11 [ 1 ] 



wherein it is restricted by law, instead of regarding it as a creation of statute 

 law, and thus looking to the law itself to ascertain its rights and privileges? 

 So far then from regarding the Gist Article of War (as General Scott does) 

 in a negative light, as restrictive in its principle, it can only be considered 

 as positive, and as containing within itself a grant of power and rights to 

 brevet rank, and what is not therein, or in some other law, granted to 

 brevet rank, it neither has, nor can have, under our free institutions. 



In order to show that the design of Congress, in the creation of brevet 

 rank in our service was entirely in accordance with these, to us, clear prin- 

 ciples, we have only to look at the history of the service. We shall see 

 that Congress reserved to the Senate of the United States the power, and 

 made it the duty also of the Senate, to advise and consent to the commis- 

 sions of officers of the army, and. this too where oificers attained to rank 

 even by regidar succession upon the occiu'rence of vacancies. But they 

 did not require during a period of many years this advice and consent of 

 tlie Senate in the case of brevet commissions. This peculiarity cannot havi; 

 originated in a disposition to clothe the President with powers to grant bie- 

 vet commissions at pleasure, with the intention that bi'evet rank should be 

 valid, as General Scott supposes, for all purposes except where restricted 

 bylaw; and it can only be understood as implying the belief that bievet 

 rank is chiefly an honorable distinction, the evidence of gallantry, ability, 

 or good conduct, and not possessing powers by which it would come into 

 conflict with the advised and consented to conunissions of other officers ex- 

 cept under the direct sanction of law, as under the Gist Article of W^ir. 



WHien, however in course of time it appeared, as we suppose, that the 

 •distinguishing characteristic of brevet rank was somewhat obscured by the 

 too frequent and indiscriminate grant of it f>y the President, the Congi'ess 

 of the United States saw fit to require that bievet commissions, in conHuon 

 with all others in the army, should I)e submitted to the Senate of the United 

 States, and this is now the law of the land. 



It cannot escape observation, that President Jackson and Secretary Por- 

 ter, whose opinions have been referred to, had both been distinguished sol- 

 diers, and that the former continued for sevei-al years a Major General in 

 the army after the close of the war of l!Sl2. President Jackson was inti- 

 nuitely acquainted with tlie question of brevet rank, and no less acquainted 

 with the feelings of the army upon the whole subject; neither had he ever 

 been brought into collision with brevet rank in his own jierson, and must 

 thus be supposed to have been in the most desirable condition to form an 

 accurate and unbiased opinion \n relation to that rank. That opinion was, 

 •as already observed, the very op])osile to tliat now published to the army 

 ■{>y the Major General commanding, (see Appendix B,) which is a cory ot 

 •the order of Prcsitlent Jackson, on the subject of brevet rard-:. It will be 

 seen at a glance, that the principal portion of it has been almost literally 

 transcribed into the (General Regulations of 1S41 for the army, as may f)e 

 seen by a comparison of it with the J Itb, 12th, 13th, Idtli, ]-ltb and JGth 

 paragraphs of those regulations, and of which the 11th, 14tli, 1-lth and IGth 

 paragraphs are now designated for the information of the army by the Ge- 

 neral-in-chief, as "more or less lepugnant to law, and tlierefore so far mill 

 and void. 



The possible contingent alternatives to which officers of the army may 

 feel themselves reduced by tiiese conflicting opinions and authorities of the 

 highest officers of the government, compelling officers on both sides of the 



