USA > Georgia > The history of the State of Georgia from 1850 to 1881, embracing the three important epochs: the decade before the war of 1861-5; the war; the period of Reconstruction, v. 2 > Part 36
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true and only test is to inquire whether the law is intended and calculated to carry out the object ; whether it devises and creates an instrumentality for executing the specific power granted; and if the answer be in the affirmative, the law is constitutional. None can doubt that the Conscription Law is calculated and intended to " raise armies." It is, therefore, " necessary and proper" for the execution of that power, and is consti- tutional, unless it comes into conflict with some other provision of our Confederate Compact.
You express the opinion that this conflict exists, and support your argument by the citation of those clauses which refer to the militia. There are certain provisions not cited by you, which are not without influence on my judgment, and to which I call your attention. They will aid in defining what is meant by " militia," and in determining the respective powers of the States and the Confederacy over them.
The several States agree " not to keep troops or ships of war in time of peace." Art. 1, sec. 10, par. 3.
They further stipulate, that "a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." Sec. 9, par. 13.
That "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentmont or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger," etc. Sec. 9, par. 16.
What then are militia ? They can only be created by law .- The arms-bearing inhah- itants of a State are liable to become its militia, if the law so order ; but in the absence of a law to that effect, the men of a State capable of bearing arms are no more militia than they are seamen.
The Constitution also tells us that militia are not troops, nor are they any part of the land or naval forces ; for militia exist in time of peace, and the Constitution forbids the States to keep troops in time of peace, and they are expressly distinguished and placed in a separate category from land or naval forces, in the 16th paragraph, above quoted ; and the words land or naval forces are shown, by paragraphs 12, 13 and 14, to mean the army and navy of the Confederate States.
Now, if militia are not the citizens taken singly, but a body created by law ; if they are not troops, if they are no part of the army and navy of the Confederacy-we are led directly to the definition quoted by the Attorney General, that militia are a " body of soldiers in a State enrolled for discipline." In other words, the term " militia " is a col- lective term, meaning a body of men organized, and cannot be applied to the separate individuals who compose the organization.
The Constitution divides the whole military strength of the States into only two classes of organized bodies-one, the armies of the Confederacy ; the other, the militia of the States.
In the delegation of power to the Confederacy, after exhausting the subject of declar- ing war, raising and supporting armies, and providing a navy, in relation to all which the grant of authority to Congress is exclusive, the Constitution proceeds to deal with the other organized body, the militia, and instead of delegating power to Congress alone, or reserving it to the States alone, the power is divided as follows, viz. : Congress is to have power-
"To provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions." Sec. 8. Par. 15.
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"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 appointment of officers and the authority of training the militia according to the discipline prescribed by Congress." Par. 16.
Congress, then, has the power to provide for organising the arms-bearing people of the States into militia. Each Stute has the power to officer and train them when organized. Congress may call forth the militia to execute Confederate laws. The State 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 expressly reserved this right.
Congress may call them forth to suppress insurrection ; and so may the State, for the power is impliedly reserved of governing all the militia except the part in actual ser- vice of the Confederacy.
I confess myself at a loss to perceive in what matter these careful and well defined provisions of the Constitution regulating the organization and government of the militia, can be understood as applying in the remotest degree to the armies of the Confederacy ; nor can I conceive how the grant of exclusice power to declare and carry on war by armies raised and supported by the Confederacy, is to be restricted or diminished by the clauses which grant a divided power over the militia. On the contrary, the delegation of authority over the militia, so far as granted, it appears to me to be plainly an addi- tional enumerated power, intended to strengthen the hands of the Confederate Govern- ment in the discharge of its paramount duty, the common defense of the States.
You state, after quoting the 12th, 15th and 16th grants of power to Congress, that, "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."
This argument appears to me unsound .- A17 the powers of Congress are enumerated in one section ; and the three paragraphs quote I can no more control each other by reason of their location in the same section, than they can control any of the other para- graphs preceding, intervening, or succeeding. So far as the subject matter is concerned, I have already endeavored to show that the armies mentioned in the 12th paragraphs are a subject matter as distinct from the militia mentioned in the 15th and 16th, as they are from the navy mentioned in the 13th. Nothing can so mislead as to construe to- gether and as a whole, the carefully separated clauses which define the different powers to be exercised over distinct subjects by the Congress. But, you ad.l, that, " by the grant of power to Congress to raise and support armies, without qualification, the framers of the Constitution intendedl the regular armies of the Confederacy, and not armies composed of the whole militia of all the States."
