C K ten'f
IS TM WflSCKiniOJI ACT CONSTITUTIONAL?
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, 59
CORRESPONDENCE
BETWEEN THE
ntettoii of Stjotnia,
AND
THE PRESIDENT,
i
RELATIVE TO THE LAW USUALLY KNOWN A8 THE
CONSCRIPT LAW.
«
ATLANTA:
DAILY INTELLIGENCER POWER PRESS PRINT.
1862.
H
i
EMORY UNIVERSITY
LIBRARY
CORRESPONDENCE.
Executive Department, )
Milledgmlle, (?«., May 8, 1862. J
Dear Sir:—I Lave the honor to acknow¬
ledge the receipt of your favor of the 28th
ult.., in reply to my letter to you upon the
subject of the Conscription Act. 1 should
not trouble you with a reply, were it not
that principles are involved of the most vi¬
tal character, upon the maintenance of
which, in my opinion, depend not only the
rights and sovereignty of the States, but the
very existence of State Government.
While I am always happy as an individu¬
al to render you any assistance in my power,
in the discharge of the laborious and respon¬
sible duties assigned Jyou, and while I am
satisfied you will bear testimony that I have
never, as the Executive of this State, failed
in a single instance to furnish all the men,
and more than you have called for, and to
assist you with all the other means at my
command, I cannot consent to commit the
State to a policy which is in my judgment
subversive of her sovereignty, and at war
with all the principles for the support of
which Georgia entered into this revolution.
It may be said that it is no time to discuss
constitutional questions in the midst of revo¬
lution, and that State rights and State sov¬
ereignty must yield for a time to the higher
law of necessity! If this is a safe principle
of action, it cannot certainly apply till the
necessity is shown to exist; and I apprehend
it would be a dangerous policy. to adopt,
were we to admit that those who arc to ex¬
ercise the power of setting aside the Con¬
stitution, are to be the judges of the neces¬
sity for so doing. But did the necessity ex¬
ist 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 in¬
to the field. The difficulty has never been
to get men. The States have already fur¬
nished the Government more than it can
arm, and have from their own means armed
and equipped very large numbers for it.—
Georgia has not only furnished more than,
you have asked, and armed and equipped,
lh>ra her own treasury, a large proportion
of those she has sent to the field, but she
stood ready to furnish promptly her quota
(organized as the Constitution provides) of
any additional number called for by the
President.
I beg leave again to invite your attention
to the constitutional question involved,—
You say in your letter, that the constitu¬
tionality of the act is clearly not derivable
from the power to call out the militia, but
from that, to raise armies. Let us examine
this for a moment. The 8th section of the
1st article of the Constitution defines the
power of Congress. The 12th paragraph
of that section declares, that Congress "shall
have power to raise and support armies." —
Paragraph 15 gives Congress power to pro¬
vide for calling forth the militia to execute
the laws of the Confederate States, suppress
insurrections, and repel invasions. Para¬
graph 16 gives Congress power 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 the officers, *
and the authority of training the militia, ac¬
cording to the discipline prescribed by Con¬
gress.
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.
It .would seem quite clear, that by the
grant of power by Congress to raise and
support armies, without qualification, the
trainers of the Constitution intended the
regular armies of the Confederacy, and not
armies composed of the whole militia of nli
the States. If all the power given in the
three paragraphs above quoted, is in fact
embraced in the first, in the .general word*
to mise armies, then the other two paragraphs
are mere surplusage, and the framera of the
Constitution were guilty of the folly of in¬
corporating into the instrument unmeaning
phrases. When the States, by the lGih
paragraph, expressly and carefully reserved
to themselves the right to appoint the offi¬
cers of the militia, when employed in the
service of the Confederate States, it was
certainly never contemplated that Congress
had power, should it become necessary to
call the whole militia of the State into the
service of the Confederacy, to direct that the
President should appoint (commission) all
the officers of the militia thus called into
service, nuder the general language con¬
tained in the previous grant of power to raise
armies. If this can be done, the very object
of the State in reserving the power of ap¬
pointing 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,
when it chooses to call its own action "rais¬
ing an army," and c.ot "calling for the mili-
tia." Is it fait to conclude that the States
intended that these reserved powers should
be defeated in a matter so vital to constitu¬
tional liberty, by a mere change in the use
of terms to designate the act? Congress
shall have ppwer to raise armies. How
shall it be done? The answer is clear. In
conformity to the provisions of the Consti¬
tution, 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
rase,) the States shall appoint the officers.
If this is done, the army is raised as di¬
rected by the Constitution, and the reserved
rights of the States are respected; but if the
officers of the militia, when called forth,
are appointed by the President, the army
oomposed of the militia is not raised as di¬
rected by the Constitution, and the reserved
rights of the States are disregarded. The
lathers of the Republic in 1787 showed the
utmost solicitude on this very point. In the
discussion in the Convention on the adop¬
tion of the paragraph in the Constitution
of the United States, which'we have copied
and adopted without alteration, Mr. Ells¬
worth said: "The whole authority over the
militia ought by no means to be taken away
from the States, whose consequence would
pine away to nothing after such a sacrifice
*of power." In explanation of the power
which the committee, who reported this
paragraph to the Convention, intended by
it to delegate to the General Government,
when the militia should be employed in
the service of the Government, Mr. King,
a member of the committee, said: "By or¬
ganizing, the oommittee meant proportion¬
ing the officers and men; by arming, the
kind, size and calibre of arms; by disciplin¬
ing, prescribing the manual exercise, evolu¬
tions, &c."
Mr. Gerry objected to the delegation of
the power, even with this explanation, and
said: "This power in the United Btates, as
explained, is making the States drill ser-
feanta. He had as lief let the citizens ot
[assachusetts be disarmed, as to take the
command from the States, and subject them
to the General Legislature."
Mr. Madison observed, that "arming, as
explained, did not extend to furnishing
arms, nor the term disciplining, to penal¬
ties and courts martial for enforcing them."
After the adoption by the Convention of
the first part of the clause, Mr. Madison
moved to amend the next part of it, so as
to read "reserving to the States respective¬
ly the appointment otthe officers, under the
rank of general officers."
Mr. Sherman considered this as absolute¬
ly inadmissible. Ho said that if the peo¬
ple should be so far asleep as to allow the
most influential officers of the General Gov¬
ernment, every man of discernment would
rouse them by sounding the alarm to them."
Upon Mr. Madison's proposition, Mr. Gerry
said: "Let us at once destroy the State Gov¬
ernments, have an Executive for life, or he¬
reditary, and a proper Senate, and then there
would be Bome consistency in giving full
powers to the General Government; but a8
the States are not to be abolished, he won¬
dered at the attempts that were mad® to
give powers inconsistent with their exis¬
tence. He warned the Convention against
pushing the experiment too far."
Mr. Madison's amendment to add to the
clause the words "under rank of general of¬
ficers," was voted down by a majority of
eight States against three, according to the
"Madison Papers," from which the above
extracts are taken; and by nine 8tatt8
against two, according to the printed jour¬
nals ot the Convention. The reservation
in the form in which it now stands in the
Constitution, "reserving to the States the
appointment of the officers,1' when the mili¬
tia are employed in the service of the Con¬
federacy, as well the general officers as
those under that grade, was adopted unan¬
imously by the Convention.
At the expense of wearying your patience,
I have been thus careful in tracing the histo¬
ry of this clause of the Constitution, to show
that it was the clear understanding of those
who originated this part of the fundamental
law, that the States should retain their pow¬
er over their militia, even when in the ser-
vice of the Confederacy, by retaining the ap
pointment of aU the officers.
In practice, the Government of the United
States, among other numerous encroach¬
ment of power, had usurped to itself the
power which the Convention, after mature
deliberation, had expressly denied to it, to
wit: the power of appointing the gekeral
officers of the militia, when employed in
the service of the General Government.
But even that Government had never at¬
tempted to the extent of usurping the power
to appoint the field and company officers.
If the framers of the Constitution were star¬
tled at the idea of giving the appointment ot
the general officers to the General Govern¬
ment, and promptly rejected it, how would
they have met a proposition to give the ap¬
pointment of all the officers, down to
the lowest lieutenant to it ?
But you say, "with regard to the mode of
officering the troops now called into the
service of the Confederacy, the intention of
Congress is to be learned from its acts; and
from the terms employed it would seem that
the policy of election by the troops them¬
selves, is adopted by Congress."
. I confess I had not so understood it, with¬
out very essential qualifications. It is true,
the twelvemonths men who re-enlist have a
right within forty days, to re-organize and
elect their officers.
