CHAPTER V.

ARMY REGULATIONS.

181. It shall be the duty of the secretary of the war department, and he is hereby authorized, to prepare general regulations,1 better defining and prescribing the respective duties and powers of the several officers in the adjutant-general, inspector-general, quartermaster-general, and commissary of ordnance, departments, of the topographical engineers, of the aides of generals, and generally of the general and regimental staff; which regulations, when approved by the President of the United States, shall be respected and obeyed; until altered or revoked by the same authority. And the said general regulations, thus prepared and approved, shall be laid before Congress at their next session.-Sec. 5, March 3, 1813, chap. 52.

182. That the regulations in force before the reduction of the army be recognized, as far as the same shall be found applicable to the service; subject, however, to such alterations as the secretary of war may adopt, with the approbation of the President.-Sec. 9, April 24, 1816, chap. 69.

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183. That the secretary of war be and he is hereby directed to have prepared, and to report to Congress at its next session, a code of regulations for the government of the army, and of the militia in

1 "A REGULATION" of an executive department is a rule made by the head of such department for its action, under a statute conferring such power, and has the force of law; a mere order of the President, or of the secretary of the department, is not a regulation. Harvey v. United States, 3 Nott & Huntington, 42.

2 The secretary of war to prescribe general regulations for the purchase and transportation of supplies, see ¶4; and for manner of issuing and accounting for clothing see 239.

3 The regulations referred to are those of May 1, 1813. By act of March 2, 1821, Congress "approved and adopted" a system of regulations prepared by General Scott; but by act of May 7, in following year, that action was reconsidered, and the authority to make and amend regulations was thus recommitted to the secretary of war, under direction of the President.

(a.) The executive departments must necessarily do many things essential to the proper action of the government, for which there is no statutory provision; and it is necessary that they should construe such laws as they are required to execute; their construction of a statute, when not affecting private rights, is held to be binding on the courts. See United States v. MacDaniel, 7 Peters, 2; United States v. Lytle, 5 McLean, 9.

(b.) "The power of the executive to establish rules and regulations for the government of the army is undoubted. The power to establish implies necessarily the power to modify or repeal, or to create anew. The secretary of war is the regular constitu

actual service, which shall embrace all necessary orders and forms. of a general character for the performance of all duties incumbent on officers and men in the military service, including rules for the government of courts-martial. The existing regulations to remain in force until Congress shall have acted on said report.-Sec. 37, July 28, 1866, chap. 299.

184. The secretary of war shall prepare a system of general regulations for the administration of the affairs of the army, which, when approved by Congress, shall be in force and obeyed until altered or revoked by the same authority, and said regulations shall be reported to Congress at its next session. Provided, That said regulations shall not be inconsistent with the laws of the United States. Sec. 20, July 15, 1870, chap. 294.

tional organ of the President for the administration of the military establishment of the nation; and rules and orders publicly promulgated through him must be received as the act of the executive, and as such be binding upon all within the sphere of his legal and constitutional authority. Such regulations cannot be questioned or defied, because they may be thought unwise or mistaken."-United States v. Eliason, 16 Peters, 291.

(e.) The army regulations when sanctioned by the President have the force of law."-United States v. Freeman, 3 How, 566; and reaffirmed in Gratiot v. United States, 4 How, 80.

(d.) The responsibilities and authority of military officers are regulated by law, and are for the courts to determine.-United States v. Willard, 1 Penn, 539. See also chap. 1, note 11 a.

(e.) "The war department, representing the President in the administration of the army, has permanent authority from Congress to make regulations in aid and complement of statutes."-Attorney-general, January 1, 1857.

(f.) “I have no doubt that the secretary of war may, with the approbation of the President, alter, at pleasure, the existing regulations for the government of the Military Academy, or any other portion of the army, even although such alteration should go to an entire change of the present system; provided, that the regulations, as proposed to be altered, be consistent with the Constitution and laws of the United States."Attorney-general, May 19, 1821. But see last clause of ¶ 183.

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CHAPTER VI.

GENERAL OFFICERS, AIDES-DE-CAMP, AND MILITARY SECRETARIES.

191. THERE shall be one general, one lieutenant-general, five major-generals, and ten brigadier-generals,' who shall have the same pay and emoluments and be entitled to the same staff officers in number and grade as now provided by law.-Sec. 9, July 28, 1866, chap. 299.

192. The offices of general and lieutenant-general of the army shall continue until a vacancy shall occur in the same, and no longer; and when such vacancy shall occur in either of said offices, immediately thereupon all laws and parts of laws creating said office shall become inoperative, and shall by virtue of this act from thenceforward be held to be repealed.-Sec. 6, July 15, 1870, chap. 294.

193. No appointment to the grade of major-general shall be made until the number of officers of that grade is reduced below three, after which the number of major-generals shall not exceed three.—' Sec. 7, ibid.

194. No appointment to the grade of brigadier-general shall be made until the number of officers of that grade is reduced below six, after which the number of brigadier-generals shall not exceed six.— Sec. 8, ibid.

THE GENERAL AND STAFF.

195. That the grade of "general' of the army of the United States" be and the same is hereby revived; and that the President is hereby authorized, whenever he shall deem it expedient, to appoint, by and with the advice and consent of the Senate, a general of the army of the United States, to be selected from among those officers

1 For reduction in these grades see next three paragraphs.

2 First established by act of March 3, 1799 (chap. 48), providing "that a commander of the army of the United States shall be appointed and commissioned by the style of general of the armies of the United States;' and the present office and title of lieutenant-general shall thereafter be abolished," no appointment was made under that act, and the grade was discontinued by act of March 16, 1802, which authorized but one general officer (a brigadier-general) for the army.

in the military service of the United States most distinguished for courage, skill, and ability, who, being commissioned as general, may be authorized, under the direction and during the pleasure of the President, to command the armies of the United States -Sec. 1, July 25, 1866, chap. 232.