I 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 is not possible, in the nature of things, that armies raised by the Confederacy can " be composed of the whole militia of all the States." The militia may be called forth, in whole or in part, into the Confeder- ate 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 cease:t. 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 voluntary offer of services because he is a member of the State militia, is to deny the power to raise an army at all ; for, practically, all men
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fit for service in the army may be embraced in the militia organizations of the several States. You seem, however, to suggest, rather than directly to assert, that the Conscript law may be unconstitutional, because it comprehends all arms-bearing men between 18 and 35 years : at least this is an inference which I draw from your expression, " armies composed of the whole militia of all the States." But it is obvious, that if Congress have power to draft into the armies raised by it any citizens at all (without regard to the fact whether they are or not members of militia organizations), the power must be co- extensive with the exigencies of the occasion, or it becomes illusory ; and the extent of the exigency must be determined by Congress ; for the Constitution has left the power without any other check or restriction than the Executive veto. Under ordinary cir- cumstances, 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 numbers to ours, the necessity for 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 Confeder- ate States.
Surely, there is no mystery on this subject. During our whole past history, as well as during our recent one year's experience as a new Confederacy, the militia " have been called forth to repel invasion " in numerous instances; and they never came otherwise than of bodies organized by the States, with their company, field, and general officers ; and when the emergency had passed, they went home again.
I cannot perceive how any one can interpret the Conscription Law as taking away from the States the power to appoint officers to their militia. You observe on this point in your letter, that unless your construction is adopted, "the very object of the States in reserving the power of appointing 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 Con- federate Government, whenever it chooses to call its own action 'raising an army,' and not calling forth the militia."
I 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 I have endeavored to show that its action is merely that of "raising an army," and bears no semblance 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 popular understanding concurs entirely with my own deductions from the Constitution as to the meaning of the word " militia."
My answer has grown to such a length that I inst confine myself to one more quota- tion 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 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 case, the State shall appoint the officers."
I beg you to observe that the answer which you say is clear, is not an answer to the question put. The question is : How are armies to be raised ? The answer given is, that when militia are called forth to repel invasion, the State shall appoint the officers.
There seems to me to be a conclusive test on this whole subject. By our Constitution Congress may declare war. offensive as well as defensice. It may acquire territory .- Now, suppose that for good cause, and to right unprovoked injuries, Congress should declare
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war against Mexico, and invade Sonora. The militia could not be called forth in such a case, the right to call it being limited to "repel invasions." Is it not plain that the law now under discussion if passed under such circumstances, could by no possibility 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 independence shall have been established, it is no improbable supposition that our 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. How is it to be carried on ? Of what is the army to be com- posed ? If this Government cannot call on its arms-bearing population otherwise than as militia, and if the militia can only be called forth to repel invasion, we should be utterly helpless to vindicate our honor or protect our rights. War has been well styled " the terrible litigation of nations." Have we so formed our Government, that in this litigation we must never be plaintiff ? Surely this cannot have been the intention of the framers of our compact.
In no aspect in which I can view this law, can I find just reason to distrust the pro- priety of my action in approving and signing it ; and the question presented involves consequences, both immediate and remote, too momentous to permit me to leave your objections unanswered.
In conclusion, I take great pleasure in recognizing that the history of the past year affords the amplest justification for your assertion, that if the question had been, whether 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 every call that it has been my duty to make on her; and to you, personally, as her Executive, I acknowledge my indebtedness for the prompt, cordial, and effective co-operation you have afforded me in the effort to defend our common country against the common enemy.
I am, very respectfully, Your obedient servant,
HIS EXCELLENCY JOS. E. BROWN,
JEFFERSON DAVIS.
Governor of Georgia, Milledgeville.
REPLY OF GOV. BROWN.
ATLANTA, June 21st, 1862.
IIIS EXCELLENCY JEFFERSON DAVIS, PRESIDENT, ETC.
Dear Sir :- I have the honor to acknowledge 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 Milledge- ville, on the 8th inst., together with a copy of the written opinion of the Attorney Gen- eral, and has since been forwarded to me at Canton, where I was detained by family afHietion.
Your reply, prepared after mature deliberation and consultation with a Cabinet of dis- tinguished ability, who concur in your view of the constitutionality of the Conscription Act, doubtless presents the very strongest argument in defense of the Act, of which the case is susceptible.
Entertaining, as I do, the highest respect for your opinions and those of each individ-
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ual member of your Cabinet, it is with great diffidence that I express the conviction, which I still entertain, after a careful perusal of your letter, that your argument fails 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 Con- stitution 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 itelf, 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 Congress of the reserved rights of the States, and a rapid stride towards military despotism, I very much regret that I have not, in the preparation of this reply, the advice and assist- ance of a number equal to your Cabinet, of the many "eminent citizens " who, you admit, entertain with me, the opinion that the Conscription Act is a palpable violation of the Constitution of the Confederacy. Without this assistance, however, I must pro- ceed individually to express to you some views, in addition to those contained in my for- mer letters, and to reply to such points made by you in the argument, as seem to my mind to have the most plausibility in sustaining your conclusion.
