Duke University Libraries 
 
 Speech of W.S. 
 Conf Pam #760 
 
 i 
 
SPEECH 
 
 OF 
 
 W. S. OLDHAM, 
 
 of Texas, 
 
 UPON THE BILL TO AMEND THE CONSCRIPT LAW, MADE 
 IN THE SENATE, SEPTEMBER 4, 1862. 
 
 Mr. President: When the original Conscript bill was before the- 
 Senate, I urged its consideration in secret session, for the reason that 
 I believed 'its open discussion would produce a demoralizing effect 
 upon the army, excite the minds of the people, and, therefore, be pre- 
 judicial to the public service. Although strongly oppoa^sd to the 
 measure, I deemed it imprudent to make known the grounds of my 
 opposition, which I should have had to have done in a public discus- 
 sion. The bill was passed and I submitted to it. Inai^much as it is 
 now proposed to extend the provisions of that billj I avail myself of 
 the occasion to give the reasons of my opposition to the principles 
 which it contains. 
 
 The supporters of this bill claim for it a merit to which, in my 
 humble opinion, it is in nowise entitled. It is said, triumph^tlyj 
 that the Conscript law has filled the ranks of our army ; that to it are 
 we indebted for the brilliant victories achieved by our arms around 
 this city and elsewhere since its passage ; in a word, that it has been 
 the salvation of the country. These asseverations are used' as argu- 
 ments in favor of the passage of the bill under consideration. 
 
 I deny that it is entitled to the merits so vauntingly claimed for it by 
 its supporters. My colleague, (Mr. Wigfall,) in the remarks just made 
 by him, made a statement, inadvertently, perhaps, which completely 
 repels these extravagant pretensions. He said, that in consequence of 
 the " intermeddling of the State Governments, but few conscripts have 
 been brought into the army." And it is true that but few have been 
 brought into the army. I do not believe there were any in the army m 
 
 in the battles fought in the neighborhood of this city. It was that M 
 
 P72318 ' 
 
part of the bill which retained the twelve months' regiments in the 
 service, that has proven the safety of the country. Hard as was that 
 measure, I voted to retain those regiments until their places could be 
 supplied, when I voted for the substitute offered by you. (Mr. Orr in 
 the Chair.) To the retention of the twelve months' regiments is 
 mainly attributable the victories achieved by our arms, and the bright 
 prospects before us. That fact cannot be claimed as an argument in 
 favor of the principle contained in the bill before the Senate. The 
 conscription principle, which takes the citizen from his private pur- 
 suits and forces him into the army as a soldier, and which is fhe only 
 principle in the bill before us, is entitled to no part of the merit 
 claimed, and furnishes no argument in favor of either the extension 
 or continuance of the system. 
 
 No, Mr. President, the Conscript law brought no new levies into 
 the field, and all the battles that have been fought since that law was 
 passed, have been fought by volunteers then or since received in the 
 service. The disasters to which we were subjected before the passage 
 of that law, did not occur because the people were unwilling to vol- 
 unteer in the defence of their country. It is well knowji, that many 
 offered their services and were refused. More offered their services 
 than the Government could arm. Our people were induced, by 
 the War Department, to believe that their services were not needed. 
 Had the Government, at the outset, received no volunteers but for the 
 war, and had our troops not been dispersed in squads along a. frontier 
 line of two thousand miles, and upon every creek and inlet of our 
 ■-extensive sea coast, we would not have met with the disasters which 
 we did. When our troops were afterwards concentrated and massed, 
 victory again perched upon our banners. Under these circumstances, 
 I do not believe we should have originally departed from the mode of 
 raising troops by voluntary enlistment, or call upon the States, to 
 which the people were accustomed, and adopted one new and untried, 
 which carries an implication upon the patriotism of our people, in the 
 coercive feature contained in it, and which, to my mind, is obnoxious 
 to serious constitutional objections. Nor do I believe we should 
 extend that system by the passage of this bill, when it is acknowledged 
 by its friends, that the conscript principle has brought but fcAV ad- 
 ditional troops into the service. 
 
 Before proceeding to the consideration of the Constitutional objec- 
 tions which 1 entertain against the bill, I must express my dissent to 
 the rule of construction laid down by the President in his correspon- 
 dence Avith the Governor of Georgia. He says "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 
 .purpose of executing the power is necessary and proper.' I un- 
 derstand this rule in the mode in which it is stated to carry with it 
 the implication, that whatever means Congress may decide to be ne- 
 •cessary and proper to execute a specific grant of power is Constitu- 
 tional, " unless it comes in conflict with some other provision of our 
 Confederate compact." 
 