But if I understand the act, judging from
the terms used,Jail vacancies which occur in
the old regiments are to be filled, not by
election, but by the President, by promo¬
tion, down to the lowest commissioned offi¬
cer, whose vacancy alone is filled by elec¬
tion, and even this rule of promotion may
be set aside by the President at any time,
under circumstances mentioned In the act,
and he may appoint any one he pleases to
fill the vacancy, it, in his opinion, the per¬
son selected is distinguished for skill or va¬
lor 5 and the commission in either, and all
the cases mentioned must be issued by the
President.
Quite a number of Georgia regiments are
in lor the war, whose officers hold commis¬
sions from the Kscutive of the State; but
even in these regiments, under the aet, every
person appointed to fill any vacancy that
may hereafter occur, it would seem, must
hold his commission, not from the State, but
from the President.
But admit that Congress, by its acts, in¬
tended to give the troops in every case the
right to elect their officers (which has not
been the established pratice, as you have
commissioned many persons to command as
field officers without election,) this does not
relieve the acts of Congress from the charge
of violation of the Constitution. The ques¬
tion is not as to the *mode of selecting the
person who is to have the commission, the
as to the Government which, under but
Constitution, has the right to issue the com¬
mission. The States, in the exercise of their
reserved power to appoint the officers, may
select them by election, or may permit the
Executive to select them; but the appoint¬
ment rests upon the commission, as there is
no complete appointment till the commis¬
sion is issued; ,and therefore the Govern-'
inent that issues the commission exercises
the appointing power, and controls the ap¬
pointment.
I am not, however, discussing the inten¬
tion of Congress in the gumption of this
power, but only the question of its power ;
and whatever may have been its intention,
1 maintain that it has transcended its con-
Ktitutional power, and has placed in the
hands of the Executive of the Confederacy
that which the States have expressly and
carefully denied to Congress and rceerved to
themselves.
But you may ask. why hold the Executive
responsible for the unconstitutional act of
Congress V I would not of course, insist on
this any further than the action of Congress
has been sanctioned by the Executive, and
acted upon by him.
Feeling satisfied that the Conscription
Aet, and such other acts of Congress as au¬
thorize the President to appoint "or commis¬
sion the officers of the militia of the State,
when employed in the service of the Con¬
federate States to "repel invasion," are in
palpable/violation of the Constitution, I can
consent to do no act which commits Geor¬
gia to willing acquiescence in their binding
foree upon her people. I cannot therefore
consent to have anything to do with the en¬
rollment of the conscripts in this State; nor
ean I permit any commissioned officer of
the militia to be enrolled, who is necessary
ix) enable the State to exercise her reserved
right of training her militia, according to
the discipline prescribed by Congress, at a
time when to prevent troubles with her
slaves, a strict military police is absolutely
necessary to the safety of her people. Nor
can I permit any bther officer, qivit or mili¬
tary, who is necessary to the maintenance
of the State Government, to be carried out
of thfj State as a conscript.
Should you at any time need additional
troops from Georgia to till up her just quota,
in proportion to the number furnished by
the other States, you have only to call on
the Executive for the number required to be
organised -and officered as the Constitution
dixeeta, and your call will, as it ever has
dene, meet a prompt response from her no¬
ble and patriotic people, who, while they
will watch with a jealous eye, even in the
midst of revolution, every attempt to under¬
mine their constitutional rights, will never
be content to be behind the foremost in the
discharge of their whole duty.
I am, with great respect,
lour obedient servant,
Joseph E. Brown*.
• ffijf RrstUency, Jefferson Davis.
Executive Department, \
Richmond, 29th, May, 1862. f
Dear Sir :—I received your letter of the
8th inst., in due course, but the importance
of the subject embraced in it required care¬
ful consideration; and this, together with
other pressing duties, has caused my delay
in reply.
The constitutional question discussed by
you in relation to the Conscription Law had
been duly weighed before I recommended
to Congress the passage ot such a law: it
was fully debated in both houses; and your
letter has not only been submitted to my
Cabinet, tut a- written opinion has been re¬
quired from the Attorney-General^ The
constitutionality of the law was sustained
by very large majorities in both houses.—
This decision of the Congress meets the con¬
currence, not only of my own judgment, but
of every member of the Cabinet; and a copy-
of the opinion of the Attorney-General,
herewith enclosed, develops the reasons ou
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 view*
on the power of the Confederate Govern¬
ment over its oi\n armies and the militia,
and will endeavor not to leave unanswered
any of the positions maintained in your let¬
ter.
The main, if not the only purpose tot
which independent States form Unions or
Confederations, is to combine the powers 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 successfully to resist 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 advanta¬
geous commercial relatious 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 enumera
ted in the 8th section of the Constitution,each
power being distinct, specific, and enu¬
merated in paragraphs separately number¬
ed. The only exception is the1 18th para¬
graph, which, by its own terms, is made de¬
pendent on those previously enumerated,
as follows:
18. To make all laws which shall be ne¬
cessary and proper for carrying into execu¬
tion the foregoing powers," &c.
Now, the war powers granted to the Con-
4
gies9 are conferred in the following para- armies was so critical as to fill the bosoms
graphs: of every patriot with the liveliest apprehen-
No. 1 gives authority to raise "revenue sion; and that the provisions of this law were
necessary to pay the debts, provide for the effective in warding off a pressing danger;
common defence, and carry on the govern- but I prefer to answer your objection on
ment," &c. other and broader grounds.
No. 11,"to declare war, grant letters of I hold, that when a specific, power is
marque and reprisal, and make rules con- granted by ths Constitution, like that now
opming captures on land and water;" in question, "to raise armies," Congress is
No. 12, "to raise and support armies; but A the judge whether the law passed for the
no appropriation of money to that use shall purpose of executing that power, is "neces-
be for a longer term than two years sary and proper." It i3 not enough to say
No. 13, "to provide and maintain a na- that armies might be raised in other ways,
vy"" and that therefore, this particular way is
No. 14, "to make rules for the govern- not "necessary." The same argument might
ment and regulation of the land and naval be used against every mode of raising ar-
forces." mies. To each successive mode suggested,
It is impossible to imagine a more broad, the objection would be that other modes
ample and unqualified delegation of the were practicable, and that therefore the par-
whole power of each State, than is here con- ticular mode used was not "necessary."—
tained, with the solitary limitation of the The true and only test is to enquire wheth-
appropriations to two years. The States er the law is intended and calculated to car-
not only gave power to raise money lor the ry out the object; whether it devises and
common defence: to declare war; to raise creates an instrumentality for executing the
and support armies (in the plural); to pro- specific power granted ; and if the answer
vide and maintain a navy; to govern and be in the affirmative, the law is constitution-
regulate both land and naval forces; but al. None can doubt that the Conscription
they went further, and covenanted, by the law is calculated to "raise armies," It is,
3d paragraph of the 10th section, not "to en- thereforo, "necessary and proper" for the
gage in war, unless actually invaded, or in execution of thatpower.and is constitutional,
such imminent danger as will not admit of unless it comes into conflict with some oth-
delay." , er provision of our Confederate Compact.
I know of but two modes of raising ar- You express the opinion that this conflict
mies within the Confederate States, viz: exists, and support your argument by the
voluntary enlistment, and draft or conscrip- citation of these clauses which refer to the
tion. I perceive, in the delegation of pow- militia. There are certain provisions not
er to raise armies, no restriction as to the cited by you, which are not without influ-
mode of procuring troops. I see nothing ence on my judgment, and to which I call
which cftnfines Congress to one class of men, your attention. They; will aid in defining
nor any greater power to receive volunteers what is meant by "militia," and in deter-
than conscripts into its service. I see no mining the respective powers of the States
limitation by which enlistments are to be and the Confederacy over them,
received df individuals only, but not of com- The several States agree "not to keep
panies, or battalions, or squadrons, or regi- troops or ships of war in time of peace."
ments. 1 find no limitation of time, of ser- Art. 1, sec. 10, par. 8.
vice, but only of duration of appropriation. They further stipulate, that "a well regu-
I discover nothing to confine Congress to4 lated militia being necessary to the security
war within the limits of the Confederacy, of a free State, the right of the people to
nor to prohibit offensive war. In a word, keep and bear arms shall not be infringed."
when Congress desires' to raise an army, Sec. 9, par. 18.
and passes a law for that purpose, the soli- That "no person shall be held to answer
tary question is under the 18th paragraph, for a capital or otherwise infamous crime,
viz: "Is the law one that is necessary and unless on a presentment or indictment of a
proper to execute the power to raise ar- grand jury, except in cases arising in the
mies?" land or naval forces, or in the militia when
On this point you say, "But did the ne- in actual service in time of war or public
cessity exist in this case? The Conscription danger," &c. Sec. 9, par. 10.
