Doc. 7.-General Fremont's letter.
Gen. Butler's demand to be declared the ranking officer of the army of the United States, regular and volunteer. By your order I am informed that his demand will be referred for decision to a board of officers, and I am invited to submit any remarks which I desire to make upon the subject, and am allowed for this purpose fifteen days from the date of your order. In reply, I have to say that I do not think the question open to discussion. This is a case involving the acts of the Government, which have a binding and conclusive force, the bare statement of which is sufficient for a decision. The strength of Gen. Butler's argument rests upon the assumption that it was the President's “intention” to make him the senior Major-General, in consideration of his “meritorious services rendered in the service of the United States, etc.” But the President did not make his recognition of these services public and effective. He did not carry out any such “intention” by nominating General Butler to the ranking position, but did so nominate Generals McClellan and Fremont, and gave Gen. Butler an inferior date, placing him in what was then, and has always been, considered a distinct and separate branch of the military service. The Senate confirmed these nominations accordingly, and by their act constituted Generals McClellan and Fremont Major-Generals of the regular army “to rank as such from the fourteenth day of May, 1861,” and General Butler a Major-General in the United States volunteer forces, to rank from the sixteenth day of May, 1861. The act of the Senate fixes the time at which the rank shall begin, and the usage of the War Department has been in conformity to it from the foundation of the Government to the present day. Our respective commissions were conferred upon us by that authority which the Constitution makes alone competent to give them, and no inferior tribunal can, by any possibility, alter or modify the direct meaning and effect of the terms in which those commissions are given. I am, therefore, not willing to submit my commission held under this authority to the revision of any board of officers, nor can I for a moment, by any act, admit the right of Gen. Butler to call it into question. But, while entering this protest, I will, in deference to your request, make some remarks upon General Butler's argument. And in making these remarks I confine myself strictly to the law and the established usage of the War Department, holding that stability and good order in the army, and the security of those who belong to it, can be found only in their rigid observance. I take the facts as they are, and in making any distinction between classes and branches of the service, I do so because the law makes them, and with no disposition to discriminate otherwise in favor of either. Certainly in no profession can fixity of rights and duties and clearly defined authority be more essential than in the military service. It seems superfluous to assert a fact which the experience and practice of the world confirm. Such a question could not occur in any European service, certainly not in Continental Europe; but in ours, under the present extraordinary circumstances, there necessarily already exists an uncertainty and confusion, greatly perplexing to officers and injurious to the public interest. To  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  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  to seniority upon the ground of superior rank when appointed. General Butler adds, that “questions of seniority now are only useful in points of etiquette and service upon courts-martial.” But these questions involve something more than etiquette; they are questions of rank, and of rank under such circumstances as often to convey the most positive control and command. The resolution of April fourth, 1862, authorizing the President “to assign the command of troops in the same field or department to officers of the same grade, without regard to seniority,” does not vitiate the right to command, which is given by superiority of rank, except in those cases when it is specially so ordered by the President. I rest here my remarks on the subject, concluding briefly. General Butler demands that the commissions of Generals McClellan and Fremont be in part set aside in his favor, upon the ground that, in consideration of his services in the department of Annapolis, the President intended to give him the position now legally held by one of those two officers. To this I desire, finally, to reply that the act of the President and Senate which conferred on them their commissions was constitutional and binding in all its terms, and I respectfully submit that there is no authority competent to modify it. Very respectfully, your obedient servant,