J. A. Seddon to Returned to the Secretary of War, April 26, 1864

Richmond, April 26, 1864.

Sir: The papers transmitted by you in the case of A. C. Myers present the following facts:

On the 15th of April, 1861, A. C. Myers was appointed lieutenantcolonel in the Quartermaster’s Department, and after that date he is styled Acting Quartermaster-General in the correspondence of the War Department.

On the 15th of February, 1862, he was nominated to the Provisional Congress in the following words: ”A. C. Myers, of South Carolina, Quartermaster-General, to be colonel, to take rank from the date of his confirmation,” and the nomination was confirmed the same day. On the 27th of January, 1864, Brig. Gen. A. R. Lawton was nominated to the Senate to be Quartermaster-General, ‘”‘to rank as brigadiergeneral from April 13, 1861, the date of his confirmation to that grade by the Provisional Congress.”

On the 17th of February, 1864, the Senate passed the following resolution:

Resolved, That the Senate advise and consent to the appointment of A. R. Lawton to be Quartermaster-General, to take rank from the date of confirmation.

The several acts of Congress under which these appointments were made are the following:

Act of 26th of February, 1861, for the establishment and organization of a general staff, section 3:

That the Quartermaster-General’s Department shall consist of one Quartermaster-General with the rank of colonel, six quartermasters with the rank of major; and as many assistant quartermasters as may from time to time be required by we service may be detailed by the War Department from the subalterns of the

Same act, section 6:

That the officers of the Adjutant-General’s, Quartermaster-General’s, and Commissary-General’s Departments, though eligible to command, according to the rank they hold inthe Army of the Confederate States of America, shall not assume command of troops unless put on duty under orders which specially so direct by authority of the President.

Amendatory act of 14th of March, 1861, section 3:

That the Quartermaster-General’s Department shall consist of one Quartermaster-General with the rank of colonel, one assistant quartermaster-general with the rank of lieutenant-colonel, four assistant quartermasters with the rank of major, and such other officers in that department as are already provided by law.

Act of 20th of March, 1863:

That from and after the passage of this act the rank, pay, and allowances attached to the office of Quartermaster-General of the Army of the Confederate States shall be those of a brigadier-general in the Provisional Army.

Two views have been taken as to the proper construction of the act of 26th of February, 1861, for the establishment of a general staff, and the amendatory act of 14th of March, 1861:

First. That they create a distinct and separate office of Quartermaster-General, to which in every instance an appointment must be made, and to which the rank of colonel is annexed. If this view be correct, then the nomination and appointment of Colonel Myers, on the 15th of February, 1862, must be understood as a nomination and appointment to the office of Quartermaster-General with the rank of colonel ut res magis valeat quam pereat, because only so understood was the action of the President and Senate in conformity with the law. This appointment was made under the Provisional Government, and by the terms of the Constitution of the Confederate States could continue only until his successor was appointed. (Constitution, Art. VI, clause 1.) Upon the appointment, therefore, of General Lawton upon the 27th of January, 1864, assuming that to be duly and lawfully made, Colonel Myers was displaced from the office of Quartermaster-General; and as that was the only office which he held, it follows, of course, that he is no longer in the Army of the Confederate States.

Second. That the acts aforesaid did not create a distinct office of Quartermaster-General, but merely a post of duty to which any officer of the Army might be assigned, and afterward withdrawn and assigned to other duties at the discretion of the President. If this view be correct, then the nomination and appointment of Colonel Myers on the 15th of February, 1862, must be understood to be an appointment to be colonel in the Quartermaster’s Department and an assignment to duty as Quartermaster-General. And this view is thought to be sustained by the provisions of the sixth section of the actof 26th of February, 1861, authorizing the President to assign officers of the Quartermaster’s Department to duty in the line of the Army, and by those of the eighth and twenty-sixth sections of the act of the 6th of March, 1861, ” For the establishment and organization of the Army of the Confederate States,” and the second section of the amendatory act of May 16, 1861, which authorize the President to assign officers of the line, even the highest, to staff or other duties at his discretion. Conceding this view to be the true one, its effect, so far as the Quartermaster-General is concerned, will be to make the acts for the organization of the staff to read as follows:

There shall be one colonel in the Quartermaster’s Department, who shall discharge the duties of Quartermaster-General, and who may be assigned to the command of troops by orders from the President specially so directing.

Then comes the act of 20th of March, 1863, which provides that the rank, pay, and allowances attached to the office of QuartermasterGeneral shall be those of brigadier-general. Now, the view of the organization of this department which we are now considering denies that there is any such distinct office as that of Quartermaster-General. What, then, is the intention of the act? It did not mean to place an additional officer in the Quartermaster’s Department. Its language is not appropriate to that end. It speaks not of persons, but of

things; not of an officer, but of the rank, pay, and allowances to be attached to a certain office. If such had been its object, it would have followed the style of the former act, and have declared that the Quartermaster-General’s Department ”shall consist of one Quartermaster-General, with the rank, pay, and allowances of a brigadiergeneral, one assistant quartermaster-general, with the rank of colonel, &c.” I think the true meaning is, not to add to the force of the Quartermaster’s Department, but simply to increase the rank, pay, and allowances of the highest officer in it. Itis asif the act had said, ” that hereafter the highest officer in the Quartermaster’s Department shall be a brigadier-general, instead of a colonel, as heretofore.” And the necessary result is to abolish the office of colonel in that department, and to substitute for it that of brigadier-general. It makes no difference how this act was intended to operate, whether by elevating the then colonel to the grade of a brigadier-general, or by authorizing the President to appoint him or some one else to the higher grade. Either way the office of colonel is abolished. And as that was the only offiee hcld by Colonel Myers, it follows that he no longer holds any office in the Army.

