accidentally in charge of a post or regiment, must 
necessarily have command of the troops, and the general control 
of all persons on duty at the post; it does not follow on this ac- 
count that his rights to control all who have no military rank, 
should also be exercised by the second or third officer of the post 
possessing military rank. It is not necessary that a junior officer 
of the line, associated on temporary duty with the surgeon, and 
both acting under the immediate orders of a common superior, 
should have precedence of the surgeon. 
The captain does not command the post, and with it the sur- 
geon, because he is a captain, but for the reason that he is the 
senior officer of the line present for duty. The surgeon, in dis- 
charging his proper ‘professional duties at a post where a captain 
commands, is not degraded from his assimilated rank of major; the 
captain is elevated. Whenever the command of a post or regiment 
devolves upon a captain, he falls into possession of all the rights 
of a colonel or lieutenant-colonel; he is virtually advanced in 
grade, and consequently, exercises all the power which legally 
belongs to the highest officer in command of a post or regiment. 
The opponents of assimilated rank and advocates of the supre- 
macy of military rank, under all circumstances, contend that all 
duties performed by officers and men in a military service is 
military duty; that precedence is command, and that the right 
to preside over a board of officers, no matter how constituted or 
for what purpose, implies the right of command, and that the 
right of command belongs exclusively to those officers who 
possess military rank. 
The duties which belong to boards of survey, of inquiry, or to 
councils of administration in the army, strictly speaking, are not 
military duties. There is nothing in their nature which has any 
connexion with armed service; there is nothing in them relating 
to the disciplining or control of troops or men, nothing which 
strictly appertains to war or the science of war. They are civil 
duties, common-place matters of business, such as can be per- 
formed by citizens as well as by military men. 
There is but one command, and, therefore, but one commanding 
officer at a post or on board a ship. The right of command, or 
general control over officers, men and things, does not descend 
below that military commanding officer; consequently, the pre- 
sident of a mixed board of officers, does not and cannot exercise 
military command over the board. Further, it may be stated in 
this place, there is no necessity for the right of control over sur- 21 
geons and their assistants, pursers, chaplains, secretaries, marine 
officers, &c., being vested in any but the military commander of 
the ship. It is not required for the efficiency or discipline of the 
service that any military officer should possess the right to com- 
mand officers of the civil branch, except the military officer in 
command. The duties of the surgeon would not be more effi- 
ciently, faithfully or skilfully performed by making him subordi- 
nate to every military officer on board ; nor would his efficiency 
be lessened by making him subordinate to the captain or com- 
manding officer exclusively. 
It is confidently believed that, in the army, while there is a 
common superior present for duty, one captain has no right to 
command, and exercises no command over a junior captain or 
the company of that captain; his right to command, under the 
circumstances, being limited to the subordinates in his own com- 
pany. In discharging the ordinary duties of the post, he takes 
precedence of juniors to him in rank, not as their commanding 
officer, or in consequence of his limited right to command, but 
in virtue of the seniority or superiority of his commission. When 
placed on a mixed board of officers for special duty, (the right 
of command or of general control being already vested in the 
common superior) be does not serve as a military commander, 
but as a member of a special commission, and takes a place, or 
should take a place on it, according as he is senior or junior to 
the officers associated with him on the Board, no matter whether 
their rank be military or relative, lineal or assimilated. 
But what is the insuperable objection to an officer without 
military rank, or even a citizen, presiding over a Board, consti- 
tuted ,of officers with military rank as members, engaged in the 
business of the public ? 
The Secretaries of War and of the Navy have no military 
rank; yet, if the Secretary of the Navy were associated, by order 
of the Executive, with two or four of the senior captains in the 
navy, to form a board for the consideration of an important naval 
matter, it is presumed, that the Secretary would be appointed to 
preside. The chiefs of the several bureaux in the Navy Depart- 
ment have precedence of all officers of the navy, without regard 
to seniority of commission; there are twenty or more captains 
on the list, senior to the present chief of the Bureau of Yards and 
Docks, but he has authority, in virtue of his office, to require 
obedience from his seniors, who can derive no benefit from their 
superior military rank. While acting as chief of the bureau, his 
lineal or military rank becomes passive ; it neither gives nor takes 
away his right to precedence for duty. Officers associated for 
a special duty, in a similar manner, cease to require the virtue of 22 
military rank to enable them to discharge the duty of a board of 
survey or consultation. 