Act cannot aid the Government in increas- What then are militia ? They can only
ing its supply of arms or provision?, but be created by law. The arms-bearing in-
can only enable it to call a large number of habitants of a State are liable to become its
men into the field. The difficulty has nev* militia, if the law so order; but in the ab-
er been to get men. The States have al- sence of a law to that effect, the men of a
ready furnished the Government more than State capable of bearing are no more militia
it can arm," &c. than they are seamen.
I would have very little difficulty in es- The Constitution also tells us that militia
tablishing to your entire satisfaction that are not troops, nor are they any part of the
the passage of the law was not only neces- land or naval forces; for militia exist in
sary, but that it was absolutely indispensa- time of peace, and the Constitution forbids
ble; that numerous regiments of twelve the States to keep troops in time of peace,
months men were on the eve of being dis- and they are expressly distinguished and
banded, whose places could not be supplied placed in a separate categoiy from land or
by raw levies in the lace of superior uum- naval forces, in the lGth paragraph, above
bers of the foe, without entailing the most quoted; and the words land and naval
disastrous results: that the position of our forces are shown, by paragraphs 12,13 and
5
14. to mean the army and navy of the Con¬
federate States.
Now, if militia are not the citizens taken
singly, but a body created by law; it tbey
are not troops, if they are no part of the ar¬
my and navy of the Confederacy—we are
let' 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 col¬
lective term, meaning a body of men organ¬
ized, and cannot be applied to the separate
individuals who compose the organization.
The Constitution divides the whole mili¬
tary 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 Confed¬
eracy, after exhausting the subject of de¬
claring 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: Con¬
gress is to have power—
"To provide for calling forth the militia
to execute the laws of the Confederate
States, suppress insurrections and repel in¬
vasions."
"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; reserv¬
ing to the States respectively the appoint¬
ment of officers and the authority of train¬
ing the militia according to the discipline
prescribed by Congress. Par. 19.
Congress, then, has the power to proyide
for organizing the arms-bearing people of
the States into militia. Each State has the
power to officer and train them when or¬
ganized.
Congress may call forth the hiilitia to ex¬
ecute Confederate laws. The State has not
surrendered the power to call them forth to
execute State laws.
Congress may call them forth to repel in¬
vasion ; so may the States, for it has ex¬
pressly reserved this right.
Cong ress may call them forth to suppress
insurrection; and so may the States, for the
power is impliedly 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 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 remo¬
test degree to the armies of the Confedera¬
cy ; nor can 1 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 diminish¬
ed by the clauses which grant a divided
power over the militia. On the contrary,
the delegation of authority over the mili¬
tia, so far as granted, appears to me to be
plainly an additional enumerated power, in¬
tended to strengthen the hands of the Con¬
federate Government in the discharge of its
paramount duty, the common defence of
the States.
You state, after quoting the 12th, 15tli
16th grans of power to Congress, that,
"These grantsjof 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.—
fill the powers of Congress are enumerated
m one section; and the three paragraphs
quoted can no more control each other by
reason of their location in the same section
then they can control any of the other par¬
agraphs preceding, intervening or succeed¬
ing. So far as the snbject matter is con¬
cerned, I have already endeavored to show
that the armies mentioned in the 12th para¬
graph are a subject matter as distinct from
the militia mentioned in the 15th and 16th,
as the}' are from the navy mentioned in the
18th. Nothing can so mislead as to con¬
strue together and as one whole, the care¬
fully separated clauses which define the dif¬
ferent 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 qualifica¬
tion, the framers of the Constitution inten¬
ded the regular armies of the Confederacy,
and not armies composed of the whole mil¬
itia of all the States."
1 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 i3 not impossible, in the nature of
things, that armies raised by the Confeder¬
acy can "be composed of the whole militia
of all the States." The militia may be call¬
ed forth, in whole or in part, into the Con¬
federate 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 raised out of the same population as
the militia organized by the States; and to
deny to Congress the power to draft a citi¬
zen into the army, or to receive his volun¬
tary 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 organization of the several
States. You seem, however, to suggest,
rather than directly to assert, that the Con¬
script Law may be unconstitutional, because
it comprehends all arms-bearing men be¬
tween 18 and 35 years at least; this is an in¬
ference which I draw from your expression
"armies composed of the whole militia of
all States." But it is obvious, that if Con¬
gress have the power to draft into the ar¬
mies raised by it any citizens at all (without
regard to the fact whether they are or not
members of militia organizations,) the pow¬
er must be co-extensive with the exigencies
of the occasion, or it becomes illusory; and
the extent of the exigency must be de¬
termined by Congress; for the Constitution
has left the power without any other check
or restriction than the Executive veto. Un-
cltr ordinary circumstances, the powet thus
delegated to Congress is scarcely felt by the
States. At the present moment, when our
very existence is threatened, by armies vast¬
ly superior In numbers to ours, the necessi-
. fry for defence has induced Pa call, not "for
the whole militia of all the States," not lor
any militia, but for men to compose armies
for the Confedbrate States."
Surely, there is no mystery on this sub¬
ject. During our whole past history, ay
well as during our recent one year's expe¬
rience as a new Confederacy, the militia
"have been called forth to repel invasion"
in numerous instances; and lliey never
came otherwise than as bodies organized by
the Stolen, with their company, field and
general officers; and when the emergency
had passed, they went home again.
I cannot perceive how any one can inter¬
pret the Conscription Law as taking away
from the Stales the power to appoint officers
to their militia. You observe on this point
in your letter, that unless your construction
i9 adopted, "the very object of the States in
reserving the power of appointing the offi¬
cers, is 'defeated, and that fportion 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 ap¬
pointment of the officers, i* vested in the
Confederate Government, whenever it choo¬
ses to call its own action'raising an army,'
and not calling forth the militia.'
I can only bay, iu reply to thitf, that the
pjwer ot Congress depends on the real na¬
ture of the act it proposes to perform, not
ou the name given to it; and I have endeav¬
ored to show that its action is nearly that
of "raising an army," and bears no sem¬
blance to "calling forth 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 po¬
pular understanding concurs entirely with
my own deductions lrom the Constitution
as to themeauing of the word "militia."
My answer has grown to such a length
t hat I must confine myself to one more quo¬
tation from your letter. You proceed: "Con¬
gress whall have power to iiaisk armies.
How shall it be done ? The answer is clear.
In conformity to the provisions of the Con-
«rtitution, which expressly provides that
when thtf militia of the States are cklled
forth to repel innasflxv, and employed in
the service of the Confederate States, which
is now the case, the State shall appoint tho
officers."
"I beg you to observe that the answer
whic&you say is clear, is not an answer to
the question put. The question is: liow
arc armies to be raised V The answer given
is, that when militia are called forth to vp-
pel invasion, the Stale shall appoint the oK
cers.H
There seems to me to be a conclusive tefc*
on this whole subject. By our Constitution
Congress may declare war, offensive as well
as defensive. It may acquire territory.—
Now, suppose that lor good cause and to
right unprovoked injuries, Congress should
declare war against Mexico, and invade So-
nora. The militia could not be called forth
in such a case, the right to call it being lim¬
ited "to repel invasions." Is it not plaiu
that the law now under discussion, if pass¬
ed under such circumstances* could by no
possibilitv 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 indepen¬
dence shall have been established, it is no
improbable supposition that our present en¬
emy may be tempted to abuse his naval
power, by depredation on our commeriit',
and that we may be compelled to assert our
rights by offensive war. How is it to be car¬
ried on? Of what is the army to be com
posed? If this Government cannot call on
its arms bearing population otherwise thau
as militia, and if the militia can only b«
called forth to repel invasion, wc should be
utterly helpless to vindicate our honor or
protect our rights. War has been well styl¬
ed "the terrible litigation of nations." Have
we so formed our Government, that in thi*
litigati-m we must never be plaintiff? Sure¬
ly this cannot have been the intention of tU<;
fraraer* of our compact.
Iu no aspect in which I can view this law,
can I find just reason to distrust the proprie¬
ty of my action in approving and signing
it; and the question presented involves con¬
sequences, both immediate and remote, lo<>
momentous to permit me to leave your oh
jections unanswered.
In conclusion, I lake great pleasure in re
cognizing that the history ot the past year
affords the amplest justification for your as¬
sertion, that if the question had been, whelh
cr 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 ev¬
ery call that it has been my duty to make
on her; and to you personally, as her Exec
tive, I acknowledge my indebtedness for the
prompt, cordial and affective 'co-operation
you have afforded me in the effort to defend
our common country against the common
enemy.
I atn very respectfully,
Your obedient servant.
JJEFFERSON DAVIS.
