Tuesday, [January] 14. — 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? (i) 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.
