Jefferson Davis, The Rise and Fall of the Confederate Government

[436] 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 in 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 time of peace.”¹ They further stipulate that, “a well-regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed.”²

“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 times of war or public danger.”³

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 exist 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 12, 13, and 14, 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; if 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 can not 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 to Congress is exclusive, the Constitution proceeds to deal with the other organized body, the militia; and, instead of delegating power to Congress alone, or reserving it to the States alone, the power is divided as follows, viz.: Congress is to have power “to provide for calling forth the ”