Wrapped in Flames: The Great American War and Beyond

Joined
Jul 28, 2019
Surely the question here is what would McClellan do? Given what I believe I know of his character and his OTL behaviour I am of the opinion he would accept his dismissal and then raise holy hail later. Given the noted Supreme Court precedent and the need to maintain discipline I rather doubt the General would try and subvert the President's appointed governor. Hell it is possbike he might have preferred to obey even without Stanton being Secretary of War with the clear legal authority that implies.

The need to maintain good order within the garrison would have been foremost in his mind. Also being McClellan the satisfaction of the future "I told you so" opportunities would have been a second incentive.
 

67th Tigers

1st Lieutenant
Joined
Nov 10, 2006
Let us by crystal clear. The SCOTUS ruling in 1842 only confirmed that the SECWAR could act as a conduit for POTUS. The ruling was:

"The Secretary at War is the regular constitutional organ of the President for the administration of the military establishment of the nation, and rules and orders publicly promulgated through him must be received as the acts of the executive, and as such are binding upon all within the sphere of his legal and constitutional authority."

In other words, if the SECWAR communicates an order from the President, it must be taken as if the President himself gave it directly. That is, it confirms that orders prefaced "By order of the President" being promulgated from the War Department have the same legal power is if directly communicated by the President.

No-one has disputed this.

What is disputed is whether the SECWAR can issue an order in their own right, rather than promulgating orders from POTUS, and whether the President can invest his powers in a functionary of the state and create a "political commissar" over the army. The answer here is obviously, no. The President is the President, and no-one else is.
 

steve59p

Sergeant
Joined
Oct 21, 2016
This situations comes off to me that Rosecrans is gonna make a breakout, and its gonna fail spectacularly, as his troops by this point would be too demoralized and likely running on partial rations of everything. And the Confederates being well supplied and equipped.
Thus, with the fall of Washington, the Union war effort will unravel, and the US is forced to come to the peace table.
That is what I get from all this context. Because the only other occasion in OTL of a popular but politically incompetent and maybe downright militarily incompetent commander, being replaced mid-campaign with a new, more politically well connected and theoretically aggressive commander, to prepare for a series of aggressive breakout attempts, was at Atlanta...and that went poorly.

Luke

That would sound rather odd to me. If Stanton's basis for removing McClellan is that he feared the general was going to surrender the capital then trying to make a break-out, which whether it succeeds or fails will mean the loss of the capital - and a hell of a lot of prestige for the north - seems to be something he would have to oppose. The army is already fairly short on rations and the dismissal of a popular general and several other commanders is going to hit morale and quit possibly unity more. There could even be rumours in such a situation that Stanton has sacked McClellan so that he [Stanton] can surrender the army as his move will be seen as weakening the defence. [Not saying he has any such aims as he obviously doesn't but with the sort of political and military chaos and febrile atmosphere his actions will cause a lot of people will be very confused and probably fearful].

I get the feeling from what CC said early in the TL about it being a long and destructive war that there's a hell of a lot more fighting, death and destruction to come. :frown:

Steve
 

CanadianCanuck

Sergeant
Joined
Nov 21, 2014
Let us by crystal clear. The SCOTUS ruling in 1842 only confirmed that the SECWAR could act as a conduit for POTUS. The ruling was:

"The Secretary at War is the regular constitutional organ of the President for the administration of the military establishment of the nation, and rules and orders publicly promulgated through him must be received as the acts of the executive, and as such are binding upon all within the sphere of his legal and constitutional authority."

In other words, if the SECWAR communicates an order from the President, it must be taken as if the President himself gave it directly. That is, it confirms that orders prefaced "By order of the President" being promulgated from the War Department have the same legal power is if directly communicated by the President.

No-one has disputed this.

All well, and good, but that also means you should absolutely not be disputing the acts displayed here either. Since, as has been stated, Stanton was acting by order of the president.

What is disputed is whether the SECWAR can issue an order in their own right, rather than promulgating orders from POTUS, and whether the President can invest his powers in a functionary of the state and create a "political commissar" over the army. The answer here is obviously, no. The President is the President, and no-one else is.

Ah I'm so glad we've agreed on this too. But, for the sake of your "Obviously no" answer, let's just unpack this. Word to the wise, I'm just repeating the already existing opinions of Constitutional minds far greater than mine, so, if you do have a rebuttal, I'd ask for some source to back it up as, while your opinion is noted, it is not greater than the already existing opinions of then contemporary legal scholars.