His Excellency Jos. E. Bkowk,
Governor of Georgia,
MUledguvilUj,
• THE CONSCRIPTION ACT,
Answer of Gov. Brown to President Davis.
Atlanta, June 21st, 1862.
His Excellency Jefferson Davis, President,
d-c.:
Dear Sin:—I have the honor to acknowl¬
edge the receipt of your letter of the 29th
ult., in reply to mine of the 8th of the
same month, which reached my office, at
Milledgeville, on the 8th inst., together
with a copy ot the written opinion of the
Attorney General, and has since been for¬
warded to me at Canton, where I was de¬
tained by family affliction.
Your reply, prepared after mature delib¬
eration and consultation with a cabinet of
distinguished ability, wlio concur in your
view of the constitutionality of the Conscrip¬
tion Act, doubtless presents the very
strongest argument in defence of the Act
of which the case is susceptible.
Entertaining, as I do, the highest respect
for your opinions and those of each indi¬
vidual member of your. Cabinet, it is with
great diffidence that I express the convic¬
tion, which I still entertain, after a careful
perusal of your letter, that your argument
lails to sustain the constitutionality of the
Act; and that the conclusion at which you
have arrived is maintained by neither the
contemporaneous construction put upon
the Constitution by those who made it,
nor by the practice of the United States
Government, under it during the earlier
and better days of the. Republic, nor
by the language of the instrument itself,
taking the whole context and applying to
it the well established rules by which all
constitutions and laws are to be construed.
Looking to the magnitude of the rights
involved, and the disastrous consequences
which, I fear, must follow what I consider
a bold and dangerous usurpation by Con¬
gress of the reserved rights of the States,
and a rapid stride towards military despot¬
ism, I very much regret ihat I have not, in
the preparation of this reply, the advice and
assistance of a number equal to your Cabi¬
net, of the many "eminent citizens" who,
you admit, entertain with me the opinion
that the Conscription Act Is a palpable vio¬
lation oT tlieConstitution of thcConfederacy.
Without this assistance, however, I must
proceed individually to express to you some
views, jn addition to those contained in my
former letters, and to reply to such points
made by you in the argument as seem to
my mind to have the most plausibility jn
sustaining your conclusion.
The sovereignty and independence of
each one of the thirteen States at the
time of the adoption of the Constitu¬
tion ot the United States,-will riot, I pre¬
sume, be denied by any, nor will it be de¬
nied tliat each of these States acted in its
separate capacity, as an independent sover¬
eign, in the adoption of the Constitution.
The Constitution is, therefore, a league be-
between sovereigns. In order to place upon
ft a just construction, we must apply to it
the rules, which, by common consent, gov¬
ern in the construction of all written consti¬
tutions and laws. One of the first of these
rules is, to inquire what was the intention
of those who made the constitution.
'To enable us to learn this intention, it is
important to inquire what they did, and
what they said they meant, when they
were making it. In other words, to inquire
for the contemporaneous construction put
upon the instrument by those who made
it, and the explanations of its meaning by
those who proposed each part in the Con¬
vention, which induced the convention to
adopt each part.
I incorporated into my last letter a num¬
ber of quotations from the debates of prom¬
inent members of the Convention upon the
very point in question, showing that it was
not the intention of the Convention to give
to Congress the unlimited control of all the
men able to bear arms in the States, but
that it was their intention to reserve to
the States the control over those who com¬
posed their militia, by retaining to the
States the appointment of the officers to
command them, even while "employed in
the service of the Confederate States." I
might add many other quotations containing
strong proofs of this position from the de¬
bates of the Federal Convention, and the
action of the State Conventions which
adopted the Constitution; but I deem
it unnecessary, as you made no al¬
lusion to the contemporaneous construc¬
tion in your repljr, and I presume you
do not insist that the explanations ot its
meaning given by those who made it bus
tain your conclusion.
I feel that I am fully justified by the de¬
bates and the action of the Federal and
State Conventions in saying that it was the
intention of the thirteen sovereigns to con¬
stitute a common agent with certain specific
and limited powers, to bo exercised for the
good of all the principals, but that it was
not the intention to give the agent the pow¬
er to destroy the principals. The agent was
expected to be rather the servant of sever¬
al masters than the master of several ser¬
vants. I apprehend it was never imagined'
that the time would come when the agent
of the sovereigns would claim the power to
take from each sovereign every man be¬
longing to each able to bear arms, and leave
them w ith no power to execute their own
laws, suppress insurrections in their midst,
or repel invasions.
In reference to the practice of the United
States Government under the Constitution,
I need only remark, that I do not presume
it will be contended that Congress claimed
or exercised the right to compel persons
constituting the militia of the States, by
conscription or compulsion, to enter the ser¬
vice of the General Government, without
the consent ot their 8tate Government, at
8
any time while the government was ad¬
ministered, or its councils controlled, by
any of the fathers of the Republic who
Riiled is the formation of the Consti¬
tution.
If, then, the constitutionality of the con¬
scription act canuot be established by the
contemporaneous construction ot the Con¬
stitution, noi by the earlier practice of the
Government, while administered by those
n*ho made the Constitution, the remaining
inquiry is, can it be established by the langu¬
age of the instrument lteelf, taking the
■whole context and applying to it the usual
iules ot construction,which were generally
icceived and admitted to be authoritative
at the time it was* made.
The Constitution, in express language,
gives Congress the power to "raise and
uipport armies." You rest the case here,
and say you know of but two modes of
"raising armies," to-wit: "by voluntary en¬
listment, and by draft or conscription,'1" and
you conclude that the Constitution authori¬
ze i Congress to raise them by either or
both these modes.
To enable us to arrive at an intelligent
conclusion as to the meailing intended to
be conveyed by those who used this langu¬
age, it is necessary to inquire what signifi¬
cation was attached to the terms used at the
time they were used, and it is fair to infer
that those who used them intended to con¬
vey to the minds of others, the idea which
was at that time usually conveyed by the
language adopted by them. Apply this
rule, aud what did the Convention mean
by the term to "raise armies?" I prefer that
the Attorney General should answer. He
says in his written opinion:
"Inasmuch as the words "militia," "arm-
" ies," "regular troops," and "volunteers,"
" had acquired a definite meaning in Great
" Britain before the Revolutionary war, and
" as we have derived most of our ideas on
"this subject from that source, we may
" safely conclude that the terra "militia" in
" our Constitution was used in the sense
" attached to it in that country."
Upon this statement of the Attorney Gen¬
eral rests his definition of the term "mili¬
tia," which is an English definition; and
upon that definition rests all that part of
your argument, which draws a distinction,
however unsubstantial, between calling
forth the militia by authority of Congress,
and calling forth all men in the State who
compose the militia by the same authority.
* In the one case you term it calling forth the
militia, and admit that the State has the
right to appoint the officers. In the other
case, while every man called forth may be
the same, you term it raining an army
aud deny to the State the appointment of
the officers. As this is necessary to sustain
the constitutionality of the Conscription
Act, you cannot disapprove the statement
of the Attorney General above quoted. If
then, the Attorney General is right, that the
term "militia," "armies," "regular troops,"
and "volunteers" had acquired a definite
meaning in Great Britain before the Revo¬
lutionary war, and we have derived most of
our ideas on this subject from that source,
and if we may safely conclude that thp
term "militia" in our Constitution was used
in the sense attached to it in that country,
is it not equally safe to conclude that tho
term "urmies," and to "raise armies," hav¬
ing acquired a definite meaning In Great
Britain before the Revolutionary war, were
used in our Constitution in the same sense
attached to them in thiit country?
At that period, the Government of Great
Britain had no . Conscription Act, and did
not "raise armies" by Conscription, there¬
fore the Convention which made our Con¬
stitution "having derived most of their
ideas on this subject from that source" it is
"safe to conclude that they used the term
to "raise armies in the sense attached to it
in that country." It necessarily follows, the
Attorney General being the judge, that your
conclusion is erroneous, and that Congress
has no power to "raise armies," not evpn
her "regular armies," by Conscription.
But, as those who framed the Constitu¬
tion foresaw that Congress might not be
able, by volnntary enlistment, to raise re¬
gular or standing armies sufficiently large
to meet all emergencies, or that the people
might refuse to vote supplies to maintain in
the field armies so large and dangerous,
they wisely provided, in connection with
this grant of power, another relating to the
same subject matter, and gave Congress the
additional power to call forth the militia to
execute the laws of rhe Confederate States,
suppress insurrections, and repel invasion*.