 This was the rule laid down by Chief Justice Marshall, in the 
 
/6( 
 
 United States bank case of McCulIoch vs. the State of Maryland, that 
 Congress was the judge of the me;ins necessary and proper to execute 
 a given power, and that inasmuch as Congress, under the Constitution 
 had the power to regulate the currency, and having decided that a bank 
 was a means necessary and proper to that end, tlie law creating that 
 institution was therisfore Constitutional. Although, no such power 
 as that to regulate the currency is given by the Constitution, yet the 
 rule as stated, that when a specific power is granted, Congress is alone 
 to judge of the means, is not thereby changed. This was the rule 
 invoked by the old Federal party, in support of its measures of con- 
 solidation, and against which Mr. Jefferson and his followers so strongly 
 protested, I could give a hundred illustrations of the unsoundness of 
 the rule. That clause which is invoked in aid of this bill. *' to raise 
 and support armies," suggests an appropriate one to my mind. This 
 power, it is contended is without limitation, unrestricted and plcncry. 
 Suppose that Congress under the power " to raise armies" should 
 enact, that every citizen of the State of Virginia should ipso fadt be 
 £1 soldier, and that the army shouhl be composed of Virginians alone, 
 and under the power *'to support armies" should declare the means 
 for that purpose, should be raised off of the people of the State of 
 Alabama, would any man give his assent to the Constitutionality of 
 such a law? I could give other illustrations, but that already given 
 I conceive will suflSce. I cannot agree that the rule as to the means 
 is co-extensive with the illimitable range of Congressional discretion, 
 but that the means must be in fact, not only necessary and proper, but 
 absolutely appropriate to the end. 
 
 It is insisted, that the power conferred upon Congress " to raise 
 and support armies" is without restriction or limit, as to the mode 
 and manner of its exercise. Upon this starting point, this funda- 
 mental proposition, I differ most decidedly with the supporters of this 
 bill, I contend that the power is not only limited and restricted by- 
 other provisions of the Constitution, but the manner in which it is 
 attempted to be exercised, is in conflict with the whole theory and spirit 
 of our federative system of government. 
 
 According to the plain and obvious meaning of the Constitution as 
 I understand it, Congress has no power over the citizens of the States, 
 to coerce the performance of military service, only in their character 
 a.* militia, and the provisions of the Constitution conferring that power, 
 '■^nust be taken and construed in connexion A'ith that *' to raise armies." 
 To those provisions of the Constitution, [ proceed to call the attention 
 of the Senate. '' 
 
 Congress shall have power " to provide for calling forth the militift 
 to execute the laws of the Confederate States, suppress insurrections 
 and repel invasions," 
 
 *' 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 ('onfederate States, reserving to the States respectively, the 
 appointment of the ofhcers, and the authority of training the militia, 
 according to the discipline prescribed by Congress." 
 
 These two provisions contain all the authority that Congress pos- 
 
 n r>o Q 1 O 
 
scsses over the militia, and it is not pretended that the service of the 
 railitia can be exacted in any other mode. Now, -who arc the militia ? 
 What do we understand by that term ? The term has been defined to 
 mean " a body of soldiers in a State enrolled for discipline." This 
 may be a correct definition in the ordinary acceptation of the word, 
 but to my mind it is most clearly not its meaning as employed in the 
 Constitution. In tliat instrument, the term militia does not mean 
 those bodies of enrolled soldiers in the States, who meet at cross roads 
 on Saturdays, for muster, and whose uncouth appearance and awk- 
 ward evolutions, have long been a source of mirth and ridicule. It 
 has a vastly more important signification. 
 
