vice, to justify the conclusion that the intention of Congress would be fulfilled by assigning to the performance of the duties of Quartermaster General an officer already confirmed as brigadier general in the Provisional Army, without again submitting his nomination to the Senate. The grounds for this conclusion were that the eighth section of the act of 6th of March, 1861, organizing the Regular Army, expressly authorized the Executive to assign the brigadier generals to any duties he might specially direct, and when the five brigadier generals were raised to the rank of generals by the act of 16th of May, 1861, the President was again empowered to assign them to such commands and "duties" as he might specially direct. As it had, therefore, been permitted by Congress that any one of the generals of the Regular Army might be assigned to staff or any other duty at Executive discretion, it seemed a fair inference that when by the law of last session provision was made that the rank, pay, and allowances of Quartermaster General should be those of a brigadier in the Provisional Army the will of the Legislature was as well fulfilled by assigning to the duties of that office one who was already a brigadier general of the Provisional Army as by nominating a new officer.
This view of the question was fortified by the fact that the law last referred to did not create an office, but only provided that during the war the officer discharging the duties of Quartermaster General should have the rank of brigadier general, and by the further fact that the original act of 26th of February, 1861, for the establishment and organization of the general staff, contained a provision still in force, that officers of the Quartermaster General and other staff departments might by order of the President be assigned to the command of troops, according to their rank in the Army, thus indicating that positions in the quartermaster's and other staff departments were not distinct offices, but were posts of duty to which officers of the Army were appointed, and from which they might be withdrawn and assigned to other duties at Executive discretion. This is a provision of our law that did not exist in the former service of the United States, in which when an officer of the Army entered the Quartermaster's Department he surrendered his commission in the line and his right to command troops.
I am advised, however, that such is not the construction given to
