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SOUTHERN COMFEDIRaOY
f owtlietw tfoofciletaci
w ft.l>AiK~
tDlTttdd XSth
-M1TH, M- »■»•••*
j. flENLY SMITH,
PjtoPkncTom^.
A.8SOC IA f B EDITOR.
ATCAUTA.. CEOROtA I
FRIDAY, JUNE20, 1862^
^-rue Larscsl Dally Circula
tion In ill*? State,
Correspondence between <»o*er-
nor Brown and President Da-
via on the Conscription Act.
Executive Department, !
Millkdgeyillb, Ga . May 8, 1m>’2. j
Dear Sir:—I have the honor to acknowl
edge the receipt of your favor of the 2Sth
ult, in reply to iny iet.er to jou upon the
subject of the Conscriptic n Act. I should cot
trouble you with a reply, were it not that
OCR TERMS:
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^amte and money and money are sent at once, we will
aend onr Weekly at $1 60 per annum. ^
.( it IS NOW TOO LATE TO RETIRE
t'UOM THE CONTEST THERE IS NO
RETREAT BUT IN CHAINS AND SLAVE
RY." Patrick Henry in the first Revolution.
Governor Brown and the Conscription
L,a\v.
Our Governor has taken a very unfortu
nate position with regard to the Conscription
Law—one that we think erroneous and un-
jUBtlfiable, and which, from his known obsti
nacy when he takes a position, be it right or
wrong, we fear will bring our State and
Confederate authorities into collision, and
end without bringing any'renown to the
Governor, or reflecting any credit on the
State.
As to the merits ot this controversy,
„re perhaps not well qualified to judge,
is the provinoe of the jurist to decide upon
the constitutionality of this, as all other
iaws, and wo shall defer to such an umpire
any decided opinion upon (his question
simply remarking that in the exhibits now
before us, the President seems to have all
the weight of argument on his eide. We
believe conscription or draft to be right—
the only equitable method of raising an army,
and that no ether should be resorted to ; and
we have advocated this in onr columns. The
Constitution grants to the Confederate Gov
ernment the right to raise armies, but dont
prescribe the mode; and we cant see bow
ooaacrip»j on can be in contravention of the
Constitution wnen all must admit that it is
certainly the fairest, most certain, and eco
nomical of all methods.
The present law, as we have heretofore
said, is objectionable in some of its features,
but not on account of its unconstitutionality,
so far as we are adviged and believe ; but we
have heretofore and do now, counsel a full
acquiescence iu it Jr we be
lieved it to be unconstitutional, we would
not do this. We counsel everybody to resist
any encroachment upon the Constitution by
ei.her the Executive or Congress. That in*
etrument is eacred as private rights, and
muat not be encroached upon by any cue
uuder any circumstances.
But the position taken by Gov. Brown is
ridiculous and untenable. He boldly pro
nounces it unconstitutional, yet suffers it to
be executed in the limits of the Empire State,
of the South, to whose good people he is un
der all the sacred obligations which the sol
emn sanctions of an official oath can impose,
to protect against all encroachment upon
their constitutional rights. lie announces
that he will resist the execution of the law
to a very limited extent, viz: that he will
protect the militia officers from its opera
tion ; but the militia privates must take care
of themselves—submit to it, or resist at their
own peril and take the consequences without
any assistance irorn him. This we under
stand to be hia position. The plea he makes
is that the training of the militia is ind spen
sable to the safety of the State, and this
cant be done witnout militia officers, therefore
they shall be exempt. This is equivalent to
saying that no man can be a militia officer
Who is over 35 years of age—for conscrip
tion takes no one over that age—a proposi
lion which tho most illiterate child in the
nation will at once condemn. Every able
bodied man under 45 years is liable to mili
tary duty under the laws of the State, and
there are plenty of men under that age, but
over 35, who can fill these offices, as well as
men under 35. If every man in the State
under 35 was taken out, it dont necessarily
deprive (he State of militia officers. If it
actually takes out all the men who are com
missioned as such, there still remain as good
material out of which to manufacture others
with the machinery by which the work is
performed all ready to be put into operation
without expense. They can be elected, or
the Governor can appoint them.
