Unknown to Z. B. Vance, September 16, 1864

Governor Z. B. VANCE, Raleigh, N. C.:

DEAR Sir: Your letter of ist instant reached here during my absence on a brief visit to North Carolina, whence I returned only yesterday. Iavail myself of the earliest opportunity to reply. Ido not understand your letter as asking of me an official opinion as to the legality of the position assumed by the War Department asserting the right of the President and denying that of the Governor to appoint the officers of the regiments known as the ”State troops” of North Carolina. Indeed, under the law and the uniform practice of this Department I am forbidden to give such an opinion except’ upon the requirement of the President or the Secretary of War. I must therefore content myself with explaining to you that view of the law which has governed the War Department in its late action. You are mistaken in supposing that the right of the President to appoint the officers of these troops is claimed under the conscription acts, or either of them. It is derived from a higher source, and is considered not as a right simply, but as an imperative duty.

I have not examined particularly into the history of these requirements, but am informed at the Adjutant-General’s Office that they were received into the service of the Confederate States under the general authority of the act ”To make further provisions for the public defense,” approved 11th of May, 1861. The Constitution recognizes but two classes of troops in the service of the Confederate States, to wit, the Army of the Confederate States and the militia. The appointment of the officers of the latter is reserved to the States; but the officers of ”the Army,” like all other officers of the Confederate Government, are required to be appointed by the President, with the advice and consent of the Senate. This difference in the mode of appointing officers gave rise early in the war to a very important question—that is, in which of these two classes are volunteers and troops furnished by the different States to be embraced.

In August, 1861, Mr. Benjamin, then Attorney-General, gave an official opinion that troops furnished by the States upon a requisition of the Confederate Government were militia and their officers were to be appointed under the State laws. Under the authority of this opinion and the belief that it covered the case of the North Carolina State troops, the appointment of the officers of those troops was yielded to the Governor.

In August, 1862, the case of troops raised and organized under the State laws and received into the service of the Confederate States under the said act of 11th of May, 1861, was presented to Mr. Attorney-General Watts for his opinion and he declared, officially, that such troops are a part of ‘”‘the Army of the Confederate States,” and all vacancies among their officers are to be filled by appointment of the President, with the consent of the Senate. I send you a copy of so much of the opinion as relates to this point.

This view of the law, declared in this opinion, has been adopted by the Secretary of War upon the case of vacancies in the North Carolina State troops being directly presented to him. He feels that he is imperatively bound by the Constitution that the appointments should be made by the President, and that he has no discretion any longer to acquiesce in an arrangement made by his predecessor under what he believes and what has since been declared to be an erroneous construction of the law.

This brief synopsis, with the copy of Mr. Watts’ opinion, will advise you of the reasons by which the War Department has been governed and enable you to judge of their validity. I express no opinion myself, being, as I have said, precluded from so doing by the rules of my office.

Very respectfully, yours, &c.,