War of the Rebellion: Serial 127 Page 1157 CONFEDERATE AUTHORITIES.

Search Civil War Official Records

to command them even while employed in the service of the Confederate States. I might add many other quotations containing strong proofs of this position from the debates of the Federal convention and the action of the State conventions which adopted the Constitution, but I deem it unnecessary, as you made no allusion to the contemporaneous construction in your reply and I presume you do not insist that the explanations of its meaning given by those who made it sustain your conclusion. I feel that I am fully justified by the debates and the action of the Federal and State conventions in saying that it was the intention of the thirteen sovereigns to constitute a common agent with certain as specific and limited powers to be exercised for the good of all the principals, but that it was not the intention to give the agent the power to destroy the principals. The agent was expected to be rather the servant of several masters than the master of several servants. I apprehend it was never imagined that the time would come when the agent of the sovereigns would claim the power to take form each sovereign every man belonging to each able to bear arms and leave them with no power the execute their own laws, suppress insurrections in their midst, or repel invasions.

In reference to the practice of the United States Government under the Constitution, I need only remark that I do not presume it will be contended that Congress claimed or exercised the right to compel persons constituting the militia of the States by conscription or compulsion to enter the service of the General Government without the consent of their State government at he Government was administered or its councils controlled by any of the fathers of the Republic who aided in the information of the Constitution. If then, the constitutionality of the conscription act cannot be established by the contemporaneous construction of the Constitution nor by the earlier practice of the Government while administered by those who made the Constitution, the remaining inquiry is, can it be established by the language of the instrument itself, taking the whole context and applying to it the usual rules of construction which were generally received and admitted to be authoritative at the time it was made. The Constitution in express language gives Congress the power to raise and support armies. You rest the case here and say you know of but two modes of raising armies, to wit, by voluntary enlistment and by draft or conscription, and you conclude that the Constitution authorizes Congress to raise them by either or both these modes. To enable us to arrive at an intelligent conclusion as to the meaning intended to be conveyed by those who used this language it is necessary to inquire what signification was attached to the terms used at the time they were used; and it is fair to infer that those who used them intended to convey to the minds of others the idea which was at that time usually conveyed by the language adopted by them. Apply this rule and what did the convention mean by the term to raise armies? I prefer that the Attorney-General should answer. He says in his written opinion:

Inasmuch as the words militia, armies, regular troops, and volunteers had acquired a definite in Great Britain before the Revolutionary War, and as we have derived most of our ideas on this subject from that source, we may safely conclude that the term militia in our Constitution was used in the sense attached to it in that country.

Upon this statement of the Attorney-General rests his definition the term militia, which is an English definition; and upon that definition rests all that part of your argument which draws a distinction,