And the President indorsed this opinion as follows, September 5, 1855:1

The conclusions of this opinion are approved, and will be regarded as the settled doctrine as to the relations of the President to the respective heads of Departments.

A revised edition of the Army Regulations was published January 1, 1857, containing, as General Scott afterwards characterized it, "The peculiar and offensive views of the late Secretary." This edition omitted entirely Article X, which General Scott, in a letter to the new Secretary of War,3 written to influence an abrogation of these Regulations, characterized as "a very remarkable omission, evidently designed to affect my [his] office and authority in the army." But the Secretary of War wrote him, on September 25, 1857, as follows:

The failure to insert in the new Regulations a definition of the duties and authority pertaining to the office of Commander-in-Chief of the army which was contained in the old Regulations, I am satisfied, does not in any degree take from it any power, authority, honor, or command conferred upon that high office by law. Definitions are always difficult, sometimes impossible. The definitions in the old Regulations attempting to define the duties of the principal officers of the army are not, in my judgment, satisfactory; and I think the new Regulations wisely follow the example set by those which you prepared in 1825, in which no definitions were attempted.

The provisions of Article X were entirely omitted from the editions of the Regulations of 1861 and 1863, the latter of which has been in force from 1863 to the present time, and under which the Lieutenant-General in 1864, and the General of the Army in 1866, first began the exercise of their offices.

From the foregoing outline of the functions of the Secretary of War in his relations to the Military Establishment, and to the command of the army since the inauguration of the system by Mr. Calhoun in 1821, it will be seen that he has been, since the war of 1812, uninterruptedly exercising, in pursuance of law and Army Regulations, jurisdiction both civil and military over the entire Military Establishment, and that over certain portions he has exercised jurisdiction to the exclusion of "the army" or "armies" proper, the latter standing in the relation of beneficiaries of the several portions administered by him; that these portions included personnel, matèriel, industrial and business operations, and ministerial duties connected with the development of the military strength and defense of the entire country during peace and war, and the support and maintenance of such armed bodies of men, whether regulars, volunteers, or militia, as the exigencies of the public service in peace and war required; that the chiefs of these subordinate branches assisted the Secretary of War in the exercise of that control over the public moneys devoted to military affairs, and over the public stores procured for warlike purposes, which pertain to him in his ministerial capacity; that the vesting of exclusive jurisdiction over these portions in a great civil officer, instead

9

1 Sen. Docs., third session, Thirty-fourth Congress, vol. 7, doc. No. 34, pp. 179–180. Fry's Brevets, p. 204. 3 Ibid., pp. 203-206. 4 Ibid., p. 207.

of in the officers commanding troops, was a wise distribution of executive power, whereby the armed bodies of men necessary for the purposes of government are rendered physically dependent, in their organized warlike capacity at least, on the responsible head of the civil Executive Department for War, auswerable to the President who commands, and to Congress who "supports" such warlike bodies; and that since the year 1821 the senior general officer of the regular army had, by custom only, and not by any statutory authority, or any military authority derived immediately from or mediately through his commission as major-general, acted in Washington and elsewhere as "commanding the army."

Thus matters stood at the outbreak of the late war of the rebellion. Brevet Lieutenant-General Scott acted as "commanding the army" until November, 1861, when he was superseded by Major-General McClellan; subsequently, Major-General Halleck discharged these functions until March 10, 1864, when Lieutenant-General Grant, just promoted to that grade, was placed in "command of all the armies of the United States." Throughout this gigantic struggle the subordinate branches of the War Department performed their functions under the direction of the Secretary of War. The immediate control and supervision of the Secretary of War over the subject of army transportation was specifically vested by Congress in that officer, by act of January 31, 1862. At the conclusion of this war the Secretary of War rendered the following tribute1 to these subordinate branches:

By the heads of the respective bureaus of the War Department and their staffs, the Government has been served with a zeal and fidelity not surpassed by their brethren in the field. To them the honors and distinctions of an admiring public have not been offered, but in their respective vocations they have toiled with a devotion, ability, and success for which they are entitled to national gratitude.