The chief of the Bureau of Provisions and Clothing, has the 
right to obedience from captains in all matters pertaining to his 
office. The head of this bureau should have been an experienced 
purser; the first chief was a citizen, the second a captain in the 
navy, and at present the office is under the control of a citizen. 
The powers of the office are unchanged. 
The chiefs of the bureaux have no military rank ; if lineal rank 
were necessary to enable captains in the navy to discharge the 
duties of bureaux chiefs, it wmuld be absolutely essential to appoint 
in these situations, not the most intelligent, honourable and skilful, 
but the oldest officers. The department and public service would 
be deprived of the benefits arising from: discrimination and selec- 
tion. 
There are some instances where citizens, as well as cases 
where officers with assimilated rank have presided over boards, 
composed partly of officers with military rank. 
In the year 1823, a board was appointed to select a site for an 
armory in the West, The board consisted of a citizen, Colonel 
William McKee, as President, Major Lee, civil superintendent of 
Harper’s Ferry Armory, and Major Talcott, of the army, as 
members. The duties of this commission were to examine the 
Western country for military purposes, to select a proper site for 
an armory, and yet a citizen presided. Now, if a citizen could 
legally preside over such a board, it will be difficult to show why 
a surgeon cannot have precedence of captains and lieutenants 
employed on boards for special duty, such as examining the con- 
dition of a barrel of beef, rice or beans: or engaged in the purely 
and important military duty of regulating the tariff on sutler’s 
slops, &c., without violating the principles of military service. 
In the year 1816, the President of the United States was autho- 
rised by law to employ an assistant engineer, whose allow- 
ances were not to exceed those of the chief of the engineer corps, 
who received the pay of a Brigadier General. The well-known 
Simon Bernard was appointed under this law, received the pay 
and emoluments, and, excepting only the immediate command of 
troops, all the rights, privileges, honours, &c., pertaining to a 
Brigadier General. No rank, military or assimilated, was ever 
assigned to General Bernard, either by Congress or the Execu- 
tive. Nevertheless, from the year 1816 till 1825 was General 
Bernard permitted to take precedence on all boards, councils, and 
commissions, of colonels, majors, captains, and all other grades 
of military officers, including the highest in the naval service. 
If military principles in these instances were not violated either 
in the army or navy, how 7 is it possible that it is necessary to ex- 23 
elude from precedence on boards, &c., the rights of seniority of 
officers having assimilated rank. 
There is a very recent instance in which precedence is given 
to assimilated rank. The Paymaster-General, according to the 
General Regulations of the Army, is classed as a Colonel. Under 
date of 13th January, 1848, an order was issued from the War 
Department, by direction of the President, calling a court of in- 
quiry on charges against Major Generals Scott and Pillow, &c. 
That court consists of Paymaster-General Towson, as President, 
Brigadier-General Caleb Cushing, and Colonel E. G. W. Butler, 
as members. 
It is presumed the Executive and War Department do not sup- 
pose that military principles are violated by the detail of this 
court, all the members of which hold commissions inferior to 
those of the officers whose conduct is made the subject of inquiry. 
A prolific source of difficulty in reconciling different views on 
the subject before us, probably has its origin in the difference of 
opinion entertained on the sacred character of military rank. It 
is possible that on the one hand, officers clothed with military 
rank entertain exaggerated notions of its nature and scope, while 
civilians may possibly not perceive in it any thing more than the 
degree of limited power, just sufficient to enable officers to ac- 
complish the purposes of the republic. Citizens will be slow to 
conceive, for example, that, because a gentleman holds the com- 
mission of a lieutenant or commander in the navy, another gen- 
tleman holding the commission of a surgeon or purser, should 
be required by law always to place his signature below all; that 
because a gentleman is a surgeon, he can never take the lead in 
any matter of simple business, if a gentleman who is a com- 
mander happen to be present. 