So for whether the president can delegate his powers, let's just look at the phrasing creating the Secretary of War[1]:

"The Secretary of War shall perform such duties as shall, from time to time be enjoined on or entrusted to him by the President relative to military commissions, the military forces, the warlike stores of the United States; or to other matters respecting military affairs; and he shall conduct the business of the department in such a manner as the President shall direct."

I'm confused then, what in here you claim limits Lincoln's ability to entrust to the Secretary of War the powers I have suggested which is within Stanton's remit as outlined above?

But let us then consider Cushing's legal opinion of 1855 again:

"I conclude, therefore, on the authority of judicial decisions, and of the arguments, constitutional and statutory, herein adduced, that, as a general rule, the direction of the President is to be presumed in all instructions and orders issuing from the competent Department, and that official instructions, issued by the Heads of the several Executive Departments, civil or military, within their respective jurisdictions, are valid ,and lawful, without containing express reference to the direction of the President."

So once again we have a legal mind harking back to the 1842 Supreme Court ruling, which you have already acknowledged is correct.

In other words, McClellan may under no circumstance refuse the dismissal given him by Stanton. He must, legally, assume this directive comes with the blessing of the President. Seeing then that, it is established by law, the president may delegate to Stanton duties relative to military commissions, the military forces and other matters respecting military affairs, then there is no legal leg to stand on for the suggestion that Stanton may not, as Secretary of War, issue orders as he is permitted by Lincoln.

The only limit therefore on Stanton's actions are what he is given permission to do by the President. As is already noted, only Lincoln has the power to veto this decision, and Stanton will have to account for it. However, as established Lincoln may delegate the power to Stanton as he sees fit.

It is then, complete nonsense, to assume that any follow up order, letter or directive, must be issued by the President himself when he may legally delegate the control these matters to Stanton as he sees fit. Like I have stated, McClellan may only request that the order be clarified by the President after the fact, but he cannot, under any circumstance, ignore or defy it. There is no legal impasse, only compliance or mutiny.

---
1] This should be noted as not the original 1785 statue for the Secretary of War, but as the later revised statues after the War and Naval Departments had been separated.
 

67th Tigers

1st Lieutenant
Joined
Nov 10, 2006
There are no limits to Lincoln's ability to entrust to SECWAR the powers the law specifies for SECWAR. All of these related to the administration of the army, in in 1863 were:

1. The War Department has custody of the records, stores etc. of the army, (1789 Act)
2. has control over the purchase of stores, (1813 Act)
3. is entrusted with the muster rolls of the army, (13th, 18th and 19th Articles of War)
4. is the intermediary between the POTUS and army in the case of courts-martial, (65th AOW)
5. is entrusted with the accounts of dead officers, (95th AOW)
6. has oversight of the QMG's issuance of clothing etc., (1826 Act)
7. is empowered to purchase land for arsenals, (1826 Act)
8. has oversight over the Ordnance department and the purchase of weapons etc., (1815 Act)
9. has the power to insist that the state militia had uniformity of clothing, weapons and equipment with the Regular Army, (1803 Militia Act)
10. and finally is charged with arranging for the train and sea transportation of the army (January 1862 Act)

None of these relate to command of the army in the field. In fact the entire Constitutional theory was that SECWAR had no power over the army in the field, which was vested in the Commanding General.

The problem is you are entrusting SECWAR with powers specifically reserved for POTUS and not transferrable.

You have completely misunderstood the 1842 ruling. It relates to whether the SECWAR can promulgate orders from the President or not. They can. You have taken the ruling to mean SECWAR can issue an order without the approval of the President. They can't.

Cushing's opinion is a legal brief, and has no power. What it says is that it should be assumed, in the absence of evidence to the contrary, that when the SECWAR forgets to place "By Order of the President" in an order, it can be implied. Pierce took this as policy for his administration. Buchanan and Lincoln did not. It of course has not been tested in court. You have taken this to mean SECWAR can issue orders in their own right. They can't.
 