196. The said general may select from the regular army for service upon his staff3 such number of aides, not exceeding six, as he may judge proper, who, during the term of such staff service, shall each have the rank, pay, and emoluments of a colonel of cavalry.— Sec. 2, July 25, 1866, chap. 232.

THE LIEUTENANT-GENERAL AND STAFF.

197. That the grade of lieutenant-general be and the same is hereby revived' in the army of the United States; and the President is hereby authorized, whenever he shall deem it expedient, to appoint, by and with the advice and consent of the Senate, a lieutenant-general, to be selected from among those officers in the military service of the United States, not below the grade of major-general, most distinguished for courage, skill, and ability, who, being commissioned as lieutenant-general, may be authorized, under the direction and during the pleasure of the President, to command the armies of the United States.-Sec. 1, February 29, 1864, chap. 14. 198. And it is hereby provided that, in lieu of the staff now allowed by law to the lieutenant-general, he shall be entitled to

3 CHIEFS OF STAFF.-By an act of March 3, 1865, a chief of staff with the rank of brigadier-general was provided for the lieutenant-general commanding the army. By a clause of sec. 2, of the act of July 25, 1866, that officer was transferred to the staff of the general, and the office was abolished by act of April 3, 1869.

Sec. 2, act of March 3, 1813 (chap. 52), enacted "that the President of the United States be and is hereby authorized, if he shall deem it expedient, to assign one of the brigadiers-general to the principal army of the United States, who shall, in such case, act as adjutant- and inspector-general, and as chief of the staff of such army." This enactment has never been repealed in express terms, but it has been regarded as obsolete by Brightly, Cross, and Callan. It probably was in effect repealed by so much of the act of 1821 as discontinued the joint office of "adjutant- and inspectorgeneral."

It is believed that no legislative sanction is required to authorize the assignment of any officer to duty as a chief of staff; and in the Army Regulations of 1825 it was provided that there should be "attached as chief of the staff, to a brigade, a major; to a division, a colonel; to an army corps, a brigadier-general; and if the particular army consists of two or more army corps, a major-general will be attached to it as chief of the staff." Subsequent additions of the Army Regulations provide simply that a "suitable staff" be attached to brigades, divisions, etc.

4 The grade first recognized in the act to raise a "provisional army," May 28, 1798; abolished in 1802 (see note 2); and revived, so as to be conferred by brevet only, by resolutions of February 15, 1855. See also 7 Opinions, 399–439.

5 The law of February 29, 1864, had authorized a personal staff of four aides-decamp and two military secretaries, with rank, etc., of lieutenant-colonel.

It is remarkable that while the law limits the selection of aides-de-camp for all

two aides and one military secretary, each to have the rank, pay, and emoluments of a lieutenant-colonel of cavalry during the term of such staff service.-Sec. 2, July 25, 1866, chap. 232.

STAFF OF MAJOR- AND BRIGADIER-GENERALS.

199. The aides-de-camp of the major-general commanding the army in time of war may be taken from the line, without regard to rank; and the aides-de-camp allowed to other major-generals and brigadier-generals may be taken from the grade of captain or subaltern; and the commanding or highest general in rank may, while in the field, appoint a military secretary from the subalterns of the army, who shall have the pay and emoluments of a major of cavalry for the time being.-Sec. 8, June 18, 1846, chap. 29.

200. The senior aide-de-camp of the major-general commanding the army may be taken from the captains or majors of the army, and shall be allowed the pay and emoluments of a major of calvary."— Sec. 2, September 26, 1850, chap. 50.

201. The general commanding the armyed of the United States shall be allowed a secretary, to be taken from the line of the army, who shall receive twenty-four dollars per month, in addition to his pay in the line, and shall be allowed forage for two horses.-Sec. 5, May 16, 1812, chap. 86.

202. There shall be added to the army of the United States the following general officers, namely: four major-generals, with three aides-de-camp each, to be taken from captains or lieutenants of the army, and six brigadier-generals, with two aides-de-camp each, to be taken from the lieutenants of the army.-Sec. 3, July 29, 1861, chap. 24.

other general officers of the army, to details from the army, it is silent as to the class from which selections for the personal staff of the lieutenant-general are to be made.

Subalterns only can be

6 AIDES-DE-CAMP TO MAJOR- AND Brigadier-generals. detailed as aides to the brigadier-generals: see ¶ 202. (a.) There is no law interdicting the employment and payment of aides of a brevet general officer when he is assigned to duty as such.-Second Comptroller, 1786. And it is the practice to allow an officer commanding under the brevet of majorgeneral to select his aides-de-camp from the grade of captain. See Chap. xi., note 6. (b.) The act of March 2, 1821, having abolished the office of assistant adjutantgeneral, enacted that "aides-de-camp, in addition to their other duties, shall perform the duties of assistant adjutant-general."

(c.) And for rank and pay of the aides-de-camp of army corps commanders, see Chap. xviii., 523.

(d.) "The general commanding the army" was, at the passing of this act, a majorgeneral. An appointment was made under this section as late as 1863.

(e.) For the staff of general officers of the MILITIA, see Chap. xxv., ¶¶ 783, 784. (f.) The number of general officers determined in ¶¶ 191-194. This section determines only the number and rank of the aides-de-camp allowed to these grades. See also clause a.