Congress does not seem to respect the opinions of those who 
claim an immunity, a prestige for military rank, which is described 
as something as dear as life itself; an attribute of the military 
man, wffiether of land or sea, which is to give him, on all occa- 
sions and under all circumstances, the right of precedence of all 
who are not clothed with military rank. Congress requires four 
navy officers of the line to serve as watch-officers in each of the 
mail-steamers intended to ply between New York and Liverpool. 
The commanders of these vessels are selected from the expe- 
rienced captains in the commercial marine. In the third section 
of the law, entitled ‘:An act providing for the building and equip- 
ment of four naval steamships,” approved March 3d, 1847, may 
be found the following:—“ And that each of the said steamers 
shall receive on board four passed midshipmen of the United 
States Navy, who shall serve as watch-officers, and be suitably 
accommodated without charge to the government.” In all four 
of these vessels the simple citizen-sailor must necessarily com- 24 
mand, give orders to young men clothed with naval military rank. 
If they have no rank, as is sometimes contended, why do our op- 
ponents propose them as the measure of assimilated rank for 
assistant surgeons in the navy 1 
The gentlemen now actively opposing the Executive on this 
question, urge, on the grounds already alluded to, first, that the 
General Orders conferring assimilated rank are illegal; second, 
the conferring of assimilated rank is inexpedient; third, that the 
degree of assimilated rank conferred is far too high, and end with 
a proposition, as it is understood, to compromise. 
The questions of legality and expediency have been passed in 
review ; it remains to remark on the degree of assimilated rank 
conferred, and the changes proposed to be made in the arrange- 
ment. 
The gentlemen in opposition, admitting only for the sake of the 
argument that Surgeons and Paymasters in the army do enjoy 
the assimilated rank of Major, (which is equal to the rank or 
grade of commander in the Navy,) contend that it is unjust or 
unfair to place surgeons and pursers of the navy on the same 
level. They argue that in order of precedence, the grade of 
commander stands second in the navy, while the corresponding 
grade of major stands fifth from the head in the army ; therefore, 
surgeons and pursers in the navy should never be classed or 
ranked with commanders. This numerical comparison could be 
better advanced as a reason why majors in the army, com- 
posing the fifth lineal grade from the head, should be classed 
with midshipmen, who compose the fifth lineal grade in the navy 
from the head ; or, that because commanders form the second 
grade in the navy, they should rank relatively with officers of the 
second grade in the army. The proposition is simply thus : The 
grade of major is the fifth in the army ; surgeons and paymasters 
in the army rank as majors. The grade of midshipmen is the 
fifth in the navy; therefore, it being required to place surgeons 
and pursers of the navy on the same footing with surgeons and 
paymasters in the army, the question is solved by placing sur- 
geons and pursers of the navy in the same class with midship- 
men ? 
Let us apply this numerical basis in arranging the comparative 
relations or rank of officers of the army and navy possessing 
lineal rank, beginning at the bottom instead of the top of the 
scale: 
JVavy. 
Army. 
1 Midshipman, 
2 Passed Midshipman, 
3 Lieutenant, 
4 Commander, 
5 Captain, 
classed as 
i£ 
it 
£6 
1 Cadet. 
2 2d Lieutenant. 
3 Ist Lieutenant. 
4 Captain. 
5 Major. 25 
The numerical basis of argument will not be admitted by the 
navy, for arranging the relative rank of the officers of the two 
services. This basis can be only available in arguments touching 
the classification of the officers of the civil branch of the navy ? 
