Abraham Lincoln Papers
Document: David L. Gregg to Abraham Lincoln, April 15, 18611
1 ID: David L. Gregg, an Illinois lawyer, politician and editor, was appointed U.S. Commissioner to Hawaii by President Pierce in 1853. After being removed from office in 1858, Gregg remained in Hawaii as an official adviser to King Kamehameha IV until 1862.
April 15. 1861.
I take the liberty to enclose to you a pamphlet recently published here, containing speeches &c. of the King.
I also include, for the purpose of showing the estimation in which the present Commissioner of the U S is held, a copy of doggerel stanzas which has been privately circulated.
I hope you will be able to find, -- or have found, -- a different sort of man to replace him. While in a social point of view he is very amiable to his friends, he makes himself perpetually odious by his notions of dignity & etiquette. In this way he has come to be on bad terms with most of his countrymen & the community in general. If he should die here, I am afraid the only fit inscription for his tomb-stone would be “died of a fit of etiquette.” We are daily looking for an account of your inauguration, which I trust passed off to your satisfaction.
With my best wishes for success in your administration I remain
Very truly yours
D L Gregg
Document: Joseph Medill to Abraham Lincoln, April 15, 1861
Chicago, April 15 1861.
There is but one opinion in Chicago -- Douglas Dems and Lincoln Reps are a unit, and that is, that Sumter must be retaken, Moultrie retaken, Pinckney retaken, the custom house retaken, and the Stars & Stripes -- the National Emblem, must float over the Federal property in Charleston. Chicago will send you a gallant regiment on call, and Illinois fifty more England & France met Russia at Sebastipol -- localized the war and whipped her there. She has been tame and quiet ever since. Charleston of all spots, is the place to settle our national difficulties. There meet the secessionists and there crush them. If 50,000 men is not enough call for 100,000, and if that is not sufficient call for 500,000. But crush the head of the rattle-snake. There is where the trouble was hatched. The tories live there -- let them die there. The North West will back you with their last man dollar and bushel of corn. The authority of the Govt. must be made good. Do your duty; the people are with you.
Document: J. C. Mercer to Abraham Lincoln, April 15, 1861
Philada. April 15th 1861
I beg leave most respectfully to suggest that it is time all traitors or those assailing the Government with or without arms -- should be warned by public Proclamation from Washington of their position and liability; and also, that all loyal citizens in the slave states -- upon making themselves known, shall have protection.
y’r most ob’t Sv’t
J. C. Mercer
Document: Winfield Scott to Abraham Lincoln, April 15, 1861
For the President
I have but little of special interest to report to day, except that Colo. Smith, the commander of the Department of Washington, like myself, thinks our means of defence, with vigilance, are sufficient to hold this till reinforcements arrive.
I have telegraphed the commander, at Harper’s Ferry Armory, to say whether he can station, to advantage, for the defence of that establishment, additional recruits from Carlisle? The ground about the Armory is very contracted & rocky.
Head Qrs. of the Army,
Washington, Apl. 15, 1861.
Document: George Ashmun to Abraham Lincoln, April 16, 1861
I wish leave to enter my protest against the removal of Mr Fletcher Webster from the office of Surveyor of the Port of Boston.1 The considerations which prompt me to do this growing out of love for the memory of his father are well known to you, & I need not repeat them.
1 Fletcher Webster, the son of Daniel Webster, became colonel of the Twelfth Massachusetts in June 1861 and was killed in 1862 at Second Bull Run.
If Mr W. can be allowed to complete the term for which he was appointed, the question of re-appointment will present a difficult case; & I sincerely hope that this course may be taken.
Apl. 16th 1861
[Endorsed by Lincoln:]
Hon. Geo. Ashmun, especially wishes that Fletcher Webster may be allowed to serve out his term--
Document: Parke Godwin to Abraham Lincoln, April 16, 18611
1 ID: Parke Godwin , a New York writer and editor, was associated with William Cullen Bryant’s Evening Post for nearly fifty years. Godwin was an advocate for emancipation and a firm supporter of Lincoln.
Washington Apl 16th
My dear Sir,
It is exceedingly important that the appointment of Mr G. Denison,2 as naval officer at New York should be delayed. I think I can show that he is a dishonest man, and there fore unworthy of a public trust.