 Congress shall liave power '' to provide for organizing, arming and 
 disciplining the militia." This provision evidently refers to an existing 
 class of men, unorganized, unarmed and undisciplined, not enrolled. 
 The Convention of the State of Virginia in 1776, in their Bill of 
 Rights, declared " ihat a weU regulated militia composed of the body of 
 the people trained to arms is the proper, natural and safe defence of a free 
 State,"' &c. This declaration is contained in the Constitutions of most, 
 if not all the States of the Confederacy. In the sense here used it 
 clearly means the great body of the people capable of bearing arms, 
 and the Constitution has conferred upon Congress the power to pro- 
 vide for their being " trained to arms." I do not understand that the 
 Constitution conferred upon Congress the power " to provide for or- 
 ganizing, arming and disciplining the bodies of soldiers in the States 
 enrolled for discipline," but the body of the people of the States ca- 
 pable of bearing arms. That instrument would have precisely the 
 same signification did it read, " Congress shall have the power to 
 provide for organizing, arming and disciplining the people of the 
 States capable of bearing arms." Such appears to have been the un- 
 derstanding of the Congress of 1792, in the passage of the act for 
 organizing the militia. By that law it is enacted that " each and 
 every free, able-bodied white male citizen who shall be of the age of 
 eighteen years and under the age of forty-five years," shall be en- 
 roiled in the militia. That law declares Avho are capable of bearing 
 arms and their character as militia, is not dependent upon their en- 
 rollment, but upon their coming within or helonging to the class 
 "which Congress has declared shall constitute the railitia. Therefore^ 
 I contend, that the term, as used in the Constitution, and the act of 
 Congress passed in accordance Avith the provisions of that instru- 
 ment, means "each and every free, able-bodied white male citizen 
 between the ages of eighteen and forty-five j^cars." 
 
 But whether I am right or not in ray definition, the measure before 
 us is equally obnoxious to constitutional objections. The Congress 
 of the Unite<i States, in 1792, passed a law " for organizing, arming 
 and disciplining the militia," and that law has been continued in force 
 in the Confederate States by act of the Provisional Congress It is 
 a fact that in most of the States, in contemplation of law in all. the 
 people capable of bearing arms have been regularly enrolled in the 
 militia, either under the act of Congress, or the laws of the respec- 
 tive States, ''Every free, able-bodied white male citizen, between 
 
eighteen and forty-five years of age," has b.eeu in fact or in law, " en- 
 rolled in a body of soldiers in his State for discipline," and is, in 
 fact, a militiaman. 
 
 Whether we regard the militia as " the body of the people capable 
 of bearing arras," or as " a body of soldiers in a State enrolled for 
 discipline," the question next presented, what is the power of Congress 
 over them ? Congress has power " to provide for calling forth the 
 militia to execute the laws of the Confederate States, suppress insur- 
 rections and repel invasions." This power is limited alone by the objects 
 or purposes for which they may be called forth. It is not restricted 
 as to the mode in Avhich they shall be called out, or as to the term thoy 
 shall be compelled to serve. Congress has tlie further power to pro- 
 vide for organizing, arming and disciplining the militia, and for g&t>~ 
 erning such pnrt of them as may be employed in the service of the Con- 
 federate States." This provision repels the presumption that the mi- 
 litia can only bo called into the service as an organization, or entire 
 body — they may be divided into classes and called into service part at 
 a time. But in whatever mode they may be called, the Constitution 
 contains this important reservation: "reserving to the States respec- 
 tively the appointment of the officers, &c." 
 
 The original conscript bill, as well as the one before the Senate, 
 violates this express provision of the Constitution, by taking every 
 man who composes the militia of the States, " who is enrolled in a 
 body of soldiers in a State for disciidine," " every free, able-bodied 
 white male citizan between eighteen and forty-five years of age " and 
 places him under oifficers not appointed by the States. It further vio- 
 lates that provision of the Constitution whicli declares that *' a well 
 regulated militia, is necessary to the security of a free State," by 
 completely destroying, disorganizing, annihihiting the militia organ- 
 izations of the States. It violates the rights of the Str.te<«, by taking 
 every soldier enrolled under its laws from under the command of the 
 officers appointed under the authority of the States ; it cashiers the 
 officers, and forces them as privates in the ranks in the employment of 
 the Confederate States, to be commanded by officers deriving their 
 authority from that Government. It deprives the Governors of the 
 States of their command of the militia under the Constitutions of 
 their respective States. 
 
 Nor can we escape these palpable consequences by evasively igno- 
 ring the militia as an organization, but at the sa^e time forcing into 
 our service every man who composes that organization. The power 
 of Congress is dependent upon the substantial meaning of the Con- 
 stitution, and not upon the terms employed. Now let me ask what 
 would be the substantial diflfercnce if the conscript law and thi.** 
 amendatory bill, instead of providing for enrolling the citizens of the 
 States between eighteen and forty-five years of age, should. have de- 
 clared that " the body of soldiers in the States enrolled for discipline," 
 in a word, the militia of the States shall be enrolled into the service 
 of the Confederate States in the mode and for the term of service 
 prescribed ? There would not be a particle of difference in substance 
 or meaning. The same men would be included and under the same 
 
terms and ccnJitions. Had such been the hinguage employed, tliere 
 is no person >vho would dtjny the right of the States to appoint the 
 officers to command them Then can the States be divested of that 
 expressly reserved right, by a n:ere play upon words avoiding the 
 terms but retaining the exact substance and meaning of the Consti- 
 tution. >. 
 
