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 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 number of men into the field. The difficulty has never been to get men. The States have already furnished the Government more than it can arm, and have from their own means armed and equipped very large nuorgia 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 constitutionality 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 eighth section of the first article of the Constitution defines the powers of Congress. The twelfth paragraph of that section declares that Congress 'shall have power to raise and support armies. " Paragraph 15 gives Congress power to provided for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions. Paragraph 16 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 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 constructed together. It would quite clear that by the grant of power to Congress to raise and support armies, without qualification, the 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 more surplusage, and the framers of the Constitution were guilty of the folly of incorporating into the instrument unmeaning phrases. When the States, by the sixteenth 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 State in reserving the power of appointing the officers is defeated, and that portion of the Constituting is not only a nullity, but the whole military power of the States and the entire control of the militia, with the appointment of the officers, are 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