The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1862-06-22


| The Relations or Governors or states 90
Volunteers i'm the National Service
! OPINION OF ATTORNEY GENERAL BATES.
| ATTORNEY GESEsAL's OrrpE Juns 10, 1852
sR-I have the honor TO acknowledge the receipt OF
your letter Of the TIN inst sing copy OF Special
| Order No So and other pepeis, and requesting my
opinion whether under tho circumstances, you had
thorify TO issue that order.
| The order in question is in these words
1 Col. William Weir, having been illegally deposed by
the Governor OF Kansas is in his portion or
Co onel Fourth regiment Kansas Volunteers Any or.
ders that may have been given BY tho Governor OF Kan
sas for the nsolidatien OF the Fourth regiment with
other Kansas troops are hereby revoked and the sg-
mgnt viii preserve the organization it had prio to the
| issue OF such order.
As ottcr contains or the facts under
which this question arises there some things
sary to its intelligent consideration, which am
PEELED to assume as true without explicit Information
And it is only this assumed basis fact that
undertake to express an opinion. II am wrong in my
assum ton, you, having the means OF knowing the
truth, win be best able to estimate the value OF my
| illusions.
assume. then, that the Fourth regiment Of Kansas
Volunteers Of the volunteer regiments accepted
by the President under tho provisions OF the act OF
July ~, 1851 TO authorize the employment OF voun-
teers &C. and such mustered into the service Of
the United States that Col. William Weir was its
msndng officer, and that since the regiment
tered into tho service OF the United States and whilst In
that SERVICE the Governor OF Kansas has attempted
depcss Colonel Weir from its command, and to conso
date IL with other Kansas troops.
II these the facts in my opinion the action Of the
Governor OF Kansas without authority Of law and
power Of tho Secretary Of War as The minister Of he
| President Of the United States.
By tho second section & the act OF July %, 1861 the
volunteers pied by the President are nude
to the rules and regulations governing the army Of the
United States" and they are to be formed .by the
President into regiments OF Infantry with the exception
| OF such numbers Of cavalry and artillery he may
direct, &C., and be organizes as in the ocular service"
The same section designates the officers those regi.
monLs and provides, further for their organization.
Among tie rules and atoms governing the~army
OF the Unie States. which these volunteers are thus
SUBJ the rules and articles Of war one or which
(he esventh) declares that commissioned officer shall
not DC discharged the SERVICE but By order OF the re
sdent OF the United States or by sentence of general
court martial bright Dig, 74) his ru IL MS appli
cable to the commission % officers OF volunteers
ed into the service OF the United states under the OF
I'D OF July 1851 as 1t Is to commissioned officers u the
regular .rmy the action Of tho Governor Of kansas,
In delOsing Col. Weir, intendes dscha 60 him
from tho service it directly in the face OF this rue
| and is, Of course, utterly illegal!
But II y was only intended TO remove MIN from the
command Of the Fourth regiment of Kansas Volunteers
was not less Illegal for that regiment having be
accepted by tho President mustered into tho service
of the ULited States, Under the coInmand the
President Of the United States, Commander in
chief and not under the command Of the Governor OF
quarters that tho Governors Of the States have the
right to control the organization OF the troops from their
service Of the United states and presume that it was
under this impression that the Governor Of Kansas at
sptsd to interfere with the organization Of the Fourth
regnont in the present instance. II s., he great
~ mistaken u true that BY the constitutions Of most,
II not all, Of tho Sa,es, the Governor is maze Com
mander-inC hief OF the militia; but ke remaus Com
mander Chief only until the militia called the
actual service Of the United Stass when by The Ma
comes their Il IS ism no. Necessary to
consider whether any distinction exists between the
militia and volunteers accepted under the act Of July ~,
1861 since In neither tho troops IN the
Of the United States loss under the command OF the
President; and OF tho tu.ionsl srvatons
In favor OF militia will help the claim Of the Governor Of
as ate to interfere with the organization Of esimsns
from his State, either by removing It's officers conso
idatpg It with other troops alter it has entered the
national service Those reservations are found in The
seventeenth clause Of section eight article one OF the
Constitution. which conisrs en- Congress the power TO
provide for organizing, arming aud disclpining the
| militia, and for governing such part Of them
as may be employed in the service Of the
pectively, the appointment Of the officers Ind
the au hortyof training the pilta according to the
rs. o@ M rr:ssr,Sse Bu. Syse y n:
repsese2ss appoint the oicss and train the militia
os unqestioncd tho power ATTEMPTED to be EXERCISED
here was neither Of these. II the powor to remove
an officer, and destroy . rsgmentl organization tho
ssa me ssep. BONG ne 1aiS Service
san Icmoye al the officers ard dsband ahs regiments
from his stale. And, il Governor do SO, all the
Govsfiors Of the States possess the power Neither
1
that The Governor Of Kansas sustain his assump
ton in this CASE combination OF Governors might ut
sS e AZ s.%y IN aS q y;
power to do this Or anything ike exists il must be
found in the contribution for tho whole scope ~ the
q Congress- :. with ssr ssSs 4ls ssa, <.
s. States ss to shs n.sops ss N u SER
B,mmaidsf sdbsc, 10 the 'na siah esn
ization, armihg, discipline and govornms-.
Giving 10 tho constitutional reservations in favor Of
the atss the most liberal construction which can DO
Claimed for them they confer no right on the State
thortcs TO disturb tho organization u militia voun.
tser regiments In the national service interfere In
any way with the control which the President under
the national constitution and laws shall exercise over
them.
Recognizing tho constitutional reservation Of the ap
pontmont Of officers referred to- Congress- tho "
July AZ, 1851 has provided whom vacancies occur
In Of the companies OF volunee officers as high
as captain shall b. elected 10 fill them by tho men Of
such companies and when vacancies in the regiments
occur above the rank OF captain, they shall be ed by
the votes OF the commissioned officers Of such regiment
and all officers 80 elected shall be commissioned by the
respective Governors OF tho States by ths President
o. the United States But this by the remotest
Implication give to the Governor who may mrnisson
officer the right to deposs him when he ia ouco elect
ed, commissioned and received into tho service tho
United states BY the section just quoted the right
take away the commission Is Certain given
tho commander OF separats department. q detached
army with tho approval of the President, but IL Is no
"nire gvea TO the Governof OF State, and, in my
That tho Governors of the loyal States have, both
personally and officially, rendered valuable and c
foe I've servics to the national government
TO suppress tho present instruction, is well known
Andthis service, with many Of them, has not ended
whom the troops of their States entered the employ
mont OF TIE United slatjs; for the devoted and pa
triotic abors Of some Of these chief magistrates In
mnise ing to tho wants OF their disrs in the field
will hne among the brightest iLciroits of the war.
But these abors are in aid VI the government and with
its appreciation. They are peri rmsd not because is
legal duty imposed by Congress- or In many instances
even by their respective states, but under the Impulse
OF generous Humanity and patriotism. q; course such
ssstanceto the government afford good prctoxt
for interference with the organization control Of
regiments mustered into tho national service.
II hardly necessary to add that II the Fourth
regiment OF kanas v,lunees have been accepted and
mustered into service under the act Of Goth july 1851
chapter IL the second section Of the act Of 3is july
1851 chapter 35 tho foregoing remarks apply To them
with much force II they had been accepted and
mustered In under the act OF 22d July 1851 since the
two acts first named supplementary 10 that act and
all its proyisionS arc extended d those acts.