 The difficulty cannot be avoided, by ignoring the militia, as an 
 organization, and taking tlie men, or part of the men, composing that 
 organization. As 1 have already shown. Congress may call forth a 
 part of the milULi, but it is in that connection, in the same clause of 
 the Constitution, which contains the reservation to the States of the 
 right to appoint the officers to command them. 
 
 This reserved right of the States to appoint the officers to command 
 the militia was jealously insisted upon by the framors of the Federal 
 Constitution, Governor Brown, of Georgia, in his correspondence 
 with the President, has collated what occurred in the convention upon 
 that subject, wdiich I propose to read to the Senate. " In the Conven- 
 tion, in the discussion upon the adoption of the paragraph in the 
 Constitution of the United States, which we 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 sacrifice of 
 power.' In explanation of the power which the committee, who 
 reported this paragraph to the coi\vention, intended to delegate to the 
 General Government, when the militia should be employed in the ser- 
 vice of that Government. Mr, King, a member of that committee, 
 Siiid: 'By organizing, the committee meant proportioning the officers 
 and men; by arming the kind, size and calibre of arms; by disciplin- 
 ing, prescribing the manual exercise, evolutions," &c. 
 
 " Mr. Gerry objected to the delegation of the power even with this 
 explanation, and said : ' This power in the United States, as explained, 
 is raakinjr the States drill sergeants. He had as lief let th e citizens 
 of Massachusetts be disarmed as to take the command from the States 
 and subject them to the General Legislature.'' Mr. Madison observed 
 "arming," as explained, did not extend to furnishing arms, nor the 
 term' disciplining to penalties and courts martial for enforcing them. 
 
 After the adoption 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 appointment of the officers under the rank of 
 general officers.'''' Mr. Sherman considered this as absolutely inadmis- 
 sible, lie said that ' if the people should be so far asleep, as to allow 
 tlie most influential officers of the militia, to be appointed by the Gen- 
 eral Government, every man of discernment would rouse them by 
 sounding the alarm to them.' Upon Mr. Madison's propos tion, Mr. 
 Gerry said, 'let us at once destroy the State Governments , have an 
 Executive for life, or hereditary, and a proper Senate, and then th^re 
 would be some consistency in giving full powers to the General Go- 
 vernment, but as the States are not to be abolished, he wondered at 
 the attempt, to give powers inconsistent with their existence. He 
 warned the Convention against pushing the experiment too far.' 
 
"Mr. Madison's amendment, to add to the clause, tlie words, * under 
 the rank of general officers,' was voted down by a majority of eight 
 States to three, according to the Madison papers, and by nine States 
 to two, accoi'ding to the printed journals of the Convention." 
 
 This power of the States to appoint the officers to command the 
 militia, for which the framers of the Federal Constitution, so zealous- 
 ly contended, did not extend to the command of the militia, in time 
 of peace merely. But little danger is to bo apprehended in time of 
 peace, but it is in times of war, when society is convulsed, that danger is 
 to be apprehended from the graspings of military power. They well 
 knew how powerless the people would be to protect and preserve their 
 liberties, if placed in the military service, under officers deriving 
 their power from the General Government. Hence they insisted upon 
 the reservation of this power, as a means of securing the rights of 
 the States and the people. If the people, as militia, when called into 
 the service of the country, are placed under the command of officers 
 appointed by the State, the interest which the officer has in common 
 with the men under his command, and the office which he holds, are 
 pledges of his fidelity to the State appointing him. 
 
 If the fears of the framers of the Federal Constitution, were not 
 mere phantoms, if it was a real danger against which they were so 
 anxious to guard, how much more danger is to be apprehended from 
 this and the original Conscript bill ? They not only deny the right 
 of the States to appoint the officers to command the militia, but they 
 destroy the militia itself, by forcing the citizens of the States to be- 
 come soldiers of the Confederate States. 
 