CanadianCanuck

Sergeant
Joined
Nov 21, 2014
There are no limits to Lincoln's ability to entrust to SECWAR the powers the law specifies for SECWAR. All of these related to the administration of the army, in in 1863 were:

1. The War Department has custody of the records, stores etc. of the army, (1789 Act)
2. has control over the purchase of stores, (1813 Act)
3. is entrusted with the muster rolls of the army, (13th, 18th and 19th Articles of War)
4. is the intermediary between the POTUS and army in the case of courts-martial, (65th AOW)
5. is entrusted with the accounts of dead officers, (95th AOW)
6. has oversight of the QMG's issuance of clothing etc., (1826 Act)
7. is empowered to purchase land for arsenals, (1826 Act)
8. has oversight over the Ordnance department and the purchase of weapons etc., (1815 Act)
9. has the power to insist that the state militia had uniformity of clothing, weapons and equipment with the Regular Army, (1803 Militia Act)
10. and finally is charged with arranging for the train and sea transportation of the army (January 1862 Act)

None of these relate to command of the army in the field. In fact the entire Constitutional theory was that SECWAR had no power over the army in the field, which was vested in the Commanding General.

The problem is you are entrusting SECWAR with powers specifically reserved for POTUS and not transferrable.

You have completely misunderstood the 1842 ruling. It relates to whether the SECWAR can promulgate orders from the President or not. They can. You have taken the ruling to mean SECWAR can issue an order without the approval of the President. They can't.

Cushing's opinion is a legal brief, and has no power. What it says is that it should be assumed, in the absence of evidence to the contrary, that when the SECWAR forgets to place "By Order of the President" in an order, it can be implied. Pierce took this as policy for his administration. Buchanan and Lincoln did not. It of course has not been tested in court. You have taken this to mean SECWAR can issue orders in their own right. They can't.

So, you're ignoring the entirety of the bolded section regarding the established Secretaries powers, and the completely disregarding the "as the president may direct"?

You have nothing showing to the contrary that Lincoln may not delegate regarding "other military matters" at all. In fact, you're offering a mere opinion that is, explicitly, disagreed with by legal scholars of the time.

Even are we to take the contention that not having "by order of the President" Stanton's order is incorrect, the legal rulings already overrule that, and it is foolish to expect Lincoln and Stanton would not know the legal powers they have. Besides, as previously stated, the order establishing Lincoln's permissions for Stanton's actions was promulgated well before this point in the timeline.

Like I said, your opinion is noted, but in the absence of legal scholarship to the contrary, irrelevant.
 

67th Tigers

1st Lieutenant
Joined
Nov 10, 2006
So, you're ignoring the entirety of the bolded section regarding the established Secretaries powers, and the completely disregarding the "as the president may direct"?

You have nothing showing to the contrary that Lincoln may not delegate regarding "other military matters" at all. In fact, you're offering a mere opinion that is, explicitly, disagreed with by legal scholars of the time.

Even are we to take the contention that not having "by order of the President" Stanton's order is incorrect, the legal rulings already overrule that, and it is foolish to expect Lincoln and Stanton would not know the legal powers they have. Besides, as previously stated, the order establishing Lincoln's permissions for Stanton's actions was promulgated well before this point in the timeline.

Like I said, your opinion is noted, but in the absence of legal scholarship to the contrary, irrelevant.
So, you're ignoring the entirety of the bolded section regarding the established Secretaries powers, and the completely disregarding the "as the president may direct"?

You have nothing showing to the contrary that Lincoln may not delegate regarding "other military matters" at all. In fact, you're offering a mere opinion that is, explicitly, disagreed with by legal scholars of the time.

Even are we to take the contention that not having "by order of the President" Stanton's order is incorrect, the legal rulings already overrule that, and it is foolish to expect Lincoln and Stanton would not know the legal powers they have. Besides, as previously stated, the order establishing Lincoln's permissions for Stanton's actions was promulgated well before this point in the timeline.

Like I said, your opinion is noted, but in the absence of legal scholarship to the contrary, irrelevant.
No, I have stated them. He conducts "the business of the War Department as the President shall direct". The business of the War Department is the administration of the army; purchasing land for armouries, contracting for clothing etc. It has nothing to do with commanding military operations, or the status of senior generals; both of which are reserved for the President only, through the Commanding General or directly. The War Department administers the army as the President directs. The Commanding General commands the army in the field, as the President directs (or he may directly order any subordinate general etc.). Two separate lines of authority and responsibility; one of administrative, and one is command.

