(without regard to the fact whether they are or not members of militia organizations) the power must be coextensive with the exigencies of the occasion or it becomes illusory; and the extent of the exigency must be determined by Congress, for the Constitution has left the power without any other check or restriction than the Executive veto. Under ordinary circumstances the power thus delegated to Congress is scarcely felt by the States. At the present moment, when our very existence is threatened by armies vastly superior in number to ours, the necessity for defense has induced a call not for "the whole militia of all the States," nor for any militia, but for men to compose armies for the Confederate States.
Surely there is no mystery on this subject. During our whole past history, as well as during our recent one year's experience as a new Confederacy, the militia have been called forth to repel invasions in numerous instances, and they never came otherwise than as bodies organized by the States, with their company, field, and general officers; and when the emergency had passed they went home again. I cannot perceive how any one can interpret the conscription law as taking away from the States the power to appoint officers to their militia. You observe on this point in your letter that unless your construction is adopted "the very object of the States in reserving the power of appointing the officers is defeated, and that portion of the Constitution 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, is vested in the Confederate Government whenever it chooses to call its own action "raising an army," and not "calliitia. "" I can only say in reply to this that the power of Congress depends on the real nature of the act it proposes to perform, not on the name given to it; and I have endeavored to show that its action is merely that of "raising an army," and bears no semblance to "calling forth the militia. " I think I may safely venture the assertion that there is not one man out of a thousand who will do service under the conscription act that would describe himself while in the Confederate service as being a militiaman; and if I am right in this assumption the popular understanding concurs entirely with my own deductions from the Constitution as to the meaning of the word "militia. " My answer has grown to such a length that confine myself to one more quotation from your letter. You proceed:
Congress shall have the 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.
I beg you to observe that the answer which you say is clear is not an answer to the question put. The question is, How are armies to be raised? The answer given is, that when militia are called forth to repel invasion the State shall appoint the officers. There seems to be a conclusive test on this whole subject. By our Constitution Congress may declare war, offensive as well as defensive. It may acquire territory. Now, suppose that, for good cause and to right unprovoked injures, Congress should declare war against Mexico and invade Sonora. The militia could not be called forth in such a case, the right to call it being limited to repel invasions. Is it not plain that the law now under discussion, of passed under such circumstances, could
72 R R - SERIES IV, VOL I