Geo. Davis to Attorney-General, April 22, 1864

The PRESIDENT: Str: I have the honor to acknowledge the letter of General Bragg submitting to me by your direction an inquiry as to the legal status of certain general officers, to wit: for the public defense,” approved 6th March, 1861, and the amendatory acts of 18th September and 6th October, 1862. In relation to this class it is stated ”some have been left out of command by the great reduction of the rank and file, rendering a consolidation of brigades and divisions necessary; some by the breaking up and dispersion of their commands, as in the cases of the garrisons of New Orleans and Vicksburg; some have left their commands from sickness, wounds, &c., and prolonged absence has rendered it necessary to fill their places.” Second. Lieutenant-generals, who may have been relieved of their commands by various casualties, as in the case of Lieutenant-General Pemberton at Vicksburg. His command, as exchanged, has been assigned toothercorps. So, also, of Lieutenant-General Holmes, first. relieved from duty in Arkansas, who reports here for assignment. The acts authorizing the appointment of brigadier and major generals in the Provisional Army are the following: Act of 6th March, 1861, to provide for the public defense, section 6: That the President is hereby authorized to organize companies so tendering their services into battalions or squadrons, battalions or squadrons into regiments, regiments into brigades, and brigades into divisions, whenever in his judgment such organization may be expedient; and whenever brigades and divisions shall be organized, the President shall appoint the commanding officers for such brigades and divisions, subject to the confirmation of Congress, who shall hold their offices only while such brigades and divisions are in service. By the acts of 8th May, 1861, ”to raise an additional military force to serve during the war,” and 11th May, 1861, ”to make further provision for the public defense,” the troops therein authorized to be received were directed to be organized according to the provisions of the foregoing act of 6th March, 1861. Act of 13th October, 1862, ”to increase and regulate the appointment of general officers in the Provisional Army:” That the President be, and is hereby, authorized, by and with the advice and consent of the Senate, to appoint twenty general officers in the Provisional Army, and to assign them to such appropriate duties as he may deem expedient. It will be more convenient to consider the case of major and brigadier generals separately from that of lieutenant-generals. They may be divided into two classes: First, major and brigadier generals appointed under the acts of 6th March, 1861, and 8th and 1ith May, 1861. These are all governed by the sixth section of act 6th March, 1861, above cited. The intention seems too plain for doubt. It was to prevent the accommodation [accumulation] of supernumerary generals, which would cheapen the honor of promotion and be a useless burden upon the Treasury. The President is not authorized to appoint major and brigadier generals at his discretion. No such appointment can be made unless there is an organized brigade or division, to the command of which the appointee is to be assigned, and by the express words of the act, whenever the brigades or divisions go out of service the generals are no longer to hold their offices. The office depends upon the organization; is lawful only when that is complete; continues only while it exists, and expires with it, unless there be some other organized brigade or division to the command of which the officer may be and is assigned. It was not the intent of the act so to blend together the organization and the office that neither could exist apart from the other. Its chief purpose, as has been said, was to prevent the Army from being burdened with supernumerary and useless officers. Whenever, therefore, an officer has been duly appointed to an organized brigade or division, it is within the scope and policy of the act that the President may assign him to the command of any other organized brigade or division. So, when the organization of a brigade or division is destroyed, the President may assign the general who commanded it to any other vacant brigade or division, and is not compelled to make a new appointment for this lastcommand. Iam of the opinion, therefore, that the major and brigadier generals appointed under these acts, whose commands have lost their organization by consolidation or by the casualties of war, and who cannot be assigned to the command of some other organized brigade or division, have lost their commissions. As to the other class—those whose long absence, from sickness, wounds, &¢., has rendered it necessary to fill their places, the organization of their commands remaining unchanged—it is understood that one of the main objects in passing the act of 13th October, 1862, was to furnish the President with the means of filling their places temporarily, so that they might not lose their grade by having become disabled in the publicservice. And it is as consistent with the policy of the law as it is with justice and humanity that such absent officers should not lose their commissions in cases where other officers appointed under the act of 13th October, 1862, have been assigned to their commands; and they may be restored to their commands upon returning to duty. This class may present another condition. Such officer upon reporting for duty may be unfitted by his wounds for commanding a brigade or division in the field, but may be capable of discharging other duties appropriate to his grade. The President may appoint him under the act of 13th October, 1862, provided the whole twenty have not already been appointed. But can he under that act be continued in his grade under his old commission and with his old date? I think not. The act gives the President an authority which he did not before possess. It empowers him, ”by and with the advice and consent of the Senate, to appoint twenty general officers,” &¢. It contemplates future action by the President and Senate, and not a mere passive confirmation of something which has been done before. Some of these officers were appointed under the Provisional Government. It cannot be contended that their former confirmation by the Provisional Congress would fulfill the condition of the advice and consent of the Senate, required by the act. If so, the mere will of the President to let them remain in their grade would amount to an appointment by him without the consent of the Senate, which is against the express words of the act. I think that an act which authorizes the appointment of an officer cannot be construed so as to continue an appointment already made under a former act passed diverso intuitu, more especially when such a construction would necessarily give a rank which antedates the passage of the law. Second. Major and brigadier generals, appointed under the act of 13th October, 1862. This act is general in its terms. It authorizes an appointment, not for any particular command or organization, but for general duty in the Provisional Army, according to the assignment of the President; and it contains no limitation of their terms of office. I am of the opinion that the generals appointed under this act hold their commissions during the war. The acts authorizing the appointment of lieutenant-generals in the Provisional Army are the following: Act of 18th September, 1862, ”to amend an act entitled ‘An act to provide for the public defense:'” That the sixth section of the act to provide for the public defense, approved on the 6th March, 1861, be amended by adding, after the words “brigades into divisions,” the words ”and divisions into army corps,” and each army corps shall be commanded by a lieutenant-general, to be appointed by the President, by and with the advice and consent of the Senate, who shall receive the pay of a brigadier-general. Act of 6th October, 1862, ”to provide for the organization of army corps,” which is substantially the same with .he one last cited, and seems to have been passed by an oversight, as it contains no provision not in the former act, and effects its purpose in precisely the same way. Act of 13th October, 1862, authorizing the appointment of twenty general officers, above mentioned. Act of 17th of February, 1864, relating to the appointment of a general and lieutenant-generals, section 2: That the President may, by and with the advice and consent of the Senate, appoint lieutenant-generals in the Provisional Army of the Confederate States, when in his discretion it shall be deemed necessary for the command of any one of the military departments. Section 3: That the officers appointed under the provisions of this act shall continue to hold the rank herein provided so long as they shall efficiently discharge the duties in command of said several departments, and no longer, but will resume thereafter their former rank in the service. The lieutenant-generals may be divided into three classes: October, 1862. These acts are amendatory of the act of 6th March, 1861, and are to be understood as if their provisions were inserted in the body of that act. Their effect is to enlarge the organization of the Provisional Army and to create a higher grade of general officers. But the policy of the former act is not changed, and the officers of this higher grade are subject to all of its provisions. Lieutenantgenerals, therefore, appointed under these acts hold office only while in command of an organized corps. Those whose commands had lost their organization, and those relieved of their command while the organization of their corps remains unchanged, may be assigned to any other organized corps; but if there be no such corps to which they can be assigned they lose their commissions. Second. Lieutenant-generals appointed under the act of 13th October, 1863, authorizing the appointment of twenty general officers, for the reasons assigned in relation to brigadier and major generals, hold their commissions during the war. 17th February, 1864, the construction of that act is-not called for now, and it would not be proper to express an opinion.

GEO. DAVIS,