William Rawle: A View of the Constitution: Chapter XVIII

CHAPTER XVIII.

OF COMPENSATIONS TO PUBLIC OFFICERS.

THE principle of compensation to those who render services to the public, runs through the whole Constitution.

The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.

The president shall at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

The judges shall at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.

In the early stages of society, founded on a slender population, before any regular civil institutions took place, the tasks of government were probably performed without stated emoluments. In time, however, it was perceived that the public ought not to have their affairs administered without making compensation to those who postponed their private business for the general benefit. A compensation was therefore either exacted or voluntarily rendered. The former is always irregular and oppressive. We may refer as an illustration of it, to a practice which in early times prevailed in almost all the kingdoms of Europe. The monarch, for the supply of his court, his officers and attendants, was in the habit of seizing provisions and impressing horses and carriages, for which, an arbitrary and inadequate compensation was sometimes made, but any compensation whatever was frequently withheld. 1 The practice, though constantly complained of as a heavy grievance, equally inconsistent with the rights of the subject, and the real convenience of the crown, was not abolished in England till the restoration of Charles II. The government of a country is relieved from the necessity of exactions thus mutually injurious, by voluntary provisions on the part of the general society.

In respect to executive and judicial officers, no question has ever arisen: — It seems to be universally agreed, that compensations should be made for their services. The manner of making it is various, it is sometimes done by fixed salaries, and sometimes by fees and perquisites, which latter are exactly regulated as to the amount. Arguments are not wanting in favour of each of these plans. If a salary is granted which the officer is to receive, whether he does much or little of the business within his sphere, there is danger of remissness but to render him wholly dependant on the receipt of casual fees, would be inconsistent with the dignity that ought always to accompany a great executive or judicial office, and would tend to interrupt the dedication of his time to his high and important duties. In those cases, salaries are preferable. A legal remedy for neglect of duty may certainly be found, ill addition to the public reprobation, which must always attend upon it. But for inferior officers, not under the same control of public opinion, or at least not to the same extent, the payments by those whose business is transacted seems to form a proper fund.

In respect to the members of the legislature, our practice corresponds with that of some, though not of all the nations of Europe. In one, to which we are apt more frequently to look than any other, the ancient usage has melted away, and the members of parliament now receive no compensation for their attendance. The consequence is, that only men of fortune can take seats in the house of commons. This is inconsistent with the equality that ought to be found in a republic. Men of virtue and talent, though depressed by poverty, ought to have the avenues to public trust as open to them as to the most wealthy. We will venture to add that the compensation ought to be liberal: a generous people, if it is faithfully served, will never complain. But the compensation ought to bear as exact a proportion as possible to the time employed. An act of congress was passed a few years ago, 2 in which, a gross sum was allotted for an entire session. The dissatisfaction it occasioned, produced an early repeal.

The compensation of the president is not to be increased or diminished while he is in office; the legislature shall neither bribe nor terrify him in this mode. The compensations of judges shall not be diminished, but there is no restraint on their being increased, because their offices being in legal contemplation equivalent to offices for life; since the law benignly calculates that a judge will always behave well; the value of money may depreciate, and the salary become inadequate to the support intended to be allowed.

It may be observed, that the president and judicial officers are to receive their compensations at stated periods, the intention of which is, that services shall not be paid for, before they are performed; but no such restriction is imposed on the members of the legislature, because it is presumed that they will not violate a principle so just, and also, because from the uncertain duration of their sessions, no stated period can be fixed.

The military power is also in this respect to be distinguished from other executive offices; being liable to be employed in various places where it may be difficult or impossible to be regularly supplied with the means of discharging their pay, it would be impolitic to entitle them to demand it at certain periods. Their compensations cannot be diminished during the time for which they are engaged, because it would be a breach of the contract: they may be increased, because the public safety would not be endangered by it. Fortuitous additions, tending to stimulate their exertions are allowed: an army is entitled to share in some parts of what is taken from the enemy, which, according to the laws of war, become the property of the captors. A rule, however, which in modern practice is rather specious than profitable, for it is rarely enforced; but to the navy the same principle is often productive of great emolument; a discrimination having been long established between maritime captures and those on shore, on a foundation not perceptibly just. The property of peaceable and private individuals on the land is seldom considered in modern times, as a just subject of confiscation, although the owners are inhabitants of a hostile country; but at sea, the merchant vessel, unarmed and unoffending, is the lawful prey of the commissioned cruizer, and is condemned to his use, on being captured and brought into the ports of his country. The amount of these additional compensations is from time to time regulated by congress.

The appropriation for the support of the army and navy can be made only by congress, and in respect to the army, as has been already observed, for no longer time than two years. This may, at first view, appear inconsistent with the practice of enlisting soldiers for a longer time, but when we take a view of the whole political system and recollect that this limitation has been adopted as a suitable check upon the possible ill use of a regular army, we must allow a predominant operation to the greater principle. The military contracts must be construed, in all cases, as subject to the constitutional restriction, which must be considered as a proviso introduced into every law that authorizes the president to raise an army.

To disband an army entirely, must be a legislative act. To dismiss any or all of the officers is, by the tenure of their commissions, within the power of the president. It is the practice in many countries when an army is reduced, to allow to the officers whose active services are no longer required, half the amount of their pay during life. Such compensations with us depend on the judgment of congress, and from that quarter also must proceed those charitable provisions which seem fairly due to the disabled and infirm soldier who has faithfully served his country.

A recent instance has proved that the charge of ingratitude cannot always be justly preferred against a republic.

Invited to revisit a country, to which in, early life he had rendered splendid and successful service; the heroism of General La Fayette has been rewarded, not merely by unbounded effusions of the public mind, but with a pecuniary compensation equally honourable to the donors and to the receiver.


1. See Barrington on Stat. 183, 237, 289. Hume's History of Eng. vol. v. 346. 519; and in 12 Coke, 19, it is considered as a prerogative inseparable from the person of the king, of which, even an act of parliament cannot deprive him.

2. March 19, 1816.


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