War of the Rebellion: Serial 127 Page 1136 CORRESPONDENCE, ETC.

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to call them forth to execute States laws. Congress may call them forth to repel invasions; so many the State, for its has expressly reserved this right. Congress may call them forth to suppress insurrection, and so may the State, for the power is impliedly reserved of governing all the militia except the part in actual service of the Confederacy. I confess myself at a loss to perceive in what manner these careful and well-defined provisions of the Constitution regulating the organization and government of the militia can be understood as applying in the remotest degree to the armies of the Confederacy; nor can I conceive how the grant of exclusive power to declare and carry on war by armies raised and supported by the Confederacy 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 granted, 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 defense of the States. You state, after quoting the twelfth, fifteenth, and sixteenth grants of power to Congress, that "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. "

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 in the same section than they can control any of the other paragraphs preceding, intervening, or succeeding. So far as the subject-matter is concerned, I have already endeavored to show that the armies mentioned in the twelfth paragraph are a subject-matter as distinct from the militia mentioned in the fifteenth and sixteenth as they are from the Navy, mentioned in the thirteenth. Nothing can so mislead as to construe together and as a whole the 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 and support armies without qualification the framers of the Constitution intended the regular armies of the Confederacy, and not the armies composed of the whole militia of all the States. " I must 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 Confederacy can "be composed of the whole militia of all the States. " The militia may be called forth in whole or in part into the Confederate service, but do not thereby become part of the armies raised by Congress. They remain militia and go home when the emergency which provoked their call has ceased. Armies raised by Congress are of course raised out of the same population as the militia organized by the States, and to deny to Congress the power to draft a citizen into the Army or to receive his voluntary offer of services because he is a member of the State militia os 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 organizations of the several States. You seem, however, to suggest rather than directly to assert that the conscription law may be unconstitutional, because it comprehends all arms-bering men between eighteen and thirty-five years; at least, this is an inference which I draw from your expression, "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 citizens at all