REVIVAL OF THE GRADE OF GENERAL OF THE ARMY OF THE UNITED STATES.

Section 1 of the act of July 25, 1866, chapter 232, enacted that

The grade of General of the Army of the United States be, and the same is hereby, revived; and that the President is hereby authorized, whenever he shall deem it expedient, to appoint, by and with the advice and consent of the Senate, a General of the Army of the United States, to be selected from among those officers in the military service of the United States most distinguished for courage, skill, and ability, who, being commissioned as General, may be authorized, under the direction and during the pleasure of the President, to command the armies of the United States.

This grade of General of the Army (or rather Armies) of the United States had been created, as we have seen, in 1799, and was withheld by President Adams from being conferred on no less a personage than the illustrious Washington, because it was judged to touch, if it did not encroach upon, the constitutional functions of the Presidential office. The act of 1866 did not direct the President to assign the appointee to command, whether or not, after appointment, but simply rendered the 1Annual Report of Secretary of War, November 22, 1865.

appointee eligible to the command "under the direction and during the pleasure of the President," in precedence of all other general officers. Evidently, then, the General might be appointed, but with no claim, statutory or otherwise, to command as against the pleasure of the President. The appointment having actually been made during a period of peace, the officer became nominally General of the Army of the United States, provided by the law which revived the grade with a staff appropriate to a general officer in the field, consisting of a brigadier-general as chief of staff and six colonels as aides. The grade does not, per se, entitle the recipient to the command of anything beyond his own immediate staff officers, except at the pleasure of the President. In the absence of the assignment contemplated by the law, no function of office, civil or military (except the function of drawing the pay and emoluments allowed by law, and the control of his staff officers), can by right be exercised by him. No office nor function of any office existing at the time of his appointment, aside from the limited office marked out to him by the act, could have been recovered by him under a writ of quo warranto. Brought to this legal aspect, it will be conceded that there were none whatever. That this is the true view to take of the law relating to the office of General of the Army, will be conceded by every lawyer, and certainly no one will claim that an officer can by virtue of his commission alone "put himself on duty" in any grade of the service without orders from competent authority.

It is historically true, however, that the recipient of the grade in 1866 was not formally assigned to duty in that specific grade by the President. Being already in "command of the armies of the United States" as lieutenant-general, under the Presidential order of March 10, 1864, it may not have been deemed necessary to issue a formal order, but to consider the new office as a change of title only.

The disruption which occurred between the President and Congress in 1867 on the reconstruction measures, and the contention over the right of the President to remove at pleasure his constitutional advisers, were the occasion of placing the discharge of the purely civil duties of the Secretary of War in the hands of officers of the regular army by the appointment of one of them as Secretary of War. The policy of Congress towards the reconstructed States, in opposition to that of the President, required the administration of the Congressional measures through military instead of civil sources. In March, 1867, an act was passed fixing the headquarters of the army at Washington, and the jurisdiction of the General and the routine of his office were thus marked out:

And all orders and instructions relating to military operations, issued by the President or Secretary of War, shall be issued through the General of the Army, and, in case of his inability, through the next in rank. The General of the Army shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said headquarters, except at his own request, without the previous approval of the

Senate; and any orders or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office; and any officer of the army who shall transmit, convey, or obey any order or instruction so issued contrary to the provisions of this section, knowing that such orders were so issued, shall be liable to imprisonment for not less than two nor more than twenty years, upon conviction thereof in any court of competent jurisdiction.

This provision was contained in an appropriation act, in approving which the President called attention to and protested against this section as virtually depriving him of certain of "his constitutional functions as Commander-in-Chief of the Army"; and in his annual message of December 7, 1868, he directed especial attention to it, and urged that it be annulled, because it might "in times of great emergency seriously embarrass the Executive in efforts to employ and direct the common strength of the nation for its protection and preservation." Referring to this and other laws deemed by him encroachments upon the prerogatives of the Presidential office, he said:,

It is believed that the repeal of all such laws would be accepted by the American people as at least a partial return to the fundamental principles of the Government, and an indication that hereafter the Constitution is to be made the nation's safe and unerring guide. They can be productive of no permanent benefit to the country, and should not be permitted to stand as so many monuments of the deficient wisdom which has characterized our recent legislation.

