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1862]

WAR POWERS OF GOVERNMENT.

507

Each state, amply competent to administer and control its own domestic government, yet too feeble successfully to resist powerful nations, seeks safety by uniting with other states in like condition, and by delegating to some common agent the use of the combined strength of all, in order to secure advantageous commercial relations in peace, and to carry on hostilities with effect in war.

"Now, the powers delegated by the several States to the Confederate Government, which is their common agent, are enumerated in the eighth section of the Constitution; each power being distinct, specific, and enumerated in paragraphs separately numbered. The only exception is the eighteenth paragraph, which by its own terms is made dependent on those previously enumerated, as follows: 18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers,' etc.

"Now the war-powers granted to the Congress are conferred in the following paragraphs: No. 1 'gives authority to raise revenue necessary to pay the debts, provide for the common defense, and carry on the Government,' etc. No. 11, 'To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.' No. 12, 'To raise and support armies, but no appropriations of money to that use shall be for a longer term than two years.' No. 13, 'To provide and maintain a navy.' No. 14, 'To make rules for the government and regulation of the land and naval forces.'

"It is impossible to imagine a more broad, ample, and unqualified delegation of the whole war power of each State than is here contained, with the solitary limitation of the appropriations to two years. The States not only gave power to raise money for the common defense, to declare war, to raise and support armies (in the plural), to provide and maintain a navy, to govern and regulate both land and naval forces, but they went further, and covenanted, by the third paragraph of the tenth section, not 'to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.'

"I know of but two modes of raising armies within the Confederate States, viz., voluntary enlistment and draft, or conscription. I perceive, in the delegation of power to raise armies, no restriction as to the mode of procuring troops. I see nothing which confines Congress to one class of men, nor any greater power to receive volunteers than conscripts into its service. I see

no limitation by which enlistments are to be received of individuals only, but not of companies, or battalions, or squadrons, or regiments. I find no limitation of time of service, but only of duration of appropriation. I discover nothing to confine Congress to waging war within the limits of the Confederacy, nor to prohibit offensive war. In a word, when Congress desires to raise an army, and passes a law for that purpose, the solitary question is under the eighteenth paragraph, viz., 'Is the law one that is necessary and proper to execute the power to raise armies?'

"On this point you say: 'But did the necessity exist in this case? The conscription act can not aid the Government in increasing its supply of arms or provisions, but can only enable it to call a larger number of men into the field. The difficulty has never been to get men. The States have already furnished the Government more than it can arm,' etc.

"I would have very little difficulty in establishing to your entire satisfaction that the passage of the law was not only necessary, but that it was absolutely indispensable; that numerous regiments of twelve months' men were on the eve of being disbanded, whose places could not be supplied by raw levies in the face of superior numbers of the foe, without entailing the most disastrous results; that the position of our armies was so critical as to fill the bosom of every patriot with the liveliest apprehension; and that the provisions of this law were effective in warding off a pressing danger. But I prefer to answer your objection on other and broader grounds.

"I hold that, when a specific power is granted by the Constitution, like that now in question, 'to raise armies,' Congress is the judge whether the law passed for the purpose of executing that power is necessary and proper.' It is not enough to say that armies might be raised in other ways, and that, therefore, this particular way is not necessary.' The same argument might be used against every mode of raising armies. To each successive mode suggested, the objection would be that other modes were practicable, and that, therefore, the particular mode used was not 'necessary.' The true and only test is to inquire whether the law is intended and calculated to carry out the object; whether it devises and creates an instrumentality for executing the specific power granted; and, if the answer be in the affirmative, the law is constitutional. None can doubt that the conscription law is

1862]

WHAT ARE MILITIA.

509

calculated and intended to raise armies'; it is, therefore, 'necessary and proper' for the execution of that power, and is constitutional, unless it comes in conflict with some other provision of our Confederate compact.

"You express the opinion that this conflict exists, and support your argument by the citation of those clauses which refer to the militia. There are certain provisions not cited by you, which are not without influence on my judgment, and to which I call your attention. They will aid in defining what is meant by 'militia,' and in determining the respective powers of the States and the Confederacy over them.

"The several States agree not to keep troops or ships of war in time of peace.'* They further stipulate that, 'a well-regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed.' †

"That no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in times of war or public danger.' +

66

What, then, are militia? They can only be created by law. The arms-bearing inhabitants of a State are liable to become its militia, if the law so order; but, in the absence of a law to that effect, the men of a State capable of bearing arms are no more militia than they are seamen.

"The Constitution also tells us that militia are not troops, nor are they any part of the land or naval forces; for militia exist in time of peace, and the Constitution forbids the States to keep troops in time of peace, and they are expressly distinguished and placed in a separate category from land or naval forces in the sixteenth paragraph above quoted; and the words land and naval forces are shown by paragraphs 12, 13, and 14, to mean the Army and Navy of the Confederate States.

"Now, if militia are not the citizens taken singly, but a body created by law; if they are not troops; if they are no part of the Army and Navy of the Confederacy, we are led directly to the definition, quoted by the Attorney-General, that militia are 'a body of soldiers in a State enrolled for discipline.' In other * Article I, section 10, paragraph 3. + Ibid., section 9, Part XIII. Ibid., section 9, paragraph 16.

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