The 1842 SCOTUS case US vs Eliason, simply confirmed the War Department had control over administrative matters. In this particular case Capt Eliason had continued to draw an allowance for managing contracts several years after an 1835 Act of Congress had abolished said allowance, and the War Department had amended the regulations to comply with the Act. He successfully argued at Circuit Court that the Act only applied to contracts made after the passage of the Act, and not to ones which were ongoing. The US appealed to SCOTUS, and won their argument that it also applied to ongoing contracts. Hence the War Department was empowered to alter the regulations as directed by the President to conform with an Act of Congress.

It clearly states that the War Department deals with the administration: "The Secretary at War is the regular constitutional organ of the President for the administration of the military establishment of the nation,"

Please be aware, Lincoln and Stanton knew their respective powers, and did nothing like that you suggest. They did this because it would not be legal. Lincoln could not place a cabinet officer over a general in the field. Only he has authority over the army. Hence, for example, when Lincoln and Stanton doubted that Grant was going to attack Petersburg in 1865, they decided Lincoln himself had to go to push Grant to attack. Lincoln could not order Stanton to go in his name. Only the President has the power of the President.

In some ways it would have been very convenient for Lincoln if he was able to place senior politicians as "commissars" over the generals and the armies. He could not. Lincoln sent cabinet officers to the armies all the time to report back to him. They did not have, and could not have, any authority over those armies. Lincoln could certainly have left Stanton to report back on McClellan's conduct. He could even have written out and signed an order relieving McClellan and given it to Stanton to use if he wished. He could not give Stanton any authority over the army or its generals in his own right. Hence Stanton could not decide to remove McClellan without getting approval from Lincoln first.

We've developed a very novel theory here, that the President can effectively transfer his powers to someone else simply by giving them a document with a "carte blanche". It was not, and is not, possible to do this under the US Constitutional arrangements. There is only one President, and their power is immutable and indivisible.
 

CanadianCanuck

Sergeant
Joined
Nov 21, 2014
No, I have stated them. He conducts "the business of the War Department as the President shall direct". The business of the War Department is the administration of the army; purchasing land for armouries, contracting for clothing etc. It has nothing to do with commanding military operations, or the status of senior generals; both of which are reserved for the President only, through the Commanding General or directly. The War Department administers the army as the President directs. The Commanding General commands the army in the field, as the President directs (or he may directly order any subordinate general etc.). Two separate lines of authority and responsibility; one of administrative, and one is command.

The 1842 SCOTUS case US vs Eliason, simply confirmed the War Department had control over administrative matters. In this particular case Capt Eliason had continued to draw an allowance for managing contracts several years after an 1835 Act of Congress had abolished said allowance, and the War Department had amended the regulations to comply with the Act. He successfully argued at Circuit Court that the Act only applied to contracts made after the passage of the Act, and not to ones which were ongoing. The US appealed to SCOTUS, and won their argument that it also applied to ongoing contracts. Hence the War Department was empowered to alter the regulations as directed by the President to conform with an Act of Congress.

It clearly states that the War Department deals with the administration: "The Secretary at War is the regular constitutional organ of the President for the administration of the military establishment of the nation,"

Duly noted you're explicitly ignoring "military commissions, the military forces...and other matters of military affairs" and have no actual legal counter.

Please be aware, Lincoln and Stanton knew their respective powers, and did nothing like that you suggest. They did this because it would not be legal. Lincoln could not place a cabinet officer over a general in the field. Only he has authority over the army. Hence, for example, when Lincoln and Stanton doubted that Grant was going to attack Petersburg in 1865, they decided Lincoln himself had to go to push Grant to attack. Lincoln could not order Stanton to go in his name. Only the President has the power of the President.

In some ways it would have been very convenient for Lincoln if he was able to place senior politicians as "commissars" over the generals and the armies. He could not. Lincoln sent cabinet officers to the armies all the time to report back to him. They did not have, and could not have, any authority over those armies. Lincoln could certainly have left Stanton to report back on McClellan's conduct. He could even have written out and signed an order relieving McClellan and given it to Stanton to use if he wished. He could not give Stanton any authority over the army or its generals in his own right. Hence Stanton could not decide to remove McClellan without getting approval from Lincoln first.

Once again, this is duly noting you simply ignore the powers and responsibilities laid out in the powers and responsibilities of the Secretary of War legally established by Congress. And that the president may delegate to him as he sees fit.

