major of cavalry, all storekeepers of the army shall hereafter have the rank, pay, and allowances of captains of cavalry.-Sec. 7, March 2, 1867, chap. 145.

ARMY CORPS.

522. That the President be and he is hereby authorized to establish and organize army corps according to his discretion.-Sec. 9, July 17, 1862, chap. 201.

523. Each army corps shall have the following officers, and no more, attached thereto, who shall constitute the staff of the commander thereof:10 one assistant adjutant-general, one quartermaster,

9 ARMY CORPS.-No legislation was necessary to authorize the establishment of army corps, of two or more divisions; or of armies, of two or more army corps; or for the further subdivision of armies into "wings" or "grand divisions." These are simply executive organizations, for war purposes, of the military forces of the state. Army corps are expressly recognized in the Army Regulations of 1825 430, 432), again in the Regulations of 1841 (¶¶ 383, 387), and in those of 1847 (668); but in the edition of 1861 it is declared that "the formation by divisions is the basis of the organization and administration of armies in the field."

(a.) In time of peace our army has been habitually distributed into geographical commands, styled respectively military divisions, departments, and districts-the "districts," as organized prior to 1815, corresponding to the commands now designated as "departments." These divisions and departments can be established only by the President; but, within their respective departments, commanding generals have from time to time grouped adjacent posts into temporary commands, now known as districts. (b.) MILITARY DIVISIONS, each embracing two or more departments, have obtained from May 17, 1815, to June 1, 1821; from May 19, 1837, to July 12, 1842; from April 20, 1844, to October 31, 1853; from July 25, to August 17, 1861; and since October 13, 1863.

(c.) DEPARTMENT ORGANIZATIONS have been continuous since 1815.

(d.) FIVE MILITARY DISTRICTS were established in the Southern States, as a means toward their reconstruction, by act of March 2, 1867, chap. 153.

(e.) THE STAFF OF DIVISION AND DEPARTMENT COMMANDERS will be limited to1st. One assistant adjutant-general, or an officer to act in that capacity if none be assigned.

2d. The authorized number of aides-de-camp, of the commander's grade.

3d. One medical director, who shall also perform the duties of attending surgeon of the post where the headquarters of the commander is established.

4th. An officer of the quartermaster and one of the subsistence departments may be designated as chiefs of those departments at any headquarters, provided they also perform depot or purchasing duties; but no additional officer will be allowed for that purpose without special authority.

5th. An officer of the pay department may be designated as chief paymaster, provided he also makes his proportion of the payments within the command.

6th. When an officer of engineers or of ordnance is required temporarily for a specific duty on the staff of a division or department commander, he will be announced as such in orders from the adjutant-general's office, and will only be relieved or transferred by similar orders.

7th. Officers belonging to the inspector's or judge-advocate's departments who have heretofore been assigned from the adjutant-general's office, will continue as assigned; but no additional line officers will be allowed for the duties of those departments.— G. O. No. 7, A.-G. O., 1871.

10"The assistant adjutant-general, quartermaster, commissary of subsistence, and inspector-general for each army corps, once assigned from the war department, will remain permanently attached to their respective corps without regard to the movements of corps commanders, unless otherwise assigned by the President."

"The aides-de-camp authorized for corps commanders may accompany the generals for whom they were appointed in their changes of duty or station, except when assigned

one commissary of subsistence, and one assistant inspector-general, who shall bear respectively the rank of lieutenant-colonel, and who shall be assigned from the army or volunteer force by the President. Also, three aides-de-camp, one to bear the rank of major, and two to bear the rank of captain, to be appointed by the President, by and with the advice and consent of the Senate, upon the recommendation of the commander of the army corps. The senior officer of artillery in each army corps shall, in addition to his other duties, act as chief of artillery and ordnance at the headquarters of the corps.-Sec. 10, July 17, 1862, chap. 201.

524. All persons who have served as officers, non-commissioned officers, privates, or other enlisted men, in the regular army, volunteers, or militia forces of the United States, during the war of the rebellion, and have been honorably discharged from the service, or still remain in the same, shall be entitled to wear, on occasions of ceremony, the distinctive army badge ordered for or adopted by the army corps and division, respectively, in which they served.-Joint Resolution, July 25, 1868.

DIVISIONS AND BRIGADES.

525. In the ordinary arrangement of the army, two regiments. of infantry, or cavalry, shall constitute a brigade, and shall be commanded by a brigadier-general; two brigades, a division, and shall be commanded by a major-general. Provided always, That it shall be in the discretion of the commanding general to vary this disposition, whenever he shall judge it proper."-Sec. 8, March 3, 1799, chap. 48.

to a command inferior to an army corps; then their appointments will be revoked, and they will fall back upon the commission previously held."-G. O. No. 212, A.-G. O., 1862.

