Duke University Libraries Correspondence Conf Pam 12mo #82 0^031763/ CORRESPONDENCE BETWEEN THE PRESIDENT AND THE GOVERNOR OF GEORGIA, RELATIVE TO THE LAW USUALLY KNOWN AS THE CONSCRIPTION LAW. RICHMOND: RITCHIE Xt DUNNAVANT, PRINTERS- 1862 KB* IV /x roo CORRESPONDENCE. EXECUTIVE DEPARTMENT, Milledgeville, Ga., May 8, 1862. Dear Sik : I have the honor to acknowledge the receipt of your favor of the 28th ult., in reply to my letter to you upon the subject of the Conscription Act. I should not trouble you with a reply, were it not that principles are involved of the most vital character, upon the maintenance of which, in my opinion, depend not only the rights and the sovereignty of the States, but the very existence of State Government. While I am always happy as an individual to render you any assistance in my power, 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 sovereignty, 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 ques- tions in the midst of revolution, and that state rights and state sovereignty must yield for a time to the higher law of necessity. If this is a safe principle of action, it cannot certainly apply till the necessity is 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 of the necessity for so doing. But did the necessity P 72 3 2 3 exist in this case ? The Conscription Act cannot aid the Govern- ment in increasing; its supply of arms or prcmrions, but can only enable it to call a larger number of men into the field. The diffi- culty has never been to get men. The States have already fur- nished the Government more than it can arm, and have from their own means armed and equipped very large numbers for it. Georgia has not only furnished more than you have asked, and armed and equipped, from 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 the Constitution provides) of any additional number called for by the President. I beg leave again to invite your attention to the constitutional question involved. You say in your letter, that the constitution- ality of the act is clearly not derivable from the power to call out the militia, but from that to raise armies. Let us examine this for a moment. The 8th section of the 1st article of the Consti- tution defines the powers of Congress. The 12th paragraph of that section declares, that Congress "shall have power to raise and support armies." Paragraph 15 gives Congress power to provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions. Paragraph 10 gives Congress power 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. These grants of power all relate to the same subject matter, and are all contained in the same section of the Constitution, and by a well known rule of construction, must be taken as a whole, and construed together. It would seem quite clear, that by the grant of power to Con- gress to raise and support armies, without qualification, th« framers of the Constitution intended the regular armies of the Confederacy, and not armies composed of the whole militia of all the States. If all 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 sur- plusage, and the framers of the Constitution were guilty of the folly of incorporating into the instrument unmeaning phrases. When the States, by the 16th paragraph, expressly and carefully reserved to themselves the right to appoint the officers of the militia, when employed 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, to direct that the President should appoint (commission) all the officers of the 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 States in reserving the power of appointing the officers, is defeated, and that portion of the Constitution is noi; 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." Is it fair to conclude that the States intended that these reserved powers should be defeated in a matter so vital to constitutional 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 the Confederate States (which is now the case), the States shall appoint the officers. If this is done, the army is raised as directed by the Constitution, and the reserved rights of the States are respected ; but if the officers of the militia, when called forth, are appointed by the I resident, the army composed of the militia is not raised as directed by the Constitution, and the reserved rights of the States are disregarded. The fathers of the Republic in 1787 showed the utmost solicitude on this very point. In the discussion in the Convention on the adoption of this paragraph in the Constitution of the United P?9Q9Q States, which we have copied aud 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 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 com- mittee, said, " By organizing, the committee meant proportioning the officers and men ; by arming, the kind, size and calibre of arms ; by disciplining, prescribing the manual exercise, evolu- tions," &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 making the States drill sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the com- mand from the States, and subject them to the General Legisla- ture." Mr. Madison observed, that " arming, as explained, did not extend to furnishing 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 appointment of the officers, under the rank of general officers." Mr. Sherman con- sidered this as absolutely inadmissible. He said, that "if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the General Govern- ment, 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, and 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 attempts that were made to give powers inconsistent with their existeuce. He warned the Convention against pushing the experiment too far." Mr. Madison's amendment to add to the clause the words 41 under rank of general officers,''' was voted down by a majority of efght States against three, according to the "Madison Papers," from which the above extracts are taken ; and by nine States against two, according to the printed journals of the Convention. The reservation in the form in which it now stands in the Consti- tution, " reserving- to the States the appointment of the officers," when the militia are employed in the service of the Confederacy, as well the general officers as those under that grade, was adopted unanimously by the Convention. At the expense of wearying your patience, I have been thus careful in tracing the history of this clause of the Constitution, to show that it was the clear understanding of those who originated this part of the fundamental law, that the States should retain their power over their militia, even while in the service of the Confederacy, by retaining the appointment of all the officers. In practice, the Government of the United States, among other numerous encroachments of power, had usurped to itself the power, which the Convention, after mature deliberation, had ex- pressly denied to it, to wit, the power of appointing the general officers of the militia, when employed in the service of the General Government. But even that Government had never attempted to go to the extent of usurping the power to appoint the field and company officers. If the framers of the Constitution were startled at the idea of giving the appointment of the general officers to the General Government, and promptly rejected it, how would they have met a proposition to give the appointment of all the officers, down to the lowest lieutenant, to it ? But you say, " with regard to the mode of officering the troops now called into the service of the Confederacy, the intention of Congress is to be learned from its acts; and from the terms em- ployed, it would seem that the policy of election by the troops themselves is adopted by Congress." I confess I had not so understood it, without very essential qualifications. It is true, the twelve months men, who re-enlist, have a right within forty days to reorganize and elect their officers. 