Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 5.
Frank Moore, Ed.

dear sir: I received your letter of the eighth inst., in due course, but the importance of the subject embraced in it required careful consideration; and this, together with other pressing duties, has caused delay in my reply.

The constitutional question discussed by you in relation to the conscription law, had been fully weighed before I recommended to Congress the passage of such a law; it was fully debated in both Houses, and your letter has not only been submitted to my Cabinet, but a written opinion has been required of the Attorney-General. The constitutionality of the law was sustained by very large majorities in both Houses. This decision of Congress meets the concurrence not only of my own judgment, but of every member of this Cabinet; and a copy of the opinion of the Attorney-General, herewith inclosed, develops the reasons on which his conclusions are based.

I propose, however, from my high respect for yourself, and for other eminent citizens who entertain opinions similar to yours, to set forth somewhat at length my own views on the power of the confederate government over its own armies and the militia, and will endeavor not to leave without answer any of the views maintained in your letter.

The main if not the only purpose for which independent States form unions, or confederations, is to complete the power of the several members in such manner as to form one united force in all relations with foreign powers, whether in peace or war. Each State, amply competent to administer and control its own domestic government, yet too feeble to successfully meet powerful nations, seeks safety by uniting with other States in like condition, and by delegating to some common agent the combined strength of all, in order to secure advantageous commercial relations in peace, and to carry on hostilities with effect in war.

Now, the powers delegated by the several States to the confederate government, which is their common agent, are enumerated in the eighth article of the Constitution, each power being distinct, specific, and enumerated in paragraphs respectively numbered. The only exception is in the eighteenth paragraph, which by its own terms, is made dependent on those previously enumerated, as follows:

No. 10. “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers,” etc.

Now, the war-powers granted to the Congress are conferred in the following paragraphs:

No. 1 gives authority to raise “revenue necessary to pay the debts, provide for the common defence, and carry on the government,” etc.

No. 11. “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”

No. 12. “To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.”

No. 13. “To provide and maintain a navy.”

No. 14. “To make rules for the government and regulation of the land and naval forces.”

It is impossible to imagine a more broad, ample, and unqualified delegation of the whole power of each State than is here contained, with the solitary limitation of the appropriations to nearly two years. The States not only gave power to raise money for the common defence, to declare war, to raise and support armies, (in the plural,) to provide and maintain a navy, to govern and regulate both land and naval forces, but they went further, and covenanted by the third paragraph of the tenth section not to engage in war unless actually invaded, or in such imminent danger as will not admit of delay.

I know of but two modes of raising armies in the confederate States, namely, voluntary enlistment or draft and conscription. I perceive in the delegation of power to raise armies no restrictions as to the mode of procuring troops. I see nothing which confines Congress to one class of men, nor any greater power to receive volunteers than conscripts into its service. I see no limitations by which enlistments are to be received of individuals only, but not of companies, or battalions, or squadrons, or regiments. I find no limitation of time of service, but only of duration of appropriation. I discover nothing to confine Congress to waging war within the limits of the Confederacy, nor to prohibit offensive war. In a word, when Congress desires to raise an army, and passes a law for that purpose, the solitary question is under the eighteenth paragraph, namely: “Is the law one that is necessary and proper to execute the power to raise armies?”

On this point you say: “But did the necessity exist in this case? The conscription act cannot aid the government in increasing the supply of arms or provisions, but can only enable it to call a large number of men into the field. The difficulty [337] has never been to get men. The States have already furnished the government more men than it can arm,” etc.

I would have very little difficulty in establishing, to your entire satisfaction, that the passage of the law was not only necessary, but that it was absolutely indispensable; that numerous regiments of twelve months men were on the eve of being disbanded, whose places could not be supplied by raw levies in the face of superior numbers of the foe, without entailing the most disastrous results; that the position of our armies was so critical as to fill the bosom of every patriot with the liveliest apprehension; and that the provisions of the law were effective in warding off a pressing danger; but I prefer to answer your objection on other and broader grounds.

I hold that when a specific power is granted by the Constitution, like that now in question, “to raise armies,” Congress is the judge whether the law is “necessary and proper.” It is not enough to say that armies might be raised in other ways, and that therefore this particular way is not “necessary.” The same argument might be used against every mode of raising armies. To each successive mode suggested, the objection would be that other modes were practicable, and that therefore the particular mode used was not “necessary.” The true and only test is to inquire whether the law is intended and calculated to carry out the object; whether it devises and creates an instrumentality for executing the specific power granted, and if the answer be in the affirmative the law is constitutional. None can doubt that the conscription law is calculated and intended to “raise armies.” It is, therefore, “necessary and proper” for the execution of that power, and is constitutional, unless it comes into conflict with some other provision of our confederate compact.

