TREASURY DEPARTMENT,

FOURTH AUDITOR'S OFFICE, February 8, 1848.

SIR: I have the honor to submit the following observations upon the claim of Commander McMcIntosh, which is the subject of a memorial to Congress, and about which you have made inquiry at this office.

Commander McMcIntosh prays that he may be allowed the difference between the pay which he received and that of a captain, for the period during which he served on board the United States frigate Constellation, in the years 1837 and 1838, under an order of Commodore Dallas appointing him " flag captain of the squadron" under his command. The period of his service under that order was from the 14th of August, 1837, to the 3d of September, 1838. He received pay as a lieutenant command. ing until the 28th of August, 1838, and from that time (having been pro moted) he was paid as a commander "on other duty." It is material to observe that the post of flag captain of a squadron, and that of captain of the vessel which bears the broad pendant of the commodore, are distinct and essentially different, though they appear to be somewhat confounded in the argument accompanying the memorial. The former officer, as will be seen by the regulations of the naval service, and by the letter of Commodore Warrington, of which I enclose a copy, has no command. He stands to the commander of the squadron in a relation similar to that which an assistant adjutant general bears to a commanding general in the army, which is that of a staff officer. The regulations say that he is appointed to assist the commander in regulating the details of the squadron; that all orders and instructions issued by him shall be given as orders of the commander of the squadron; and that he shall never issue or make any change or arrangement whatever without directions from the commander, unless some very urgent necessity should require it. Lieutenant McMcIntosh was appointed flag captain of the squadron, and not the commander of the flag-ship, as is shown by the order itself. Hence, when the Secretary of the Navy replied, to the first letter of Commodore Dallas, that he regretted it was not in his power to approve the appointment of an "acting commander," Commodore Dallas answered that he had not conferred on Lieutenant McMcIntosh the appointment of "acting commander," but of "flag captain of the squadron."

Now, it is not necessary that the officer who performs the duties of what is technically termed a "flag captain" should be of the rank of captain. And if this be so, it removes the whole ground of the memorialist's claim; which is, that he performed the duties of a captain, and that, therefore, he was entitled to the pay of that rank under the law which then granted to an officer performing the duties of a grade superior to his own, the pay of such superior grade. The regulations to which I have before referred, and which are those prepared by the board of navy commissioners under an act of Congress of February 7, 1815, and approved by the President, provide that a commander of a squadron, having under his command six ships of a rate not below that of a frigate, shall be entitled to an officer of the rank of captain to assist him in regulating the details of his squadron; and the same regulations further provide that a commodore or commander of a division, having under his command four ships of a rate not below that of a frigate, shall be entitled to an officer of the rank of master con mandant to perform the same duties. The officer thus authorized to be appointed is what is called a "flag captain." It appears, therefore, that even where a

commodore has under his command four vessels of a rate not less than that of a frigate, it is not necessary, nor is it admissible, that he should have for his flag captain an officer of the rank of captain. It certainly is not necessary, then, that where there are not four frigates or larger vessels, the place should be filled (if it were permitted to exist at all) by an officer of that rank, and Commodore Dallas, on the occasion in question, had but one frigate, and no vessel of superior rate. If the appointment of Lieutenant McMcIntosh as flag captain, which it cannot be pretended was authorized by the regulations, was sanctioned by the Secretary of the Navy, as is contended, he certainly had the right to prescribe the grade in which the duties should be considered as performed; and as, agreeably to the regulations, where there were four frigates they would be discharged by a master commandant, he might very reasonably direct, that where there was but one frigate they should be performed by a lieutenant, and that he should receive, as he did direct in the case of Lieutenant McMcIntosh, only the highest pay of that grade. It is to be observed, too, that Commodore Dallas, when he made the appointment, did not suppose that he was entitled to an officer of the rank of captain to serve as his flag captain; for, besides selecting a lieutenant for the purpose when there were commanders in the squadron, he directed, in the order itself, that Lieutenant McMcIntosh should receive the pay of a commander only, which would have been incompatible with his discharging the duties of a captain. I will only add, that Commander McMcIntosh himself, when he first presented his claim at this office, demanded only the pay of a commander for the time during which he acted as flag captain while he was a lieutenant, though he claimed the pay of a captain subsequent to his promotion. It is manifest, therefore, I think, that even supposing Lieutenant McMcIntosh to have acted as "flag captain" under competent authority, he had no right to the pay of a grade superior to his own.