Another reason advanced against assimilating surgeons and 
pursers with commanders is, that it requires nearly the third of a 
century of service (?) in the navy to attain the grade of com- 
mander. But all the gentlemen possessing military rank in the 
navy complain that this is too long—promotion is ruinously 
slow—and by the time an officer attains a commission which en- 
titles him to command a sloop-of-war, the fire of youthful ambi- 
tion is quenched, the vigorous prime of life has passed away, and 
the man is beginning to droop from hope deferred, and he has 
perhaps around him adult children, or even grand-children, to 
occupy his thoughts. Should a proposition be brought forward, 
rendering it obligatory on the government to promote to the next 
highest grade every officer who had served five years in the grade 
below, so that every officer of the line would become a com- 
mander at the end of fifteen years after entering the navy, and a 
captain at the end of twenty years, without regard to the wants 
of the navy,—if such a proposition should be entertained, there 
is not an officer of the line who would raise an objection. No 
one could perceive or dream that this rapidity of promotion must 
ultimately end in the total ruin of the service. The navy would 
go for it to a man! In vain might the surgeon urge, “it has 
taken me thirty years hard work to attain the commission of sur- 
geon, which only places me in professional command, and you 
desire to reach command in your profession in fifteen years.” 
“ I have worked hard,” says the surgeon, “early and late ; I paid 
money for my profession, while you were paid for studying yours, 
and yet you think you ought to reach command in your vocation 
fifteen years before me!” “ Sir,” the military officer might reply, 
“ what possible injury can you suffer by my promotion. It will 
not affect your pay, although it benefits mine. You remind me 
of the story of Procrustes.” “ Procrustes or not,” rejoins the sur- 
geon, “I will use all my efforts against this scheme, unless I gain 
something too. I will never submit to any man being advanced 
more rapidly than I am. What! I can never bear such morti- 
fying disparagement as to permit any man to reach command in 
his profession fifteen years before me!” 
“ But, my dear fellow,” soothingly says the military officer, 
“ don’t you see, that your length of service cannot have, fairly, 
any bearing whatever on my promotion. You are a philosopher, 
and should not be made unhappy by the prospective good fortune 
of your brother officers. If you had a chance of improving the 
condition of your grade, you would think us very churlish to go 26 
against you, simply because we could not participate in your good 
fortune. Now, think better of it, and give us a lift.” 
To speak seriously:—Promotion in the navy is entirely too 
slow to secure energy in the service, and some scheme should 
be devised to remedy this great evil. Young gentlemen should 
become lieutenants at the age of from twenty to twenty-three, 
and commanders about thirty, and captains of frigates at the age 
of from thirty-five to forty;—accomplish this, and then we will 
have a dashing navy, capable of exciting the admiration of the 
world; and then too, not a whisper would be heard against a 
classification or assimilated rank, which would place assistant 
surgeons and assistant pursers in the class with lieutenants, and 
surgeons and pursers in the class with commanders. 
It is understood that our opponents propose a modification of 
the assimilated rank as it now stands. They generously throw 
away the five or six years of boyhood-midshipman, and propose 
that, inasmuch as military officers spend twenty-five years from 
the date of examination which classes them as passed-midshipmen, 
before they reach the grade of commander, surgeons and pursers 
shall be classed or assimilated in rank with commanders a quarter 
of a century after admission into the navy—that surgeons and 
pursers of less than twenty-five years’ standing shall be classed 
with lieutenants; passed assistant-surgeons with masters; assist- 
ant-surgeons and assistant-pursers shall be classed with passed- 
midshipmen. 
The objections to this proposition are that in fact, there is no 
difference between midshipmen and passed-midshipmen, except 
that the latter are eligible for promotion; both are warrant offi- 
cers, they perform the same duties and their right to quarters is 
the same. They are not eligible to sit as members of courts 
martial. 
Masters are warrant officers, and not eligible to sit as mem- 
bers of courts martial. Further, if the argument adduced against 
the legality of the General Orders, conferring assimilated rank, be 
valid, it applies with equal force against the legality of the Gene- 
ral Order which places the grade of master in the line of promo- 
tion, and therefore the argument necessarily must, if valid, virtu- 
ally abolish the grade. 