In short, conscription takes the ohule mi
litia under thirty-five, and there is no ne
cessity to retain officers under that age to
drill and train the remnant that is left over
that age. Suppose the Act look every man
liable to militia duty under forty.five ; how
ridiculous would it be in Gov. Brown to ex
empt the officers to train the militia with,
when there would be no one left to train but
the officers themselves? Vet this would be
uo more rediculons than the position he has
already taken. In effect, and so far as the
principle involved is concerned, they are the
same. Officers retained to train the militia,
iviih no smlitia left to train This is the state
of the case in a nut-shell.
So resistance to the Conscription Law, in
this respect, amounts to nothing. It is folly;
and anything short of an entire and com
plete resistance to its operation upon any
one within the limits of the State, is ridicu
lous, absurd, and had better for the credit of
the State, be abandoned.
See our New Terms.
principles are involved ot tne most- vital coar-
acter, upon the maintenance of which, in toy
opinion, depend not only the rights and the
sovereignty of the States, but the very ex st-
ence of State Government.
While I am always happy as au imiiv.i-
ual to reader you any assistance in my pow
er, in the discharge of the laborious and re
sponsible duties assigned you, and while I am
satisfied you will bear testimony that i have
never, as the Executive of this State, failed
in a single instance to furnish all the men,
and more than you have called for, and to
assist you with all the other means at my
command, I cannot consent to commit the
State to a policy which is in my judgment
subversive of her tovereignty, and at war
with all the principles for the support of
which Georgia entered into this revolution.
It may be said that it is no time to discuss
constitutional questions in tho midst of revo
lution, ami that State rights and State sove
reignty must yield for a time to the higher
law ol necessity. If this is a safe principle
of action, it cannot certainly apply till the
necessity iB shown to exist; and I apprehend
it would be a dangerous policy to adopt, were
we to admit that those who are to exercise
the power of setting aside the Constitution,
are to be the judges cf the necessity for*so
doing. But did tne necessity exist in this
case ? The Conscription Act cannot aid tho
Government in increasing its supply of arms
or provisions, but can only enable it to call a
larger number of men into the field. The
difficulty has never been to get men. The
States have already furnished the Govern
ment more than it can arm, and have irom
their own means armed and equipped very :
large numbers tor it. Georgia has not oniy
furnished more than you have asked, and
armed and equipped, irom her own treasury.,
a large proportion of those she has sent to
the field, but she stood ready to furnish
promptly her quota (organized as tho Consti
tution provides) of any additional number
called tor by the President.
I beg leave again to inviie your attention to
the constitutional question involved. You
say in your letter, that the^ constitutionality
of the act i6 clearly not derivabl irem the
power to call out the militia, but from that
to raise armies. Let us examine this tor a
moment. The 8th section of the 1st article of
the Constitution defines the powers of Con
gress. The 12th paragraph ol that section
declares, that Congress “shall have power
to raise and support armies.” Paragraph 15
rives Congress power to provide for calling
‘orth the militia to execute the laws of the
Confederate States, suppress insurrections,
and repel invasions. Paragraph 18 gives
Congress power to provide for organizing,
arming, and disciplining the militia, and for
governing such part ot them as may bo em
ployed in the service of the Confederate
States, reserving to the States respectively the
appointment of the officers, and the author
ity of training the militia, according to the
discipline prescribed by Congress.
These grants of power all relate to tbe same
subject matter, and are all contained in tho
same section of the Constitution and by a
well known rule of construction, must be ta
ken as a whole and construed together.