8 But if I understand the act, judging from the terms used, all vacancies which occur in the old regiments, are to be filled, not by election, but by the President, by promotion, down to the lowest commissioned officer, whose vacancy alone is filled by election : and even this rule of promotion may be set aside by the President at any time, under circumstances mentioned in the act, and he may appoint any one he pleases to fill the vacancy, if in his opinion the person selected is distinguished for skill or valor; and the commission in either and all the cases mentioned must be issued by the President. Quite a number of Georgia regiments are in for the war, whose officers hold commissions from the Executive of the State ; but even in these regiments, under the act, every person appointed to fill any vacancy which may hereafter occur, it would seem, must hold his commission not from the State, but from the President. But admit that Congress, by its acts, intended to give the troops in every case the right to elect officers (which has not been the established practice, as you have commissioned many persons to command as field officers, without election), this does not relieve the acts of Congress from the charge of violation of the Constitu- tion. The question is not as to the mode of selecting the person who is to have the commission, but as to the Government which has, under the Constitution, the right to issue the commission. The States, in the exercise of their reserved power to appoint the officers, may select them by election, or may permit the Executive to seleet them ; but the appointment rests upon the commission, as there is no complete appointment till the commission is issued; and therefore the Government that issues the commission, exer- cises the appointing power, and controls the appointment. I am not, however, discussing the intention of Congress, in the assumption of this power, but only the question of itB power : and whatever may have been its intention, I maintain that it has trans- cended its constitutional powers, and has placed in the hands of the Executive of the Confederacy that which the States have ex- pressly and carefully denied to Congress, and reserved to them- selves, 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 sane* Honed by the Executive, and acted upon by him. Feeling- satisfied that the Conscription Act, and snch other acts of Congress as authorize the President to appoint or commission the officers of the militia of the State, when employed in the ser- vice of the Confederate States, "to repel invasion," are in .palpa- ble violation of the Constitution, I can consent to do no act which commits Georgia to willing acquiescence in their binding force upon her people. I cannot therefore consent to have any thing to do with the enrollment of the conscripts in this State; nor can I permit any commissioned officer of the militia to be enrolled, who is necessary to enable the State to exercise her reserved right of training her militia, according to the discipline prescribed by Congress, at a time, when to prevent troubles with her slaves, a strict military police is absolutely necessary, to the safety of her people. Nor can I permit any other officer, civil or military, who is necessary to the maintenance of the State Government, to be carried out of the State as a conscript. Should you at any time need additional troops from Georgia to fill up her just quota, in proportion to the number furnished by the other States, you have only to call on the Executive for the number required to be organized and officered as the Constitution directs, and your call will, as it ever has done, meet a prompt re- sponse from her noble and patriotic people, who, while they will watch with a jealous eye, even in the midst of revolution, every attempt to undermine their constitutional rights, will never be content to be behind the foremost in the discharge of their whole duty. I am, with great respect, Your obedient servant, JOSEPH E. BROWN. His Excellency Jefferson Davis. 1* 1L EXECUTIVE DEPARTMENT, Richmond, 29th May 1862. Dear Sir : I received your letter of the 8th hist, in due course, but the importance of the subject embraced in it required careful consideration ; and -this, together with other pressing du~ tic--, lias caused delay in my reply. The constitutional question discussed by you in 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 letter has not only been submitted to my Cabinet, but a written opinion lias been required from the Attor- ney General. The constitutionality of the law was sustained by very large majorities in both houses. This decision of the Con- gress meets the concurrence not only of my own judgment, but of every member of the Cabinet; aud a copy of the opinion of the Attorney General, herewith enclosed, develops the reasons on which his conclusions are based. I propose, however, from my high respect for yourself, and for other eminent citizens, 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 aud the militia, and will endeavor not to leave without answer any of 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 of 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 State, amply competent to administer and control its own domestic government, yet too feeble successfully to resist power- ful nations, seeks safety by uniting with other States in like con- dition, and by delegating to some common agent the combined strength of all, in order to secure advantageous commercial rela- tions in peace, and to carry on hostilities with effect in war. 12 Now, the power*? delegated by the several States to the Con- federate Government, which is their common agent, are enume- rated in the 8th section of the Constitution, each power being dis- tinct, specific, and enumerated in 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 necessary and proper for carrying into execution the foregoing powers," &c. Now, the war powers granted to the Congress, are conferred in the following paragraphs : No. 1 gives authority to raise "revenue necessary to pay the debts, provide for the common defence, and cari*y o*i the govern- ment," &c. : No. 11, "to declare war, grant letters of marque and reprisal, and make rales concerning captures on land and wafer:" No. 12, " to raise and support armies ; but HO appropriation of money to that use shall be for a longer term than two years :" No. 13, " to provide and maintain a navy:" No. 14, " to make rules for the government and regulation of the land and naval forces ." It is impossible to imagine a more broad, ample and unqualified delegation of the whole war power of each State, than is here contained, with the solitary limitation of the appropriations to two years. The States not only gave power to raise money for the common defence; to declare war; to raise and support 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 10th section, not lt to engage in war, unless actually invaded, or in such imminent dan- ger as will not admit of delay." I know of but two modes of raising armies within the Confede- rate States, viz: voluntary enlistment, and draft or conscription. I perceive, in the delegation of power to raise armies, no restric- tion as to the mode of procuring troops. I see nothing which confines Congress to one class of men, nor any greater power to receive volunteers than conscripts into its service* I see no linn- tation 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 confine Congress to waging war within the limits of the Confederacy, nor to prohibit offensive war. In a word, when Congress desires to raise an army, and passes a law for that purpose, the solitary question is under the 18th paragraph, viz: "Is the law one that is necessary and proper to execute the power to raise armies?" On this point you say, "But did the necessity exist in this case? The Conscription Act cannot aid the Government in increasing its supply of arms or provisions, but can only enable it to call a larger Dumber of nun into the field. The difficulty has never been to get men. The States have already furnished the Govern- ment more than it can arm,"