for organizing the militia; in other woods, to provide for forming into military organizations the arms-bearing people of the respective States. Had the Constitution given Congress the power to organize the militia without other qualifying words, it would have had the power to appoint the officers to command them, or to authorize the President to appoint them, as they cannot be organized without officers. The language is, however, very guarded. Power is given to Congress to provide for organizing that which was then in existence without effective organization-the militia or arms-bearing people of the States. When Congress has provided for the organization and the States have organized the militia, Congress may authorize the President to employ them, or part of the, in the service of the Confederate States; but in that case the States expressly reserve to themselves the right to appoint the officers to command them, and Congress cannot, without usurpation, exercise that power itself or confer it upon the President. But suppose I adopt the definition of the term "militia" insisted upon by those who differ from me; the result is the same. In our correspondence upon the constitutionality of the conscript act the President says: "The term 'militia' is a collective term, meaning a body of men organized. "
In February, 1862, the President made a requisition upon me under the act of Congress of 23d January, 1862, for twelve regiments of troops, to be employed in the service of the Confederate States. I proceeded under the laws in existence at the time to organize the regiments called for. The Fifty-first Regiment was tendered as one of the twelve, and with the other eleven, and several additional regiments which offered their services as volunteers, was accepted by the President as organized and officered by the State. This regiment when tendered was therefore an organized body of men taken indiscriminately from the arms-bearing people of the State, who tendered their services, and were accepted by the president as a body of men organized by the State, or as militia, according to his own definition. The right of the State to appoint the officers, which she does upon the election of those to be commanded, was distinctly recognized in the organization of the regiment. If the State possessed this right, then how has she lost it since? If it is her right to appoint the officers when the regiment is organized, how does she lose the right when a vacancy is to be filled? But the case does not rest here undoubted as were the State's rights under the Constitution. Before this regiment and the others called for at the same time were formed I wrote Mr. Benjamin, then Secretary of War, upon this question, that the reserved rights of the State and of her troops might be distinctly recognized to avoid any misunderstanding in future. In his reply of 16th of February, 1862, after the requisition had been made, and before the regiments were organized, Mr. Benjamin said: "I will add that the officers from the regiments called for from the State under the recent act of Congress are, in my opinion, to be commissioned by the Governor of Georgia, as they are State troops tendered to the Confederate Government. " This opinion of the Secretary of War was communicated to the troops, and they were assured by me that they had the right to elect all the field and company officers by whom they were to be commanded while employed in the service of the Confederate States. With this assurance from the Secretary of War and the Governor of their State they volunteered and entered the Confederate service with the officers elected by them. Aside from this constitutional right, here was a fair contract between them and the