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 37
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But you suppose, after our independence is established, 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, and you ask, " How is it to be car- ried on ?" "Of what is the army to be composed ?" The answer is a very simple one. If the aggression is such as to justify 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 voluntary enlistment, and to offer themselves under officers of their own choice, through their State authorities, to the Confederacy, just as they did in the offensive war against Mexico, when many more were offered than were needed, without conseription or coercion ; and just as they have done in our present defensive 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 compcl them to vindicate it. They will hold the Government responsible if it refuses to permit them to do it. To doubt
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this, would seem to be, to doubt the intelligence 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 justice of which was condemned by the Govern- ments of the States, and the intelligence of the people, and to compel them to prosecute it for two years, the terms 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, so as to prohibit the prosecution, by conscription or coercion, of an offensive foreign war, which may be condemned by an intelligent public opinion.
France has a conscription act, which Great Britain has not. Both are warlike powers, often engaged in foreign offensive 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 vindicate her honor and maintain her rights ? When France had no conscription law at one period of her history, she was a Republic. Soon after she had a conscription law, she became an Empire, and her ruler an Emperor, leaving her people without the constitutional safeguard which protects the people of Great Britain.
But you ask, " Shall we never be plaintiff in this 'terrible litigation of nations ? '" If the litigation commends itself to the intelligence of the people as just, they will not hesitate to put themselves at the command of the Government to assume the plaintiff'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 defensive, is evidence to sustain my conclusion on this point.
That those who framed the Constitution looked to a state of war as tending to con- centrate the power in the Executive, and as unfavorable to constitutional liberty, and did not intend to encourage it, unless in cases of absolute necessity, and did not, there- fore, form the Government with a view to its becoming a power often engaged in offen- sive war, may be inferred from the language of Mr. Madison. He says :
" War, is, in fact, the true nurse of Executive aggrandizement. In war a physical force is to be created, and it is the Executive will which is to direct it. In war the pub- lic treasures are to be unlocked, and it is the Executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied, and it is the Executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the Executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast-ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace." See Federalist, page 452.
In connection with this remark of Mr. Madison, it may not be amiss to add one from Mr. Calhoun. That great and good man who may justly be styled the champion of State Rights and Constitutional Liberty, in the first volume of his works, page 361, 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 favorable to the national line of policy. This is, indeed, one of the unavoidable consequences of war, and can be counteracted 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, so long as they could be honorably and
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safely avoided ; and when necessary, of arresting, to a great extent, the tendency of the Government to transcend the limits of the Constitution during its prosecution, and of correct- ing all departures after its termination. It was by force of the tribunitial power that the plebeians retained for so long a period their liberty in the midst of so many wars."
I beg to call special attention to the portions of the above quotation which I have italicized.
Having rested the constitutionality of the Conscription Act upon the power given to Congress to "raise armies," you enunciate a doctrine which I must be pardoned for saying, struck me with surprise ; not that the doctrine was new, for it was first pro- claimed, I believe, almost as strongly, by Mr. Hamilton in the Federalist, 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 the 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 pur- pose of executing that power, is necessary and proper."
Again you say :
" The 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."
From this you argue that the Conscription 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 republican party of 1798, as set forth in the Virginia and Kentucky Resolutions. The Virginia Resolutions use the following lan- guage, that, " It (the General Assembly of Virginia) 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 instrument constituting that compact, as 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 powers 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 the evil, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them. That the General Assem- bly doth also express its deep regret, that a spirit has in sundry instances been mani- fested by the Federal Government, to enlarge its powers by a forced construction of the Constitutional charter which defines them ; and that indications have appeared of a design to expound certain general phrases -- (which having been copied from the very limited grant of powers in the former articles of Confederation were the less liable to be mis- construed)-so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the general phrases, so as to consolidate the States by degrees into one sorereignty, the obvious tendency and inevitable result of which would be to transform the present Republican system of the United States, into an absolute or at least a mixed monarchy."