Once again, there is no "separate chain of command" there is no legal framework for what you are suggesting. You have not actually proposed any evidence for this, it's wishful thinking on your part.

We've developed a very novel theory here, that the President can effectively transfer his powers to someone else simply by giving them a document with a "carte blanche". It was not, and is not, possible to do this under the US Constitutional arrangements. There is only one President, and their power is immutable and indivisible.

We haven't actually, you're simply, well, making this up. Ignoring the actual stated wording of the powers of the Secretary of War, proposing a separate chain of command for the military which is unanswerable to the civilian government, and stating the president may not delegate military authority to the Secretary of War even though thats his job.

Once again, your opinion is irrelevant without actually providing some legal basis for your claims. I've cheerfully done so, that you can't, speaks volumes.

There's nothing more to be said.
 
Joined
Jul 28, 2019
Since resisting the order would jeopardise morale within the garrison of Washington can anyone actually see McClellan doing it? I have to confess myself confused at the antipathy towards the notion he would have stepped aside as ordered.

Seems to me more likely he would have done so and then waited in the wings expecting to be recalled.
 

steve59p

Sergeant
Joined
Oct 21, 2016
Since resisting the order would jeopardise morale within the garrison of Washington can anyone actually see McClellan doing it? I have to confess myself confused at the antipathy towards the notion he would have stepped aside as ordered.

Seems to me more likely he would have done so and then waited in the wings expecting to be recalled.

I don't know him as much as some of the other posters but I would agree. Openly defying political control, especially in such a crisis position and with the army already split politically [although he may not know of the latter] would be something courting total disaster in the defence of Washington and preservation of his army. Suspect he would be very reluctant to do that, although he is likely to warn Stanton that there will be consequences later on - including legal proceeding as he seems to have attempted post-war.

Also if there's the possibility that he's already thinking the siege lost it might be best for his career to step aside now and let Stanton and the commanders who sided with him take the blame for the following disaster that at this point seems very likely.
 

steve59p

Sergeant
Joined
Oct 21, 2016
Guys can we please close this issue? Its getting very bitter to the point of approaching venomous. Its CC's TL so we accept that what he suggests is what the assorted players do regardless of whether you think its actually legal or not. Given all that happened OTL in the conflict that's not exactly an insurmountable problem anyway.
 

CanadianCanuck

Sergeant
Joined
Nov 21, 2014
Since resisting the order would jeopardise morale within the garrison of Washington can anyone actually see McClellan doing it? I have to confess myself confused at the antipathy towards the notion he would have stepped aside as ordered.

Seems to me more likely he would have done so and then waited in the wings expecting to be recalled.

I certainly don't see it as probable. The idea that McClellan would, for all intents and purposes, carry out a coup against the civilian government beggars belief. McClellan was careful about his reputation, and I simply can't see him jeoapardizing his own name and rank within the nation by doing so.

There was I believe, one historian who pointed out that McClellan, rather than lead a coup in an army he was broadly popular in, stepped aside with no qualms other than believing he did not deserve to be relieved. I can't picture him doing otherwise here.

I don't know him as much as some of the other posters but I would agree. Openly defying political control, especially in such a crisis position and with the army already split politically [although he may not know of the latter] would be something courting total disaster in the defence of Washington and preservation of his army. Suspect he would be very reluctant to do that, although he is likely to warn Stanton that there will be consequences later on - including legal proceeding as he seems to have attempted post-war.

Also if there's the possibility that he's already thinking the siege lost it might be best for his career to step aside now and let Stanton and the commanders who sided with him take the blame for the following disaster that at this point seems very likely.

Oh he's very keen to try to prosecute Stanton for libel post war (in a feud that will very much outlive both men) and that's a story all its own.

However, he's also stepping aside because it's the only thing for an officer to do. There's nothing in his history which would suggest otherwise. The suggestion that he will be waiting in the wings to be reappointed is pretty accurate. Though whether that appointment ever comes is an open question, much like OTL. There's some major political machinations ongoing that the September - December posts will be dealing with.
 

