Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-06-24
PRESIDENT DAVIS ON THE CON-
aERLRnanN LAW.
EXECUTIVE DEPARTMENT
DFnhunoad HFat. a tQ6.

DEAR SIR-I received your letter Of the s
inst in due course but the Importance Of Il
subject embraced in it quired careful cOnsid
ration; and this, together with other pressir
, duties, has caused delay in my reply.
: The constitutional question discussed by yC
in relation to t he conscriptiOn law had been du
weighed before recommended to Congress Il
passage of such law: it was fully debated
both houses and your letter has not only bee
submitted to my Cabinet, but a written opinio
has been Tt quired from the Attorney Genera
The constitutonslity of the law was sustaine
by very largo maj 1rties in both houses Th
decision Of the Congress meets the cOncurTenC
not only of my own judgments, but of ever
member of the Cabinet and copy of tf
opinion CT the. Attorney General, herewith Ell
closed, develops the reasons on which his cor
clusiOns 81 based.
propose howeve from my high respect fl
yourself, and for other eminent ciiizens wh) Ell
tertsin opinions similar to yours, to set forth
somewhat ut length, my own views on the pow
er of the Confederate government over its oWl
armies and the militia, and viii elae.sYor no
to leave without answer any OF the position
maintained in your letter.
The main, if not the only purpose for whicl
independent ates form Unions or Cohfsdera
tons, is to complete the power of the severs
members in such manner as to farm one uniteC
force in all relations with foreign powers, wheth
er in peace or in war. Each State, amply com
petent to administer and control its own domes
tic government, yet too feeble to successfully
resist powerful nations, seeks safety by uniting
with other States in like condition, and by dele
| eating to some common agent the combined
strength of all, in order to secure advantageous
commercial relations in peace, and to carry Oh
hostities with effect in war.
Now, the powers delegated by the several
| States to the Confederate government which is
their common agent are enumerated in the S.h
section of the Constitution, each power being
distinct, specific. and enumerated in paragraphs
separately numbered The only exception is
| the I8Eh paragraph, which, by its own terms, is
made dependent on those previously enumera-
! ted as follows:
40 To make all laws which shall be neces-
saTy and proper for carrying into execution the
| foregoing powers" etc.
Now, the war powers granted to the Congress
are conferred in tn following paragraphs
No. /, gives authority to raise revenue nee
esssry to pay the debts, provide for the common
defense, aud carry on the government" etc.
No. IL, Ito declare war, grant letters of
maIque and reprissl, and make rules concerning
captures on land and wster:"
No. IL, " to raise aud support armies but 10
appropriation Of money to that use shall be for a
,
No l3, "a TO provide and maintain a navy: "
No. IA, " to make rules for the government
and regulation o: the land and naval forces"
tits impossible to imagine a more broad, am
pie ard unqualified delegation of the whole
power Of each State, than is here contained,
with the solitary limitation Of the appropriations
10 two years. The States not only gave power
to raise money for the common defense, to de-
clare war; to raise and support armies, Gin the
plural } to provide and maintain navy to gov
eTn and regulate both land and naval forces; but
they went further, and covenanted by the 3l
paragraph of the 10Th section, not " to engage in
war unless actually invaded, or in such immi-
nent danger as will not admit Cf delay"
l know of but two modes Of raising armies
within the Confederate States, viz: voluntary
enlistment, and draft or conscTiption. perceive,
in the delegation of power to raise armies, no re-
stTictiOn as TO the mode of procuring troops. /
see nothing which confines Congress to one
class of men, nor any greater power to receive
volunteers than conscTipts into its service. ]
see no limitation by which enlistments are TO be
received Cf individuals only, but not Of compa-
nies, or battaliOns, or squsdrOns, or regiments,
] find 10 lin tation Of time of service, but only
Of duration Of appropriation. / discover moth
iEg to c0ntne Congress to wsging war within
the Limits of the COnfederacy, nor to prohibit Of
feusive war. In word, when Congress desires
to raise an army, aud passes law tor that pur-
pose, the solitary question is under the 18th
paragraph, viz: " Is the law one that is neces-
sary and proper to execute the power to raise
armies 2"
On this point you say, " But did the necessi-
ty exist III this case The cLnscrptiOn act can
not aid the government in increasing its supply
OF arms or provisions, but can only enable it to
call large humber of men into the field. The
L. r.,
have already furnished the government more
than it can arm, etc.
would have very little difficulty in establish
ing to your entire satisfaction that the passage
of the law was not only necessary, but that it
was absolutely indispensable; that numerous
regiments of twelve months men were on the
eve OF being disbanded, whose places could not
be supplied by raw leves in the face of superior
numbers of the foe, without entailing the most
disastrous results; that the position Cf our ar
mi was so critical as to fill the bosoms of ev-
cry patriot with the liveliest apprehension and
that the provisions of this law were effective in
warding off pressing danger; but | prefer to
answer your objection en- other and broader
grounds
/ hold, that when specific power is granted
by the Constitution, like that now in question,
q to raise armies, Congress is the Judge whether
the law passed for the purpose of executing that
power, is Z" necessary and proper Il is not
enough to say that armies might be raised in
other ways, and that therefore this particular
way is not necessary" The same argument
might be used against e0cry mode of raising
armies. To each successive mode suggested,
the obi lction would be that other modes were
practicable, and that therefore the particular
mode used was not " necessary" The true
and only test is to inquire whether the law is
intended and calculated to carry out the object
whether it oevises and creates an instTumeet-
ahty for executing the specific power granted
and II the answer be in the affirmative, the law
is constitutional None can doubt that the con-
scription law is calculated and intended to
raise armies" 1t il, therefore, " necessary
and proper for the execution of that power,
and is constitutional, unless it comes into con-
fict with some other provision of our Confederate
compact.
You express the opinion that this conflict e1-
lists, and support your argument by tne citation
of those clauses which refer to the militia
There are certain pro, isions not cited by You,
which are not without influence on my judg-
ment and to which call your attention. They
will aid in defining what is meant by militia,
and in determining the respective powers OF the
States and the ConfedeTacy over them.
Tie several States agree "not to keep TROOPS
or ships of war in times of peace. Art ], sec
10, part B..
They further stipulate that a well regulated
militia being necessary to the security Of free
State, tho rights of the people to keep and bear
arms shall not be in 'ringed." S,e 9, part 13.
That {" no person shall be held to answer for
capital or otherwise infamous crime, unless on q
presentment or indictment Of a grand jury, ex-
cept in cases arising in the land or naval forces,
or in the militia when in actual service Ia time
of war or public dagger, etc. Sec 9, par. l6
What, then, are militia They can only be
created by law. The arms bearing inhabitants
of State are liable to become its militia, if the
law so order; but, in the absence of law to
that tffect, the men of a State capable of bear
ing arms are no more militia than they are sea-
men.
The Constitution also tells US that militia are
not troops, nor are they any part of the land CT
naval forces, for militia exists in time of peace