 From the first organization of our military establishment, under 
 the Provisional Government, this right of the States, to appoint the 
 officers, seems to have become so distasteful to those having control of 
 our military affairs, that unceasing eiforts have been made to evade 
 it, and the original Conscript bill seems to have been framed, with the 
 express view to that object. That bill as originally framed, assumed 
 the power of creating a vast military establishment of pyramidal form 
 and proportions, the common soldiers, composed of the free citizens of 
 the States, constituting the mud sills, the substratum, the foundation, 
 the officers appointed under the authority of the Confederate Govern- 
 ment, rising by degrees above to the apex, upon which was placed the 
 President, like the crowned head of the British Government — the sole 
 fountain of office and honor. It is the duty of the soldier to obey 
 and not to inquire into the legality of the orders of his superior offi- 
 cer Under such a military system, what defence has the country, 
 against a combination of military officers, (not a representative of a 
 State amongst them), officers educated to their profession as an art, 
 relying upon it for the means of living, as well as of glory and fame, 
 whose distinction and importance can grow only in war, but who in 
 peace must retire from notice ? The citizens of the States, converted 
 by coercion into Conscript soldiers of the Confederacy, completely 
 manacled by the chains of military law and military subordination, 
 may be forced by some favorite ambitious military leader, to become 
 the destroyers of their own and their country's liberties. 
 
8 
 
 On the other hand, by observing the right of the State to appoint, 
 the officers would be selected from amongst the citizens of the State, 
 having a common interest with them to guard, Thej would be bound 
 by the ties of attachment to the State in which they lived, and wliose 
 commission they bore, to guard with fidelity, its sovereignty and the 
 liberties of its people. 
 
 According to my view of the constitutional power of Congress, we 
 have no authority to exact by coercion, military service of the citizens 
 of the States, only as militia, and then under the restraints which I 
 have already indicated — and Avhile I am willing to force every man in 
 the Confederacy to discliargc his duty, in defending liis country, I am 
 desirous of drawing the line of distinction between those who are, and 
 who are not willing — to give every man the privilege of tendering his 
 service as a volunteer — and force those who will not- do so, through 
 State laws and State authority. The conscript system disregards the 
 will of the citizen, it is coercive in all its features, it acts upon the 
 citizen individually, seizes him, regardless of the condition of his 
 family, or his private affairs, Avithout time to provide for the one, or to 
 arrange the other; with bayonets at his back, and the terrors of mili- 
 tary law over him, he is forced into the service of the country for a 
 period only limited by the unlimited discretion of Congress, Sujh is 
 not the mode in which soldiers should be obtained to defend the liber- 
 ties of a free people. 
 
 The conscript system is well calculated to reduce our soldiers and 
 armies down to that standard, which we have heard prescribed for them 
 on this floor — that our soldiers should be mere machines, not citizens, 
 our aimy a vast mass of iron ; unthinking vis inertia ; to be hurled at 
 the will of its commander with irresistible force against the columns 
 of the enemy. Our armies are, and should be composed of quite dif- 
 ferent materials ; of men of flesh and blood, bone and muscle, of feel- 
 ing and sensibilities, sympathies and sentiments, of intelligent think- 
 ing men, freemen, who have a country to love, institutions to preserve, 
 rights to maintain, liberties to guard; who are surrounded by families 
 and friends, enjoying the same Heaven bestowed blessings, and who 
 fondly hope to transmit those blessings unimpaired to their posterity. 
 Inspired by the exalted sentiments which these causes are calculated 
 to excite, our citizen-soldiery have rallied to the standard of their 
 ■country in the hour of her peril, they have met the enemy on a hun- 
 dred bloody fields; have fought as freemen alone can fight, and as mer- 
 cenary machines never fought, and have wrested victory from the foe 
 in every contest. Let us not crush out from the bosoms of our sol- 
 diers, these patriotic sentiments, with the enthusiastic spirit which 
 they inspire, but rather let us fan the flame to brighter burning. Des- 
 perate indeed, will be the condition of our country when she shall be 
 compelled to rely, for the defence of her liberties, upon machine raer- 
 •cenaries commanded by pensioned officers ! 
 
 While I am opposed to this bill, I am ready and willing to vote to 
 raise as large a force as the President may desire, yet I may be per- 
 mitted to suggest that there is a point in the resources of every coun- 
 try, beyond which we cannot go, without danger, A force beyond the 
 
population and resources of a country, must result in rapid exhaus- 
 tion. The population at home must he provided for, the industrial 
 pursuits of the country must be carried on, supplies for the army in 
 the field must be raised and furnished. I, however, make the suf^tres- 
 tion, without further comment. 
 
REMARKS 
 
 OF 
 
 W. S OLDPIA 
 
 of Texas, 
 
 UPON THE AMENDMENT TO THE EXEMPTION BILL, 
 PROPOSED BY MR. DORTCII, THAT JUSTICES OF 
 THE PEACE SHALL BE LIABLE TO CON- 
 SCRIPTION. MADE IN THE SENATE, 
 SEPTEMBER, 9th, 18G2. 
 
