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 hments of power, had usurped to itself the power which the convention, after mature deliberation, had expressly 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 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, without very essential qualifications. It is true the twelve-months; men who re-enlist have a right within forty days to recognize and elect their officers. But if 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 dies not relieve the acts of Congress from the charge of violation of the Constitution. 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 State, in the exercise of their reserved power to appoint the officers, may select them by election or may permit the Executive to select them; but the appointment rests upon the commission, as there is no complete appointment till the commission is issued; and therefore the Government that issue the commission exercise 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 its power; and whatev its intention, I maintain that it has transacted its constitutional powers and has placed in the hands of the Executive of the Confederacy that which the States have expressly and carefully