where troops volunteer their services direct to the Confederate authorities without State intervention that the rule under the decision mentioned becomes modified; and even in this case company officers are elected according to State law, leaving only field officers to be appointed by this Government. The line of demarkation is drawn in reference to the question as to whether the State intervenes or has not been recognized. The modification of the general principle on which this Department has acted grows out of the amendatory acts of Congress, passed during its second session, giving to the President the discretionary power of receiving volunteer tenders direct, without the intervention of State Executives.
Second. After volunteers have been mustered into service their officers should resign both to the Confederate and State authorities-to the first, because they have passed under its authority and receive its pay and are in its service; to the second, because the commissions of all volunteer officers belonging to corps tendered through State authorities emanate from the State Executives. It is necessary for the first to know the fact that an officer has resigned in order to accept the resignation, and the resignation must have been accepted before the State Executive can issue a commission to supply the vacancy. As the law stands it is required that information as too resignations should be imparted simultaneously to the State government and the Confederate Government. A vacancy existing, the election is called to fill it as the law of the particular State affected shall require, and the election is conducted and its returns made according to that law; but it is necessary that returns shall not only be made to the State authorities, but to the Confederate authorities, as the newly selected officer has to be paid by the Confederate Government, being in their service; and how could it be known to whom payment was to be made if the person was not designated to whom payment should be due?
This Department has recently endeavored to avoid all encroachments upon the rights and authority of the States in respect to the volunteers in its service, claiming to exercise over them no power other than that plainly imparted by the Constitution and the laws in obedience to that great charter.
I have the honor to remain, Your Excellency's obedient servant,
L. P. WALKER,
Secretary of War.
September 13, 1861.
Hon. L. P. WALKER,
Secretary of War:
SIR: I have the honor to acknowledge the receipt of your communication of the 11th instant, received last evening. I must protest against the position which you assign me. The surgeons and assistant surgeons, the quartermasters and commissaries, appointed prior to the transfer of the 6th of June last, were appointed under the requirements of the laws and e State. Those laws and ordinances vested the power of appointment in the Executive. You inform me that 'so far as possible to do the State appointments of staff officers have been regarded and confirmed. " you then proceed to say that your Department "has generally deferred to the wishes of the regiment to be specially affected by an appointment, when expressed, unless strong objections to the appointment were
39 R R-SERIES IV, VOL I