2 George Dennison was strongly recommended by Lincoln’s friend Robert Irwin and despite the objections of Secretary Chase and prominent New York Republicans, Lincoln appointed Dennison naval officer at the New York customs house.
I have the honour to be
Your obt sevt
Ed. Evening Post
Document: James Henderson to Abraham Lincoln, April 16, 1861
Private and Confidential
New York April 16/1861
It was with feelings of great satisfaction that I read your proclamation yesterday morning. The Administration is rising up to the dignity of the times’ requirements. That proclamation and the glorious result now developing in the enthusiasm of the Free States will fall most unexpectedly in the conspirators’ camp.
On Saturday last I took the liberty of writing you of the pressing necessity to secure Washington from an attempt at seizure. Today from important communications just received from Charleston and Montgomery dated last Wednesday, I am able to inform you that it was then the intention of the conspirators to march on Washington, rendezvousing at Richmond Va, immediately after Fort Sumpter was evacuated, of which by the way they consider a certainty. This rapidity of movement on the one side, and expected demoralization on the other side of the North from loss of Sumpter, (in which they are signally mistaken) contain according to the plans of conspirators, the elements of success so as to secure Washington City and perhaps force Border Slaves States into Secession. They inform me also that there are 5000 men in Virginia, 3000 in Maryland, and 1000 in Washington City, (several hundred in employ of Government) who are ready to assist in movement contemplated by the conspirators. How affairs at Fort Pickens, and your proclamation and its glorious results, will alter their plans I know not. My impression is that Washington will be attacked this week by some force not far from 15.000 men. Martial Law should at once be declared in the District, and as many volunteers concentrated at the Capital immediately as can be at once accomadated. This may prevent the attempt. There may be an attempt if you do. The Crisis, I take it, occurs this week. This week the conspirators are stronger -- on land, and next week they will probably be weaker than the Federal forces. Are they likely to postpone? Let me beseech you then to do all that you can most energetically, all that you can most effectually to prevent the horrid calamity to our nation, our Government and Union of the seizure of the National Capital by Rebels. If we should lose Washington who can estimate our unfortunate position?
So much are the conspirators convinced that without Washington City they are bound hand and foot, and so much does its possession enter into their schemes to confirm their bogus Government, that I am prepared to say your administration has more than half triumphed over this fearful conspiracy to destroy the Government when Washington is secured against any possible attack. Permit me to ask will not closely blockading the ports of the seceding States, and cutting off their mails, for a time, do most of the balance?
You have a noble task before you, which I believe you will accomplish. A rigorous and determined policy, I can assure you, was never contemplated by the Conspiracy leaders and their friends on the part of the administration. You will baffle them, I hope, as Genl. Scott baffled them last winter. If Washington formed the Union we will say hereafter, Lincoln consolidated it and made it perpetual.
One word of myself. I consider that in these trying times of our free institutions, and of our national character every many may share in the great work of perpetuating the one and preserving the other. At some risk and expense I learn the plans and designs of the conspirators only to expose them to those in power, and if possible to prevent their accomplishment. I do my duty. May God endue you and the able men around you to do yours.
I am with great respect
Your obt svt.
P.S. I would respectfully suggest two things. 1st. That you take needful precautions against personal violence, though that is not discussed now by the leaders. 2nd That as far as possible the Press may not be able to communicate important information to the enemy too soon.
Document: Lester A. Miller to Abraham Lincoln, April 16, 1861
If you can spare five minutes or less, please read for your encouragement, the 20th chapter of 1st Kings, to and including the 21st verse. For Ben-hadad, substitute Jeff. Davis; & for Syria, Confederate States. The King of Israel is the President of the U. S. Mark the 11th verse, in view of the southern boasting.
God give you and your associates, wisdom, strength and success.
Lester A. Miller.
Document: Elias Nason to Abraham Lincoln, April 16, 1861
Exeter, N. H. April 16/61
Permit me as an individual deeply interested in the salvation of my country to express to you my most hearty thanks for the vigorous measures it has pleased you to adopt for the suppression of the rebellion in our southern states.
