Jefferson Davis, The Rise and Fall of the Confederate Government

[435] 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 war power of each State than is here contained, with the solitary limitations of the appropriations to two years. The States not only gave power to raise money for the common defense, 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 within the Confederate States, viz., voluntary enlistment and draft, or conscription. I perceive, in the delegation of power, to raise armies, no restriction 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 limitation 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 or 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, viz., “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 can not aid the Government in increasing its supply of arms or provisions, but can only enable it to call a larger number of men into the field. The difficulty has never been to get men. The States have already furnished the Government more 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 this 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 passed for the purpose of executing that power 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