The militia laws of Virginia provide, among other things, "that each major-general, brigadier-general, and colonel shall appoints his own staff," &c. Under this state of facts, the first question arising for the decision of this Department is that propounded by yourself: Whether the staff officers of your brigade appointed by yourself, and the regimental staff officers appointed to each regiment by the colonel thereof, will be organized and commissioned by the Confederate Government under the provisions of the act of Congress approved March 6, 1861, to provide for the public defense? This act, in its fifth section, provides that "officers of volunteers below the grade of general shall be appointed in the manner prescribed by law in the several States." But the sixth section of this act provides that "the President shall, if necessary, apportion the staff and general officers among the respective States from which the volunteers shall tender their services as he may deem proper;" and the seventh section of this act reds: "Whenever the militia or volunteers are called and received into the service of the Confederate States under the provisions of this act, they shall have the same organization, and shall have the same pay and allowances, as may be provided for the Regular Army;" and by the ninth section of this act the power is extended to the President, by and with the consent of the Congress, "to appoint one commissary and one quartermaster, with the rank of major, for each brigade of militia or volunteers called into the Confederate service, and one assistant quartermaster and one assistant commissary, with the rank of captain, and one surgeon and one assistant surgeon, to each regiment; the said quartermasters and commissaries and assistant quartermasters and commissaries to give bonds, with good sureties, for the faithful performance of their duties."
The State and Confederate laws in relation to militia staff appointments would seem thus to conflict. Nor does a recurrence to the mere words of the Constitution of the Provisional Government, under which we are acting, serve precisely to settle the difficultly. The sixth section of this instrument provides that Congress, among other things, shall have the power to provide "for calling forth the militia to execute the laws of the Confederacy, suppress insurrections and repel invasion, to provide for organizing, arming, and disciplining the militia, and for governing such party of them as may be employed in the service of the Confederacy, reserving to the States respectively the appointment of the officer," &c.
In this reservation to the States are staff officers as well as commanding officers embraced, or shall it be contended that the Congress, by the acto to provide for the public defense, has so far exercised its constitutional power of "organizing and governing" the militia called into the Confederate service as to confer on the President the right to make staff appointments in supersession of State laws? If the first inquiry be answered affirmatively, then your command as at present organized and officered has to be in all respects accepted. If the last position be yielded, the brigade and regimental staff officers of your command will depend upon the discretion of the President, who may or may not accept the appointments made by yourself and your colonels. Whatever appointments are recognized will of course occupy positions, under the ninth section of the act to "provide for the public defense," and they will hold the same rank and receive the same pay "allowed to officers of the same grade in the regular service." The act to provide for the public defense evidently regards militia as such and militia as volunteers. In the first light they are subject to draft upon requisition or may be