So deeply and so broadly has the spirit of secession and anarchy spread itself that nothing but the most prompt and efficient policy can subdue it. At this juncture in our affairs, it appears to me that temporising would only serve to foment the fury of the opposition and dishearten all true patriots. Our country has cost us too much blood and is of too great value to ourselves and to the world to be sacrificed to a lawless band of desperadoes. It is your high mission under God to save us; and as the voice of which would be powerless in prosperity might, still encourage in the hour of peril and perplexity, I venture to address to you my thanks for calling up the loyal men of the nation to its defense; and especially for calling them in sufficient numbers to vindicate and mantain the integrity of the government. I believe New Hampshire will respond, even to a man, to any draft on her power to sustain your administration in the prompt execution of the laws and in the preservation of the Federal property, and that the cry of every tongue is: -- “Down with Rebellion”! though at the expense of the last dollar we possess and of the last drop of blood that flows in our veins!
May God in his great mercy bless you and crown your efforts to save our country with complete success.
With considerations of profound respect, I have the honor to be your very humble and obedient servant.
Pastor of the 1st Church, Exeter, N. H.
Document: Winfield Scott to Abraham Lincoln, April 16, 1861
For the President.
He has, no doubt, been informally made acquainted with the reply of the officer commanding at Harper’s Ferry yesterday, viz; that he wants no reinforcement. Nevertheless, as soon as the Capital, the rail-road to the Delaware, at Wilmington, & Fort Monroe are made secure, my next object of attention will be the Security of Harper’s Ferry -- proposing, in the mean time, or rather suggesting, that the spare Marines from the Navy Yards of Philadelphia, Brooklyn & Boston, be promptly sent to the Gosport Navy Yard. This relief may serve -- by compelling the secessionists to enlarge their preparations -- to give us time to send a regiment of volunteers to that important point in advance of any formidable attack upon it
With the authority of the Secretary of War we are engaged in mustering into the service eight additional companies of District volunteers. These, I think, place the Capital a little a head of impending dangers & we will maintain, at least, that advantage, till by the arrival (in a week) of regulars & abundant volunteers our relative advantage will, I trust, be more than doubled.
Hd. Qrs. of the Army,
Washington, Apl. 16, 1861
Document: Alexander J. Sessions to Abraham Lincoln, April 16, 1861
Salem, Mass., Apr. 16, 1861.
I am a clergyman. I know that I speak the mind of thousands of ministers of the Gospel, and of tens of thousands of Christian men and women, in Massachusetts and New England. We have prayed for peace, we have prayed for disunionists and rebels. And now we pray to the God of battles to give right the victory. The rallying point for all interests must be the authority and unquestioned supremacy of the Government. If the time for peaceful separation from the Slave States shall ever come, it is not now. It ought never to come. Call out half a million of troops rather than leave anything unsafe, or to work badly. Let no Enemy dare to lay a hand on the Capital.
We pray, Sir, for you. We pray for your Cabinet. May the utmost wisdom, and fidelity, and firmness, be yours, and theirs. Let your plans be large and bold. Let the Government be strong and valient. We will be just to the Slave States, and generous, but we must now be true to republicanism, to humanity, to every claim of the bondman, to our country, to God. No new advantage must be allowed to Slavery, from this time onward. The South has made her Election, recklessly and flagrantly, and we will hold her to it.
I am, Sir,
Yours with profound interest and regard,
Alexander J. Sessions
Document: Abraham Lincoln to William H. Seward, April 17, 18611
1 Alvin Saunders of Iowa was appointed governor of Nebraska Territory.
[Marginal note: Copy from F.W.S.]2
2 Copies of Lincoln’s letters to Seward were provided to John G. Nicolay by Seward’s son and secretary, Frederick W. Seward.
April 17. 1861.
The Gov. of Nebraska has been appointed-- Will you please send me your Brief for Secretary of that Territory?
Document: Daniel Clark to Abraham Lincoln, April 17, 1861
Manchester, N. H.
April 17th, 1861.
There is but one feeling here in regard to the course of the administration -- all parties support the Government; and New Hampshire will answer promptly to the call made upon her--
She has no organized militia -- but will at once raise sufficient volunteers.
We have here a man who was driven from Charleston -- a workman-- He volunteers to day as a soldier
Very respectfully your
Document: Charles C. Leigh to Abraham Lincoln, April 17, 1861
New York. April 17/61.
