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[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



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