The classification or assimilated rank of officers of the civil 
branch of the navy should not be determined on the basis of the 
period of service of the military branch. In the abstract, there 
can be no relation between the period the commander serves to 
attain his grade and the military position of a purser, or the pre- 
cedence of the Secretary of the Navy, or of the chief of the 
Bureau of Yards and Docks. There is nothing in the period of 
service itself to form the basis of comparison. A passed mid- 
shipman is eligible to promotion on the day he may pass his ex- amination; a lieutenant is eligible to promotion to the grade of 
commander after serving two or three years at sea ; and a single 
cruise as commander renders the officer eligible to a captaincy 
in the regular course of service. It is the absence of vacancies 
alone in the higher grades which renders promotion in the line so 
discouragingly slow. There is nothing in the intimate nature of 
the service, or in the naval military principles which govern it, 
which requires that an officer should serve, man and boy, thirty 
years to reach the grade of commander. In fact, this slow rate 
of promotion is against the true interests, the activity and effi- 
ciency of the service. It is possible that these defects may be 
obviated by the creation of a retired list, or by restricting ap- 
pointments to the absolute wants of the service, or by the contin- 
gencies of war, or a desolating epidemic falling on the grades of 
commanders and captains. Rate of promotion in the line is con- 
tingent, dependent on circumstances; but no connexion is clearly 
established between the rate of promotion, as to time, in the line; 
and the relative position of a surgeon or purser to the military 
branch of the navy. The basis of comparative classification be- 
tween the military and civil branch of the navy, ought not to be 
the contingent or accidental rate of promotion in either branch. 
Suppose it be determined this year that twenty-five years’ service 
makes the midshipman a commander, and therefore surgeons 
must be that period in service before being classed with that 
grade, and a law be passed accordingly ; and suppose further, it 
should be found next year, that ten years in service make the mid- 
shipman a commander, the surgeons would find, that this extraor- 
dinary change in the contingent rate of promotion in the line, had 
taken nothing from the quarter of century of service, required in 
the law of the preceding year, to bring them into the class of 
commanders. Classification of the two branches of the navy, on 
the length of service principle, is therefore evidently fallacious 
and unjust. 
The assistant-surgeon is a commissioned officer; as such, is 
eligible to act as a member of a court-martial; he acts in the place 
of the surgeon; virtually he is the professional lieutenant* of the sur- 
geon, very much in the same manner and degree as the naval lieute- 
nant is \he place-keeping officer, or temporary substitute of the com- 
mander. The assistant-surgeon, the moment he is commissioned, 
is fully qualified to exercise his profession ; the naval lieutenant in 
the same manner is fully qualified, the moment he is commission- 
ed, to discharge the duties of his profession; both have passed 
through the probation of pupilage and apprenticeship, and both 
* The word means literally, place-holding. 28 
require only increased experience, practice, to open to them the 
higher grades of their respective professions. 
Their legal, moral and professional qualifications are at about 
the same point when first commissioned, or when they first obtain 
the official virtue of sheepskin. 
A comparison of this kind is not contingent; does not depend 
on circumstances; its basis cannot be changed by the chances 
of war or epidemics. 
The assistant surgeons should be classed with lieutenants for 
the reasons stated ; besides, it is anomalous, incongruous to place 
commissions and warrants in the same class. Passed assistant 
surgeons, although they obtain an increased pay, receive no new 
commission; the nature of their duties is unchanged; they are 
still professionally subordinate, and therefore, on the basis con- 
tended for, they should continue in the same class. 
If a grade of assistant pursers be created, and they be brought 
into service, after examination, as commissioned officers, there 
is no reason why they should not be also classed as lieutenants ; 
they will serve in the smaller vessels and in them occupy the same 
quarters, and discharge the sams duties, as pursers of those 
vessels do now, or have done heretofore. 
