“  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
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