Volume I Part 44 (2/2)
”In the delegation of power to the Confederacy, after exhausting the subject of declaring war, raising and supporting armies, and providing a navy, in relation to all which the grant of authority to Congress is exclusive, the Const.i.tution 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.'197
”'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; reserving to the States respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.'198
”Congress, then, has the power to provide for organizing the arms-bearing people of the State into militia. Each State 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 the power is impliedly reserved of governing all the militia, except the part in actual service of the Confederacy.
”I confess myself at a loss to perceive in what manner these careful and well-defined provisions of the Const.i.tution, 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 exclusive 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, appears [pg 511] to me to be plainly an additional enumerated power intended to strengthen the hands of the Confederate Government in the discharge of its paramount duty, the common defense of the States.
”You state, after quoting the twelfth, fifteenth, and sixteenth 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 Const.i.tution, and, by a well-known rule of construction, must be taken as a whole and construed together.'
”This argument appears to me unsound. All 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 control any of the other paragraphs preceding, intervening, or succeeding. So far as the subject-matter is concerned, I have already endeavored to show that the armies mentioned in the twelfth paragraph are a subject-matter as distinct from the militia mentioned in the fifteenth and sixteenth as they are from the navy mentioned in the thirteenth. Nothing can so mislead as to construe together, and as a whole, the carefully separated clauses which define the different powers to be exercised over distinct subjects by the Congress.
”But you add that, 'by the grant of power to Congress to raise and support armies without qualification, the framers of the Const.i.tution intended 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 Confederate 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 ceased. 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 citizen 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 fit for service in the army may be embraced in the militia organization of the several States. You seem, however, to suggest, rather than directly to a.s.sert, that the conscript law may [pg 512] be unconst.i.tutional, because it comprehends all arms-bearing men between eighteen and thirty-five 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 coextensive with the exigencies of the occasion, or it becomes illusory; and the extent of the exigency must be determined by Congress; for the Const.i.tution has left the power without any other check or restriction than the Executive veto. Under ordinary circ.u.mstances, 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 defense 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 Confederate States.
”Surely there is no mystery in 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 as bodies organized by the States with their company, field, and general officers; and, when the emergency had pa.s.sed, they went home again. I can not 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 Const.i.tution 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 Confederate 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 really that of 'raising an army,' and bears no semblance to 'calling forth the militia.' I think I may safely venture the a.s.sertion that there is not one man out of a thousand of those [pg 513] who will do service under the conscription act that will describe himself while in the Confederate service as being a militiaman; and, if I am right in this a.s.sumption, the popular understanding concurs entirely with my own deductions from the Const.i.tution as to the meaning of the word 'militia.'
”My answer has grown to such a length, that I 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 Const.i.tution, 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 upon to repel invasion, the State shall appoint the officers.
”There seems to me to be a conclusive test on this whole subject. By our Const.i.tution, Congress may declare war, offensive as well as defensive. It may acquire territory. Now, suppose that, for good cause and to right unprovoked injuries, Congress should declare 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 pa.s.sed under such circ.u.mstances, 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 depredations on our commerce, and that we may be compelled to a.s.sert our rights by offensive war. How is it to be carried on? Of what is the army to be composed? If this Government can not 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 [pg 514] plaintiffs? Surely this can not have been the intention of the framers of our compact.
”In no respect in which I can view this law can I find just reason to distrust the propriety 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.
”Jefferson Davis.”
The operation of this law was suspended in the States of Kentucky, Missouri, and Maryland, because of their occupation by the armies of the Federal Government. The opposition to it, where its execution was continued, soon became limited, and before June 1st its good effects were seen in the increased strength and efficiency of our armies. At the same time I was authorized to commission officers to form bands of ”Partisan Rangers,” either of infantry or cavalry, which were subsequently confined to cavalry alone. On September 27, 1862, all white men between the ages of thirty-five and forty-five were placed in the military service for three years. All persons subject to enrollment might be enrolled wherever found, and were made subject to the provisions of the law. Authority was also given for the reception of volunteers from the States in which the law was suspended. On February 11, 1864, it was enacted by Congress that all white men between the ages of seventeen and fifty should be in the military service for the war; also, that all then in the service between the ages of eighteen and forty-five should be retained during the war. An enrollment was also ordered of all persons between the ages of seventeen and eighteen and between forty-five and fifty years, who should const.i.tute a reserve for State defense and detail duty. On February 17th all male free negroes between the ages of eighteen and fifty years were made liable to perform duties with the army, or in connection with the military defenses of the country in the way of work upon the fortifications, or in Government works for the production or preparation of materials of war, or in military hospitals. The Secretary of War was also authorized to employ for the same duties any number of negro slaves not exceeding twenty thousand.
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In the operation of the military laws we found the exemption from military duty accorded by the law to all persons engaged in certain specified pursuits or professions to be unwise. Indeed, it seems to be indefensible in theory. The defense of home, family, and country is universally recognized as the paramount political duty of every member of society; and, in a form of government where each citizen enjoys an equality of rights and privileges, nothing can be more invidious than an unequal distribution of duties or obligations. No pursuit nor position should relieve any one who is able to do active duty from enrollment in the army, unless his functions or services are more useful to the defense of his country in another sphere. But the exemption from service of entire cla.s.ses should be wholly abandoned.
The act of February 17, 1864 (above mentioned), which authorized the employment of slaves, produced less results than had been antic.i.p.ated. It, however, brought forward the question of the employment of the negroes as soldiers in the army, which was warmly advocated by some and as ardently opposed by others. My own views upon it were expressed freely and frequently in intercourse with members of Congress, and emphatically in my message of November 7, 1864, when, urging upon Congress the consideration of the propriety of a radical modification of the theory of the law, I said:
”Viewed merely as property, and therefore as the subject of impressment, the service or labor of the slave has been frequently claimed for short periods in the construction of defensive works. The slave, however, bears another relation to the state-that of a person. The law of last February contemplates only the relation of the slave to the master, and limits the impressment to a certain term of service.
”But, for the purposes enumerated in the act, instruction in the manner of camping, marching, and packing trains is needful, so that even in this limited employment length of service adds greatly to the value of the negro's labor. Hazard is also encountered in all the positions to which negroes can be a.s.signed for service with the army, and the duties required of them demand loyalty and zeal.
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