In tills connection I am reminded by
your letter, that Congress has power "to de¬
clare war," which you say embraces th*
right to declare offensive as well as defen¬
sive war, and you argue, as I understand,
that the militia can trnly be called forth to
repel invasions, and not to invade a foreign
power, and that Congress would be power¬
less to redress our ^ rongs, or vindicate our
honor, if it could not "raise armies" by
Conscription, Co invade foreign powers.—
If this were even so, it might bean objec¬
tion to the Constitutional Government, for
want of sufficient strength, which is an ob¬
jection often made by those who favor more
absolute power in the General Government,
and who attempt by a latitudenarian con¬
struction of the Constitution to supply
powers which were never intended
to be given to it But does the practical
difficulty which you suggest in fact exist,'!
I maintain that it does not. And I may
here remark that those who established the
Government of our fathers, did not look to
it, as a great military power, whose people
were to live by plundering other nations iu
foreign aggressive war, but as A peaceful
Government, advised by the Father of his
Country to avoid "entangling alliances"
•with foreign powers.
But you suppose, after our independence
is established, that out present enemy may
be tempted to abuse his naval power, by
depredation on our commerce,. and that we
may be compelled to assert our rights by
offensive war, and you ask, "How is it to
be carried on ?" "Of what is the arirfy to be
composed ?" The answer is a very simple
one. If the aggression is such as to justify
9
us in the declaration of offensive war, our
people will have the intelligence to know
it, and the patriotism and valor to prompt
them to respond by voluntarv enlistment,
and to offer themselves under officers of
their own choice, through their State auth¬
orities to the Confederacy, just as they did iu
the offensive war against Mexico-, when
many more were offered than were needed,
without Conscription or coercion; and
just aa they have done in our present de¬
fensive war, when almost every State has
responded to every call, by sending larger
numbers than were called for, and larger
than the Government can arm and
make effective. There is no danger
that the honor of the intelligent freeborn
citizens of this Confederacy will ever suffer
because the Government has not the power
to compel them to vindicate it. They will
hold the Government responsible if it re¬
fuses to permit them to do it. To doubt
this, would seem to be, to doubt the intelli¬
gence and patriotism of the people, and
their competency for self-government.
< It would be very dangerous, indeed, to
give the General Government the power to
engage in an offensive foreign war, the jus¬
tice of which was condemned by the Gov¬
ernments of the States arid the intillegence
of the people, and to compel them to prose¬
cute it for two years, the term for which
appropriations can be made and continued
by the Congress declaring it. Hence the
wisdom of our ancestors in limiting the
power of Congress over the militia, or great
body of our people, so1 as t" prohibit the
prosecution, by conscription or coercion of an
offensive foreign war, which may be con¬
demned by an intelligent public'opinion.
France has a conscription act, which
Great Britain has not. Both are warlike
powers, often engaged in foreign offen¬
sive wars. What advantage has the
conscription law given to France over Great
Britain? , Has not the latter been as able as
the former to "raise armies" sufficient to vin¬
dicate her honor and maintain, her rights?
When France had no conscription law at
one period of her history she was a Re¬
public. Soon after she had a conscription
law, she became an Empire and her ruler
an Emperor, leaving her people without
the constitutional safe guards which pro¬
tect the people of Great Britain.
But you say shall we never be plaintiffs
in this "terrible litigation of nations." If
the litigation commends itself to the intel¬
ligence of the people as just, they will not
hesitate to put themselves at the command
of the Government to assume the plain¬
tiff's position. The eagerness with which
the people of the Confederacy now desire
that we assume the plaintiff's position, and
become the attacking and invading party,
instead of acting constantly upon the defen¬
sive, is evidence to sustain my conclusion
on this point.
That those who framed.the Constitution
looked to a elate of war as tending to con¬
centrate the power in the Executive, and
tin unfavorable to constitutional liberty,
and did not intend to encourage it unless in
cafes of absolute necessity^ anc\ did not,
therefore, form the government with a view
to its becoming a power often engaged in
offensive war, may be inferred from the
language of Mr. Madison, He says:
"War is, in fact, the true nurse of Execu-
" tive aggrandizement. In war a physical
M force is to be created, and it is the Execu-
" tive will which is to dirert it. In war the
public treasures are to be unlocked, and it
tl is the Executive hand wuich is to disperse
" them. In war, the honors and emolu-
u ments of office are to be multiplied; and it is
" the Executive patronage under which they
" are to be enjoyed. It is in Avar, finally,
" that laurels are to be gathered, and it is the
" Executive brow tliey are to encircle.—
"The strongest passions and most danger-
14 ous weaknesses of the human breast,
11 ambition, avarice, vanity, tue honorable
"or venal love of fame, ar j all in conspira-
"cy against the desire and duty of peace."
See Federalist, page 453.
In connection with thi- remark of Mr.
Madison, it may not be amiss to add one
from Mr. Calhoun. That gr :at and good man
who may justly be styled the champion of
b'tate Bights and Constitutional Liberty, in
the first volume of his works, page £G1,
while speaking of the war which was forced
upon Mr. Madison while President, by Great
Britain, says:
"It did more; for the war, however
just and necessary, gave a strong impulse
adverse to the Federal and favora¬
ble to the national line of policy.—
This is, indeed, one of the unavoidable
consequences ol war, and can be counter¬
acted only by bringing into full action the
negatives necessary to the protection of the
reserved powers. These would, of themselves,
have the effect of preventing wars, fco l'oug
as they could be honorably and saiely
avoided; and when necessary, of arresting,
to a great extent, the tendency of the Govern¬
ment to transcend the limits of the Constitu¬
tion during its prosecution; and of correct¬
ing all departures after its termination. It,
was by force of the tribmiitial power that
the plebians retained for so long a period
their liberty in the midst ol So many wars.""1
I beg to call special, attention to the por¬
tions ot the above quotation which I have
italicised.
Having rested the constitutionality ot
the Conscription Act upon the power
given to Congress to "raise armies," you
"enunciate a doctrine which I must be par¬
doned for saying struck me with sui-
prise, no* that the doctrine was new, for it
was first proclaimed, I be Icve, almost aa
strongly, by Mr. Hamilton in the Feder¬
alist, but because it found an advocate in
you, whom I had for many years regarded as
one of the ablest and boldest defenders of the
doctrines of the State Rights school in thb
old government. Your.language is:
" 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 neces-
" sary and proper."
A«[ain yon say:
'♦The true and only test is, to enquire
10
lf •whether the law is Intended and calcu- this cmnpa^l ico-t not made <7m ci dmite nr
* latcd to carry out the object, whether it final Judge of the extent of the pvmtr* dele-
w devises and creates an instrumentality for gated to it,—knee that irovfd hare made its
executing the specifie power granted,
"and if the answer be in the affirmative
* the law is constitutional."
Prom this you argue that the Conscrip¬
tion Act is calculated and intended to "raise
armies," and, therefore, constitutional.
I am not aware that the proposition was
ever stated more broadly in favor of unre¬
strained Congressional power by Webster,
Story, or any other statesman or jurist of
the Federal school.
This is certainly not the doctrine of the
repnblican party of 1798 as set forth in the
Yirginia and Kentucky Resolutions. The
Virginia Resolutions use the following lan¬
guage, that" It (the General Assembly of
Yirginia) views the powers of the Federal
Government as resulting from the compact
to which the States are parties, as limited,
by the plain sense and intention of the in¬
strument constituting that compact, aa no
further valid than they are authorized by
the grants enumerated in that compact;—
and that in the case of a deliberate palpable
and dangerous exercise of other power* not
granted by said compact, the States who are
* parties thereto have the right and are in duty
bound to interpose for arresting the progress of instrument
discretion and not the Constitution the
mfiUiiire of its powers; but that as in all
other cases of compact among parties hav¬
ing no common judge each party has an
equal right to judge for itself as irell of
infractions as of the mode and measure of re-
dress"
And again:
"lhat the Construction applied by the Gen¬
eral Government (as evinced by sundry of
their proceedings) to those parts of the Con¬
stitution of the United States which dele¬
gate to Congress a power to lay and collect
taxes, duties, imposts and excises; to pay
the debts and provide for the common defence
and general welfare ot the United States ;
and to make all laws necessary and proper
for carrying into execution thejpowers vested
bv the Constitution ia the Government of the
United States, or any department thereof,
goes to the destruction of aU the limits prescrib¬
ed to their power by the Constitution.' That
words meant by that instrument to be sub¬
sidiary only to the execution of the limited
powers ought not to be so construed, as them¬
selves to give unlimited powers, nor a part so to
be taken as to destroy the whole residue of the
the evil, and tor maintaining within their rc
spective limits the authorities, rights and lib¬
erties appertaining to them. That the. Gen¬
eral Assembly doth also express its deep re¬
gret, that a spirit has in sundry instances
been manifested by the Federal Government
f<o enlarge its powers by a forced construction
of the Constitutional charter which defines
ihem; and that indications have appeared
of a design to expound certain generalphra-
«sa-{which having been copied from the very
limited grant of powers in the former arti¬
cles of Confederation were the less liable to
be misconstrued)—so as to destroy the
meaning and effect of the particular enu-
But let us examine your doctrine a little
further and see whether it can be reconciled
to the construction lately put upon the Con¬
stitution by the States composing the Con¬
federacy, over which you preside, and the
action lately taken by them.