You express the opinion that this conflict exists, and support your argument by the citation of those clauses which refer to the militia. There are certain provisions not cited by you, which are not without influence on my judgment, and to which I call your attention. They will aid in defining what is meant by “militia,” and in determining the respective powers of the States and the Confederacy over them.

The several States agree “not to keep troops or ships of war in times of peace.” [Art. 1, sec. 10, part 3.]

They further stipulate that “a well-regulated militia being necessary to the security of a free State, the rights of the people to keep and bear arms shall not be infringed.” [Sec. 9, part 13.]

That “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger,” etc. [Sec. 9, part 16.]

What, then, are militia? They can only be created by law. The arms-bearing inhabitants of a State are liable to become its militia, if the law so order; but, in the absence of a law to that effect, the men of a State capable of bearing arms are no more militia than they are seamen.

The Constitution also tells us that militia are not troops, nor are they any part of the land or naval forces, for militia exists in time of peace, and the Constitution forbids the States to keep troops in time of peace; and they are expressly distinguished and placed in a separate category from land or naval forces, in the sixteenth paragraph above quoted; and the words, land and naval forces are shown by paragraphs twelve, thirteen and fourteen to mean the army and navy of the confederate States.

Now, if militia are not the citizens taken singly, but a body created by law; if they are not troops, and they are no part of the army and navy of the Confederacy — we are led directly to the definition quoted by the Attorney-General that militia are a “body of soldiers in a State enrolled for discipline.” In other words, the term “militia” is a collective term, meaning a body of men organized, and cannot be applied to the separate individuals who compose the organization.

The Constitution divides the whole military strength of the States into only two classes of organized bodies--one, the armies of the Confederacy; the other, the militia of the States.

In the delegation of power to the Confederacy, after exhausting the subject of declaring war, raising and supporting armies, and providing a navy, in relation to all which the grant of authority in Congress is exclusive, the Constitution proceeds to deal with the other organized body of the militia, and, instead of delegating power to Congress alone, or reserving it to the States alone, the power is divided as follows, namely:

Congress is to have power--

“To provide for calling forth the militia to execute the laws of the confederate States, suppress insurrections and repel invasions.” [Sec. 8, par. 15.]

“To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the confederate States; reserving to the States respectively the appointment of officers and the authority of training the militia according to the discipline prescribed by Congress.” [Par. 16.]

Congress, then, has the power to provide for organizing the arms-bearing people of the State into militia. Each State has the power to officer and train them when organized.

Congress may call forth the militia to execute confederate laws. The State has not surrendered the power to call them forth to execute State laws.

Congress may call them forth to repel invasion; so may the State, for it has expressly reserved this right.

Congress may call them forth to suppress insurrections; and so may the State, for the power is implicitly reserved of governing all the militia except the part in actual service of the Confederacy.

I confess myself at a loss to perceive in what [338] manner these careful and well-defined provisions of the Constitution, regulating the organization and government of the militia, can be understood as applying in the remotest degree to the armies of the Confederacy; nor can I conceive how the grant of exclusive power to declare and carry on war by armies raised and supported by the Confederacy, is to be restricted or diminished by the clauses which grant a divided power over the militia. On the contrary, the delegation of authority over the militia, so far as granted, appears to me to be plainly an additional enumerated power, intended to strengthen the hands of the confederate government in the discharge of its permanent duty, the common defence of the States.

You state, after quoting the twelfth, fifteenth and sixteenth grants of power to Congress, that “these grants of power all relate to the same subject matter, and are all contained in the same section of the Constitution, and, by a well-known rule of construction, must be taken as a whole and construed together.”

This argument appears to me unsound. All the powers of Congress are enumerated in one Section; and the three paragraphs quoted can no more control each other by reason of their location in the same section, than they can control any of the other paragraphs preceding, intervening or succeeding. So far as the subject matter is concerned, I have already endeavored to show that the armies mentioned in the twelfth paragraph are a subject matter as distinct from the militia mentioned in the fifteenth and sixteenth, as they are from the navy, mentioned in the thirteenth. Nothing can so mislead as to construe together, and as one whole, the carefully separated clauses which define the different powers to be exercised over distinct subjects by the Congress.

But you add, that “by the grant of power to Congress, to raise and support armies without qualification, the framers of the Constitution intended the regular armies of the Confederacy, and not armies composed of the whole militia of all the States.”

