Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 7.
Frank Moore, Ed.

[10] destroy the precision of authority fixed by date would unsettle all commissions, and seriously disturb the whole economy of the army. The fact that it required a special act of Congress to enable the President to disregard the date in the employment of officers shows both the usage itself and the force of it.

General Butler claims, first, that the rank dates from the day on which the letter of appointment is received, and not from the day fixed in the commission.

The statement of the point carries the refutation with it. The letter of appointment is simply a letter of information, setting out the rank which is offered and the date from which that rank shall be held to take effect, if consented to by the Senate. The rank and date of it are fixed by the President and the Senate together, and the form in which they are both expressed is the commission itself, and the official record of the Army Register, which classifies officers under the head “date of commission,” and knows nothing of any letters of appointment or oaths of office, but rests solely on the date of commission. The files and papers of the War Department must be held to be authentic history of all public acts relative to that branch of the Government. In this sense I understand Gen. Butler to use the term “form,” and if he relies on these forms he has no case, for as here presented, “law, fact, and form,” are combined on one side against Gen. Butler's individual opinions on the other.

2. That “in consideration of meritorious services performed in the service of the United States, etc.,” the President “intended” to give him seniority of the rank.

But the President did not do so in the only public and official way which could give validity or binding force to his alleged intention. “For every thing the Executive does there must be the warrant of law ;” the relative positions of General Butler and the other Major-Generals are fixed under this “warrant,” and it would be unprecedented to say that any unfulfilled intentions of the President are sufficient of themselves to render void a deliberate and final act of the Government to which he himself was a principal party.

Upon the retirement of Lieut.-Gen. Scott all the officers whose rank is called in question by Gen. Butler being then in active service, the President placed in chief command Gen. McClellan of the regular army, one of the two officers ranking first by date of commission. At that time the resolution of April fourth, 1862, authorizing the President to disregard seniority of rank in assigning command had not been passed, and he would have felt required to give General Butler the chief command, which would have been his of right, if he were the senior Major-General. Whatever the President's intentions might have been before the issuance of the respective commissions, his acts on this occasion show conclusively his construction of their effect as to relative rank after they were issued.

3. Gen. Butler, in support of his claim, cites the fifth paragraph of the Army Regulations, which applies only to the case of commissions of even date. He admits that this “would hardly seem to cover” his case, but at the same time proceeds to apply it precisely as if it did. Arguing under this head, he proceeds to assume that the major-generals of the army constitute a corps, and assuming at the same time that he is of even date with Generals McClellan and Fremont, and that he is of the same corps with them, he draws the conclusion that this fifth paragraph of the Army Regulations decides the question in his favor under every clause. To this I have to reply:

1. That the major-generals of the army do not constitute a corps.

2. And if they did, General Butler would not belong to the same corps with Major-Generals McClellan and Fremont.

3. And if he did belong to the same corps with them, the fifth paragraph does not apply to him in any of its specifications, because his date is subsequent to theirs.

The major-generals in the service belong to a grade and constitute a class — they do not constitute a corps. In 1857, the date of the Army Regulations quoted by General Butler, there was but one major-general in the service, and he could not very well be construed into a corps.

The Articles of War use the word corps in the sense of a portion of the army organized by law, with a head and members, or any other military body having such organization, as the marine corps. A regiment is a corps, an independent company is a corps, a body of officers, with one head, is a corps, as the Topographical Engineers. Detachments of parts of regiments, or of whole regiments, united for a particular purpose, whether for a campaign or a part campaign, are not corps in the sense of the Rules and Articles of War; for such bodies have neither head nor members commissioned in the particular body temporarily so united, but the officers with such detachments hold commissions either in the corps composing the detachment, in the army at large, in the marine corps or militia. （Scott's Military Dictionary.)

The same work, under the word “line,” gives an extract from General Order Number 51 of the series of 1851, in which President Fillmore explains the rule regulating seniority of rank among officers of different corps, and concludes by remarking that when a major-general or brigadier-general is present, “no question can arise as to the right to command, because the general officer, not belonging to any corps, takes command by virtue of a general rule of superiority in rank.”

Generals McClellan and Fremont were commissioned major-generals in the regular or permanent army of the United States, and General Butler in the volunteer or temporary force raised for the suppression of the rebellion. Generals McClellan and Fremont were commissioned under section three of the act approved July twenty-ninth, 1861, entitled, “An Act to increase the present military establishment of the United States,” and beginning, “That there shall be added to the regular army,” etc. Under this act the regular army