The Constitution of the United States gives
Congress the power to provide for calling
forth the militia to "suppress insurrections.
Carry out your doctrine, and Congress must
of course, be the Judge of what constitutes an
insurrection, as well as of the means "neces¬
sary and proper" to be used in executing the
specific power given to Congress to suppress
it. Georgia, claiming that the Congress ot
meration, which necessarily explains and the United States had abused the specific
limits the general phrases, so as to consolidate powers granted to it, and passed laws which
tte States by degrees into, one sovereignty, the were not "necessary and proper" in exe-
obviouB tendency and inevitable result of cuting these specific powers,which were in-
which would be to transform the present juriousto her people, and claiming to be
Republican system of the United States into herself the Judge, seceded from the Union.
an absolute or at least a mixed monarchy
The following quotations are frorp the
Kentucky Resolutions drawn up by Mr.
Jefferson himself, (the italics as in the last
quotation are my own:) " That the several
States composing the United States of Ame¬
rica are not united on the principle of un¬
limited submission to the General Gov¬
ernment; but that by a compact under the
style ana title of a Constitution of the Uni¬
ted States, and of amendments thereto, they
constituted a General Government for spe¬
cial purposes;—delegated to that Govern¬
ment certain definite powers; reserving each
State to itself the residuary mass of right t/>
their own self-government; that whensoever
the General Government assumes undelega¬
ted powers its acts are unauthoritative, 'eoid
and of no force; that to this compact each
State acceded as a State, and is an integral
party—its co-States forming as to itself the
other party; that the Government created by
Congress denied her power or right to do so,
and acting upon the doctrine laid down by
you, Congress claiming to be the Judge, pro¬
ceeded to adjudicate the case, and determin¬
ed that the action of Georgia amounted to
an insurrection, and passed laws for its sup¬
pression. Among others, they have passed
a law, if we may credit the newspapers,
which authorizes the President to arm our
negroes against us. Congress will, no doubt,
justify this act, under the specific power,
given to it by the Constitution, to "raise ar¬
mies." as the armies, as well as the militia
may be used to suppress insurrection, and
to execute the laws. Apply the test laid
down by you, and inquire, is this law "cal¬
culated and intended" to carry out the ob¬
ject (the suppression of the insurrection, and
the execution of the laws of the United
States in Georgia) ? and does it "devise and
create au instrumentality for executing the
specific power granted?" , Congress the
11
Judge H answers the question in the affirma¬
tive. Therefore the law is constitutional.
Again, suppose you are right, and Con¬
gress has the constitutional power to "raise
armies" by Conscription, and without the
consent of the States, to compel every man
in the Confederacy, between 18 and 35 years
old, able to bear arms, to enter these armies,
you must admit that Congress has the same
power to extend the law, and compel every
man between 16 and 60 to enter. And,
you must admit that the grant of power is
as broad in time's of peace as in times of
war, as there is in the grant no language to
limit it to times of war. It follows that Con¬
gress has the absolute control of every man
in the State, whenever it chooses to execute
to the full extent the power given it by the
Constitution to "raise armies. How easy a
matter it would have been, therefore, had
the Congress of the United States under¬
stood the full extent of its power to have
prevented in a manner perfectly constiution-
ul, the secession of Georgia and Mississippi
from the Union. It was only necessary to
pass a Conscription law declaring every man
in both States, able to bear arms, to be in
the military service of the United States, and
that each should be treated as a deserter if
he refused to serve ; and that Congress, the
Judge, then decide that this law was "ne¬
cessary and proper," and that it created an
instrumentality for the execution of one the
specific powers granted to Congress to pro¬
vide. for the execution of the laws ot the
Union in the two btates, or to provide for
"raising armies." This would have left
the'States without a single man at their
command, without the power to organize or
use militaiy force, and without free men to
• constitute even a Convention to pass an or¬
dinance of secession.
If it is said the people of the States would
have refused to obey this law of Congress,
and would have gone out in defiance of it;
it may be replied that this would have been
revolution, and not peaceful secesston,
the right for which we have all contended,
though our enemies have not permitted us
to part with them in peace—the right for
which we are now fighting.
Your do ctrine carried out not only makes
Congress supreme over the States, at any
time when it chooses to exercise the full
measure of its power to "raise armies,"
but it places the very existence of the
State Governments subject to the will of
Congress. The Conscription Act makes
no exception in favorof the officers neces¬
sary to the existence of the State Gov¬
ernment, but in substance declares that
they shall all enter the service of the
Confederacy at the call of the President
under officers which are in future to be ap¬
pointed by the President.
As already remarked Congress has as
much power to extend the act to embrace
all between 16 and 60. as it had to take all
between 18 and 35. If the act is Constitu¬
tional, it follows that Congress has the
power to compel the Governor of every
State in the Confederacy, every member qf
every Legislature of every State, every
Judge of every Court in every State, every
office* of the militia of every State, and all
other State officers to enter the military
service as privates in the armies of the Con¬
federacy under officers, appointed by the
President, at any time when it so decides.
In other words, Congress may disband the
State Governments any day when it, as
the judge decides that by so doing it "cre¬
ates an instrumentality for executing the
specific power" to "raise armies."
If Congress has the right to discrimin¬
ate, and take only those between 18 and 85,
it has the right to make any other discrim¬
ination it may judge ''necessary and pro¬
per" in the "execution of the power," and
it may pass a law in time of peace or war,
if it should conclude the State Govern¬
ments are an evil, that all State officers,
Executive, Legislative, Judicial, and Mili¬
tary, shall enter the armies of the Confeder¬
acy as privates under officers appointed by
the President, and that the army shall from
time to time be recruited from other State
officers as they may be appointed by the
States.
To state the case in different form, Con¬
gress has power under the 12th paragraph
ot the 8th section of the 1st Article of the
Constitution to disband the State Govern¬
ments; and leave the people of the States
with no other Government than such mili¬
tary despotism, as Congress in the exercise
of the specific power to "raise armies"
(which I understand you to hold is a distinct
power to be construed separately) may after
an application of your test judge to be best
for the people.
For as all the State officers which I men¬
tion might make effective privates in the
armies of the Confederacy, and as the law
passed to compel them to enter the scrviee
might "create an instrumentality fur execu ■
ting the specific power to "raise armies"Con-
gress, the judge, need only so decide and the
act would be Constitutional.
I may be reminded, however, that Con •
gress passed an Exemption Act after the pas¬
sage of the Conscription Act which exempts
the Governors of the States, the members of
the State Legislatures, the Judges of the
State Courts, &c., from the obligation to en••
ter the military service of the Confederacy
as privates under Confederate officers; It
must be borne in mind, however, that this
very act of exemption by Congress is an as¬
sertion of the right vested in Congress to
compel them to go, when Congress shall so
direct, as Congress has the same power to
repeal which it had to pass the exemption
act. All the State officers, therefore, arc ex
empt from Conscription by the grace and
aptcial favor of Congress and not by right as
the Governments of the independent States
whose agent, and not master, Congress
had been erroneously supposed to be. If
this doctrine be correct of what value are
State rights, and State Sovereignty t
In my former letter I insisted, under the
general rule that the 12th, 15th and 18th
paragraphs of the section under considera¬
tion, all relating to the Bame subject matter
should be construed together. While your
language on this point is not so clear as in
other parts of your letter, I understand you
12
to take issue with me here, you say.
"Nothing can so mislead as to construe
"together and as one whole, the carefully
"separated clauses, which define the differ-
"eut powers to be exercised over distinct
"subjects by Congress."
These are not careiully separated clauses,
which relate to different powers, to be exer¬
cised over distinct subjects. They all relate
to the same subject matter, the authority giv¬
en to Congress over the question of war and
peace. They all relate to the use of armed
force by authority of Congress. If there-
tore Coke, Blackstone, and Mansfield of
England, and Marshall, Kent, and Story of
this country, with all other intelligent
w riters on the rules of construction are to be
respected as authority, there can, it would
seem, be no doubt of the correctness of
the position, that these three paragraphs
together with all others in the Constitution
which relate to the same subject matter are
lo be construed together "as one whole."
