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President or
Secretary of War, will be issued through the
General of the Army.
The violations of law in
General Sherman's Order No. 12, can be readily made to appear.
The act of July 25, 1866, reviving the grade of General, authorized him, ‘under the direction and during the pleasure of the
President, to command the armies of the
United States.’
The same act authorized him to select ‘for service upon his staff such number of aids, not exceeding six, as he may judge proper,’ and the act of July 28, three days later, provided that ‘there shall be one General * * * * entitled to the same staff officers, in number and grade, as now provided by law.’
The law provided only six;
Sherman's order assigned sixteen—an excess of ten; and more than this, each of the ten was, by law, directly under the
Secretary of War.
But before following this branch of the subject to its conclusion, it will be well to present in brief some of the decisions upon the relations of the
President as commander-in-chief under the
Constitution, and those of the
Secretary of War to the army:
By the Constitution the President is made Commander-in-Chief of the Army and Navy of the United States.
The departments of war and of the navy are the channels through which his orders proceed to them respectively, and the secretaries of these departments are the organs by which he makes his will known to them.
The orders issued by those officers are, in the contemplation of the law, not their orders, but the orders of the President of the United States.—[1 Opinions, 380.
By the act of August 7, 1789, establishing the War Department, the duties of the
Secretary of War are thus defined:
‘There shall be an Executive Department, to be denominated the Department of War, and there shall be a principal officer therein to be called the Secretary for the Department of War, who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, agreeable to the Constitution relative to military commissions, or to the land or naval forces, ships or warlike stores of the ’