 Mr, President: I concur with those Senators, who believe that 
 the amendment propossd by the Senator from North Carolina, presents 
 a very important question ; that the power asserted by it, is incon- 
 sistent with the very existence of the States. I, however, cannot per- 
 ceive the consistency of gentlemen, who supported the two Conscript 
 Bills, but who now seem to be seized with such alarm at the proposi- 
 tion before us. To my mind the amendment asserts no greater power 
 in the General Government, than is done by those bills. They de- 
 clare that every citizen of the States, between the ages of eighteen 
 and forty-five years, shall be a soldier, coerce him into the army, to 
 serve for the term of three years or the war. The power assert- 
 ed over the individual citizen is absolute and unlimited. It is, how- 
 ever contended, that those measures were passed in the exercise of a 
 clearly delegated constitutional power; the unlimited and unrestricted 
 power, ** to raise and support armies." I denied that proposition, 
 and contended at the time, without effect, that that power is limited 
 and restricted by other provisions of the Constitution, and especially 
 by the clauses in relation to the militia. 
 
 This discussion between the supporters of the Conscript Bills, has 
 been a source of some interest to me. Scarcely a corporal's guard of 
 us in the Senate opposed those bills, for the very reasons now given 
 in opposition to this amendment; that they asserted a power which 
 might destroy the States. Now, upon this minor proposition, to en- 
 
12 
 
 rol Justices of tho Peace, there seems to be a sudden awakening up, 
 and we hear speeches able and eloquent, in f;ivor of the rights of the 
 States. 
 
 I agree with the supporters of this amendment, that it is not for 
 those who voted for the Conscript Bills, to den}'' the power asserted by 
 this amendment. As I said to the Senator from Georgia, (Mr. Hill,) 
 sotto voce, Avhile he was addressing the Senate, — when you admit the 
 power in this Government, to enter the States without their authority 
 or consent, seize their citizens and force them as soldiers, into the 
 Confederate army, it seems to me you admit a power, that may take, 
 not only Justices of the Peace, but every officer of the State govern- 
 ments. It follows as a logical conclusion from admitted premises. 
 
 It was urgently insisted in support of the Conscript Bill, that the 
 power delegated to Congress, by the Constitution, " to raise and sup- 
 port armies," is unlimited, and that every man in the Confederate 
 States is the subject of that power. If that be true, then Avliere is 
 the saving in behalf of a Justice of the Peace, the Judges of the 
 StateCourts, or of the Governor of the State himself? Gentlemen 
 seem to have somewhat receded from their original position, for 
 here is an acknowledgement, that there are certain persons in the 
 States not subject to this power of Congress, and that it is so far re- 
 stricted. We are told, however, that this limitation or exception, is 
 not contained in any express provision of the Constitution, but results 
 from the very nature of our system of Government, that to admit the 
 power in Congress, to force the officers of the State governments into 
 the military service of the Confederacy, is to admit the power to 
 break up and destroy the States; that the existence of the States is 
 made to depend upon the will of Congress — that Congress possesses no 
 power, which, if exercised to its full extent can destroy the States. 
 
 In all this I concur ; the argument is conclusive, and I contend just 
 as conclusive against the conscript bills as against the amendment of- 
 fered by the Senator from North Carolina. The State Government, 
 which the people have ordained and established, with the corps of of- 
 ficials appointed for its administration, docs not constitute the State; 
 but the people, the political society, or community, in whom the sov- 
 ereign power, resides constitutes the State. The people are the source 
 of power, they not only create the machinery of government, but keep 
 it in operation, and without their continued power operating upon it, 
 it must stop. 
 
 The power *' to raise and support armies" is only limited as Sena- 
 tors contend, as to the officers of the State and Confederate Govern- 
 ments. If under its authority, we can force every citizen of the 
 States, between the ages of eighteen and forty-five years into the mil- 
 itary service, in the exercise of the same power Ave can declare that 
 every legally qualified voter in the. States shall be a soldier and be 
 compelled to enter the service ; if we can fix the period or term of 
 service at three years, we can fix it at ten years, or for life. Now 
 should Congress see proper to exercise the power to the extent stated, 
 what would be the effect upon the States ? In most of the States, elec- 
 tions for members of the Legislature, judicial officers, including Jus- 
 
13 
 
 tices of the Peace, Governors, members of Congress, and Senators 
 take place at stated periods, ranging from two to six years. In Texas, 
 and I believe, in most, if not all the States of the Confederacy, " no 
 soldier, seaman or marine in the service of the Confederate States" is 
 entitled to vote af elections. They are expressly disqualified by the 
 State constitutions. Therefore the citizens of the States by being 
 made conscript soldiers, are disqualified as electors — the motive power 
 is withdrawn from the machinery of government — the legislative, ex- 
 ecutive and judicial oflices of the States, must become vacant for want 
 of electors to fill them. Not only so, the seats of members of both 
 houses of Congress, the chair of the Vice President, that of the Presi- 
 dent of the Confederate States must all become vacant for the same 
 reason — which of course would destroy the Government both State 
 and Confederate. 
 
