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[11] was increased to thirty regiments, namely, nineteen of infantry, six of cavalry, and five of artillery. Section three reads: “That there shall be added to the army of the United States the following general officers, namely, four major-generals,” etc. The four major-generals appointed under this act--Generals McClellan, Fremont, Halleck, and Wool--all had been or were in the regular army.

The whole current of the debate in the Senate upon the passage of this law is unfavorable to General Butler's claim. Among the amendments strongly pressed was one to the effect that no officer should be appointed to the increased regular army above the rank of colonel, unless he should have previously served at least ten years in the regular or volunteer service. General Butler had served two months in the volunteer service when appointed major-general; General McClellan, twelve years continuously in the regular army, resigning with the rank of captain; General Fremont, ten years continuously in the regular army, resigning with the rank of lieutenant-colonel.

General Butler was commissioned under section four of an act approved July twenty-second, 1861, entitled, “An act to authorize the employment of volunteers,” etc. The fourth section reads, “That the President shall be authorized to appoint, by and with the advice and consent of the Senate, for the command of the forces provided for in this act, a number of major-generals, not exceeding six, etc.” Section three of an additional act, approved July twenty-fifth, 1861, entitled, “An act in addition to the act to authorize the employment of volunteers, etc,” says, “That the President shall be authorized to appoint, by and with the advice and consent of the Senate, for the command of the volunteer forces, such number of major-generals as may in his judgment be required for their organization,” using nearly the same terms as in the previous act.

These three acts indisputably show that Congress held the regular army and the volunteer forces to be distinct bodies, and that Generals McClellan and Fremont belong to a separate military establishment, and not in any sense to the same “corps” with General Butler. It requires an act of Congress and reorganization to bring these two bodies into one. Section five of an act approved June twenty-sixth, 1812, entitled, “An act for the more perfect organization of the army of the United States,” enacts “that the military establishment authorized by law previous to the twelfth day of April, 1808, and the additional military force raised by virtue of the act of April twelfth, 1808, be, and the same are hereby incorporated,” etc.

While upon this subject of distinct corps it may be pertinent to make the following observation: The appointments of Generals McClellan, Fremont, Butler, Banks, and Dix were virtually all made in May, and were made generally known in the public journals of that month.

At that time, under the law (see ninety-eighth Article of War) and under immemorial usage, officers of the regular army ranked those of the militia or volunteers, and this usage was carried out through all the details. of service. The regular troops as a body were always placed on the right ranking position, the marine corps next in order, and in the extreme left the militia or volunteers.

If when he made these appointments the President intended to give General Butler the position of ranking general in the armies of the United States, regular and volunteer, why did he not place him in the ranking body? And why did he, on the contrary, place him in that branch of the military service where law and usage positively made him junior in rank to every other officer of the same grade in the other branch of the service?

In point of fact, none of these appointments made before the passage of the acts of July twenty-second, twenty-fifth, and twenty-ninth, gave any legal status. The act of the President in making the appointments was merely provisional, and out of the necessity of the case. Upon the enactment of these laws the President submitted his appointments to the consideration of the Senate, and after they had been confirmed by this body the commissions were issued conformably.

But admitting that military usage and the laws did not expressly operate against General Butler's claim to belong to the same corps with Generals McClellan and Fremont, the fifth paragraph of the Army Regulations does not apply to him in any of its specifications, because the decree of the Senate completing the respective commissions and fixing the character and the extent of the authority conferred, positively assign him an inferior and subsequent date. Therefore, the Regulations, which interpret — they enact nothing — which interpret and formalize the acts of Congress, and make another branch of what must be understood by the term “form,” do not in any way sustain General Butler's position in derogation of the two first generals named in the Register.

It is a peculiarity of the argument brought forward under the fifth paragraph, that throughout it is based upon an assumption of facts which General Butler himself, in his preliminary remarks, declares do not exist, namely, a priority of date in his own commission, and its consequent coincidence with the commissions of the general officers whom he thereby holds to come “in order of seniority” with himself. With the fact constantly in view that the argument rests on an imaginary basis, it is a sort of anomaly to the understanding to follow it in detail through the outside points presented by General Butler.

In his concluding remarks he affirms that “there is no act of Congress which has or can settle seniority of rank.” But certainly there are many precedents which go to show that they can and do settle such questions. The Act of August sixth, 1861, made General Butler senior to brigadier-generals appointed on or after July twenty-second, 1861, and gave him his only claim

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