"All officers other than aides-de-camp in the corps staff are assigned and relieved by orders from the war department. These orders determine the question as to their right to pay."-Secretary of War, by Col. Hardie, September 15, 1863.

For rank and pay of medical director see Chap. x., ¶ 287, and note thereto.

11 By act of March 3, 1847, the troops raised for the Mexican war were to be organized into brigades, of not less than three regiments, and divisions of not less than two brigades each; and by act of July 22, 1861, the volunteer forces were to be organized into brigades of four or more regiments, and divisions of three or more brigades each.

Brigades and divisions not organized in the army in time of peace: see note 9 a. For organization of brigades and divisions in the militia see Chap. xxv., ¶¶ 783, 784.

CHAPTER XIX.

APPOINTMENTS, PROMOTIONS, BREVETS, CERTI FICATES OF MERIT, AND MEDALS OF HONOR.

APPOINTMENTS.1

530. OFFICERS taken from the line, and transferred to the staff, shall receive only the pay and emoluments attached to the rank in the staff; but their transfer shall be without prejudice to their rank and promotion in the line according to their said rank and seniority; which promotion shall take place according to usage, in the same

1 APPOINTING POWER.-In the absence of statutory restrictions, the President's power to appoint and promote, either in the line or staff or the army, is not confined to selections from any class or grade. Congress, however, has established uniform rules for promotion (see ¶¶ 539, 540), and in several instances has prescribed the classes from which selections must be made in appointing to original or other vacancies. For example: the general to be selected from officers in military service (195); the lieutenant-general, from the grade of major-general (¶ 197); and, in the reorganization of 1866, a proportion of the original vacancies created by the act of July 28, of that year, to be filled by selections from the volunteer forces. See also the act of April 12, 1808, which required that every commissioned officer to be appointed in the additional forces thereby authorized should be a "citizen of the United States;" and the acts cited in note 15.

In 1822 President Monroe, in a message referring to the army reduction under act of 1821, claimed that in filling original vacancies, that is, offices newly created, it is my opinion that Congress has no right under the Constitution to interpose any restraint, by law, on the power granted to the President, so as to prevent his making a free election for these offices from the whole body of his fellow-citizens." The Senate, however, disagreed to his doctrine, and contended that as Congress possessed the power to make rules and regulations for the land and naval forces, they had a right to make any which they thought would promote the public service; that such power had been exercised from the foundation of the government in respect to the army and navy; that Congress had a right to establish rules for appointments and promotions; that every promotion is a new appointment, and is submitted to the Senate for confirmation; that Congress, in all reductions of the army, had fixed the rules for such reductions; and that no executive had hitherto denied their rightful power so to do, or had hesitated to execute such rules as Congress had prescribed.-Sergeant on the Constitution, chaps. 29, 31.

See CONSTITUTION OF THE UNITED STATES (Art. ii., sec. 2, clauses 2 and 3; sec. 3; and note 6), Chap. i.

(a.) WHAT CONSTITUTES AN APPOINTMENT? In answer to this query, citations are made from decisions of the Supreme Court, as follows:

(Case of Marbury v. Madison.) "Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. The transmission of the commission is the sole act of the officer to whom that duty is as

manner as if they had not been thus transferred."-Sec. 3, March 3, 1813, chap. 52.

531. The several officers of the staff shall, respectively, receive the pay and emoluments, and retain all the privileges, secured to the staff of the army, by the act of March 3, 1813, and not incompatible with the provisions of this act.-Sec. 9, April 24, 1816, chap. 69.

532. Hereafter, the staff of the army' may be taken from the

signed, and may be accelerated or retarded by circumstances which can have no influence on the appointment."

"If the transmission of a commission be not necessary to give validity to an appointment, still less is its acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one nor the other is capable of rendering the appointment a nonentity. A commission bears date, and the salary of the officer commences from his appointment; not from the transmission or acceptance of his commission. When a person, appointed to any office, refuses to accept, the successor is nominated in the place of the person who has declined, and not in the place of the person who had been previously in office."

"When a commission has been signed by the President, the appointment is made; and, where the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed; and the commission itself is only evidence of such appointment.1 Cranch, 137-180, passim. (See also 4 Opinions, 217; 9 ibid., 297; and 5 Nott & Huntington, 97.)

(In case of United States v. Le Baron.) An appointment becomes complete upon signature of commission; and when the appointee complies with such conditions as may have been imposed by law, as to bonds, oath of office, etc., he is entitled to all the benefits of that complete action.-19 Howard, 78.

(In case of United States v. Bradley.) Held that giving a bond was merely a min isterial act for the security of the government, and was not a condition precedent to authority of the appointee to perform the functions of his office, and that the appointment was complete when "made by the President and confirmed by the Senate."-10 Peters, 344.

(b.) But see 533.

