General, in a letter to Governor Pickens, suppose that his opinion already quoted was misapprehended, and says:
I an opinion delivered by me when Attorney-General I decided in relation to volunteers that those called for from the States and organized under State laws were to be officered by the States, while those which were tendered directly to the Confederate Government in companies, regiments, or battalions were Confederate troops, to be officered under Confederate appointment, &c.
It is respectfully submitted that whatever was intended to be decided the Attorney-General has mistaken the decision made in his first opinion. The decision was in relation to troops organized under State laws, no matter whether volunteers or not," and received into service as so organized, as for, instance, by battalions or regiments; the vacancies occurring are to be filled according to State laws, but when independent companies are tendered as such and so received by the President all vacancies are filled by his appointment. "
The Secretary of War in his last communication makes a distinction between those volunteering under a call upon the States and those in service tendered by the States. The act of the Confederate Congress authorizing the President to receive such forces makes no such distinction. (See sections 3 and 4, act of Provisional Congress, approved February 28, 1861.) His power of appointment is therefore confined to general officers. Nor can any distinction be found in reason, unless, indeed, the States tendering should be regarded with greater favor than States permitting volunteers to tender themselves under a call. Under the decision of the Confederate authorities, by their request, and we think in accordance with the law of the Confederate States, the Governor has filled all vacancies which were to be filled by appointment. And the Legislature of this State, also acting under the sanction of these opinions and practice, has recently appropriated $35,000 for recruiting and re-enlisting men in the regiment of infantry and battalion of cavalry, and to raise the battalion of artillery to a regiment. Putting aside the legal aspects of the question, and taking into view only the assent and instigation of the Confederate authorities in establishing the mode of appointment as practiced for so long a period, and the action of the Legislature induced by such an established practice, we think that a change now would be not only unjust, but would produce confusion and injury to the public service.
It appears, therefore, that the appointment to fill vacancies occurring in the forces known as the regular artillery, infantry, and cavalry of South Carolina ought still to be made by State authority. And we may reasonably hope and expect, under all the circumstances, that the Confederate authorities will concur in this conclusion.
By provision of the ordinance of convention all State military appointments are to be made by the Governor and executive council.
The following resolutions are therefore recommended for adoption:
1. Resolved, That the Governor and council ought to fill vacancies which have occurred, or may occur, in the regular artillery, infantry, and cavalry raised by the authorities of this State.
2. Resolved, That the chief of the Department of the Military be instructed to transmit a copy of this report and resolutions to the Secretary of War of the Confederate States, with such explanations as he may deem expedient.
JAMES CHESNUT, Jr.,
Chief of Department of the Military, South Carolina,
For himself and for
I. W. HAYNE,
Chief of Justice and Police.