The Rise and Fall of the Confederate Government, Volume 1

by Jefferson Davis

This first act to provide for the public defense became a law on the 28th of February, 1861, and its fifth section so clearly indicates the opinions and expectations prevailing when the Confederation was formed, that it is inserted here:

"That the President be further authorized to receive into the service of this Government such forces now in the service of said States (Confederate States) as may be tendered, or who may volunteer by consent of their State, in such numbers as he may require for any time not less than twelve months unless sooner discharged."

The supremacy of the States is the controlling idea. The President was authorized to receive from the several States the arms and munitions which they might desire to transfer to the Government of the Confederate States, and he was also authorized to receive the forces which the States might tender, or any which should volunteer by the consent of their State, for any time not less than twelve months unless sooner discharged; and such forces were to be received with their officers by companies, battalions, or regiments, and the President, by and with the advice and consent of Congress, was to appoint such general officer or officers for said forces as might be necessary for the service.

It will be seen that the arms and munitions within the limits of the several States were regarded as entirely belonging to them; that the forces which were to constitute the provisional army could only be drawn from the several States by their consent, and that these were to be organized under State authority and to be received with their officers so appointed; that the lowest organization was to be that of a company and the highest that of a regiment, and that the appointment of general officers to command these forces was confided to the Government of the Confederate States, should the assembling of large bodies of troops require organization above that of a regiment; and it will also be observed that provision was made for the discharge of the forces so provided for, before the term of service fixed by the law. No one will fail to perceive how little was anticipated a war of the vast proportions and great duration which ensued, and how tenaciously the sovereignty and self-government of the States were adhered to. At a later period (March 16, 1861) the Congress adopted resolutions recommending to the respective States to "cede the forts, arsenals, navy-yards, dock-yards, and other public establishments within their respective limits to the Confederate States," etc.

The hope which was early entertained of a peaceful solution of the issues pending between the Confederate States and the United States rapidly diminished, so that we find on the 6th of March that the Congress, in its preamble to an act to provide for the public defense, begins with the declaration that, "in order to provide speedily forces to repel invasion," etc., authorized the President to employ the militia, and to ask for and accept the services of any number of volunteers, not exceeding one hundred thousand, and to organize companies into battalions, battalions into regiments, and regiments into brigades and divisions. As in the first law, the President was authorized to appoint the commanding officer of such brigades and divisions, the commissions only to endure while the brigades were in service.

On the same day (March 6, 1861) was enacted the law for the establishment and organization of the Army of the Confederate States of America, this being in contradistinction to the provisional army, which was to be composed of troops tendered by the States, as in the first act, and volunteers received, as in the second act, to constitute a provisional army. That the wish and policy of the Government was peace is again manifested in this act, which, in providing for the military establishment of the Confederacy, fixed the number of enlisted men of all arms at nine thousand four hundred and twenty. Due care was taken to prevent the appointment of incompetent or unworthy persons to be officers of the army, and the right to promotion up to and including the grade of colonel was carefully guarded, and beyond this the professional character of the army was recognized as follows: "Appointments to the rank of brigadier-general, after the army is organized, shall be made by selection from the army." There being no right of promotion above the grade of colonel in the Army of the United States, selection for appointment to the rank of general had no other restriction than the necessity for confirmation by the Senate. The provision just quoted imposed the further restriction of requiring the person nominated by selection to have previously been an officer of the Army of the Confederate States.

Regarding the Army of the United States as belonging neither to a section of the Union nor to the General Government, but to the States conjointly while they remained united, it follows as a corollary of the proposition that, when disintegration occurred, the undivided personnel composing the army would be left free to choose their future place of service. Therefore, provision was made for securing to officers, who should leave the Army of the United States and join that of the Confederate States, the same relative rank in the latter which they held in the former.

"Be it further enacted that all officers who have resigned, or who may within six months tender their resignations, from the Army of the United States, and who have been or may be appointed to original vacancies in the Army of the Confederate States, the commissions issued shall bear one and the same date, so that the relative rank of officers of each grade shall be determined by their former commissions in the United States Army, held anterior to the secession of these Confederate States from the United States."

The provisions hereof are in the view entertained that the army was of the States, not of the Government, and was to secure to officers adhering to the Confederate States the same relative rank which they had before those States had withdrawn from the Union. It was clearly the intent of the law to embrace in this provision only those officers who had resigned or who should resign from the United States Army to enter the service of the Confederacy, or who, in other words, should thus be transferred from one service to the other. It is also to be noted that, in the eleventh section of the act to which this was amendatory, the right of promotion up to the grade of colonel, in established regiments and corps, was absolutely secured, but that appointments to the higher grade should be by selection, at first without restriction, but after the army had been organized the selection was confined to the army, thus recognizing the profession of arms, and relieving officers from the hazard, beyond the limit of their legal right to promotion, of being superseded by civilians through favoritism or political influence.