On the receipt of your proclamation my daughter Kate worked this minature flag. She desired me to send it to you with her warmest thanks for the patriotic stand you have taken. Please accept it as, a small token of her esteem and oblige
Chs. C. Leigh
P. S. That truly great and good man your Sec’y of State can inform you who I am.
Document: Winfield Scott to Abraham Lincoln, April 17, 1861
For the President.
I repeat, in writing, some details which I had the honor to submit, verbally, to the President, this forenoon.
Three or four regiments from Massachusetts (believed to be the first ready, under the recent call) may be expected (three of them) to arrive here, & (one of them) at Fort Monroe in two or three days. One of the three may, I think, be safely spared for Harpers’ Ferry -- if the danger there (& I shall know tomorrow) shall seem imminent. Captain Kingsbury, a most capable officer of the Ordnance Department, goes up, this afternoon for that purpose, & to act, a few days, as Superintendant -- that is, till a new appointment (of a civilian) can be made.
Two of the Massachusetts regiments are needed here. One of them I shall endeavor to intercept at Baltimore & direct it to Harpers’ Ferry.
As soon as one of the four reaches Fort Monroe, it, perhaps, may be safe to detach thence, for the Gosport Navy Yard, two or three companies of regulars to assist in the defence of that establishment. By tomorrow, or certainly the next day, we shall have Colonel Delafield here, an excellent Engineer, to send to Gosport, (with a letter from the Secretary of the Navy giving the necessary authority) to devise, in conjunction, with the Naval commander, there, a plan of defence. Col. Delafield will take instructions to call for the two or to call for the two three companies of regulars as mentioned above. Excepting the reinforcement of Marines (suggested yesterday) & until the arrival of more volunteers, I know not what else can be done for the security of the Gosport Navy Yard.
To night, all the important avenues leading into Washington, shall be well guarded.
Head Qrs. of the Army,
Washington, Apl. 17, 1861.
Document: A. B. Allen to Abraham Lincoln, April 18, 1861
New York Apl. 18. 61
To His Excellency the
President of the United
States -- 34 (Thirty four)
Sir, You cannot well split a Palmetto log with [Butt?] & wedges or axe, but you can blow it to ten thousand million pieces with gunpowder, & this is precisely what we wish you to do with the people of South Carolina, who & every one & all else instrumentall in firing on our glorious flag and and humbling it in the dust.
I belonged to the conservative wing of the Republican party -- voted for you -- & was a peace man till Fort Sumpter was attacked. Now I say return this with such an overwhelming force as will worry the Southern traitors out of their lives.
All this may be done without scarcely a life lost on our side-- Send 500 ships loaded with troops & sailors -- small craft -- merchantmen will do -- backed by every ship of war you can get afloat working night & day to do it. These vessels with 15 to 20,000 men can land at unarmed places, make a demonstration which shall call out thousands of the Southerners -- the moment this is done, embark all hands then land at another place & so keep moving-- In this way without the people of the South may be alarmed & worried out of their lives & be made to spend millions without injuring us.
Go at them -- overwhelm them. My ancestors fought in the old French & Indian war at Bunkers Hill & thou throughout the revolution -- in the last war & now it makes my blood boil to see our flag trailing in the dust at the command of a horde of traitors.
My own 7 cartmen & nearly all in the city are carrying from one to four flags at their horses heads to day. It would do your soul good to see the enthusiasm for you here. If a man opened his hand against you in the street it would endanger his life--
Never was more love of country & your Govt. than is here displayed.
Now dont disappoint us. Th The traitors said you would never get to Washington, but you did-- Now maintain yourself there -- but this you cant do unless with a very large force to surround you back & defend you, & our sound Government.
For Heavens sake let 20,000 northern troops be assembled at Washington forthwith Good Northern reliable men-- Dont depend on Md. Va. or District Columbia militia. A hundred to one they would not either run if a Southern corps advanced, or turn traitors upon the northern men & shoot at them when battle day came-- Some might volunteer for you with this express calculation
You ought to have men enough this moment at W. to overaw secession in Va. Md. & N. C. & it will require at least 20,000 to do this -- not a man less. Throw up earth works instantly for their protection -- & then if Jeffn. Davis advances with 50,000, your 20,000 could keep them at bay till reinforcements enough to crush him were ordered up.