67th Tigers

1st Lieutenant
Joined
Nov 10, 2006
You seem to be under the impression that it is the President who decides what responsibilities the Secretary of War (and other Principle Officers) has. It isn't. The Constitution is clear that it is Congress that decides. The Constitution (Art. II, Sect. II, Clause II) allowed Congress to create Principal Officers and to decide their powers. Elsewhere in the Constitution (Art. I, Sect., several clauses) the power to raise and govern the army and control the militia is reserved for Congress. Congress proceeded to create several Principal Officers, and proscribed what their areas of responsibility were.

In the 1789 Act creating the War Department and it's Secetariat allowed the President to charge the Secretary of War to perform their duties "agreeably to the Constitution" in the areas of "military commissions", "land forces" and "warlike stores" under the instructions of the President. It further empowered the department to make land grants owed for military service and to keep the records of accounts of the Army.

The governance of the army is a power reserved for Congress by the Constitution, and the SECWAR can only act in the areas Congress has delegated, as instructed by the President. Congress had, by 1863, delegated the following areas of responsibility to SECWAR to carry out as POTUS instructed:

1. The War Department has custody of the records, stores etc. of the army, (1789 Act)
2. has control over the purchase of stores, (1813 Act)
3. is entrusted with the muster rolls of the army, (13th, 18th and 19th Articles of War)
4. is the intermediary between the POTUS and army in the case of courts-martial, (65th AOW)
5. is entrusted with the accounts of dead officers, (95th AOW)
6. has oversight of the QMG's issuance of clothing etc., (1826 Act)
7. is empowered to purchase land for arsenals, (1826 Act)
8. has oversight over the Ordnance department and the purchase of weapons etc., (1815 Act)
9. has the power to insist that the state militia had uniformity of clothing, weapons and equipment with the Regular Army, (1803 Militia Act)
10. and finally is charged with arranging for the train and sea transportation of the army (January 1862 Act)

To be clear; SECWAR is empowered to do what POTUS tells them to do in these areas by Congress. Essentially these are the areas POTUS is allowed to delegate to SECWAR, he may not delegate anything else.

The President is, by the Constitution, Commander-in-Chief. Under the unitary executive theory (which has come under attack in the last few decades, and I recommend watching Vice, but was accepted in the 1860's) only they were entitled to wield the powers of their office. Of course they generally wielded them through their Principal Officers.

What you've done is overturn the unitary executive. You've allowed Lincoln to invest his powers in Stanton. This can't be done. The unitary executive states Lincoln's powers can't be handed over, and the Constitution and the 1789 Act show that only Congress can change the responsibilities of the Secretary of War (or any Principal Officer) by passing an Act of Congress.
 

Luke Freet

First Sergeant
Joined
Nov 8, 2018
Guys can we please close this issue? Its getting very bitter to the point of approaching venomous. Its CC's TL so we accept that what he suggests is what the assorted players do regardless of whether you think its actually legal or not. Given all that happened OTL in the conflict that's not exactly an insurmountable problem anyway.
Same...
How many more pages are we gonna go through before this all ends?
 

67th Tigers

1st Lieutenant
Joined
Nov 10, 2006
Guys can we please close this issue? Its getting very bitter to the point of approaching venomous. Its CC's TL so we accept that what he suggests is what the assorted players do regardless of whether you think its actually legal or not. Given all that happened OTL in the conflict that's not exactly an insurmountable problem anyway.
It's really easy to resolve. Just add, "Stanton pulled out a letter signed by Lincoln". Lincoln can do this, but Stanton can't. CC has already retroactively changed the TM to make Dix appointed a regular Major-General with Senatorial approval, despite this being something they were notoriously against (dropping politicians into high ranking positions in the regular army).
 

CanadianCanuck

Sergeant
Joined
Nov 21, 2014
Same...
How many more pages are we gonna go through before this all ends?

Based on AH.com probably not until the next update.

Don't worry, I won't be wasting anymore time on it. There's nothing more to say on my end since theres no argument to continue. From this point on I'm focusing on TL related things for ending the siege of Washington.
 

67th Tigers

1st Lieutenant
Joined
Nov 10, 2006
Don't worry, I won't be wasting anymore time on it. There's nothing more to say on my end since theres no argument to continue. From this point on I'm focusing on TL related things for ending the siege of Washington.
I don't think it's been wasted time at all. We have illuminated what powers the SECWAR actually has, and the legal basis for this powers (Acts of Congress, not Presidential fiat). I consider the debate to have been eminently useful and enlightening. We also found easy fixes for this TL, although I suspect your reluctance to use them is due to wanting to keep Lincoln's hands clean as a story point.
 