The following quotations are from the Kentucky Resolutions drawn up by Mr. Jeffer- son himself (the italics, as in the last quotation, are my own). "That the several States composing the United States of America are not united on the principle of
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unlimited submission to the General Government ; but that, by a compact under the style and title of a Constitution of the United States, and of amendments thereto, they con- stituted a General Government for special purposes-delegated to that Government cer- tain definite powers ; reserving, each State to itself, the residuary mass of right to their own self-Government ; that whensoever the General Government assumes undelegated powers its acts are unauthoritative, void 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 this compact was not made the exclusive or final JUDGE of the extent of the powers delegated to it-since that would have made ITS DISCRETION and not the Constitution the measure of its powers ; but that as in all other cases of compact among parties having no common JUDGE, each has an equal right to JUDGE for itself as well of infractions as of the mode and measure of redress."
And again :
" That the construction applied by the General Government (as evinced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power to lay and collect taxes, duties, imposts and excises ; to pay the debts and provide for the common defense and general welfare of the United States; and to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution. That words meant by that instrument to be subsidiary only to the execution of the limited powers ought not to be so construed, as themseives to give unlimited powers, nor a part so to be taken as to destroy the whole residue of the instrument."
But let us examine your doctrine a little further and see whether it can be reconciled to the construction lately put upon the Constitution by the States composing the Con- federaey, over which you preside, and the action lately taken by them.
The Constitution of the United States gives Congress the power to provide for call- ing forth the militia to "suppress insurrection." Carry out your doctrine, and Con- gress must of course be the Judge of what constitutes an insurrection, as well as of the means " necessary and proper " to be used in executing the specific power given to Congress to suppress it. Georgia, claiming that the Congress of the United States had abused the specific powers grauted to it, and passed laws which were not " necessary and proper " in executing these specific powers, which were injurious to her people, and claiming to be herself the Judge, seceded from the Union. Congress denied her power or right to do so, and acting upon the doctrine laid down by you, Congress claiming to be the Judge, proceeded to adjudicate the case, and determined that the action of Geor- gia amounted to, an insurrection, and passed laws for its suppression. 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 armies," 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 "calculated and intended " to carry out the object (the suppression of the insurrection, and the execution of the laws of the United States in Georgia)? and does it " devise and create an instrumentality for exe- cuting the specific power granted ?" Congress, the Judge, answers the question in the affirmative. Therefore the law is constitutional.
Again, suppose you are right, and Congress has the constitutional power to " raise armies " by Conscription, an i without the consent of the States, to compel every man iu
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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 times 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 Congress 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 understood the full extent of its powers to have prevented in a manner perfectly constitutional, 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 " necessary and proper," and that it created an instrumentality for the execution of one of the specific powers granted to Congress to provide for the execution of the laws of the Union in the two States, or to provide for "raising armies." This would have left the States without a single man at their com- mand, without the power to organize or use military force, and without free men to con- stitute even a Convention to pass an ordinance 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 secession, 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 doctrine 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 favor of the officers necessary to the existence of the State Government, 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 appointed 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 constitutional, it follows that Congress has the power to compel the Governor of every State in tho Confederacy, every member of every Legislature of every State, every Judge of every Court in every State, every officer of the Militia in every State, and all other State officers to enter the military service as privates in the armies of the Confederacy, under officers appointed by the President, at any time when it so decides. In other words, Con- gress may disband the State Governments any day when it, as the judge, decides that by so doing it "creates an instrumentality for executing the specific power " " to raise armies."
If Congress has the right to discriminate, and take only those between 18 and 35, it has the right to make any other discrimination it may judge " necessary aud proper " in the "execution of the power," and it may pass a law in time of peace or war, if it should conclude the State Governments are an evil, that all State officers, Executive, Legisla- tive, Judicial and Military, shall enter the armies of the Confederacy 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, Congress has the power under the 12th paragraph
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of the 8th section of the Ist Article of the Constitution to disband the State Govern- inents, and leave the people of the States with no other Government than such military despotism, as Congress in the exercise of the specific power to " raise armies " (which ] ยท 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 mention might make effective privates in the armies of the Confederacy, and as the law passed to compel them to enter the service 'might " create an instrumentality for executing the specific power to "raise armies," Congress, the judge, need only so decide and the act would be constitutional.
