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produce this result. (Vide Marbury vs. Madison,1 Cranch, 137, &c., &c.) The acceptance of the resignation of a commission that the resigning offi cer does not hold, must surely be regarded as an act of supererogation and void.
It might be presumed that, under liberal rules, the fact of Mr. Schaumburg's ignorance of his nomination for promotion to a first lieutenancy, to take effect 1st March, 1836, when he wrote his resignation of his second lieutenancy from a distant post, would at least operate in favor of his claim not to have its acceptance insisted upon.
It is, however, a full and sufficient answer to the assumption, that he was not a second lieutenant when commissioned as first lieutenant, on the 1st of July, 1836, by reason of the antecedent acceptance of his resignation as second lieutenant. To advert to the fact, that by the express terms of that acceptance, in the language of the commanding general, approved by the War Department, it was not to take effect till July 31, 1836-a month and a half after the confirmation by the Senate of his nomination as first lieutenant-a month after his commission as first lieutenant in fact issued, and nearly a month after the annunciation in gene. ral orders of his promotion.
Conceding the legality of the acceptance in the terms stated, (not made by him,) and that the new and different terms imposed by the commanding general in such acceptance, without the consent or even the knowledge of Mr. Schaumburg was a legal acceptance; conceding, also, that it was not revoked or rescinded by his commission as first lieutenant, such acceptance could have had no effect to place him out of the army, even as second lieutenant, before 31st July, 1836. Up to that day, by the terms of the acceptance, not "to take effect" till that day, (if he had not been promoted,) he would have been legally a second lieutenant, amenable to the laws as such, bound to fulfil the duties, and possessing all the rights, of an officer of that rank, under his first commission, and of course entitled to promotion under it.
The notice of the committee has been directed to general order No. 43, dated June 28, 1836, as legalizing the expulsion of Mr. Schaumburg from the service. His resignation was written, is dated at, and was sent from, Fort Des Moines, twenty-two days before that order was issued and promulgated; and though the "acceptance" was subsequent, the committee have not been able to discover anything in that order (as it has been con. tended) at all applicable to his resignation; nor does the order in terms have any relation to, or bearing upon, Mr. Schaumburg's case. The committee find, upon examination of the documents submitted to them, that the present commanding general, and the adjutant general of the army, and the Committee on Military Affairs of the Senate, to which this case was referred in 1845, held similar opinions respecting the inapplicability of this order to Mr. Schaumburg's case; and it is considered that the chief difficulty in relation to the case, and which caused the second exclusion of Mr. Schaumburg from the service, was, that the resignation, originally, (in 1836) was improperly regarded as governed by that order, the change of the terms of it, and its acceptance (with such altered terms) made under it, and the entire course then adopted as if it was within that order; and that the decision of President Tyler, restoring him to the army, also erroneously placed his claim to restoration solely upon that general order.
Before the time stated in the letter of resignation, and even before the time stated in the "acceptance" for the resignation to take effect, Mr. Schaumburg withdrew or recalled his resignation. On the 15th July, 1836, while on his way to Washington from New Orleans, he wrote from Wheeling, Virginia, to the Secretary of War, and informed him of his desire to withdraw his resignation, and that he would "in a few days report in person to the adjutant general and commanding general." He wrote also the same day a similar letter to the commanding general, Macomb. On the 22d July, 1836, he officially reported himself to the Adjutant General "for duty, in obedience to the general order No. 43," and as in Washington, as appears from a certified copy of the "report book" of the Adjutant General's office, laid before the committee. On the 25th July, 1836, he wrote to, and filed with, General Macomb," commanding general," a "protest" against the acceptance of his conditional resignation of his commission as second lieutenant, (accepted on different terms from those he tendered,) against its excluding him, by construction, from his first lieutenancy, and especially against its being held to be a resignation of his commission as first lieutenant. A copy of this protest is appended to this report. It appears also that Mr. Schaumburg made several ineffectual applications to be restored to his commission and rank of first lieutenant, from that time to the year 1844, when he was restored, as hereinafter stated.