On the 12th of August ensuing the passage of the act fixing the headquarters of the army at Washington, the President, having invited the incumbent of the office of Secretary of War to resign, but without effect, proceeded to suspend him from office, and appointed the General of the Army to act as Secretary of War ad interim. This temporary transfer of the office to a military personage continued until January 13, 1868, when, the Senate having non-concurred in the suspension of the Secretary of War, the latter resumed the duties of the office, under the tenure-of-office act-another law obnoxious to the Presidential prerogatives-and continued to discharge them without any personal or written communication with the President, although the latter was and is the chief Executive and Commander-in-Chief of the army. The surrender of the office to the resuming Secretary by the General of the Army, without giving notice to the President of his intention to do so, occasioned some correspondence between the President and the General, immediately after the event, in which the latter referred to the Secretary of War as "my superior, and your (the President's) subordinate." On the 21st of February, the President, notwithstanding the action of the Senate in regard to the suspension, empowered the Adjutant-General to act as Secretary of War ad interim, 1 McPherson's Reconstruction, pp. 2-2-293.

2 Ibid., p. 282.

2 Ibid., pp. 283-293.

and notified the Secretary of War of his outright removal from office. The Adjutant-General was immediately intercepted by legal process, however, under the tenure-of-office act, and the impeachment of the President ensued, the Secretary remaining personally within the walls of the War Department until the impeachment proceedings had been abandoned in the Senate, whereupon he notified the President on that day (May 26, 1868) that he had "relinquished the charge of the War Department." 1

Pending the proceedings on the articles of impeachment, and in entire consistency with the President's theory of his constitutional rights in regard to removals, he sent in a nomination to the Senate to fill the vacancy which he assumed he had made in the office of Secretary of War. This nomination was of a brigadier-general, still holding his commission in the regular army, who was confirmed after the impeachment proceedings had broken down, and the incumbent holding over had "relinquished his place as Secretary of War."

On the 31st of May, 1868, the General of the Army was nominated for the Presidency, and was elected in the ensuing fall. It was known that, upon the accession of the new President, the Lieutenant-General was to be promoted to be General, and the chief of staff of the retiring General was to be appointed Secretary of War. Before this latter appointment was made, however, the then Secretary of War issued an order under date of March 5, 1869,3 marking out the following jurisdiction for the incoming General of the Army, viz:

By direction of the President, General William T. Sherman will assume command of the army of the United States.

The chiefs of staff corps, departments, and bureaus will report to and act under the immediate orders of the General commanding the army.

All official business which, by law or regulations, require the action of the President or Secretary of War will be submitted by the General of the Army to the Secretary of War; and, in general, all orders from the President or Secretary of War to any portion of the army, line or staff, will be transmitted through the General of the Army.

In assuming command under this order, the General of the Army announced the following chiefs of War Department bureaus and officers as his general staff, viz: The Adjutant-General, an Inspector-General, the Quartermaster-General, the Commissary-General of Subsistence, the Surgeon-General, the Paymaster-General, the Judge-AdvocateGeneral, the Chief of Engineers, the Chief of Ordnance, and the Chief Signal Officer. This general staff consisted of nine major-generals by brevet, and one brigadier-general by brevet, while his personal staff, announced at the same time, was to consist of his six aides-de-camp allowed by law, all having the full rank of colonel.

The new Secretary of War, however, soon found that this investiture of the War Office ran counter to the laws and traditions of his office,

1 McPherson's Reconstruction, p. 263. Ibid., p. 264.

3G. O. No. 28, March 5, 1869.

G. O. No. 11, A. G. O., March 8, 1869.