It would seem quite clear, that by the grant
of power to Congress to raise and support ar
mies, without quaiincation, the framers ol the
Constitution intended the regular armies of
th9 Confederacy, and not armies composed
of the whole militia of all the States. If ail
the power given in the three paragraphs
above quoted, is in fact embraced in the first,
in the general words to raise armies, then the
other two paragraphs are mere surplusage,
and the framers of the Constitution were
guilty of the foily of incorporating into the
instrument unmeaning phrases. When the
States, by the I6th paragraph, expressly and
carefully reserved to themselves the right to
appoint the officers of the militia, when em
ployed in the service of the Confederate
States, it was certainly never contemplated
that Congress had power, should it become
necessary to call the whole militia of the
States into the service of the Confederacy, io
direct that the President should appoint
(commission) all the officers of tho militia
thus called into service, under the general
language contained in the previous grant of
power to raise armies. If this can be done,
the very object of the Slate in reserving the
power of appointing the officers, is defeated,
and that portion of theConstituion is not only
a nullity, but tbe whole military power of
the States, and the entire control of the mili
tia, with the appointment of the officers, i
vested in the Confederate Government, when
ever it chooses to call its own action “ raising
an army,” and not “ calling forth the mili
tia.” Is it fair t° conclude that the States
intended that these reserved powers should
be defeated in a matter so vital to constitu
tional liberty, by a mere change in the use of
terms to designate the act? 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 tbe Confede
rate States (wtiich is now the case,) the States
shall appoint the officers. If this is done, the
army is raised as directed by the Constitu
tion, and the reserved rights of the States ere
respected; but if the officers of the militia,
when called forth, are appointed by the Pres
ident, the army composed of the militia is
not raised as directed by the Constitution,
and the reserved rights of the States are dis
regarded. The fathers of the Republic in
1787 showed the utmost solicitude on this very
point. In the discussion in the Convention
on tho adoption of this paragraph in the Con
stitution or the United States, which wo have
copied and adopted without alteration, Mr.
Ellsworth said, “The whole authority over
the militia ought by no means to be taken
away from the States, whose consequence
would pine away to nothing after such a sac
rifice of power.” In explanation of the pow
er which the committee, who reported this
paragraph to the Convention, intended by it
to delegate to the General Government, when
the militia should be employed in the service
of that government, Mr. King, a member of
the committee, said, “By organizing, the
committee meant proportioning the officers
and men; by arming, the kind, sizo and cali
bre of arms; by disciplining, prescribing the
manual exercise, evolutions, Ac.’’
Mr. Gerry objected to the delegation of the
power, even with this explanation, and said,
“ This power in the United States, as ex
plained, is making the States drill-sergeants.
He had as lief let the citizens of Massachu
setts be disarmed, as to take the command
from the States, and subject them to the Gen
eral Legislators.”
Mr. Madison observed, that “arming, as
explained, did not extend to famishing arms,
nor the term disciplining, to penalties and
courts martial for enforcing them.”
After the adoption by the Convention of the
first part of the clause, Mr. Madison moved
to amend the next part of it, so as to read
“reserving to the States respectively the ap
pointment of the officers, under the rank of
general officers." Mr. Sherman considered
this as absolutely inadmissible. He said, that
if the people should be so far asleep as to al
low the most influential officers of the militia
to be appointed by the General Government,
every man of discernment would rouse them
by sounding the alarm to them." Upon Mr.
Madison’s proposition Mr- Gerry said : " Let
us at once destroy the State Governments,
have an Executive’ for life, or hereditary, and
a proper Senate, ar.d then there would be
some consistency in giving full powers to the
General Government; but as the States are
not to be abolished, he wondered at the at
tempts that were made to give powers incon
sistent with their existence. He warned the
Convention against pushing the experiment
too far.”
Mr. Madison’s amendment to add to the
clause the words “ under rank of general offi
cers," was voted down by a majority of eight
Siatts against three, according to the “ Madi
son Payers,” from which the above extracts
are taken ; and bv nine States against two,
according to the printed journals of the Con
vention. Toe reservation in the form in
which it now stands in the Constitution, “re-
cerving to the States the appointment of the
officers," when tbe militia are employed iu
the service of the Confederacy, as well the
General office; s as those under that grade,
was adopted unanimously by the Convention.
At the expense of wearying your patience,
1 have been thus careful in tracing the his
tory of this clause of the Constitution, to
show that it was the clear understanding of
these who originated this part of the funda
mental law, that the States should retain their
power over their miiitia, even while in the
service of the Confederacy, by retaining the
appointment of all the officers.
in practico, the Government cf the United
States, among other numerous encroachments
of power, had usurped to itself the power,
which the Convention, afier mature delibera
tion, had expressly denied to it, to-wit: the
power of appointing the general officers of the
miiitia, when employed in the service of the
General Government.
But even that Government had never at
tempted to go to the extent of usurping the
power io appoint the field and company offi
cers. If the framers of the Constitution were
6tartlcd at tho idea of giving tho appoint
ment of tho general officers to the General
Government, and promptly rejected it, how
would they have met a proposition to give
tho appointment of all the officers, down to the
lowest lieuteuact, to it?