 It is no argument to say that the power will never be abused by 
 Congress, to such an extent. The framers of the Constitution never 
 intended to subject the very existence of the Government, both State 
 and Confederate, to the discretion of Congress. The Confederate 
 Constitution was intended to confer power, to preserve the States, and 
 the Governments created by them, but none whatever which may be 
 used for their destruction. When legislation is attempted involving 
 the rights and sovereignty of the States, they are to be met and resist- 
 ed, not by appeals to the mercy of Congress, not to play the tyrant, 
 but by the barriers of the Constitution itself. Therefore the sugges- 
 tion that Congress would never abuse its power, by exercising it to the 
 extent indicated ,is no argument to prove that the'power exists. 
 
 Under the broad and unrestricted construction, placed upon the pow- 
 er of Congress " to raise and support armies," by the friends of the 
 conscript bill at the time of its passage, the power exists, not only to 
 make a soldier of every citizen, but to force into the service of the 
 Confederacy, in some capacity or other, every woman, child and ne- 
 gro in the Confederate States, to take the lands, horses, mules and 
 other property of the people. Although the tyrannical abuse of the 
 power in such cases would be much more palpable and apparent, no 
 stronger constitutional argument could be made against the existence 
 of the power itself, than that claimed in the conscript bill. In truth, 
 the power in each case, results from the same clause of the Constitu- 
 tion under a construction, which if allowed, makes the conclusion that 
 it exists irresistible. Hence, I respectfully submit, that I cannot 
 clearly perceive the consistency of Senators, Avho voted for the con- 
 script bills, but who now deny the existence of the power asserted in 
 the amendment under consideration. I cannot see the consistency of 
 protecting the officer, after having made slaves of the citizens. But 
 gentlemen seem to have become suddenly alarmed, (whether at the 
 consequences of their own doctrine I know not,) for the rights of the 
 States. Their arguments seem to me like scrambling over the hull 
 after the kernel has been extracted — like fighting to preserve the agent, 
 after having murdered his principal — for the shell of a State Govern- 
 ment, after having taken from under its protection the people who 
 framed it, and surrendered them to the absolute dominion of federal 
 
14 
 
 power. To use a vulgarism, it is like raising a great cry over the hide 
 and tallow, after having given up the carcase. 
 
 Mr. President, 1 do not look to the Constitution to ascertain what 
 rights have been retained by the States, but for the powerS they have 
 delegated to the Federal Government. This Government was estab- 
 lished to protect, preserve and psrpetuate the States, and all the pow- 
 ers conferred upon it, are in harmony with that great leading and fun- 
 damental purpose. Whatever may be the language of the Constitution, 
 a construction should not be placed upon it, which would destroy the 
 ends for which it was adoptc 1, but one which accords with the true in- 
 tent and spirit, and meaning of the instrument. 
 
 It has been asserted, and history has been appealed to, to verify the 
 assertion, tbat a free representative government cannot exist except in a 
 country of small geograpliical extent — that the baser passions of our 
 nature, and especially the passion of avarice, will produce a combina- 
 tion of individuals and of the stronger sections, to oppress the mi- 
 nority and weaker sections. I believe this to be true, where the gov- 
 ernment possesses the sole power of legislation over the individual, 
 domestic and local affairs of the people, as well as in regard to their 
 general interests. I believe that, it is only upon the federative prin- 
 ciple of our Government; a local government for individual, domestic 
 and sectional interests — with a common government to regulate affairs 
 of general concern, that a free representative Government can be 
 maintained over a wide extent of territory, in which there arc rival in- 
 terests and pursuits. 
 