Oh what a shame -- what a disgrace it would be to the country to have you driven from Wn. Pray spare us that, & you may, if you wont hesitate, rest supine, or undervalue your enemies. The Southerners are a desperate vain race -- they despise the north, & think they can flogg us 2 to one, & this makes them presumptuous--
The Duke of Wellington once said Engd. “could not afford to make a little war”-- Neither can we-- Gather an overwhelming force at once pounce upon them like an Eagle on his prey, if they dare to cross within 100 miles of you-- Go at them like a red hot shot -- blow them to atoms--
Dont take any luke warm amiable or hesitating officers advice -- surround yourself with fiery energetic young men -- they are what you want. I am an elderly man, (58 years old) & when I advise for young men for action, I am only thinking how much more bold & vigorous I once was. Recollect how young Alexander, Napoleon & others were, when they not only fought but planned so well-- Our army & navy are too full of old officers -- let them rest & take younger men, like those in the revolution & in the war of 1812 after the latter had avanced it began with old grannies
I wish I could know the doings of your Cabinet from hour to hour-- You undoubtedly have anticipated all I have written this-- The people here & all over the North & West will support you, rely on that-- I am too old to volunteer but I can help the Govt. otherwise & am prepared like millions of others to do all asked of us-- Only keep Washington & an overwhelming force there, & we will be satisfied-- I can refer you to Mr. Seward -- am only a plain buiss man -- a manufacturer of agricultural implements
A. B. Allen
Why retain the scoundrel traitor Marshall one moment longer in office here.
Document: R. Bethell to Abraham Lincoln, April 18, 1861
Allow me to suggest to your excellency the propriety of using a portion of the secret service money placed at your disposal, to discover the parties connected with a secret Society called the Knights of the Golden Circle. There are strong suspicions of their existence in this City-- I am informed Wm B Mann Esqr District Attorney of this City entertains the like opinions with myself as to the existence of such a combination among us. Being personally unknown to you I beg leave to refer to the Hon Simon Cameron Secretary of War for my character & personal antecedents
Philada April 18th 1861
Document: Edward Bates to Abraham Lincoln, April 18, 1861
Attorney General’s Office
April 18th 1861.
I have examined with some care the question submitted to me by your letter of the 18th of March ultimo, enclosing a proposed order “detailing Lieut. Ephrain E. Ellsworth1 of the First Dragoons for special duty as Adjutant and Inspector General of Militia for the United States and in so far as existing laws will admit, charging him with the transaction, under the direction of the Secretary of War, of all business pertaining to the Militia, to be conducted as a separate Bureau of which Lieut. Ellsworth will be chief, with instructions to take measures for promoting a uniform system of organization, drill, equipment, &c. &c. of the United States militia, and to prepare a system of drill for light troops adapted for self instruction for distribution to the militia of the several States,” with provision for a clerk and messenger, &c. and for a monthly payment to him for this extra duty sufficient to make his pay equal to that of a major of cavalry.
1 ID: Elmer E. Ellsworth read law in Lincoln’s office, became a friend of the family and accompanied the Lincolns on their trip to Washington in 1861. Ellsworth organized a New York regiment and was killed on May 24, 1861 while taking down a Confederate flag in Alexandria, Virginia. Ellsworth was the first commissioned officer killed in the war and one of the North’s first heroes.
The proposition involves two questions,
1st. As to the nature and extent of the relations which the national Government sustains to the State Militia, and
2nd. If those relations are such as to render proper the establishment of a separate bureau to supervise and control them, is it competent for the President to establish such a Bureau without an act of Congress authorizing it?
The Constitution confers on Congress power to provide for calling forth the militia in certain cases, and to provide for “organizing arming and disciplining the militia and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.” Art. I, Sec. 8.
In pursuance of this power Congress has by various statutes made provision for organizing, arming and disciplining the militia, and by another series of enactments has provided for calling out the militia, in the enumerated cases, and when employed in the service of the United States, they are expressly made subject to the same rules and articles of war as the troops of the United States, save only that when tried by Courts Martial, such Courts shall be composed only of militia officers. (Bright Dig. 622, Sec. 4, Art. of War XCVII, Bright, 82, Sec. 270.