The surgeon and the purser of a ship are at the head, in com- 
mand, of their respective departments; and in all that is purely 
and strictly professional, as a physician and as accountant, they 
are competent to command. They are only subordinate officially 
to the military commander of the vessel, or his official represen- 
tative for the time being. Therefore, both surgeon and purser 
might be classed as commanders on the day of promotion. It 
may be w7ell to remark, that time, period of service, does not 
change the power or authority of a commission. The authority 
of a commission does not change with time; the commander of 
ten years’ standing is not more certainly a commander in official 
rights and power than he was on the day of promotion; his 
grade is the same, although he may be capable from experience 
of rendering more valuable service. The surgeon, twenty years 
after the date of his commission, is still a surgeon, and no more, 
so far as his authority and power are derived from his com- 
mission ; he may, from experience, be more skilful as a physician, 
a better operator, and a more accomplished surgeon, but officially 
he is still a surgeon. Being classed as a commander, therefore, 
on the first day of his commission, cannot interfere with disci- 
pline, in a greater degree than to be so classed at the end of 
twelve or twenty years. 
That every grade of the civil branch of the service should have 
its assigned place in the general arrangement, classification, or 29 
assimilation, no right-thinking man of experience can long doubt. 
In the discussion of the general orders which give assimilated 
rank to medical officers and pursers, the principles which should 
be the basis of arrangement for all, will be brought out; and 
it is hoped, in the course of no very long time, that a relative 
position will be assigned not only to medical officers and pursers, 
but to chaplains, secretaries, clerks, marine officers, professors, 
engineers, naval constructors; in a word, all who are amenable 
to the laws and regulations of the naval service. 
The not very judiciously managed opposition to the General 
Orders of the Executive, the unkind spirit manifested by some of 
both ways of thinking on the subject, it is feared, have not in- 
creased the popular esteem for the navy generally. But it is 
sincerely hoped that the whole matter may be accommodated, 
and all parties united, may be able to go forward to the represen- 
tatives of the people, saying, we have agreed to ask for nothing 
we do not believe to be right, and not to submit knowingly to any- 
thing which will wrong any grade or individual in service. We 
have the pleasure to present the form of a law which will meet 
the general views of all, and ask that it be sanctioned by legisla- 
tive action, in order that the question may be set at rest. 
But one word to those who may not understand why officers 
of the civil branch of the navy have sought a defined position, an 
assimilated rank. A single illustration perhaps will be sufficient 
fdr this purpose. 
The quarter-deck is the sacred, the honoured part of the ship 
before all others. On coming upon it, every officer salutes it by 
touching his cap. Then, the right, or starboard side is more 
honoured than the left or larboard side. The right side is the 
place of promenade of commissioned officers exclusively, while 
the left side is yielded to midshipmen and other warrant offi- 
cers. Until very recently, the assistant surgeon was exposed to 
be reminded he was an intruder, if he paced on the right, in- 
stead of the left side of the deck. In frigates the quarter-deck is 
gained from below by two ladders; one is usually assigned to 
the use of commissioned officers and the other to that of warrant 
officers, and until recently, the assistant surgeon was liable to 
rebuke if he ascended by one ladder rather than the other. In 
one instance, charge of disobedience of orders was made against 
an assistant surgeon, and a passed midshipman, for ascending the 
ladder assigned to the use of commissioned officers; the charge 
against the assistant surgeon was withdrawn, but the passed mid- 
shipman was actually tried by a court-martial for the offence. 
The right side of the ship being more respectable in the eyes 
of the nautical community than the left, the right gangway is re- 
garded as the appropriate passage to and from the vessel for the 
commissioned or wardroom officers and captain. The left gang- 30 
way is given to the midshipmen and other warrant officers. 