C.J.

Private
Joined
Oct 3, 2020
Honestly after reading though these arguments one more time and whith some distance I have to say @CanadianCanuck arguments, logic and evidence seems stronger to me then @67th Tigers has.
But one thing I do want to point out is @Saphroneth argument that if the sectwar had this power in OTL to relieve McClellan why dint he do so sense he hated McClellan. Well wouldn't be as simple as that Lincoln (as nobody despites) could over rule hes sectwar anytime he likes. Like if the sectwar relives McClellan then 6 hours later that order would probably be revoked and Lincoln looking for a new sectwar. Gust because the sectwar has the authority to get rid of McClellan dosnt actually mean he can, not before he can make sure Lincoln doesn't veto him and/or fire him for it.
 

67th Tigers

1st Lieutenant
Joined
Nov 10, 2006
The matter is far more complicated than is appreciated.

Suffice, my views on the matter are the ones that won out (because I got them because they won out and became a plot point in an episode of Babylon 5), but not without a struggle.

The relative roles and powers of the Commanding General and the Secretary of War, both positions created by Statute (i.e. neither is a Constitutional organ) had been well defined until 1857. In 1853, Jefferson Davis became SECWAR, and he immediately started to overstep the accepted bounds of his power. This brought him into conflict with Scott, the Commanding General. In a fit of pique, as he was leaving office he had a new addition of the Army Regulations published striking out the paragraph defining the role of the Commanding General (but not completely sanitising it). Floyd (the future rebel general) was the next SECWAR, and generally did nothing, effectively returning to the status quo. We go though Cameron who was much the same to Stanton.

Stanton had a very interesting, and as it turns out, not exactly legal interpretation of his powers. Belknap would succeed him, and inherited his interpretation. The Stanton-Belknap interpretation was that they were allowed to do anything not formally forbidden, rather than the more normally accepted they had to act within the law.

Congress got wise to this, and fought back. They required a new legally approved set of Army Regulations be prepared. Belknap attempted to place the SECWAR in the wartime line of command in 1873 (confirming what everyone knew - SECWAR was not in the line of command) amongst other things, but Congress refused to approve it. SECWAR tried to issue the new regulations anyway claiming he was acting using the powers of POTUS delegated to him, but got slapped down (and the print run pulped). Things culminated with the Senate impeaching Belknap in 1876, which destroyed Grant's run at the third term. Belknap's defence was basically Canuck's idea here, a creative interpretation of a few precedents allowed for SECWAR to effective wield the power of POTUS without their approval and thus his actions were those of the President. Well, the Senate vote 35-25 guilty, but failed to reach the supermajority of 40 needed to convict because a large block of Senators believed that they couldn't impeach a man who'd already resigned.

However, with Belknap gone, General Sherman reasserted himself (having been forced into exile in 1874) and Congress confirmed that the Davis-Stanton-Belknap interpretation was incorrect, and Scott's, McClellan's, Grant's, Sherman's etc. interpretation was correct. With Belknap gone, GO28 of 1876 reaffirmed the pre-1857 status quo - the SECWAR is only an intermediate between POTUS and the Commanding General, and only the Commanding General (or POTUS directly) can issue orders to the army in both peace and wartime (the 1857 regulations allowed for SECWAR to assign troops and commanders in peacetime, but not in wartime). The regulations were revised, approved by Congress and published in 1881 (which the 1857 etc. regulations were not, meaning then were arguably never in force). The revised regulations stated what powers SECWAR had, and confirmed he had no more.

As to the timeline, what matters is McClellan's own interpretation of Stanton's authority. McClellan was versed in the well-crafted 1847 Regulations, and understood the legal situation to be that that Macomb had spelt out (and as was later pointed out, removing Article X of the 1847 Regulations didn't stop it being in force, because the regulation hadn't been replaced or superseded). This is proven by a conversation with Halleck, wherein Halleck pointed out that a revision to the rules of seniority placed regulars above volunteers in the same grade, which wasn't something McClellan was aware of (knowing the 1847 regulations). Thus McClellan's own interpretation of the law will be that of virtually the entire army - SECWAR has no agency and cannot issue him an order. Stanton is very much out on a limb, and it is up to McClellan to decide whether the obviously unlawful order is unlawful or not, at least in the short term.
 
Last edited:
Top