Under the view first taken it still remains to inquire whether General Lawton has been duly and legally appointed QuartermasterGeneral. His nomination to the Senate was ”to be QuartermasterGeneral, to rank as brigadier-general from April 13, 1861;” and he was confirmed ”to take rank from the date of confirmation.”

An important question of constitutional construction is presented. Is it within the functions of the Senate to diminish the rank assigned in the nomination of an officer? That the Senate cannot add to the rank so assigned is admitted. It cannot originate an appointment. It has no part of the nominating power. That is intrusted solely to the President. The constitutional action of the Senate is confined to an affirmation or rejection of the President’s nomination.

It was upon these principles that Coxe’s case was decided by Attorney-General B. F. Butler. On the 7th of February, 1837, the President of the United States nominated Coxe ‘to be a lieutenant in the Navy from this date.” The Senate adopted the following resolution:

Resolved, That the Senate advise and consent to the nomination of John R.

more to be a lieutenant in the Navy, to take rank next after Lieutenant Elisha Peck.

The effect of the appointment according to the confirmation of the Senate would have been to place Coxe on the register above 162 lieutenants.

The Attorney-General, upon a reference of the question to him, decided that Coxe could not be commissioned at all. Not according to the nomination, because that had not been confirmed; not according to the confirmation, because the Senate had exceeded its powers.

In this opinion I fully concur. The ease did not call for a decision of the other question, whether the Senate can diminish the rank assigned in a nomination, and so far as the Attorney-General’s reasoning intimated any opinion upon that point it was an obiter dictum. It is not a ruling precedent; but there is a precedent in point which is cited in the same opinion:

On the 4th of May, 1822, President Monroe nominated Colonels House and Fenwick and Major Eustis for promotion in the Army, with dates of rank in each case from a prior day specified in the nomination. On the 8th of May, 1822, the Senate acted on these nominations. In each case the question was divided, and the vote taken first on the proposed nomination, and then on the date of rank. The former was decided in the affirmative, and the latter in the negative. The President, as I learn from the Adjutant-General, must have regarded the action of the Senate as complete, because he issued the commissions in conformity to the decision of that body. Nothing being said as to the date of rank in the commissions, the officers receiving them of course took rank from their appointments. (See Opinions of Attorneys-General U. S., 3-190.)

Mr. Butler adds:

These cases would seem to show that in the judgment of the Senate and of President Monroe, the date and rank may be separated from the office itself. This, perhaps, may be done where the President nominates, as in the cases referred to, with rank from a prior day, and the Senate strikes out the rank altogether, thus reducing it to the date of the appointment.—Ibid.

In exact conformity with this precedent has been the action of the President and Senate of the Confederate States in the case of General Lawton. Ina former opinion I have had oceasion to declare that I would be reluctant to advise any departure from settled practice, or respectable precedents, in appointments to office, unless impelled by an imperative sense of duty to the Constitution. Such cases can seldom or never constitute a lis pendens, so as to present the questions arising in them for judicial determination; and unless practice and precedents are to have the weight of authority nothing can ever be settled. There can be no uniformity of action, and frequent and painful conflicts may arise between the President and the Senate. I find nothing in the Constitution militating against these precedents, and a well-settled principle of law sustaining them. Omne majus continet in se minus is not less a maxim of law than a conelusion of logic, and is of familiar application in many cases. Thus, the Constitution of the Confederate States, following that of the United States, gives to the President the power to pardon offenses; and upon this principle it has been held without question, from the earliest time, that the President is not compelled to exercise the full power, but may remit a portion only of the sentence. So a power in a settlement to lease for twenty-one years is well executed by granting a lease for fourteen years. (3 M. and §S., 382.) So where there is a custom within a manor that copyhold lands may be granted in fee simple, a grant for any less estate will be upheld under the custom; and so where an act done under a power is greater than the power authorizes, it will be held good to the extent of the power; as, where there is a power to lease for ten years and a lease is granted for twenty years, it will be held in equity to be a good lease for ten years under the power. (Woodf. L. and I., 32.)

Upon this principle a nomination to take rank from the date of confirmation is necessarily contained in a nomination to take rank from a prior day. Where the Senate adds to the nomination a rank not given by it, it goes beyond the act of the President and originates a nomination; but when it cuts down the rank from a prior date to the date of confirmation, it adopts a portion of the act of the President, and it is to that extent the nomination of the President and the confirmation of the Senate. And when the minds of the President and Senate have met, and the appointment is made in conformity with the confirmation, I see no good reason why it should not be valid. I would have more hesitation in adopting this conclusion if the action of the Senate were binding upon the President; but it is not. Nomination and confirmation together do not make an appointment. Confirmation is mereiy the expression of the Senate’s assent that the appointment may be made. The appointment still remains to be

21 R R—SERIES IV, VOL III

made, and that must be the voluntary act of the President. He may make it according to the confirmation of the Senate, or he may withhold it and send in a new nomination. (Marbury vs. Madison, 1 Cranch, 137.) I think, therefore, that the appointment of General Lawton to be Quartermaster-General has been duly and legally made. GEO. DAVIS, Attorney-General. [First indorsement. ] JUNE 2, 1864.

Respectfully submitted for the information of the President.

Secretary of War.

(Second indorsement. ]

Returned to the Secretary of War.

The opinion closes case. oa

[APRIL 26, 1864.—For Davis to Murrah about the relief of certain

counties in Texas from the operation of the acts of conscription, see

Series I, Vol. LIII, p. 985. ]