A review of these statutes discloses a clear distinction between the relations which the national Government maintains to the State Militia before they are mustered into its service, and those which it maintains afterwards. This distinction has its origin in the Constitution, for it will be observed in the clause before cited, which confers on Congress the authority to legislate on the subject, that the power “to provide for organizing arming and disciplining the militia” is separated from the larger power to provide for “governing” such part of them as may be employed in the service of the United States.
The obvious theory of the Constitution and of the acts of Congress based on it, is, that whilst Congress shall prescribe by general rules an uniform militia system for the States, securing the enrolment of all able-bodied white male citizens and maintaining the system of discipline and field exercise observed in the regular army, (Act 12 May 1820, Bright, 621,) yet that the details of militia organization and management shall be left to the State Governments, requiring only that an annual report of the condition of the service in each State shall be made to the President (Act 2 March 1803, Bright, 621.) The commanders in chief and legislatures of the respective States have in general a discretionary power to establish in detail all necessary rules and regulations for the government of the militia, subject of course to the provisions of the several Acts of Congress, and this power, it is believed, every State has exercised.
This view is sustained by the fact that the national Government has no practical connection with the State Militia before they are mustered into the service, except that an annual report to the President is made as provided in the act of 1803 (supra) and that by the Acts of 23 April 1808 -- 29th April 1816, and 3 March 1855, an annual appropriation of $200,000 is made to provide arms and military equipments for the Militia of the United States, to be distributed pro rata among the States. At present, these would be the only duties of a militia Bureau. Nor do I know how the appropriate duties of such a Burea could be enlarged under existing laws. It is true that the act of 12 May 1820 (supra) declares that the system of discipline and field exercise observed in the regular army shall also be observed by the militia, but Congress having imposed no duty on the President or War Department to enforce the observance of this law, it would seem to be the office of the State governments themselves so to do. To impose it on the War Department would not only add greatly to its business and expenses, but would introduce a novel class of duties having no connection with the army, and depending for their efficient performance partly on the Department and partly on the States.
2. But has the President power to establish a separate Bureau for the purpose indicated without an Act of Congress authorizing it? By the Constitution he is Commander-in-Chief of the Army and Navy. As commander-in-chief he has the unquestioned power to establish rules for the government of the army and the Secretary of War is his regular organ to administer the military establishment of the nation and rules and orders promulgated through him must be received as the acts of the Executive, and as such, are binding on all within the sphere of his just authority. (United States vs. Eliason 16 Pet. 291.) But this power is limited and does not extend to the repeal or contradiction of existing statutes, nor to the making of provisions of a legislative nature. (6 Op. 10.).
But the President is by the Constitution, only commander-in-chief of the militia of the several States when called into the actual service of the United States. By the Constitution of each State -- (Penn Art. 2, Sec 7 -- N. Y. Art. 14 Sec. 4 -- Me. Art. 5, Sec. 7 -- R. I. Art. 7 Sec. 3 -- Va. Art 4 Sec. 4 -- Md. Art. 33 -- Tenn. Art. 3, Sect. 5 -- Ohio, Art. 2, Sec. 10 -- N. J. Art. 5, Sec. 6 -- Mo. Art. 4, Sec. 5, &c. &c) the Governor thereof is declared the commander-in-chief of the militia, except when called into the actual service of the United States. The President, therefore, has no power over the militia as commander in chief, until called into actual service, when the functions of the local commanders in chief cease, and those of the President begin. Until that time the powers pertaining to that office are exclusive in the Governors, for there cannot be two commanders in chief of the same body at the same time. It is clear, then, since the State militia are not now in the actual service of the national government, that the President has no power over them by virtue of his office, unless the same be conferred on him by Congress. For it is to Congress and not to the President that the Constitution gives the power “to provide for organizing, arming and disciplining the militia,” and it is Congress and not the President that has assumed the exercise of that power. The President can no more exercise the powers confided to Congress than they can usurp the powers vested in him. If the President, to whom neither the Constitution nor Congress has committed the control of the militia before they are called into the service, may assume that control of his own will, it is as clear a violation of the fundamental principles of Constitutional law as it would be for Congress to exercise the pardoning power. Each may exercise the powers conferred by the Constitution in the appropriate sphere, but neither may assume the powers which belong to the other. The creation of a Bureau by the President in the War Department with the scope and for the purpose proposed, seems to be prohibited by these familiar principles.