Until recently, the assistant surgeon was expected to use the left 
instead of the right gangway—in a word, the back or alley way, 
instead of the front door or main entrance. An assistant sur- 
geon, who had been imperatively ordered by a lieutenant of the 
deck, not to leave the ship by the right or starboard gangway, 
felt the indignity so keenly, that he preferred to forego the plea- 
sure of visiting a strange port, rather than leave the ship in that 
way. The order was sustained by the first lieutenant and cap- 
tain; and after nearly a year’s confinement on board of the ship, 
submitted to, rather than sacrifice his self-respect by obeying an 
order which he regarded as designed to disparage him, he reached 
the United States, and almost immediately afterwards resigned his 
commission, assigning this larboard or left side order, under 
which he had suffered, among the reasons why he could not 
again expose himself to such petty, needless, and unjust tyranny. 
Such instances have been frequent; and it is such instances 
which have determined the officers of the civil branch of the 
navy, to obtain an assimilated rank, which defines their position, 
and protects them from such aggressions, and for no other pur- 
pose. This position they now contend for, against a combina- 
tion of military officers of the navy, who, if rumour speak truth, 
have feed a lawyer to argue against the power of the Executive, 
to give its protection to the aggrieved medical officers and pur- 
sers, by the general orders which confers an assimilated rank. 
But we beg to be understood as disclaiming the belief that the 
military officers of the navy, now active at the capital of the 
nation, represent the views of a majority of the service. Many 
of them are young, unthinking, and enthusiastic; but some are 
old enough to entertain more liberal views than they do, and 
should serve as examples to-guide correctly, rather than mislead 
their juniors and inferiors as it is feared they are doing, to the 
general prejudice of the whole naval service. 
R. 
P. S.—A considerable number of officers in the navy, whose 
opinions are generally respectable, have asked to be excused from 
wearing epaulets, because, since lieutenants, medical officers, and 
pursers wear them, it is urged, “ The merging of all the old dis- 
tinctions of rank and command into one common sign, to be worn 
by many orders in the same corps, cannot fail eventually to de- 
stroy the charm of rank, and to render impotent authority once 
conferred and represented in all entitled to epaulets. Now, I say 
again, if doctors and pursers and lieutenants cannot command 
due respect without borrowed feathers, take them from the cap- 
tains entirely; they can very well spare them.” “An old captain” 31 
should have added, provided always that doctors, pursers, and 
lieutenants be forced to wear them. The captains cannot spare 
their epaulets, if they be removed also from the uniform dress of 
lieutenants, pursers, and medical officers; because, if removed 
from all, the “old captain” would find the charm of rank destroyed, 
and authority impotent when exerted to force a commissioned 
officer over the larboard side for the purpose of disparagement. 
The medical officers and pursers have no love for tinsel, the 
common sign of rank; but finding nothing else than tinsel re- 
spected by those who exclusively wmre it as the badge of authority, 
sometimes wantonly exercised to their disparagement, they were 
forced in self-defence to sacrifice something of self-respect, and 
assume the glittering baubles, which they will willingly lay aside 
whenever captains and commanders are excused from wearing 
them. They do not regard the wearing of epaulets as constituting 
the charm of assimilated rank, and therefore have no objection 
whatever to their being w'orn by captains, commanders, lieu- 
tenants, or any grade of commissioned officers. They contend 
simply, on a principle, for an assimilation, both in rank and uni- 
form dress, with or without epaulets, or any other badge of degree 
or of caste in the naval community. 
In the preceding pages no reference has been made to the 
British navy, not because the “Queen’s Regulations” do not afford 
us abundant example in support of assimilation of rank, but be- 
cause, as Americans, w7e prefer to settle principles and practice 
for ourselves, in the army and navy, as we have done already in 
our political institutions. We eschew altogether the blind and 
heedless imitation of the details, as we do the principles of the 
monarchical and aristocratic governments of Europe. Hereto- 
fore our references to practices under them have been merely for 
illustration, and not to advise or urge their imitation. Let us, if 
possible, be wise ourselves, and not strive to simply imitate the 
wisdom of others, without inquiring first whether their wisdom 
will apply to our condition in all respects. It may be wise in 
England to have a Lord High Admiral, and different grades of 
admirals; but it does not follow 7 as a consequence that one or all 
of those grades of officers are necessary in the navy of the United 
States. R.