Construe them together, and the general
language in one paragraph, is so qualified
by another paragraph, upon the same (sub¬
ject matter that all can stand together, and
the whole when taken together, establishes
to my mind the unsoundness of your argu¬
ment, and the fallacy of your conclusion,.
But I must not omit to notice your defini¬
tion of the term "i'nilitia," and the deductions
which you draw from it.
You adopt the definition of the Attorney
General, that " the militia are a body of sol¬
diers in a state enrolled for discipline." Ad¬
mit for the purposes of the argument, the cor¬
rectness of the definition. All persons there-
lore, who are enrolled lor discipline under
(lie laws of Georgia constitute her militia.
When the persons thus enrolled(the militia)
•ire employed in the service of the Confed¬
erate States" the Constitution expressly re¬
serves to Georgia the appointment of the
ofiicers. The Conscription Act gives the
President the power by compulsion to em¬
ploy every one of those persons, between
18 and 35, in the service of the Confederate
States; and denies to the State the appoint¬
ment of a single officer to command them,
while thus "employed." Suppose Congress
at its next session should extend the act so
as to embrace all between 18 and 45, what
is the result ? "The body of soldier? in the
State enrolled for discipline" arc every
man "employed in the service of the Con-
iederacy" and the right is denied to the
State to appoint a single officer, when the
Constitution says she shall appoint them all.
13 it fair to conclude when the States ex¬
pressly and carefully reserved the control
of their own militia, by reserving the ap¬
pointment of the officers, to command them,
that they intended under the general grant
of power to "raise armies," to authorize
Congress to defeat th§ reservation and con¬
trol the militia, with their officers, by calling
the very same men into the field individual¬
ly and not collectively, organizing them ac¬
cording to its own will, and terming its ac¬
tion "raising an army" and not calling forth
the militia f Surely the great men of the re¬
volution when they denied to the General
Government the appointment even ot the
General Officers to command the militia when
employed in the service of the Confederacy
did not imagine that the time would come,
so soon when that Government under the
power to "raise armies" would claim and
exercise the authority to call into the field,
the whole militia of the States individually,
and deny to the States the appointment ot
the lowest Lieutenant, and justify the act
on the ground that Congress did not choose
to call them into service in their collective
capacity, and deny that they were mili-
itia if called into service in any other way.
If Congress has the power to call forth
the whole enrolled force or militia of the
States in the manner provided by the Con-
cription Act, there is certainly no obliga¬
tion upon Congress ever to call them forth
in any other manner, and it'restsin the dis¬
cretion of Congress whether or not the
States shall ever be permitted to exercise
their reserved right; as Congress has the
power in every case to defeat the exercise
of the right by calling forth the militia un¬
der a conscription act, and not by requisi¬
tions made upon the Slates. It cannot be
just to charge the States Avith the folly of
making this important reservation, subject
to any such power in Congress to render it
nugatory at its pleasure.
Again you say "Congress may call forth
"the militia to execute Confederate laws/ the
"Stale 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 ex¬
pressly reserved this right."
" Congress may cull them forth to suppress
"insurrection and so may the State
If the conscription law is to control, and
Congress may, without the consent of tiie
Slate Government, order every man com¬
posing the militia of the State, out of the
State, into the Confederate service, how is
the State to call forth her own militia, is
you admit she has reserved the right to do,
to execute her own laws, suppress an insur¬
rection in her midst, or repel an invasion of
her own territory ?
Could it have been the intention of the
States to delegate to Congress the power to
take from ttem without their consent the
means of self preservation, by depriving
them of all the strength upon which their
very existence depends ?
Alter laying down the position that the
citizens of a State are not her militia, and
affirming that the militia are "a body or¬
ganized by law," you deny that the militia
constitute any part of the land' or naval
forces, and say they are distinguished from
the land and naval forces, and you further
say they have always been called forth as
"bodies organized by the States," with their
officers, that they "do not become part of
the arrtiies raised by Congress," but remain
militia, and that when they had been called
forth, and the exigencies which provoked
the calihad passed,"they went home again."
The militia when called forth are taken from
the body of the people, to meet an emer¬
gency, or to repel invasion. If they go in as
"bodies organized by the States" you hold
that they go in militia, remain militia, and
13
when the exigency is passed they go home
militia, but if you call forth the same men by
the conscription act for the same purpose,
and they remain for the same length of
time, and do the same service they are not
'militia but the armiea of the Confederacy,
part of the land or naval force In connec¬
tion with this part of the subject you use
the following language:
"At the present moment when our very
" existence is threatened by armies vastly su-
14 perior in numbers to ours, the necessity for
" the defence has induced a call, not for the
"whole militia of all the States, not for
" any militia, but for men to compose armies
" for the Confederate States."
In the midst of such pressing danger,
why was it that there was no necessity^for
any militia; in other words, no necessity for
any "bodies of men organized by the States,"
as were many of the most gallant regiments
now in the Confederate service, who have
won on the battle-field a name in history,
and laurels that can never fade?
Were no more such bodies "organized by
the States" needed, because the material
remaining within the States of which they
must be composed was not reliable? The
Conscription Act gives you the very same
material. Was it because the officers ap¬
pointed by the States to command the gal¬
lant State regiments and other "organized
bodies" sent by the States were less
brave or less skillful than the of¬
ficers appointed by the President to com¬
mand similar "organized bodies ?" The of¬
ficers appointed by the States who now
command regiments in the service, will
* not fear to have impartial history answer
this question. Was it because you wished
select men for the armies of the Confed¬
eracy? The Conscription Act embraces
aUy without distinctioc, between 18 and 85
able to do military duty and not legally ex¬
empt. You do not take the militia. What
do you take? You take, every man be¬
tween certain ages, of whom the militia is
composed. What is the difference between
taking the militia and taking all thefrncn who
compose the militia? Simply this: In the one
case you take them with their officers ap¬
pointed by the states, as the Constitution re«
quires, and call them by their proper
name, "militia," "employed in the service
of the Confederate States." In the other
case, you take them all as individuals—get
rid of the State officers—appoint officers of
your own choice, and call them the "armies
of the Confederacy." And yet these armies,
like you say the militia do, will "go home"
when the exigency has passed, as it is
hoped they are not expected to be perma¬
nent, like the regular armies of the Con¬
federacy; or, in other words, like the land
and naval forces provided for in the Con¬
stitution, from which you distinguish the
militia. Indeed, the similarity between
these "armies of the Confederacy," called
forth in an emergency? to repel an invasion,
to be disbanded when the emergency i«
passed; and the militia or bodies of troops
organized and officered by the States called
forth for the same purpose, to be composed
of the same material, and disbanded at the
same time, is most remarkable in every
thing, except the name, and the appoint¬
ment of the officers.
Excuse me for calling your attention to
another point in this connection.
As you admit that the militia have always
been called forth as "bodies organized by the
States," and when thus called forth that the
States have always appointed the offi cors,
I presumeyou will not deny that when the
President by authority of Congress has made
a call upon a State, for " organized bodies
of soldiers", and they have been furnished
by the State from the body of her people,
they have entered the service as part of the
militia of the State " employed in the ser¬
vice of theConfederateStates" under the 15th
and 16th paragraphs of the 8th Section of
the 1st Article of the Constitution.
Your message to Congress recommending
its passage shows that there was no neces¬
sity for the act, to enable you to get troops,
as "you admit that the Executives of the
States had enabled you to keep in the
field adequate forces, and also that the
spirit. of resistance among the people was
such that it needed to be regulated and not
stimulated. You say
" I am happy to assure you of the entire
harmony of purpose and cordiality of feeling
which ha^e continued to exist between my¬
self and the Executives of the several States,
and it is to this cause that our success in
keeping adequate forces in the field is to be
. attributed." Again you say:
" The vast preparations made by the ene¬
my for a combined assault at numerous
points on our frontier and sea coast, have
produced the result that might have bepn
expected. They have animated the people
with a spirit of resistance so general, so re¬
solute, and so self-sacrificing, that it re¬
quires rather to be regulated than to
stimulated."
If then the Executives of the States by
their cordial co-operation had enabled you
to keep in the field " adequate forces," and
the spirit of resistence was as high as you
state, there was no need of a Conscription
Act to enable you to " raise armies."
Since the invasion of the Confederacy by
our present enemy, you have made frequent
calls upon me as Governor of this State for
" organized bodies" of troops. I have re¬
sponded to every call and sent them as re¬
quired, " organized" according to the laws
. of the Slate, and commanded by officers
appointed by the State, and in most instan¬
ces, fully armed, accoutred and equipped.