It is conceived that the facts above stated are pertinent as bearing upon the question of the intention of Mr. Schaumburg, when (in ignorance of his promotion) he wrote his resignation, and as showing, that as soon as he was apprized of the facts, his acts exhibted a very different purpose from that imputed to him, of withdrawing entirely from the service. If it is admitted that such intention, manifested while he was in ignorance of his promotion, is to bind him irrevocably after he was notified of the true condition of his interests and rights; and if the "Department of War," or "commanding general," had any power to depart from the tenor of his resignation, and enter into an inquiry as to this intention, to give it an effect not deducible from its terms; then it is submitted that the withdrawal or recall of his conditional or propective resignation, or rather his tender of such resignation, was entirely consistent with the practice, usages, and customs of the service, and entirely proper. Official evidence of different cases of such withdrawals of resignation, made in the beginning of June, 1836, similar in terms to that written by Second Lieutenant Schaumburg, has been adduced to the committee, and likewise cases before and since that time. The committee have not been able to divine any just reason why Mr. Schaumburg's case was made an exception; and, in fact, they consider the peculiar circumstances before recited should have caused his recall of his resignation to have been approved, in preference to any case brought to their notice.
The committee have noticed among the papers submitted to them, some written by officers, referring to Mr. Schaumburg's being under arrest at the time of writing his resignation, and alleging that he had been guilty of military faults, to sustain the alleged legality of his exclusion from the army. Some of the most material and important facts in his favor are omitted, and partial statements made to his prejudice. The conduct of military men should be characterized by liberality and a high tone of feeling towards their comrades. If the fact was that Lieutenant Schaum.
burg had been guilty of military faults, it should not affect his claim to have his legal rights recognized and sustained. It is no justification for a violation of law by his superior officers, in what they designate an "acceptance" of his resignation. So far from its being an excuse for such acceptance, if the accusations had been well founded, or even probably true, such fact should have caused his resignation to have been refused by his superior officers; and it was their duty to have forth with subjected Mr. Schaumburg to trial, by court-martial, for the imputed offences. Whether or not by the "blunders" (to use the language of President Tyler) of others than Mr. Schaumburg, if he should be now restored, he is exonerated from trial for such imputed offences by reason of the limitation against prosecution, is, in the opinion of the committee, an illegitimate inquiry. Mr. Schaumburg should not be regarded as guilty, and punished by exclusion from the army illegally, because his superior officers illegally neglected to bring him to trial ten years ago. But the committee are inclined to the opinion that the restoration to him of his rights will not prevent him from being brought to trial for any offences committed within two years prior to the 31st July, 1836, as there has existed in the circumstances of his case that "manifest impediment" to making him "amenable to justice," referred to in the 88th article of the Articles of War, which would exclude his trial for such offences from the operation of the limitation prescribed by that article.
This opinion, of course, depends on the correctness of the ground assumed, that his actual exclusion from the army since then has been illegal, and is therefore not inconsistent with that advanced by the Military Committee of the Senate in its report made in March, 1845, founded, as therein stated, on the position that he has not since that day been legally an officer.
One objection to Mr. Schaumburg's restoration, made when his case was before the Senate in 1845, is, that in 18 he applied for a paymaster's place in the army, and, in urging his claims, stated that he had been unjustly excluded from the service as a first lieutenant; and this, it has been contended, was an abandonment of his claim to his rank as first lieutenant. The committee do not think so. A second or a first lieutenant, or any other officer, may apply for the place of paymaster, or any place in the army, or in civil life; and, unless he obtains the appointment, accepts it, and the holding of it is incompatible with the office he before held, it cannot operate as a resignation or abandonment, in any view of the matter, of his first office.
In January, 1844, President Tyler, after an examation of Mr. Schaum. burg's case, ordered that he should be reinstated in the army on the hap pening of the first vacancy appropriate to his case. On the 29th of July, 1844, he received a letter of "reappointment as first lieutenant in the first dragoons, and to take effect from 1st March, 1836, should the Senate at their next session advise and consent thereto," &c. Subsequently, on the 24th January, 1845, President Tyler, on the further examination of his case, decided "the case was not one for reappointment, but for restoration, or, more plainly to speak, of recognition;" and that he did not re gard it necessary to submit the matter to the Senate; and he likewise decided that the case was governed by "general order" No. 43, dated June 28, 1836. Mr. Schaumburg continued in service under these orders of President Tyler till March 24, 1845, when, by the order of the present
Chief Magistrate, reciting that his name had been "irregularly placed at the head of the first lieutenants of first dragoons, in the last official Army Register, it be erased from the same, but without reproach to Mr. Schaumburg."
