THE REBEL CONSCRIPTION. [N.Y. Times, July 7, 1862]

Correspondence Between Jeff. Davis and Gov. Brown, of Georgia.

Executive Department, Richmond, May 29, 1862.

Dear Sir: I received your letter, of the 8th inst., in due course, but the importance of the subject embraced is it required careful consideration; and this, together with other pressing duties, has caused delay in my reply.

The constitutional question discussed by you in relation to the Conscription Law has been fully weighed before I recommended to Congress the passage of such law; it was fully debated in both Houses, and your letter has not only been submitted to my Cabinet, but a written opinion has been required of the Attorney General. The constitutionality of the law was sustained by very large majorities in both Houses. This decision of Congress meets not only the concurrence of my own judgment, but of every member of the Cabinet; and a copy of the opinion of the Attorney General, herewith inclosed, develops the reason on which his conclusions are based.

I propose, however, from my high respect for yourself, and for other eminent citizens who entertain opinions similar to yours, to set forth somewhat at length my own views on the power of the Confederate Government over its own armies and the militia, and will endeavor not to leave without answer any of the views maintained in your letter.

The main, if not the only purpose for which independent States form Unions or Confederations, is to complete the power of the several members in such a manner as to form one united force in all relations with foreign Powers, whether in peace or war. Each State, amply competent to administer and control its own domestic Government, yet too feeble to successfully meet powerful nations, seeks safety by uniting with other States in like condition, and by delegating to some common agentthe 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 8th article of the Constitution, each power being distinct, specific, and enumerated in paragraphs respectively numbered. The only exception is in the 18th paragraph, which, by its own terms, is made depedent on those previously enumerated, as follows:

No. 10. "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 appropriation 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 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 10th 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 in the Confederate States, viz.: voluntary enlistment or draft and conscription. I perceive in the delegation of power to raise armies no restrictions 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 limitations 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 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 cannot aid the Government in increasing the supply of arms or provisions, but can only enable it to call a large number of men into the field. The difficulty has never been to get men. The States have already furnished the Government more men than it can arm, &c.

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 indispensible; 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 disasterous 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 the law were effective in warding off a pressing danger; but I perfer to answer your objections 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 is "necessary and proper." It is not enough to say that armies might be raised in other ways, andthat 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 enquire 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 calculated and intended to "raise armies." It is therefore, "necessary and proper" for the execution of that power, and is constitutional, unless it comes into 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 referto 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 State and the Confederacy over them.

The several States agree "not to keep troops or ships-of-war in times of peace." [Art. 1, sec. 10, par. 3.]

They further stipulate that "a well-regulated militia being necessary to the security of a free State, the rights of the people to keep and bear arms shall not be infringed." [Sec. 9, par. 13.]

That "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictmentof a Grand Jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of waror public danger," &c. [Sec.9, par. 16.]

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 exists 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 seperate category from land or naval forces, in the 16th paragraph above quoted; and the words land or 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 citizens taken singly, but a body created by law; if they are not troops, and they are no part ofthe 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 words, the term "militia" is a collective term, meaning a body of men organized, and cannot be applied to the separate individuals who compose the organization.

The Constitution divides the whole military strength of the States into only two classes of organized bodies--one, the armies of the Confederacy; the other, the militia of the States...."

"...Of what is the army to be composed? If this Government cannot call on its arms-bearing population more than as militia, and if the militia can only be called forth to repel invasion, we should be utterly helpless to vindicate our honor or protectour rights. War has been well styled "the terrible litigation of nations." Have we so formed our Government that in litigation we may never be plaintiff? Surely this cannot have been the intention of the framers of our compact...."