 It was upon this principle that the Government of the United States 
 was formed, and it was the departure from the same principle, in its 
 administration, that produced its overthrow, by the separation of the 
 Southern States, and the consolid;ition of the Northern. Before the 
 formation of the Federal Constitution, the States existed with all the 
 functions of government, both foreign and domestic. A mutual sense 
 of danger and for their common security, induced the States to unite 
 and form a common government, to take charge of their foreign af- 
 fairs, and r?gulate their intercourse with each other — but so far as 
 their domestic affairs wcfc concerned, they remained precisely as be- 
 fore, each State retaining the sole jurisdiction over them, within its 
 limits. This right of the States, which they reserved of exclusive 
 legislation over their individual, domestic, sectional and local interests, 
 is what I understand to be State rights. There is no subject more pe- 
 culiarly witliin the province of the local legislature, than that of the 
 citizens of the States, respectively. The State Government is pecu- 
 liarly the guardian of the persons and property of its citizens within 
 its limits. For every violation of the rights of the citizen, the State 
 laws afford the remedy, the State courts pronounce judgment, which is 
 executed by State executive or ministerial officers. The General Gov- 
 ernment never comes in contact with the individual, or his property, 
 or with the local interests of a State, except in a few clearly specified 
 and expressed instances, and then only incidentally, in carrying into 
 effect powers granted in regard to matters in which the States have a 
 common interest. Our fathers never conceived the idea of a general 
 
15 
 
 government, with powers in conflict with those retained by the States 
 over the persons and property of its citizens. 
 
 The Confederate Government was most certainly established upon 
 the foregoing principles, and whatever doubts existed upon certain 
 points in the old Government, care was taken to exclude them from 
 our Constitution. 
 
 Now, Mr. President, I hold, that constitutions and laws, in a free 
 representative government, are efficient as they accord with the senti- 
 ments of the people for whom they are made. If they are not sus- 
 tained by public sentiment, they will be evaded, disregarded, or re- 
 pealed. The people should, therefore, be educated into a knowledge 
 of the true theory and spirit of our government, so as not to demand 
 unconstitutional legislation, but to place every attempt at it under the 
 ban of an enlightened public sentiment. It matters but little how 
 carefully the rights of the States may be guarded in our Constitution, 
 if the people become impressed with the idea that, Congress can legis- 
 late upon their local, or individual interests — subjects of exclusive 
 State jurisdiction. The avaricious will have their objects of private 
 speculation to press upon the attention of Congress, under plausible 
 pretexts of advancing the public good ; sections Avill urge their 
 schemes of local aggrandizement, and politicians will oftor themsel"ves 
 as candidates for public favor, and court success by pandering to the 
 popular feeling, to personal and sectional prejuaices, by advocating such 
 unconstitutional schemes. 
 
 In times of war, like those in which we live, above all others, the 
 Constitution should be strictly observed, by those charged Avith the ad- 
 ministration of the Government. It is then, that the sentiments of 
 the people are most yielding and submissive to usurpations of power, 
 under the plea of necessity, I believe that our Constitution confers 
 power, undoubted, amply sufficient for an effective administration of 
 the Govonment, in both peace and war, and that there can be no pre- 
 text for the assumption of powers not granted, or for the exercise of 
 those which are doubtful. If such is not the case, those who con- 
 ferred upon me the seat which I hold in this body, have not clothed 
 me with the power to supply the defects of the Constitution, by as- 
 suming powers not delegated, but have exacted from me an oath to ab- 
 stain from the exercise of such a discretion. 
 
 Many measures have been introduced into this Congress, having a 
 tendency to inculcate in the minds of the people a sentiment in favor 
 of the power of the central Government, such as interfering with the 
 domestic pursuits of the people, in prescribing the quantity of cotton 
 they may. plant; making Treasury notes a legal tender in the payment 
 of private debts; condemning salt springs, wells. &c. All such things 
 produce a feverish excitement in the public mind, witli an improper 
 desire, induced by our peculiar circumstances, that Congress shall 
 pass laws, which, if not forbidden, are at least not authorized by the 
 Constitution. No act, in my humble opinion, could possibly have a 
 more deleterious eifect upon the public mind in regard to the powers 
 of this Government, than the Conscript act. A sense of the public 
 
16 
 
 danger, has produced a submissive acquiesence in the extraordinary 
 power asserted by that law, over the individual citizens of the States. 
 I have made these remarks, Mr. President, in consequence of the 
 sudden zeal di.splayed by advocates of the Conscript bill, who, after 
 having placed the citizens of the States under the power of the Con- 
 federate Government, have become alarmed at the idea of enrolling 
 into the military service a justice of the peace. I shall vote against 
 the amendment of the Senator from North Carolina, but upon the 
 higher grounds that tHis Government has no power to coerce the citi- 
 zens of the States, as individuals, into its military service. ' 
 
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