Bat you say, “ with regard to the mode of
officering the troops now called into the ser
vice of the Confederacy, the intention of Con
gress i3 to be learned from its acts; and from
the terms employed, it would seem that the
policy of election by the troops themselves is
adopted by Congress.”
I confess I had not so understood it, With
out very essential qualifications. It is true,
the 12 months men who re-ealist have aright
within forty dsys to reorganize and elect their
officers
But if I uudeistand the act, judging from
the terms used, all vacancies which occur in
the old regiment?, are io b9 filled, not by
election, but by the President, by promotion,
dowa to the lowest commissioned officer,
whose ya ancy alone is filled by election;
and oven tnis rule of promotiou may be set
aside by the President at any time, tinder cir
cumstances mentioned in the act, and he may
appoint any one he pleases io fiil the vacancy,
if, in nij opinion, the person selected is dis
tinguished for skill or valor; and the com
mission in either and all the cases mentioned
must be issued by the President.
Quito a number cf Georgia regiments are iu
for the war, whose officers hold commissions
from the Executive of the Stale; but even in
these regiments, under the ac-t, every person
appointed to fiil any vacancy which may
herealter occur, it would seem, must hold his
commission not from the State, but from the
President.
But admit that Congress, by its acts, intend
ed to give the troops in every case the right
to elect officers (which has not been the es
tablished practice, as you have commiaaioaed
many persona to command as field officers
without election,) this does net relieve the
acts tf Congress from the charge ot violation
ot the Constitution. Ti e q -esiion is not as
to the mode of selectir a :J.<r son who is to
have the commission, to lc io the Govern
ment which has, under tne i :• nstitulion, the
right to it sue the commission The States, in
the exercise of their received power to ap
point tho officers, may select them by elec-
ti n, or may permit the Executive to select
them; but the appointment rests upon the
commission, as there is no complete appoint
ment till the commission is iesued : and there
fore the Government that issues the commis
sion exercises the appointing power, end con
trols the appointment.
1 sm not, however, tiiicv ssing the intention
of Congre.-s in the assumption of this power,
but only the question of its power ; and what
ever may have been its intention, I maintain
that it ’bas transcended its constitutional
powers, and has placed in the hands of tho
Executive of the Confederacy that wnich the
States have expressly and carefully denied to
Congress and reserved to themselves.
But you may ask, why hold the Executive
responsible for the unconstitutional action of
Congress ? I would not of course insist on
this any further than the action of Congress
has been sanctioned by the Executive, and
acted upon by him.
Feeling satisfied that the Conscription Act,
and such other acts of Congress as authorize
the President to appointor commission the
officers of the militia of the State, when em
ployed in the service of the Confederate
States “ to lepel invasion," are in palpable
violation cf the Constitution, I can consent to
do no act which commits Georgia to willing
acquiescence in their binding lorco upon her
people. I cannot therefore consent to have
anything to do with the enrollment of the
conscripts in this State; nor can I permit any
commissioned officer of the militia to be en
rolled, who is necessary to enable the State
to exercise her reserved right of training her
militia, according to the discipline prescribed
by Congress, at & time, when to prevent trou
bles with her slaves, a strict military police
is absolutely necessary to the safety of her
people. Nor can I permit any other officer,
ciyii or military, who is necessary to the
maintenance of the State Government, to be
carried out ol the State as a conscript.
Should you at any time need additional
troops from Georgia-to fill up her just quota,
in proportion to tne number furnished by the
other States, you have only to call on the
Executive for the number required to be or
ganized and officered as the Constitution di
rects, and your call will, as it ever has dene,
meet a prompt response from her noble and
patriotic people, wno, while they will watch
with a jealous eye, even in the midst of rev
olution, every attempt to undermine their
constitutional rights, will never be content to
be behind the lorempst in the discharge of
their whole duty.
I am, with great respect,
Your obedient servant,
JOSEPH E. BROWN.
H. - Excellency Jefferson Davis.
for yourself, and for other eminent hitizens
who entertain opinions similar to yours, to
set forth, somewhat at length, my own views
on the power of the Confederate Government
over its own armies and the militia, and will
endeavor not to leave without answer any oi
the positions maintained in your letter.