The sovereignty and independence of each one of the thirteen States at the time of the adoption of the Constitution of the United States, will not, I presume, be denied by any, nor will it be denied that each of these States acted in its separate capacity, as an independent sovereign, in the adoption of the Constitution. The Constitution is, there- fore, a league between sovereigns. In order to place upon it a just construction, we must apply to it the rules, which, by common consent, govern in the construction of all written constitutions 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 Convention, which induced the Convention to adopt each part.
I incorporated into my last letter a number of quotations from the debates of prominent 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 composed their militia, by retaining to the States the appoint- ment of the officers to command them, even while "employed in the service of the Con- federate States." I might add many other quotations containing strong proofs of this position, from the debates of the Federal Convention, and the action of the State Con- ventions which adopted the Constitution ; but I deem it unnecessary, as you made no allusion to the contemporaneous construction in your reply, and I presume you do not insist that the explanations of its meaning given by those who made it sustain your con- clusion.
I feel that I am fully justified by the debates and the action of the Federal and State Conventions, in saying that it was the intention of the thirteen sovereigns, to constitute a common agent with certain specific and limited powers, to be exercised for the good of all the principals, but that it was not the intention to give the agent the power to destroy the principals. The agent was expected to be rather the servant of several mas-
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ters, than the master of several servants. 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 belonging to each, able to bear arms, and leave them with 10 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 conscrip- tion or compulsion, to enter the service of the General Government, without the consent of their State Government, at any time while the Government was administered, or its councils controlled, by any of the fathers of the Republic who aided in the formation of the Constitution.
If, then, the constitutionality of the Conscription Act cannot be established by the contemporaneous construction of the Constitution, nor by the earlier practice of the Gov- ernment while administered by those who made the Constitution, the remaining inquiry is, can it be established by the language of the instrument itself, taking the whole con- text, and applying to it the usual rules of construction, which were generally received and admitted to be authoritative at the time it was made.
The Constitution, in express language, gives Congress the power to "raise and sup- port armies." You rest the case here, and say you know of but two modes of "raising armies," to wit : " by voluntary enlistment, and by draft or conseription," and you con- clude that the Constitution authorizes Congress to raise them by either or both these modes.
To enable us to arrive at an intelligent conclusion as to the meaning intended to be conveyed by those who used this language, it is necessary to inquire what signification 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 convey to the minds of others the idea which was at that time usually conveyed by the language adopted by them. Apply this rule, and what did the Convention mean by the term "to raise armies ? " I prefer that the Attor- ney General should answer. He says in his written opinion :
"Inasmuch as the words ' militia,' 'armies,' '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 term ' militia,' in our Constitution, was used in the sense attached to it in that country."
Upon this statement of the Attorney General rests his definition of the term " militia," which is an English definition ; and upon that definition rests all that part of your argu- ment, 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 raising an army, and 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 terms " militia," " armies," " regular troops," and " volunteers" had acquired a definite meaning in Great Britain before the Revolutionary war, and we have derived most of our ideas on this subject from that source, and if we may safely conclude that the term " militia " in our Consti- tution was used in the sense attached to it in that country, is it not equally safe to con-
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clude that the terms "armies," and to " raise armies," having acquired a definite mean- ing in Great Britain before the Revolutionary war, were used in our Constitution in the same sense attached to them in that country ?
At that period, the Government of Great Britain had no Conscription Act, and did not " raise armies " by conscription, therefore the Convention which made our Consti- tution, " 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 even her " regular armies," by conscription.
But, as those who framed the Constitution foresaw that Congress might not be able by voluntary enlistment, to raise regular 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 the Confederate States, suppress insurrections, and repel invasions.
In this connection, I am reminded by your letter, that Congress has power "to declare war," which you say embraces the right to declare offensive as well as defensive war ; and you argue, as I understand, that the militia can only be called forth to repel invasions, and not to invade a foreign power, and that Congress would be powerless to redress our wrongs, or vindicate our honor, if it could not "raise armies " by conserip- tion, to invade foreign powers. If this were even so, it might be an objection to the Constitutional Government, for want of sufficient strength, which is an objection often made by those who favor more absolute power in the General Government, and who attempt, by a latitudinarian construction of the Constitution, to supply powers which were never intended to be given to it. But does the practical difficulty which you sug- gest, 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 in foreign aggressive war, but a peaceful Government, advised by the Father of his Country, to avoid " entangling alliances " with foreign powers.
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