This order of the President was made in pursuance of, and in compliance with, a resolution of the Senate, adopted, by a vote of 35 ayes to 2 noes, on the 19th of March, 1845, and which declared that the order of President 'l'yler restoring Mr. Schaumburg to the army (recited as made 13th January, 1845,) was illegal and void, and that his name ought not to be continued on the rolls of the army.
This resolution was induced by, and was the result of, proceedings introduced on the 26th of February, 1845, in the course of which two reports were made by the Committee on Military Affairs of the Senate, (to which the subject had been referred,) adverse to Mr. S.'s claims. [Vide Senate Docs., vol. 11, No. 176, 2d sess. 28th Cong., 1845.] The high character of that committee, and their knowledge of military affairs and of military law, would cause the present committee to hesitate before they ventured to express a different opinion, were it not manifest to them that when the case was before the former committee the examination made was ex parte; Lieutenant Schaumburg was not heard, and had no op portunity of being heard, before that committee; and that many of the most important FACTS were not submitted to their consideration, and which facts are now exhibited in this report, and which, it is submitted, give a different aspect to the case. In the opinion of the military committee, that the restoration of Lieutenant Schaumburg, if made on the general order No. 43, was not a legal construction of that order, we coincide fully.
This committee, however, regard his right to restoration, without invoking order No. 43, and on the grounds and principles now urged, as one that should be sustained and recognised by the President and Senate; and that a further denial of such recognition would be inexcusable injustice to the memorialist.
The committee, therefore, report the following resolution for the consid eration of the Senate, and recommend its adoption.
FEBRUARY 19, 1847.
Resolution respecting the restoration of James W. Schaumburg to the army.
Resolved by the Senate, That the resolution of the Senate of the 19th March, 1845, respecting James W. Schaumburg, be rescinded and repealed; and that the order of the President of the 22d of March, 1845, founded thereon, should be revoked; and that said James W. Schaumburg should be restored to his rank and position in the army, which he would have had if he had not been illegally excluded from the army roll in the year 1836; and that a copy of this resolution, and the report accompanying the same, be laid before the President, in order that, if he agree there. with, he restore said James W. Schaumburg accordingly to the army.
On motion by Mr. Westcott,
Ordered, That it be printed in confidence for the use of the Senate.
WEDNESDAY, MARCH 3, 1847.
On motion by Mr. Crittenden,
The Senate proceeded to consider the resolution reported by the committee on the 23d February, to restore James W. Schaumburg to his rank and position in the army; and, after debate,
On motion by Mr. Allen,
Ordered, That it lie on the table.
WEDNESDAY, JANUARY 12, 1848.
On motion by Mr. Downs,
Ordered, That the memorial of James W. Schaumburg, heretofore presented to the Senate, be again referred to the Committee on Military Affairs.
THURSDAY, MARCH 23, 1848.
Mr. Badger, from the Committee on Military Affairs, to whom was referred, the 12th January, the memorial of James W. Schaumburg, made the following report:
The Committee on Military Affairs, to whom was referred the memorial of James W. Schaumburg, respecting his claim to be recognised as an officer of the army, report:
That the memorialist claims to be an officer in the first regiment of dragoons, alleges that his claim has been unjustly disregarded, and prays, in substance, that he may be recognised as being, and having been since the year 1836, an officer in that regiment; and that his rights in the premises, so unjustly withheld from him, may, by some proper proceeding on the part of the Senate, be restored and secured to him."
The facts of the case, so far as, in the judgment of the committee, it is necessary to refer to them in order to a disposition of the memorialist's ap plication, are these: In the year 1836 the memorialist was a second lieutenant in the first regiment of dragoons, and in that year his name was, by an order or under the authority of the War Department, for reasons not necessary to be stated, omitted from the roll of the army; that in January, 1845, the then President of the United States decided that the memorialist had never been out of the army, and ordered him to be recognised as an officer, taking rank at the head of the first lieutenants of the first regiment of dragoons; that afterwards, on the 26th of February, 1845, the Senate adopted the following resolution:
"Resolved, That the Secretary of War be directed to inform the Senate how it happens that the name of James W. Schaumburg appears in the Army Register as a lieutenant in the first regiment of dragoons after it has been so long omitted, and by what authority it has been replaced, and whether it was not omitted in consequence of his resignation; or, if not, that he inform the Senate why it was heretofore omitted, and why it has been replaced."
That afterwards, a report having been made by the Secretary of War in answer to the resolution, the said report and papers accompanying it were