The main, if not the only purpose for
which independent States form Unions or
Confederations, is to combine the power cl
the several members in such manner as to
form one united force in all relations with
foreign powers, whether in peace or in war.
Each Siate, amply competent to administer
and control its own domestic government,
yet too feeble successfully to resist powerful
nations, seeks safety by uniting with other
States in like condition, and by delegating
to some common agent the combined strength
of all, in order to secure advantageous com
mercial relations in peace, and to carry on
hostilities 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 8th section ot the Constitution, each
power being distinct, specific, and enumera
ted ia paragraphs separately numbered —
The only exception is the 18th paragraph,
which, by its own terms, is made dependent
on those previously enumerated, as follows:
“ 18. To make all laws which shall be ne
cessary and proper for carrying into execu
tion the foregoing powers," Ac.
Now, the war powers granted to the Con
gress are conferred in the following para
graphs :
No. 1 gives authority to raise “revenue
necessary to pay the debts, provide for the
common defence, and carry on the govern
ment,” Ac.:
No. 11, “to declare war, g-ant letters of
marque and reprisal, and make rules con
cerning captures on land and water:”
No. 12, “ to raise and support armies ; but
no appropriation of money to that usa shall
be for a longer term than two years
No. 13, “to provide and maintain a navy
No. 14, “to make rules tor the government
and regulation of the land and naval forces.”
It is impossible to imagine a more broad,
ample aud unqualified delegation ol the
whole power of each State, than is h?re con
tained, with the solitary limitation of the
appropriations to two years. The States not
only gave power to raise money for the com
mon defence to declare war; to raise aud sup
port armies (in the plural), to provide and
maintain a navy; to govern and regulate
both land and naval forces; but they went
further, and covenanted by the 3d paragraph
of the loth section, not “to engage in war,
unless actually invaded, or in such imminent
danger as will not admit of delay.”
I know of but two modes of raising armies
within the Confederate States, viz: volunta
ry enlistment, and draft or conscription. I
perceive, in the delegation of power to raise
armies, no restriction as tho mode of pro
curing troops. I see nothing which confiaes
Congress to one class of men, nor any great
er power to receive volunteers than conscripts
into its service I see no limitation by which
enlistments are to be received of individuals
only, but not of companies, or battalions, or
squadrons, or regiments, I find no limitation
of time of service, but only of duration of
appropriation. I discover nothing to eonfine
CoDgress to waging war within the limiLs of
the Confederacy, nor to prohibit offensive
war. In a word, when Congress desires to
raisa an army, and passes a law for that pur
pose, the solitary question is under the 18th
paragraph, viz; “Is the law one that is ne
cessary and proper to execute tho power to
raise armies?”
On this point you say, “But did the neces
sity exist iu this case ? The Conscription Act
cannot aid the Government iu increasing its
supply of arms or provisions, but can only
enable it to call a large number of mss into
the field. The difficulty has never been to
get men. The States have already furnished
the Government more than it can arm,” Ac.
I would have very little difficulty in estab
lishing to your entire satisfaction that the
passage of he 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
levies in the face of superior numbers of the
foe, without entailing the most disastrous re
sults; that the.position of our armies was so
critical as to fill the bosoms of every patriot
with the liveliest apprehension ; and that the
provisions of this law were effective in ward
ing off a pressing danger; but I prefer to an
swer your objection on other and broader
grounds.
I hold, that when a specific power is grant
ed by the Constitution, like that now in ques
tion, “to raise armies,” Congress is the judge
whether the law passed for the purpose of
executing that power, is “ necessary and
proper.” It is not enough to say that armies
might be raised in other ways, and that there
fore this particular way is not “ necessary.”
The same argument might be used against
every mode of raising armies. To each suc
cessive mode suggested, the objection 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 devises and creates an instrumentality for
executing the specific power granted; aad If
the answer be in the affirmative, the latf is
constitutional. None can doubt that the
Conscription Law is calculated and intended
to “raise armies." It is, therefore, “necessa
ry and proper” for the execution of that pow
er, and is constitutional, unless it comes into
conflict with some other provision of our Con
federate Compact.
You express the opinion that this conflict
exists, and support your argument by the ci
tation of those clauses which refer to the mi
litia. There are certain provisions not cited
by you, which are not without influence on
my judgment, and to which I call your at
tention. They wili aid in defining what is
meant by “militia," and in determining the
respective powers of the States and the Con
federacy over them.
