War of the Rebellion: Serial 128 Page 0620 CORRESPONDENCE, ETC.

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[Second indorsement.]

JULY 20, 1863.

To Adjutant-General for attention to and execution of the President's indorsement above.

J. A. S.,


MARIETTA, GA., July 10, 1863.


Secretary of War:

DEAR SIR: I have the honor to acknowledge the receipt of your letter of 26th of June last in reply to my letter claiming for the gallant Fifty-first Georgia Regiment the right to elect an officer to fill the vacancy of the late Colonel Slaughter, who was killed in battle and whose vacancy has been filled by the general in command by promotion, denying to the regiment the right of election. This action I consider in palpable violation of the plain constitutional rights of the regiment, and while I think your for the courtesy of your reply, I must express both my surprise and mortification at your denial of the right of election to this regiment and others which entered the service as it did, and your announcement that the conduct of the general in refusing to permit the regiment to exercise this right, and assigning to it a commander by promotion without regard to the wishes of the troops, "is approved by the Department. " You predicate this decision upon the act of Congress known as the conscription act and a subsequent act which provides that "all vacancies shall be filled by the President. " I predicate my objection to the decision upon the Constitution of the Confederate States, which is of higher authority than any act of Congress, and hold that the acts referred to by you, so far as they deny to the State of Georgia the right to fill this and all similar vacancies, are in conflict with the Constitution, and therefore, void and of no binding force. The sixteenth paragraph of the eighth section of the first article of the Constitution of the Confederate States declares that Congress shall have 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 officers and the authority of training the militia according to the discipline prescribed by Congress. " By this paragraph of the Constitution the State of Georgia in plain language reserved to herself the appointment of the officers to command any part of her militia when employed in the service of the Confederate Ser own constitution and laws she has provided that such appointment shall be made by election of those to be commanded by these officers and commission from the Governor, and that vacancies shall be filled in the same manner. By "the militia" I understand the Constitution to mean the whole arms-bearing population of the State who are not enlisted in the regular armies of the Confederacy.

I am aware the writers upon English law define the militia to be an organized body of troops, &c. That the farmers of the constitution did not intend to sue the term in this sense is evident from the fact that they speak of the militia as in existence at the time they are making the Constitution, and give Congress the power not to make a new militia nor to organize that already in existence, but to provide