Doubtless the President may in his discretion detail an officer of the Army to the special duty of transacting all business legally pertaining to the militia, and for that purpose may withdraw such business from the department to which it now belongs, but this order proposes far more than this:
1st. It confers on an officer of the army a title unauthorized by act of Congress, and no rank or title in the service exists save by express enactment. If the conceded power ...............................................of the President to administer the military establishment of the nation and make rules for its government, involved the right to create a new office and title, it is difficult to see why Congress should have designated with such careful precision every position in the army from that of the Lieutenant General to that of the rawest recruit.
2nd. It proposes the establishment of a bureau heretofore unknown in the organization of the War Department. That Department is subdivided into a number of subordinate departments, as the Quartermaster’s, the Engineer’s and the Medical, all of which are created and their respective duties defined be legislative enactment. Some of them are called bureaus, and in some the duties are subdivided and each subdivision is called a bureau, but all are established to perform duties speacially authorized by law. The same remark is true of the bureaus in the other Departments of the Government, as will be seen by reference to the Acts creating them. See Act 31 Aug. 1842 (5 Stat. at L. 579 and Act 3 March 1849, (9 Stat. at L. 395.) In view of these precedents, I cannot avoid the conclusion that the creation of a bureau in the War Department can only be authorized by Act of Congress designating its chief, defining his duties and providing for the appointment or transfer of the necessary clerical force and messenger.
3rd. It directs that provision be made in such manner as may be most convenient and proper for a monthly payment to the Chief of the proposed bureau for this extra duty, sufficient to make his pay equal to that of a major of dragoons.
This part of the order would be in violation of several Acts of Congress, which expressly provide that no officer in any branch of the public service whose pay or emoluments is or are fixed by law and regulation shall receive any extra allowance or compensation in any form whatever for the performance of any other service, unless the said extra allowance or compensation be authorized by law and explicitly set forth. (Acts 3 March 1839 Sec. 3 -- 23 Aug. 1842 and 26 Aug. 1842, Bright. Dig. 820-1.) These acts cut up by the roots all claim for extra compensation for extra services, and leave no discretion in any officer or tribunal to make the allowance unless it be sanctioned by some law of Congress. Hoyt vs. U. S. 10 How. 141. Brown vs. U. S. 1 Curt. C. C. 15 -- 3 Op. 422--439--473--588 -- 4 Ibid, 126--128--139--249 -- 5 Ib. 61.
The gentleman designated as Chief of the proposed bureau holds the rank of lieutenant of dragoons, and receives the compensation affixed by law to that position, which is less than that paid to a major of dragoons. The proposed increase of pay is directly within the prohibition of these statutes.
But in addition to this, the appointment of Lieut. Ellsworth as chief of the proposed bureau is forbidden by the 34th and 35th sections of Art. 7 of the Regulations of the army, (Army Reg. 5) which provide that no officer shall fill any situation the duties of which will detach him from his company, regiment or corps, until he has served at least three years with his regiment or corps, and further that no officer of a mounted corps shall be separated from his regiment, except for duty connected with his particular arm. As Lieut. Ellsworth has not served three years with his regiment or corps, as he is an officer of a mounted corps; as the proposed extra duties would necessarily detach him from his regiment and company and would in no way be connected with his particular arm, these regulations stand in the way of his appointment, and although they may not have the authority of law, it is yet quite obvious that, until abolished, no sound principle would justify even the President in violating them.
For all these reasons I am of opinion --
1st. That the relations of the national Government to the State Militia before they are called into actual service, are not such as to authorize the President without additional legislation, to establish in the War Department a bureau with the scope and powers indicated in the proposed order.
2nd. That even if they were such, the President has no power to establish the without Congressional enactment.
3rd. That an explicit appropriation by Congress is necessary to provide the compensation proposed, and
4th. That Lieut. Ellsworth could not be the chief of such a bureau, so long as he retains his present connection with the army.
Document: George W. Brown to Abraham Lincoln, April 18, 18611
1 ID: George W. Brown was Mayor of Baltimore when a violent clash occurred April 19, 1861 between Massachusetts soldiers and an angry mob. Brown was arrested by military authorities in September 1861 and spent over a year in prison.
Baltimore April 18th 1861
This will be presented to you by