I must confess myself somewhat at a loss to understand this position. If I am right that the militia is a body of enrolled State soldiers, it is not possible, in the nature of things, that armies raised by the Confederacy can “be composed of the whole militia of all the States.” The militia may be called forth, in whole or in part, into the confederate service, but do not thereby become part of the “armies raised” by Congress. They remain militia, and go home when the emergency which provoked their call has ceased. Armies raised by Congress are, of course, out of the same population as the militia organized by the States, and to deny to Congress the power to draft a citizen into the army, or to receive his voluntary offer of service, because he is a member of the State militia, is to deny the power to raise an army at all, for practically, all men fit for service in the army, may be embraced in the militia organizations of the several States. You seem, however, to suggest rather than directly to assert, that the conscript law may be unconstitutional, because it comprehends all arms-bearing men between eighteen and thirty-five years; at least this is an inference which I draw from your expression, “armies composed of the whole militia of all the States.” But it is obvious that if Congress have power to draft into the armies raised by it any citizens at all, (without regard to the fact whether they are not members of militia organizations,) the power must be coextensive with the exigencies of the occasion, or it becomes illusory; and the extent of the exigency must be determined by Congress; for the Constitution has left the power without any other check or restriction than the executive veto. Under ordinary circumstances the power thus delegated to Congress is scarcely felt by the States. At the present moment, when our very existence is threatened, by armies vastly superior in numbers to ours, the necessity for defence has induced a call, “not for the whole militia of all the States,” not for any militia, but for men to compose armies of the confederate States.

Surely there is no mystery on this subject. During our whole past history, as well as during our recent one year's experience as a new Confederacy, the militia “have been called forth to repel invasion,” in numerous instances. I cannot perceive how any one can interpret the conscription law as taking away from the States the power to appoint officers to their militia; as they never came otherwise than as bodies organized by the States with their company, field and general officers; and when the emergency had passed, they went home again.

You observe on this point in your letter, that unless your construction is adopted, “the very object of the States in reserving the power of appointing the officers, is defeated, and that portion of the Constitution is not only a nullity, but the whole military power of the States, and the entire control of the militia, with the appointment of the officers, is vested in the confederate Government, whenever it choose to call its own action ‘raising an army,’ and not ‘calling forth the militia.’ ”

I can only say, in reply to this, that the power of Congress depends on the real nature of the act it proposes to perform, not on the name given to it; and I have endeavored to show that its action is really that of “raising an army,” and bears no semblance to “calling out the militia.” I think I may safely venture the assertion that there is not one man out of a thousand of those who will do service under the conscription act that would describe himself, while in the confederate service, as being a militia-man; and if I am right in this assumption, the popular understanding concurs entirely with <*>ny own deductions from the Constitution as to the meaning of the word “militia.”

My answer has grown to such a length that I must confine myself to one more quotation [339] from your letter. You proceed: “Congress shall have power to raise armies. How shall it be done? The answer is clear. In conformity to the provisions of the Constitution, which expressly provides that when the militia of the States are called forth to repel invasion, and employed in the service of the confederate States, which is now the case, the State shall appoint the officers.”

I beg you to observe that the answer, which you say is clear, is not an answer to the question put. The question is, how are armies to be raised? The answer given is, that when militia are called forth to repel invasion, the States shall appoint the officers.

There seems to me to be a conclusive test on this whole subject. By our Constitution Congress may declare war, offensive as well as defensive. It may acquire territory. Now, suppose that, for good cause and to right unprovoked injuries, Congress should declare war against Mexico, and invade Sonora. The militia, could not be called forth in such case, the right to call it being limited “to repel invasions.” Is it not plain that the law now under discussion, if passed under such circumstances, could by no possibility be aught else than a law to “raise an army” ? Can one and the same law be construed into a “calling forth the militia,” if the war be defensive, and a “raising of armies,” if the war be offensive?

At some future day after our independence shall have been established, it is no improbable supposition that our present enemy may be tempted to abuse his naval power by depredations on our commerce; and that we may be compelled to assert our rights by offensive war. How is this to be carried on? Of what is the army to be composed? If this government cannot call on its arms-bearing population more than as militia, and if the militia can only be called forth to repel invasion, we should be utterly helpless to vindicate our honor or protect our rights. War has been well styled “the terrible litigation of nations.” Have we so formed our government, that in this litigation we may never be plaintiff? Surely this cannot have been the intention of the framers of our compact.

In no aspect in which I can view this law, can I find just reason to distrust the propriety of my action in approving and signing it; and the question presented involves consequences, both immediate and remote, too momentous to permit me to leave your objections unanswered.

In conclusion, I take great pleasure in recognizing that the history of the past year affords the amplest justification for your assertion that if the question had been, whether the conscription law was necessary in order to raise men in Georgia, the answer must have been in the negative. Your noble State has promptly responded to every call that it has been my duty to make on her; and to you, personally, as her Executive, I acknowledge my indebtedness for the prompt, cordial, and effective cooperation you have afforded me in the effort to defend our common country against the common enemy.

I am, very respectfully, your ob't serv't,