A warm, pleasant day. Sent three companies late last night
to Tompkins Farm under Captain Sperry; a dark, muddy march — just out of good
quarters too. Colonel Hatfield of [the] Eighty-ninth Regiment makes a singular
point as to my rank compared with his. He was appointed colonel about December
1, and has a commission of that date; that is, at the bottom are the words “issued
this day of December” and also sealed, etc., this day of December. My
commission in like manner was of November 1. Colonel Hatfield was major before
and acted as second in command until he received his commission. But his
commission in the body of it has a clause to take rank from October 2, 1862,
which is twelve days earlier than mine. He claims this is the date of
his commission. Not so, the date is at the bottom as above. A note dated
December 1 with interest from October 2 is still a note of December 1. But what
is the effect of the clause or order in the body of the commission? I say
nothing. The governor of a State has no power to give rank in the army of the
United States prior to either appointment or actual service in
such rank. If he could confer rank two months prior to appointment or service,
he could two years. He could now appoint civilians to outrank all officers of
same grade now in service from Ohio or from any other State. But this is
absurd. A commission being merely evidence of appointment, the governor
may perhaps date it back to the time of actual appointment or service. The
President of the United States, as Commander-in-Chief of [the] United States
army, can, perhaps, give rank independent of service or actual appointment. But
if a state governor is authorized to do so, the Act of Congress or lawful order
for it can be shown. Let us see it.
The President's power to appoint and to discharge officers
embraces all power. It is supreme. But the governor has no power of removal. He
can only appoint according to the terms of his authority from Congress or the
War Department. What is that authority?
The appointments are often made long before the issuing of
commissions. The commission may then well specify the date from which
rank shall begin. But I conclude there can be no rank given by a governor prior
to either commission, appointment, or actual service. Else a citizen could now
be appointed colonel to outrank every other colonel in the United States, and
be entitled to pay for an indefinite period in the past, which is absurd.
The governor has no authority to put a junior over a senior
of the same grade. He may promote or rather appoint the junior out of order,
because the power to appoint is given him. But to assign rank among officers of
[the] same grade is no part of his duties. Why is such a clause put in
commissions? (1) Because appointments are often made (always so at the
beginning of the war) long before the commissions issue. (2) In recruiting
also, the appointment is conditional on the enlistment of the requisite number
of men. Of course the rank dates from the appointment and actual service.
But the great difficulty lies here. Is not this clause the highest
evidence — conclusive evidence — of the date of the appointment? Can
we go behind it? I say no, for so to hold is to give the governor the power to
determine rank between officers of [the] same grade after appointment.
The order of appointment is highest (see Regulations). The
governor's order may be written, as Governor Dennison's were, or verbal as
Governor Tod's are — to be proved in one case by the order, in the other
verbally.
SOURCE: Charles Richard Williams, editor, Diary and
Letters of Rutherford Birchard Hayes, Volume 2, p. 388-90
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