New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1862-07-05

lions with foreign Powes whether in peace or war.
Each State aInply competent TO administer eno con-
troll its own domestic Government, yet two ieeoie 70
successfully meet powerful nations, seeks saiety oy
uniting with other States in like condition, ana Dy
deIecsiiug 10 acme common agent the combined
strength OF all in order TO secure advantageous com
mercial relations in peace and to carry on oosttles
with effect In war.
Now, the powers delegated by the several States
to the Confederate Government which ID their com
mon agent are enumerated in the 9Th article OF the
Constitution, each power being distinct, specc ana
enumerated in paragraphs respectively numbered.
The ONLY exception il 10 the 18th pare graph, which,
by its own terms, is made dependent on those
previously enumerated, as follows:
No. 10. "TO make all laws which shall be neces
sary and proper for carrying into execution the fore
going powers" etc.
Now, the war powers granted TO the Congress are
conferred in the following paragraphs:
No. gives authority to raise revenue necessary
to pay the debts, proviAe for the common defense,
and carry on the Government" etc.
No. II, "To declare W.T., grant letters OF marque
and reprisal and make rules concerning captures on
land and water"
No. II, "To raise and support armies; but no
appropriation Of money to that use shall % LOT
longer term than two years."
No. -, "To provide and maintain navy
No. IL, "TO make rules for the governments anu
II ia impossible to imagine more broad, ample,
and unqualified delegation Of the whole power OF
each Stale than is here contained with the SOLITARY
limitation Of the appropriations TO two years. Inc
State. not only gave power 10 raise money FOR the
common defense, to declare war, to raise ana sup
port armies in the plnral, to PROVIDE and MAINTAIN
navy, 10 govern and regulate both land ano nsyai
forces but they went further, and eovenanted oy
the 81 paragraph of tho 10th section not to engage
10 war unless actually invaded or In such imminent
danger ss will not admit Of delay
know OF but two modes of raising armies 10 the
Confederate States, viz: voluntary enlistment or
draft and consumption. perceive III the delegation
OF power to raise armies no restrictions ss to IN.
mode Of procuring troops. L zee nothing which
confines Congress 10 one class OF men, nor
any greater power TO receive volunteers than
conscrpts into its service. ] see no limitations
by which enistments to be received o. indiyidu-
al, only, but not OF companies or battaonS, or
squsdrons, or regiments. l find no limitation OF
tine of service but only of duration Of sprropris-
ton. l discover nothing to cOnine Congress TO
wsgpg war within the limits Oh the CcDtederaey
nor 10 prohibit offensive war. In word, when
Congress desires to raise An army and passes la"
for that purpose, the solitary question is under the
18th paragraph, viz: is the law one that IL ne'es'
sary and proper to execute the power 10 raise
srmiesl
On this point you say: But did the necessity e3
lat in this case - The consc,iption act canuo. lid
the Government in increasing the supply OF arms or
PROVISIONS but can ouly enable II 10 call q large
number of men into the field. The difficulty has
never been TO get men. 1he States have already
furnished the Government more men than II can
arm" &c.
would have very little difficulty in establishing
to your entire satisfaction, that the passage OF the
law was not only necessary, but that II was aoso-
ltely indispensable; that numerous regiments OF
twelve months men were on the eve OF being dis
banded, whose places could not be supplied by raw
.viss in the place Of superior numbers Of the foe.
without entailing tue most disastrous results; thai
the position Of orr armies was 80 CRITICAL az 70 ali
the bosom OF every patriot with the hvebest arpre-
benson; ana bat the proysIoIs o. tue law wer.
effective in warding of q pressing danger bnt l
prefer TO answer your objection on ether and broader
grounds.
hold that when specific power il q anied by the
Constitution, like that now III Question: Z. ialst
armies" Congress is the Judge whether the law Is
Is necessary and proper: l. not enough 70 "a, "a.
therefore this particular way 10 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 tia, therefore tie particular
mode used was not " necessary" The true and only
test is 10 inquire whether the law Is intended ans
calculated 20 carry out the object; whether II devices
snd creates an fundamentally fvr eXeoutlngine spe'
cic power granted; ana If the answer be IN The
Affirmative, tho law is Constitutional: None can
doubt that the conscrption law ia calculated and III
sary and proper Tor fhe eHls, teeFeiore p.ces
and is Constitutional unless it comes into to'''
with some other provision OF our Coa1eaSA's e'uI
pact
You expires. the opinion that tins conflict exists
and SUPPORT your argumen, b. the citation OF those
clauses which refer TO the militia. There certain
provisions not cited by you, which not without
influence on my Judgment, and TO which ! cal youl
attention. They will aid in defining what ia meant
by "ulilItla.i and IL determining the respective
powers of the States and the CoDiederacy over them
| The several States agree - not 10 keep troops o.
ships Of war in times OF peaee AT. /, sec ~
parts.
They further siipulite that ga wellreggllied
militia being necessary TO the security ofa tree STATE
the rights o. the people 10 Keep and tear arms snail
not be iniliDged." Sec. 9, part Is.
That " no person shall be hello 10 answer ior cap
ital or otherwise infamous crime, unless present
u.nt or indct ment of grand Jury, except al
cases arising in the land laval forces, or ia ia,
militia when in actual service IN time o: WAY or pub
lie danger, &c. lSec. 9, part 10.
What then, are militia! They can only he created
by law. The srus bearing inhabitants OF = STATE
are liable TO become is militia, IL the law order;
but in tie absence OF a law TO that efec the men
of state oalabIe of hearing arms are more mill
TIA than they are seanien.
The Constitution also tells that militia are
not troops, nor are they any part OF tie land OF
naval forces, Tor militia exists III time OF peace, and
the Constitution iorbds the States 10 keep troops in
time of peace; and they expressly Distinguished
and placed ia separate category from land naval
forces in the 10th paragraph above quoted; AID the
words. land and naval forces are shown, by para
graphs L., - ana Ii to mean the army and navy o..
the Confederate States.
Now, if militia not the citizens taken siugly,
but body created by law; il they are hot troops
and they are no part Of the army and navy OF the
Coniederscy--we led directly TO the definition
quoted by the Atlorney-tienerai that militia u
" body OF soldiers in State enrolled for discipline"
In other words, the term militia is a collective