The several States agree “ not to keep
troops or ships of war in times of peace."
Art. 1, sec. 10, part 3.
They further stipulate that “a weli regula
ted militia being necessary to the security of
a free State, the rights of the people to keep
and bear arms skall cot be infringed ” Bee.
9, par. 13.
That “ no person shall be held to answer
for a capital or otherwise infamous crime,
unless on a presentment 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,” Ac. Sec. 9. par. 16.
What then are militia? They can only be
created by law. The arms-bearing inhabi
tants of a State are liable to become its mili
tia, if the law so order; but in the absence
of a law to that effect, the men of a State ca
pable 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 and naval forces are
shown, b ■ paragraphs 12,13 and 14, to mean
the army and navy of tbe 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 pari of the ar-
not only oi my own judgment, but of every ! my and navy of the Confederacy—we are led
' directly to the defiinition quoted by the At
torney General, that militia are a “ body of
soldiers io a State enrolled for disoipline.”—
In other words, the term “nllitia " Is a col
lective term, meaning a body of men organ*
Executive Department, i
Richmond, May 29, 1862. j
Dear Sir—1 received your letter of the 8th
inst. in due course, but the importance of the
subject embraced in it required careful con
sideration; and this, together with other
pressing duties, has caused delay in my re
ply.
The constitutional question discussed by
you iu relation to the Conscription Law had
been duly weighed before I recommended to
Congress the passage of such a law: it was
fully debated in both houses ; and your let
ter has not only been submitted to my Cabi
net, but a written opinion has been required
from the Attorney Genera). The constitu
tionality of the law was sustained by very
large majorities in both houses. This deci
sion of tne Congrees meets the concurrence
member of the Cabinet; and a copy of the
of the opinion of the Attorney Ganejal, here
with enclosed, deyelopes the reasons on
which his conclusions sre based.
I propose, however, from my high respeot
ized, and cannot be applied l> tho separate
individuals who compose the organization.
The Constitution divides the whole milita
ry strength of the States into only two
classes of organized bodies—one, the armies
of the Confederacy; the other, the militia
of <be States.
In the delegation of power to the Confed
eracy, after exhausting the subject of de-
daring war, raising and supporting armies,
and providing a navy, in relation to all
which tbe grant of authority to Congress is
exclusive, tbe 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 miiitia
to execute the laws of the Confederate Slates,
suppress insurrections and repel invasions.”
—Sec. 8, par. 15.
“ 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; re
serving to the States respectively the ap
pointment of officers and the authority of
training the militia according to the disci
pline prescribed by Congress.”—Par. 1C.
Congress, then, has the power to provide
for organizing the arms-bearing people of
the States, into militia. Each State has the
power to officer and train train them when
organized.
Congress may call forth the militia to exe
cute Confederate laws. The State has not
surrendered the power to call th^em forth to
exeoute State laws.
Congress may call them forth to repel in
vasion ; so may the State, for it has express
ly reserved this right.
Congress may call ibeui forth to suppress
insurrection ; and so may the State, for the
power ia implicitly reserved of governing all
the militia except the part in actual service
of the Confederacy.
I confess myself at a loss to perceive iu
what manner these careful and well defined
provisions of the Constitution legulatiug the
organization and government of the militia,
can be understood as applying ia the remo
test degree to the armies of the Confederacy ;
nor can I conceive how the grant of exclu
sive power to declare and carry on war by
armies raised and supported by the Confed
eracy, 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 grant
ed, appears 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 defence of the States.
You state, after quoting.the 12th, loth and
16th grants of power to Congress, that
“These grants of power all relate to the
samQ 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 coustiued 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 iu the same section,
than they can control any of the other par
agraphs preceding, intervening or succeed
ing. So far as the subject matter is con-,
oerned, 1 have already endeavored to show
that the armies mentioned in the 12th para
graph are a subject matter as distinct from
the miiitia mentioned in the 15th and 16th,
as they are from the navy mentioned in the
13th. Nothing can so mislead as to construe
together and as one whole, ihe 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 aud
support armies without qualification, tbe
framers cf the Constitution intended the
regular armies of the Confederacy, and not
armies composed of the whole militia of all
the States.”
