Year: 1862

|


The Constitution divides the whole militia
strength of the States into only two classes


organized bodies--one the armies of the Co
fedeTacy; the other, the militia of the States


Ia the delegation of power to the Confgderac
after ex6austing the subject of declaring wa
raising and supporting armies and providing
navy, in relation to all which the grant of a
thority to Congress is exclusive the Constitute
proceeds to deal with the other organized bod


the militia, and instead of delegating power


Congress alone, or reserving il to the Stat,


alone, the power is divided as llows, viz: Cor


gress is to have power


To provide for calling forth the militia to e.


ecute the laws of the Confederate States, sur


pessing instructions and Iepe invssions -


Sec. s, par, Is.


ITO provide for organizing, arming and di:


cipIining the militia, and for governing sue


part of them as may be employed ia the servic


OF the Confederate States reserVing to th


States respectively the appointment Of officer


and the authority of training the militia accord


ing to the discipline prese- ibed by Congress" -
! Par. I6


Congress, then, has the power to provide 70
organizing the arms bearing people of tn


States, into militia Each State bas the powe


to Ctficer and train them when organized.
Congress may call forth the militia to executl
| Confederate laws The State has not surrender
ed the power to call them forth to execute S ate
laws.


Congress may call them forth to repeI inva
| SIGN; so may the State, for it has expressly re-
served this right


Congress may call them forth to suppress in.


surTeetions; and so may the State, for the power


is implicitly reserved of governing all the militia
except the part in actual service Of the Confed-
eracy.


confess myself at loss to perceive in what


manner these careful and well defined provis


ions of the Constitution, regulating the Orgsni-
cation and government Of the MALTA, can bs
understood as applying in the remotest degree


to the armies Of the Confedcracy nor can l
conceive how the grant of exclusive power to
declare and carry on war by armies raised and
supported by the Contederacy, is to be restricted
or diminished by the clauses which grant di-
vided power over the militia. Ga the contrary
the delegation of authority over the militia, SO
far as granted, appears to me to be plainly an
additional enumerated power, intended to
strengthen the hands of the Confederate govern
ment IN the discharge OF its permanent duty
the common defense of the States


You state, after quoting the l2th 18th and
10th grants Of power to Congress, that These
grants Of power all relate to the same subject
matter, and are all contained in the same sec
ton Of the Constitution, and by a we'll known
rule Of construction, must he taken as a whole,
and construed together"


This argument appears TO me unsound. AH
the powers of Congress are enumerated in one
section and the three paragraphs quoted can
no more control each other, by reason of their
location in the same section than they can con-
trol amy Of the other paragraphs preceding, in
teTvening or succeeding So far as the subject
matter is concerned, l have already endesV-
OTed to show that the armies mentioned in the
l2sh paragraph are a sui jsct matter as distinct
from the militia mentioned in the 18th and 10TH
as they are from the navy mentioned in the
18Th. Nothing can so mislead as to const ue
together and as one whole, the carefully separa-
ted clauses which define the different powers to
be exercised over distinct subjects by the Con
gress. But you add, that "by tke grant of
power to Congress to raise and support armies
without qualification the trainers of the Cen
stitution intended the regular armies Of the Con-
federacy, and not armi' composed Of the whole
militia of sll the States"


/ must confess myself somewhat at a loss to
understand this position If | am right that the
militia is body of enrolled State soldiers, it
not possible, in the nature of things that armies
raised by the COnfederacy can "be composed of
the whole militia of all the States" Tha militia
may be called forth, in whole or in part, into the
Confederate service, but do not thereby become
pan VI bLC dlAAlCS lAISCu ny NOuRIbSS. L uey
remain militia, and 60 home when the emergency
which provoked th, ir call has ceased. Armies
raised by Congress are, of course out of the same
population as the militia organized by the States;
and to deny to Congress the power to draft
citizen into the army, or to receive his voluntary
offer of service because he is q member of the
State militia, is to deny the power to raise an
army at all, for practically, all men fit for service
in tie army may be embraced in the militia or
CARNATIONS Of the several States. You seem,
however, to suggest rather than directly TO as
sert, that the conscript law may be unconstitu
tionsl, because it eomprehends all arms bearing
men between Is and 81 years at least this is an
inference which l draw from your expression !
a armies composed Of the whole militia Of all |
the States" Bat it IS obvious that if Congress |
have power to draft into the armies raised by it |
any citiz-ns at all (withOut regard to the fact |
whether they are or not members of militia or
the power must be co-extensive |
with the exigencies of the OCCASION OF it becomes
illusOry aud the extent of the exigency must
be determined by Congress; for the Constitution
has left the power without any otLer check or
than the executive veto. Under
ordinary circumstances the power thus delegated |
to Congress is scarcely felt by the States At
the present moment, when our very existence is
threatened, by armies vastly superior in mum
beTs to ours, the necessity for defense has in
duced call, MT fOr the whole militia of all the
States" not for any militia, but for men to com.
pose armies for the Confederate States.


Surely there is no mystery on this subject
During our whole past history, as we'll as during
our recent one years experience as a new Con-
federacy, the militia have been called forth to
tpel invasion " in numerous instances; and
they never came otherwise thar as bodies organ
lied by the States with their company, field and
nd 6o1
pas sed, they went home again.


/ cannOa perceive how any one can interpret
the conscriptiOn law as taking away from the
States the power to appoint officers to their mill
tia. You observe on this point in your letter,
that unless your construction is adopted " the
very object of the states IN Teserving the power
of appointing the officers, is defeated, and that
portion of the COnstitutioQ is not only nuLity,
but the whole military SEer of the States and
the entire control of the militia, with the appoint
ment of the officers, is vested in the Confederate
whenever it choose to call its own
action raising an army and not calling forth
the militia F"


can only say, in reply to this, that the power
of Congress depends on the real nature of the
act it proposes to perform, not on the name given
to it; and have endeayoTed TO show that its ac-
tion is really that of raising an army" and
bears no semblaEce to calling forth the mill
tia" think | may safely venture the assertion
that there is not one man out Of thousand Of
those who will do service under the CONSUMPTION
act that would describe himself, while in the
Confederate service, as being militiaman; and
II am right in this assumption, the popular un
derstanding concurs entirely with my own de-
ductions from the Constitution as to the meaning
of the word militia"


My answer has grown to such length that /
must confine myself to one more quotation from
your letter. You proceed: Congress shall
have power to raise armies. How shall it be
done The answer is clear. In conformity to
the provisions of the Constitution, which ex-
pressly provides that when the militia of the
States are called forth to Fspel iagasioa, and en-
ployed in the service of the Confederate States,
which is now the case, the State shall appoint
the off ;ers."


beg you to observe that the answer which