THE STAFF OF THE ARMY is generally understood with us to include all corps other than the artillery, cavalry, and infantry, but the right to adopt so comprehensive a classification is somewhat clouded by incongruous legislation, by regulations, and by an opinion of the Supreme Court. The language of this section, and of the 74th Article of War (¶ 649), certainly indicates that the whole military establishment must be considered as arranged under one or the other of the correlative terms, "the line," or "the staff," of the army. Under the acts of March 3, 1795, March 3, 1813, and April 24, 1816, the "general staff" embraced general officers, aides-de-camp, judgeadvocates, topographical engineers, and chaplains, and such officers of the adjutantgeneral's, inspector-general's, quartermaster's, and medical departments as were then authorized; and in the act last cited we find a provision "that ordnance officers be assigned to their duties with the staff of the army, in the same manner as from the corps of engineers." (¶ 410.) The Army Regulations refer to the staff departments and the engineers and ordnance; but the second comptroller says that the officers of the corps named "do not belong to the line of the army." What then is their status? The law implies that they do not belong to the staff; the comptroller denies their identity with the line; and the Army Regulations of 1863 (¶20) suggest their isolation from either the one or the other. See Chap. xii., note 1 c; and Chap. xiii., notes 1 b and 8.

(a.) In the absence of determinate legislation, it would seem to be not only the right, but the duty, of the President to arrange, as has been done, such classification of the various corps as is indicated by the nature of the duties for which they are established; but that such distribution is conclusive as to resultant questions of pay, command, or

line of the army, or from citizens.2b. chap. 69.

Sec. 10, April 24, 1816,

533. Appointments in the line, and in the general staff, which confer equal rank in the army, shall not be held by the same officer at the same time; and when any officer of the staff who may have been taken from the line shall, in virtue of seniority, have obtained or be entitled to promotion to a grade in his regiment equal to the commission he may hold in the staff, the said officer shall vacate such staff commission, or he may, at his option, vacate his commission in the line.-Sec. 7, June 18, 1846, chap. 29.

534. That the President of the United States be and he is hereby authorized, by and with the advice and consent of the Senate, to confer the brevet of second lieutenant upon such meritorious non

other privileges, is denied by the Supreme Court in case of Whetmore v. United States. In that case cavalry pay was claimed by a paymaster on the ground that the officers of his department belonged to the staff, and had been so graded by the war department, as shown in the Army Register. The claim was rejected, and in delivering opinion of the court, the judge remarked: "The registers are compilations issued and published to the army by the direction of the secretary at war, in the exercise of his official authority; and when authenticated by him would be evidence of the facts, strictly so, they may contain; such as the names of officers, date of commissions, promotions, resignations, and regimental rank, brevet, and other rank, or the department of the army to which officers belong; but from none of these can an inference be drawn by a jury to establish the pay and emoluments of officers; as they are provided for by law, and must be determined by the court when they are doubtful and the subject of dispute, in a suit between an officer and the United States. Nor can such registers be evidence of the correctness of any classification of the officers of departments into a general staff of the army; for though they are probably correct, being prepared by persons whose professional duty it is to be well informed upon the subject, and who, from their familiarity with military science and the general arrangement of armies, are supposed to be expert interpreters of the acts of Congress for the organization of our army, still, what officers are of the staff, or general staff, depends upon acts of Congress, which are to be expounded by the courts, when an officer claims a judicial determination of his right as to pay and emoluments, from his having been arranged as belonging to the staff.

"Considering the staff as a central point of military operations, whence should proceed all general orders for the army, the orders of detail, of instruction, of movement, all general measures for subsisting, paying, and clothing the army; and as the administrative organ of all supplies for the military service and land defense of the country: it seems to us that paymasters, from their duties and responsibilities, should be classed with the general staff, and we presume it has been done under the act of the 2d of March, 1821, which, without being express upon the point, has rendered indeterminate the previous acts of Congress fixing with certainty the officers composing the staff."--10 Peters, 652. But see 317 and note 1 a, Chap. xi.

(b.) Appointments in the adjutant-general's and quartermaster's departments are restricted to selections from the army. See Chap. vii., ¶¶ 207, 208, and note 3; and Chap. viii., 222.

With reference to appointments in the subsistence department see Chap. ix., notes 1a and 2 a; and for conditions precedent to appointments in the medical and ordnance departments see Chaps. x., ¶ 283, and xiii., ¶ 402.

3 Under a ruling of the war department, his commission in the line may be vacated, by resignation, immediately upon transfer to the staff.

"A staff appointment conferred on an officer in the line of the army is not a promotion, but an original appointment. Its pay will, therefore, commence from the date of the officer's acceptance. Such acceptance may be either by letter or by commencing to perform the duty."-Second Comptroller, October 13, 1851. But see note 1 a.