I mast 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 Coufedera
cv can “be composed of the whole militia of
all the States.” The militia may be called
forth, in whole or in part, into the Confede
rate service, but do not thereby become part
of the “ armies raised ” by Congress. They
remain militia, and go home when the emer
gency which provoked their call has ceased.
Armies raised by Congress are of course out
of the same population as the militia organ
ized by the States; and to deny to Congress
the power to draft a citizen into the army, or
to receive his voluntary offer of service be
cause 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 organ
izations of the several Statee. You seem,
however, to suggest, lather than directly to
assert, that the Conscript Law may be un
constitutional, because it comprehends all
arms-bearing men b.?'ween 18 and 35 years;
at least, this is o.u _i'erence which I draw
from your expicaoi n “ 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 citi
zens at all (without regard to the fact wheth
er they are or not members of militia organ
izations,) the power must be co extensive
with the exigencies of the occasion, or it
becomes illusory ; aud the extent of the ex
igency must be determined by Congress; for
the Constitution has left the power without
any other check or restriction than the Ex
ecutive 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 threat
ened, by armies vastly superior in numbers
to ours, the necessity for defence has in
duced a call, not “for the whole militia of
all the States,” not for any militia, but for
men to compose araifi for the Confederate
States.
Surely there is nu my.-ury on this subject.
During our whole pa 5 i history, as well as du
ring our recent one year’s experience as a
new Confederacy, me militia “have been
called forth to repel invasion” in numerous
instances ; and ibey never came otherwise
than as bodies organized by the Slates with
their company, fieiu, and gtntral officers : and
when the emergency had passed, they went
home again.
I cannot perceive how any one oan inter
pret the Conscript.cn Law as taking away
from the States the power to appoint officers
to their militia. Uu observe on this point
in your letter, that uolesa yoar constrnction
is adopted, “the very object of the States in
reserving the power of appointing the offi»
oers, is defeated, and that portion of the
Constitution is not ouly a nuliiy, but the
whole military power ot the States and the
entire control of the militia, witn the ap
pointment of the officers, is vested in the
Confederate Government, whenever it choose
to call its own action ‘raising an army,’and
not ‘calling forth the militia.’ ”
I can only Bay, in reply t) this, that the
power of Congress depends on the real na
ture of the act it proposes to nerf
on the name given to it; a U j j . 0,1
ored to show that its action is reair £DeM -
“raising an army,” and bears no lLu* U!
to “calling forth the militia ” i t C l, «c»
safely venture the assertion tha'th It24 J
one tu an out of a thousand of thos a,t I
do service under the conscription*
would describe himself while i n ( kj„ lb *t
erate service, as being a militia' * < - C8 H
I am right iu this assumption.",he ’
understanding concurs entirely win,
deductions from the CoDs!itnii 0 „ • J
meaning of ihe word “militj.. ” W !o| k» 1
My answer has grown i 0
that I must confiue myself to one mor#* 1 ^
tation from your letter. Y ou ^ *^ Di '
“Coogi ess shall have power to
How shall it be done ? The answer hi
In conformity to the provisions of th-r '
Btitution, which expressly providesih a i i
the militia of the States are called f ^
RK1>KL invasion, and employed in ia e “ r ‘ C . lo
of the Confederate States which is nil",?
case, the State shall appoint the officer, “
l beg you to observe that, the "anj..
which you say is cleai, is not an ao-wX T
the question put. The question i.-, h,„ . “
armies to be raised 1 The answer
that when militia are called forth ri .j
invasion, tbe States Shall sppoii.t
cers.”
There seems to me to be a toncliisW,. tM ,
ou this whole subject. By our Coustitutj^
Congress may declare war, offen-iV as t( . ];
as defensive. It may acquire territory -1
Now, suppose that for good lausu and , a
right unprovoked injuries, Congress shonlj
declare war against Mexico, nnd invade Sc.
nora. The militia could not be called f ori > a
i? such a case, the right to cadjt beiiglim-
‘ d “ '* r 'I- 1 v: " : ,n •" '* it tu t pUi*
that ihe .aw UeW uoUer scu.-eiou, i; t a?sed
uuder such circumstances, could by no pot-
sibility be aught else than s law :‘ u •• r^ise
au army V ’ Can one and ( i )c . w am(!
construed into a “calling forth tbe militia,”
if the war be defensive, aud “a raining
aru.ie?,” if the war be offensive?
