It says where, never what

What happened

The act is short and almost entirely administrative, which is what makes its two most consequential clauses easy to miss.

Section 1 raises the force. "In addition to the present military establishment, there shall be raised and organized a corps of marines," consisting of one major, four captains, sixteen first lieutenants, twelve second lieutenants, forty-eight sergeants, forty-eight corporals, thirty-two drums and fifes, and seven hundred and twenty privates.

That total is worth setting against the eighty-three Marines counted eleven days earlier. Congress authorized roughly ten times the force that existed.

Section 1 also settles what happens to the Marines already serving. The corps includes "the marines who have been enlisted, or are authorized to be raised for the naval armament," which folds the shipboard detachments of the naval armament acts into the new institution rather than starting over.

The corps could be formed into as many companies or detachments as the President directed, with a proper distribution of officers and musicians to each.

Section 2 sets pay and subsistence. A major received fifty dollars a month and four rations a day, a captain forty dollars and three rations, a first lieutenant thirty and three, a second lieutenant twenty-five and two.

The same section authorizes the President to keep enlisting until the corps is complete, to commission officers himself when the Senate is in recess, and sets enlistments at three years, subject to discharge by the President or by the ceasing or repeal of the naval armament laws.

Section 3 handles the relationship with the fleet. Detachments of the new corps are to be made "in lieu of the respective quotas of marines, which have been established or authorized for the frigates," and the President may detach and appoint officers of the Marine Corps to serve aboard as he judges necessary.

Then Section 4, which is the first of the two clauses this entry is about.

Marines "shall take the same oath, and shall be governed by the same rules and articles of war, as are prescribed for the military establishment of the United States, and by the rules for the regulation of the navy, heretofore, or which shall be established by law, according to the nature of the service in which they shall be employed."

Read the last clause slowly. Marines are governed by Army law and by Navy law, and which one applies depends on the nature of the service they are employed in at the time.

Section 4 also fixes entitlements. Marines are entitled to the same allowance in case of wounds or disabilities, according to their respective ranks, as granted by the act ascertaining and fixing the military establishment of the United States.

Section 5 exempts enlisted men, during their term of service, from all personal arrests for any debt or contract. It is not only a Marine provision: it covers seamen and the army's non-commissioned officers and musicians in the same breath, and it does not reach commissioned officers at all.

Then Section 6, which is the clause that settles the matter. "That the marine corps, established by this act, shall, at any time, be liable to do duty in the forts and garrisons of the United States, on the sea-coast, or any other duty on shore, as the President, at his discretion, shall direct."

At any time. Any other duty on shore. At his discretion.

There is no limiting principle in that sentence at all, and no requirement that the duty have anything to do with the sea.

Section 2 had already provided the machinery for it: if the Corps is ordered to do duty on shore and it becomes necessary to appoint an adjutant, paymaster, quartermaster, sergeant-major, quartermaster-sergeant, and drum and fife-major, the major or commandant of the corps may appoint them.

The act therefore contemplates shore employment twice, plainly, and puts no limit on it beyond one man's judgment.

What is less known

Read the act looking for a task and there is not one.

It says how many Marines there shall be, what they are paid, how long they enlist for, which law governs them, that its enlisted men cannot be arrested for debt, that their detachments replace the marine quotas already established for the frigates, and that the President may send them ashore whenever he likes.

Every one of those is a number, a place, a legal status, or a decider. Not one of them is a task.

Compare that to what the same Congress specified in detail elsewhere in the act.

The pay, the rations, the enlistment term, the ratio of drums and fifes to privates: all fixed to the dollar and the man. The purpose: absent.

What fills the gap is discretion, and the act hands it over repeatedly. Section 1 lets the President form the corps into as many companies or detachments as he shall direct. Section 3 lets him detach officers to the armed vessels "as he shall, from time to time, judge necessary."

Section 4 makes the governing law itself depend on "the nature of the service in which they shall be employed." Section 6 makes shore duty depend on what "the President, at his discretion, shall direct."

Neither source in this entry records why the act was drafted that way. There is no committee report, no debate, and no drafting history in the retrieved record, so the reason is not available and this entry does not supply one.

The reading

A charter that says what you are but not what you are to do hands somebody else the pen.

The cost of that arrangement is permanent. A force defined by availability rather than by mission can be sent anywhere, which is a strength exactly as long as somebody wants to send it somewhere, and an existential problem the moment nobody does. Day 12 in this series is what that looks like when the sending stops.

What makes the 1798 act workable rather than empty is that both open clauses name who decides.

The governing law turns on the nature of the service. Shore duty turns on the President's direction. Neither says "it depends" and stops there.

That distinction is the one I use. A rule in a section that says "as required" and names nobody is not a rule; it is a decision deferred onto whoever is standing there when it comes up, usually the most junior person present.

I have written guidance like that. It felt like flexibility at the time and it was really an unwillingness to sit down and decide.

The cost of it landed on a Sergeant early one morning who had to interpret my sentence with people standing there waiting on him, and who had no way to know what I would have said if anyone had asked me.

The version that works says what varies and who decides it. That is more work to write, it forecloses options I might have wanted later, and it means being wrong in public when the named decider makes a call I disagree with.

Congress did that repeatedly across six sections, in an act it passed in the middle of an undeclared war. Whether the Corps that resulted was what anyone intended, the record does not say, and nobody who could have answered wrote it down.

The question

In the standing guidance your section actually runs on, which sentence has nobody ever argued about? Write down the Marine it lands on hardest, and tell them before Friday whether you are keeping it or changing it.

Sources

1. An Act for the establishing and organizing a Marine Corps, approved 11 July 1798, 5th Congress, Sess. II, Chap. 72, 1 Stat. 594-596. Sections 1 through 6 and the approval line. Read at govinfo.gov
2. A Chronology of the United States Marine Corps, 1775-1934, Volume I. Historical Branch, G-3 Division, Headquarters, U.S. Marine Corps, 1965. Entry for 11 July 1798. Read at archive.org

Corrections

None.