These bodies were called forth to meet an
emergency, and assist in repelling an inva¬
sion. The emergency is not yet passed, the
invasion is not yet repelled, and they have
not yet returned home. If your position
bb correct they constitute no part of the
land or naval forces as they were not organ«
ized, nor their officers appointed by the Pre¬
sident, as is the case, with the armies of the
Confederacy, but they were called forth as
bodies "organized and their officers appoin¬
ted by the States." Hence they are part
of the Militia of Georgia" employed in the
service of the Confederate States as pro¬
vided by the two paragraphs of the Con*
atltutiou abuve quoted, and by para¬
graph 18 of Section 9 of the 1st Article
which terras them "militia in actual service
ia time of war or public danger." They
entered the service with only the training
pomrnon to the citizens of the State.—
They are now well trained troops. But
having gouo in as "bodies organized by
the State," or as militia, you say they remain
militia, and go home militia. In tbiB case
we seem to agree that the State, under the
express reservation in the Constitution, has
the right to appoint the officers. I have the
written opinion of Mr. Benjamin, then Sec¬
retary of War, about the time of the last
call for twelve regiments, concurring in this
view, and recognizing this right of the State.
And it is proper that I should remark that
the State has, in each case, been permitted
to exercise this ri^ht, where the troops en¬
tered the service, m compliance with a re¬
quisition upon the Sate lor "organized ood¬
les ot troops.", The right does not stop here,
however. The Constitution does not say
the State shall appoint the officers while the
organizations may be forming to enter the
service of the Confederacy, but while they
"may be employed in the service of the Con¬
federate States." Many thousands are now
cw employed. Vacancies in the different offi¬
ces are frequently occurring by death, re¬
signation, Ac, The laws of this State pro¬
vide how these vacancies are to be filled
and it is not to be done by promotion ot the
officer next in rank, except in a single in ¬
stance, but by election of the regiment, and
commission by the Governor. The right of
tiie State to appoint theso officers seems to
be admitted, and is, indeed, too clear to be
questioned.
The Conscription Aet, if it is to be con¬
strued according to its language, add the
practice which your Generals are establish¬
ing under it, denies? to the State the exer¬
cise of this right, and prescribes a rule for
selecting all officers in future, unknown to
the laws of Georgia, and confers upon the
President the power to commission them.
Can this usurpation (I think no milder term
expresses it faithfully) be justified under the
clause in the Constitution which gives# Con¬
gress power to "raise armies ?" and is this
part of the Aet constitutional ? If not, you
have failed to establish the constitutionality
of the Conscription Act.
The 14th paragraph of the 9th section of
the 1st Article of the Constitution of the
Confederate States declares that—
"A weU regulated militia being necessary
Jo the security of a free State, the right ^of
the people to keep and bear arms shall
not be infringed." This was no part of
the original Constitution as reported by
the Convention and adopted by, the States,
But" The Convention of a number ot the
States having at the time of their adopting
the Constitution expressed a desire in order
to prevent misconstruction or abuse of its
powers, that further declaratory and restric¬
tive clauses should bo added. Congress at
the session begun and held at the city of
New York on Wednesday the 4th of March,
1?89, proposed to the Legislatures of the
several States twelve amendments, ten of
H
which only were adopted."
The second amendment was the one
above quoted, which shows very clearly
that the States were jealous of the control,
which Congress might claim over their mil¬
itia, aud required on this point a further
"restrictive clause" than was contained ia
the original Constitution.
The 16th paragraph of the preceding
section expressly reserves to the States "the
authority of training the militia according
to the discipline prescribed by Congress." In
connection with this you admit that the
States reserved the'right to call forth their
own militia to execute their own laws/sup¬
press insurrections or repel invasions.-'
This authority to call them forth would havo
been of no value without the authority to
appoint officers to command them ; and the
further authority to train them; as they can
not without officers and training be the w<U
regulated militia which the Constitution
says is "neeessary to the security of a fre-u
State."
The conclusion would seem naturally to
follow that the States did not intend b,y
any general words used in the grant ol
power, to give Congress the right to take
from them, as often as appointed, the ofli
cers selected by them to train and regulate
their "militia, and prepare them ior efficien¬
cy, when they may be called forih to sup
port the very existence of the State.
The Conscription Act embraces so largi:
a proportion of the Militia officers of this
State, as to disband the militia in the even?
they should be compelled to leave their
commands. This would leuve me without
the power to reorganize them, as a vacancy
can only be created in one of these office^
by resignation of the incumbent, or by thu
voluntary performance of some act which
amounts to an abandonment of his command,
or by a sentence of a Court Martial dismiss¬
ing him from office. The officer who is
dragged from his command by Conscription,
or compulsion, and placed in the ranks, is iu
neither category; and his office is no move
vacated than the office of a judge would be,
if he were ordered into military service
without his consent. And unless there be
a vacancy I have no right to fill the place,
either by ordering an election, or by a bre¬
vet appointment. I have no right in either
case to commission a successor at) long aw
there is a legal incumbent.
Viewing the Conscriptiou Act iu this par¬
ticular as not only unconstitutional, but an
striking a blow at the very existence of tl>*'
State, by disbanding the portion of her
militia left within her limits^ when much
the larger part of her "arms bearing peo¬
ple" are absent in other States in the mili¬
tary service of the Confederacy, leaving
their families, and other helpless Women
and children, subject to massacre by negro
insurrection for want of an organized force
to suppress it, I felt it an imperative duty
which I owed the people of this State* to
Inform you in a former letter that I could
not permit the disorganization to take place,
nor the State officers to be compelled to
leave their respective commands and eutt*
the Confederate service as Conscript*---
If)
Were it uot a fact well known to llie couu- our young Confederacy as may result m
try that you now have in service tens of the early achievement of our Independence*
thousands of men without arms and with and redound to the ultimate prosperity and
no immediate prospect of getting arms who happiness of our whole people,
must remain for months, consumers of oui* I have the honor to be,
scanty supplies of provisions without abili- Yery respectfully,
t.y to render service while their labor would Your obedient servant,
be most valuable in their farms and work- JOSEPH E. BKOWN.
%hop&,there might be the semblanGc of a plea P. 8. Since the above letter was written
of necessity for forcing the State Officers to I see somewhat to my surprise that yon
leaye their commands, with the homes of have thought proper to publish part of our
their people unprotected, and go into camps unfinished correspondence,
of instruction, under Confederate officers, In reply to my first letter you simply sta
often much more ignorant than themselves ted on the point in question, that the eon
of military science or training, j must, stitutionality of the Act was derivable from
therefore, adhere to my position, and main- that paragraph in the Constitution which
tain the integrity of the State Government, gives C®ngress the power to raise and sup-
in its Executive, Legislative, Judicial, and port armies. I replied to that letter with no
Military Departments, as long as I can portion of your argument but the simple
eommand sufficient force to prevent it from statement of your position before me. You
being disbanded, and its people reduced to then with the aid of your cabinet replied to
a state of provincial dependence upon the ray second letter; giving the argument by
Central power. which you attempt to sustain your position,
If I have used strong language in any part and without allowing time for your letter
of this letter, I beg you to attribute it only to reach me, and a reply to be sent, yo«
to my zeal in the advocacy of principles, publish my second letter and your reply
and a cause which I consider no less than which is your first argument of the ques-
the cause of constitutional liberty, imperiled tion. I find these two letters not only in
by the erroneous views and practice of the newspapers but also in pamphlet form,
those placed upon the watch-tower, as its I presume byyour order for general dreula-
constant guardians. tion.
In conclusion, I beg to assure you that I While I cannot suppose that your ma$*i
fally appreciate your expressions of per- of duty and propriety would permit you to
sonal kindness, and reciprocate them in my publish part of an unfinished correspond
feelings towards you to the fullest extent, dence for the purpose of forestalling publie
I know the vast responsibilities resting opinion, I must conclude that your course i3
upon you, and would never willingly add not the usual one in such cases. Astheeor-
unneeessarily to their weight, or in any respondence was an official one upon a
way embarrass you in the discharge of grave constitutional question I had sup-
your important duties. While I cannot posed it would b« given to the country
agree with you in opinion upon, the grave through Congress and the Legislature of
question under discussion, I beg you to the State.
command me at all times when I can do But as you have commenced the publiea-
you a personal service, or when I can, tion in this hasty and As I think informal
without a violation of the constitutional manner, you will admit that I have no oth-
obligations resting upon me, do any ser- er alternative but to continue it. ^ lmust
viee to the great cause in which we are all therefore, request as an act of justice that
so vitally interested. all newspapers which have published pat*
Hoping that a kind Providence may give of the o-orve-epoadenee, Insert this repl}.
you wisdom so to conduct the affairs ot J. E. B.