At some tuture day, after our independ
ence shall havo been established, it i* ai >
improbable suppos.ition that our present eu
emy may be tempted to abuse his novalj on
er, by depredation on our commerce, and
that we may be compelled to aeeert U ur
rigms by offensive war. How >s it to U
carried on ■ Of what is Lhe army to be com-
posed? If this Government cannot ctll to
its annsbearing population otherwise than
as militia, and if the militia can only be
called forth to repel invasion, we should le
utterly helpless to vindicate our boner tr
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 t e piaintifl ? Surely
this cannot have been tho intention of the
famers of our comptet.
Iu no aspect in which i cau view this law,
can I find just reason to distrust the propri
ety of iny action iu approving and bigning
it; and the question presented involves con
sequences, both immediate and remote, !o u
momentous to permit me to leave your oh
jections unanswered.
In conclusion, I take great pleasure in re
cognizing that the history of tbe past year
affords the amplest justification for your aa^
sertioa that if the question had been, wheth-
er the Conscription Law was Dec*6«ary in
order to raise men in Georgia, the answer
must have bee*, iu the negative. Your no
ble State has promptly responded to evsry
call that it has been my duty to make on
her ; and to you personalty, as her Execu
tive, 1 acknowledge my indebtedness for Ihe
prompt, cordial and effective co operation
you have afforded me iu the effort to defend
our common country against the common
•nemy.
I am very respectfully,
Your obedient servant,
JEFFERSON DAVIS
His Eioellenoy Jos. E. Brown,
Governor of Georgia,
Milledge villa.
Hanginu of Wm. B. Mumforu—This
morning, at an early hour, a large crowd,
amounting to many thousands, assembled on
the north front of the mint, to witness tbe
execution of Mumford, the man who wa»
condemned by the military commission to be
hanged for the tearing down tbe United
States flag, on the 24th of April lost. The
gallows was erected in front of the portico,
facing to the north.
About 10 o’clock the precession that ecu
ducted the prisoner to the gallows came in
fer. It oonsisted of a squadron cf cavalry
in the van, comprising about 200 men.—
Next came the condemned in an army wag
on, accompanied only by an officer of the
United States. He refueed to be attended
by a clergyman ; and ae he passed through
the vast crowd, sitting on his coffin, hia
countenance expreseed only tbe calm firm
ness of despair.
Arrived at the mint, he ascended the plat
form and made a speech, of which we have
prepared a full report for to-morrow’s paper.
The crowd looked on very quietly, and no
demonstration of any kind was made. Ma
ny were of opinion that the execution would
not take place, but that the clemency of the
commanding general would be manifested in
a pardon, and a large number clung to this
belief to the last moment.
At precisely ten minutes before 11 o’clock
the cord was cut, the drop fell with a heavy
thud, and all that was mortal oi Wm. B.
Mumford dangled between earth and heaven.
—A r . 0. Della, 8th inst.
S&T T he Louisville Journal ot' the oth
iust. says:
The repulse of the insurgents, with great
slaughter from the banks of the Chicka-
herniny, must prove a severe blow to them.
The Richmond Examiner, apologizing for the
retreats from Manassas and Yorktown, says:
“The destiny of the nation was not in
jeopardy at either point, and it was import
ant to preserve the army intset for a more
important service. But let all parties be
warned of tbe consequences inevitably to
follow a similar step from the banks of tbe
Chickahominy. Those consequences are not
only military but civil—national. They are
demoralization and disorganization, out ol
which the army and country will endeavor
to save itself by a new creation cf leaders
and rulers; adding thus to ail our calami
ties and difficulties that of revolution.’
Events follow each other eo quickly in
front of Richmond that it seems hardly
necessary to speculate upon them in advance.
The admissions of the Examiner, however,
are important. The rebels have been beaten
back from the Chickahominy, and, it tbe
Richmond papers is to be believed, tbe Con
federates will revolutionize the Davis Gov
eminent, and have “ a new creation of lead
era and rulers.” Thus we have another
proof that secession is ready to secede from
itself, and that the process of disintegration
is being rapidly accomplished.
J&* See onr New Terms. ‘