But he did not act under competent authority. By a regulation of the Navy Department, dated on the 21st of July, 1817, (compilation of 1832, page 37,) it is expressly said that the appointment of a flag captain without the sanction of the Secretary of the Navy is prohibited; and in 1834 the department declared that no such appointment, under the rule which contained that prohibition, would be recognised after the 1st of September of that year, unless it should be agreeable to the regulations of 1818, to which I have before referred as prepared by the board of navy commissioners; that is to say, that the officer making the appointment should have under his command at least four vessels of a rate not below that of a frigate. It is nothing to the purpose to say that although Commodore Dallas had but one frigate, he had several smaller vessels under his command, and that the number of guns was equal to those which would be carried by four or six frigates. The regulation has reference not to the number or size of the guns, but of the vessels; and, as there is scarcely an instance in which a squadron, of any considerable size, belonging to our navy, has consisted of frigates only, if the regulation had intended that a deficiency in the number of frigates might be supplied by a larger number of smaller vessels, it would undoubtedly have been so expressed. The appointment, therefore, upon which the claim of the memorialist is founded, was unauthorized in two respects-the squadron was not of the size required by the regulations to entitle the commander to a flag captain, and the appointment was not sanctioned by the Secretary of the Navy.

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The Secretary not only omitted, but positively refused to sanction the appointment, by stating in answer to Commodore Dallas's letter, in which he informed the department of his having appointed Lieutenant McMcIntosh flag captain, with the pay of a commander, that he could not sanction. the appointment of an "acting commander;" and he repeated the refusal in his answer to the Commodore's letter of December 22, 1837.

That matter is completely set at rest, however, by a note of Commodore Dallas upon his monthly return of officers, made to the department on the 30th of November, 1837, and the Secretary's answer of January 5th, 1838. The note is in these words: "Lieutenant McMcIntosh's name is still on the return as flag captain. Should I receive no reply to my last letter, it will be omitted in the December return. He does not receive the pay of commander, and will not, unless, as I hope they will, the department shall acknowledge the appointment." In his answer the Secre tary says: "I have to inform you that, although I cannot recognise Lieutenant McMcIntosh as a commander, I am perfectly willing to regard and pay him as a lieutenant commanding.' I cannot imagine how any one, after reading this note and answer, can say that the appointment of Lieutenant McMcIntosh as flag captain was sanctioned by the department. That was certainly not the understanding of Commodore Dallas, for from that time forward, until he was regularly promoted, Lieutenant McMcIntosh was entered on the monthly returns as one of the lieutenants of the Constellation, and subsequently as a commander, though until the date of the note above referred to he had been entered as flag captain. The intention of the Secretary undoubtedly was, to disapprove of his appointment as flag captain, and to refuse him the pay of a commander; but to assent to his being retained in the Constellation as a supernumerary lieutenant, to assist the commander of the squadron in the discharge of his duties, and to his receiving the pay of a lieutenant commanding, not because he had a command-for the order of the Commodore vested him with none-but from a desire to allow him for his peculiar service the highest pay of the grade to which he belonged. If any further evidence of the understanding of the department upon the subject be needed, it is found in the positive answer given to an inquiry from this office in October, 1838, that the appointment of Lieutenant McMcIntosh had not been sanctioned.

Whatever duty he performed, he performed as a lieutenant, and the law restricted him to a lieutenant's pay.

In reference to that part of the argument of the memorialist which proceeds upon the ground of his being the captain of a frigate, I have only to observe that he held no such appointment. Commodore Dallas was, by the assignment of the department, captain of the Constellation as well as commander of the squadron-the order under which the memorialist claims does not purport to make him captain of the vessel. When the depart ment first informed Commodore Dallas that it could not sanction his ap pointment of an "acting commander," he replied that he had not made an appointment of an "acting commander," but of a flag captain, and, agreeably to the regulations of 1818, the department itself could not appoint an officer to the command of a frigate unless he had previously commanded a sloop-of-war for six months, which it is very certain was not the case with Lieutenant McMcIntosh.

On the 28th of February, 1838, while the memorialist was on board of the Constellation, he was regularly promoted to the grade of commander

in the navy, and he continued in that vessel discharging the same duties as before, until the 2d of September of that year. As a commander was not included in the complement of a frigate, as he had received no order from the department attaching him to the squadron in his new capacity, and as there was no change in his duties, this office did not conceive that it had the power, under the law, to allow him the pay of a commander "attached to a vessel for sea service;" and, accordingly, upon the settlement of his account, he was allowed only the pay of a commander "on other duty." As, however, he did actually perform, on board of a vessel on sea service, such duties as were assigned him by his commander, it appears to me equitable that he should be permitted to receive the same pay after his promotion, as if he had been regularly attached to her as a commander, and had in that capacity constituted a part of her complement. The difference between the amount which he received, and that to which he would be entitled as a commander "attached to a vessel for sea service," for the period in question, is two hundred and four dollars and ninety-five

cents.

'The papers which you enclosed to me are herewith returned.

I have the honor to be, sir, very respectfully, your obedient servant, A. O. DAYTON.

Hon. D. L. YOLEE, Chairman of

the Committee on Naval Affairs, U. S. Senate.