I may be reminded, however, that Congress passed an Exemption Act after the passage of the Conscription Act, which exempts the Governors of the States, the members of the State Legislatures, the Judges of the State Courts, etc., from the obligation to enter 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 au assertion 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, are exempt from Conseription by the grace and special favor of Congress and not by right, as the Governments of the independent States whose agent, and not master, Congress has been erroneously supposed to be. If this doctrine be correct, of what value are State rights and State sovereignty ?
In my former letter I insisted, under the general rule, that the 12th, 15th and 16th paragraphs of the section under consideration, all relating to the same 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 to take issue with me here. You say :
" Nothing can so mislead as to construe together and as one whole, the carefully sepa- rated clauses, which define the different powers to be exercised over distinct subjects by Congress."
These are not carefully separated clauses which relate to different powers, to be exer- vised over distinct subjects. They all relate to the same subject matter, the authority given to Congress over the question of war and peace. They all relate to the use of armed force by authority of Congress. If, therefore, Coke, Blackstone andl Mansfield of England, and Marshall, Kent and Story of this country, with all other intelligent writers 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 to be con- strued together "as one whole."
Constrne them together, and the general language in one paragraph, is so qualified by another paragraph, upon the same subject matter, that all can stand together, and the whole when taken together, establishes to my mind the unsoundness of your argument and the fallacy of your conclusion.
But I must not omit to notice your definition of the term " militia," and the deduc- tions which you draw from it.
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You adopt the definition of the Attorney General, that "the militia are a body of soldiers in a State enrolled for discipline." Admit, for the purposes of the argument, the correctness of the definition. All persons, therefore, who are enrolled for discipline under the laws of Georgia constitute her militia. When the persons thus enrolled (the militia) are employed in the service of the Confederate States, the Constitution expressly reserves to Georgia the appointment of the officers. The Conscription Act gives the
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President the power by compulsion to employ 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 IS and 45, what is the result? " The body of soldiers in the State enrolled for discipline " are every man "employed in the service of the Confederacy," and the right is denied to the State to appoint a single officer, when the Constitution says she shall appoint them all. Is it fair to conclude, when the State expressly and carefully reserved the control of their own militia, by reserving the appointment of the officers to command them, that they intended under the general grant of power to " raise armies," to authorize Congress to defeat the reservation and control the militia, with their officers, by calling the very same men into the field, individually and not collectively, organizing them according to its own will, and terming its action " raising an army " and not calling forth the militia ? Surely the great men of the revolution when they denied to the General Government the appointment even of 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 Govern- ment, 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 of the lowest lieutenant, and justify the act on the ground that Con- gress did not choose to call them into service in their collective capacity, and deny that they were militia 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 Conscription Act, there is certainly no obligation upon Congress ever to call them forth in any other manner, and it rests in the discretion of Congress whether or not the State 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 under a conscription act, and not by requisitions made upon the States. It cannot be just to charge the States with 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 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."
If the conscription law is to control, and Congress may, without the consent of the State Government, order every man composing the militia of the State, out of the State, into the Confederate service, how is the State to call forth her own militia, as you admit she has reserved the right to do, to execute her own laws, suppress an insurrection 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 them without their consent the means of self-preservation, by depriving them of all the strength upon which their very existence depends?
After laying down the position that the citizens of a State are not her militia, and affirming that the militia are " a body organized by law," you deny that the militia con- stitute any part of the land or naral forces, and say they are distinguished from the land and naval forces, and yon 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
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armies, raised by Congress," but remain militia, and that when they had been called forth, and the exigencies which provoked the call had 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 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 armies of the Confederacy, part of the land or naval force. In connection with this part of the subject you use the following language :
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