The New York Times [Archives]

Published: July 7, 1862
Copyright The New York Times

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Mr. Jefferson Davis was representative of Mississippi in the Congress of the United States. "Mr. Davis took his seat in Congress December 8, 1845, at a period when certain great questions were in issue, and with only a brief and commendable delay, took a foremost place in the discussions. The Oregon question, the tariff, the Texas question, were all exciting issues. It is especially noticeable in view of his after life that in these debates he evinced a devotion to the union and glory of his country in eloquent speeches, and in a consistent line of votes favorable to his country's growth in greatness. One of his earliest efforts in Congress was to convert certain forts into schools of instruction for the military of the States. His support of the "war policy," as the Texas annexation measure was sometimes designated, was ardent and unwavering, in the midst of which he was elected colonel of the First Mississippi regiment of riflemen. His decision to re-enter military life was quickly carried into effect by resignation of his place in Congress June, 1846, and the joining of his regiment at New Orleans, which he conducted to the army of General Taylor on the Rio Grande. He had succeeded in arming his regiment with percussion rifles, prepared a manual and tactics for the new arm, drilled his officers and men diligently in its use, and thus added to Taylor's force perhaps the most effective regiment in his little army. He led his well disciplined command in a gallant and successful charge at Monterey, September 21, 1846, winning a brilliant victory in the assault on Fort Teneria. For several days afterwards his regiment, united with Tennesseeans, drove the Mexicans from their redoubts with such gallantry that their leader won the admiration and confidence of the entire army. At Buena Vista the riflemen and Indiana volunteers under Davis evidently turned the course of battle into victory for the Americans by a bold charge under heavy fire against a larger body of Mexicans. It was immediately on this brilliant success that a fresh brigade of Mexican lancers advanced against the Mississippi regiment in full gallop and were repulsed by the formation of the line in the shape of the V, the flanks resting on ravines, thus exposing the lancers to a converging fire. Once more on that day the same regiment, now reduced in numbers by death and wounds, attacked and broke the Mexican right. During this last charge Colonel Davis was severely wounded, but remained on the field until the victory was won. General Taylor's dispatch of March 6, 1847, makes special complimentary mention of the courage, coolness and successful service of Colonel Davis and his command. The Mississippi regiment served out its term of enlistment, and was ordered home in July, 1847. President Polk appointed Colonel Davis brigadier-general, but he declined the commission on the ground that that appointment was unconstitutional.

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"In August, 1847, the governor of Mississippi appointed Mr. Jefferson Davis to the vacancy in the United States Senate caused by the death of Senator Speight, and he took his seat December 5, 1847. The legislature elected him in January for the remainder of the term, and subsequently he was re-elected for a full term. His senatorial career, beginning in December, 1847, extended over the eventful period of 1849 and 1850, in which the country was violently agitated by the questions arising on the disposition of the common territory, and into which the subject of slavery was forcibly injected...."

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"...He did not believe the Northern States would respect any of its provisions which conflicted with their views and interests. His attitude, however, toward the measures of Mr. Clay was not positively hostile, though it was emphatically distrustful. But during the perilous discussions of those times Mr. Davis did not align himself with any disunionists North or South. He says for himself, "My devotion to the Union of our fathers had been so often and so publicly declared; I had on the floor of the Senate so defiantly challenged any question of my fidelity to it; my services, civil and military, had now extended through so long a period and were so generally known, that I felt quite assured that no whisperings of envy or ill-will could lead the people of Mississippi to believe that I had dishonored their trust by using the power they had conferred on me to destroy the government to which I was accredited. Then, as afterward, I regarded the separation of the States as a great, though not the greater evil." The votes and speeches of Mr. Davis accorded with the instruction of the Mississippi legislature, and his public record is entirely consistent with this avowal of his devotion to the whole country and his patriotic desire to preserve it from the evils of fanaticism. Reference to this Union sentiment is not made in this sketch or elsewhere in this general work as apologetic in its bearings. But it is in rebuke of those careless or vicious statements often made against Mr. Davis and other Confederate leaders that they were for many years engaged in a conspiracy to break up the Union.

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"Senator Davis entered upon his new and full term as senator from Mississippi March 4, 1851, from which date there were before him six years of honor in the position he preferred to all others. There was a strong probability also that if living he would be continued in the Senate, since the Southern States were accustomed to the retaining of their eminent men in office. No man had less reason than himself for conspiracy against the government. With this advantage and under the influence of strongly conservative feeling he canvassed the State of Mississippi in 1851, bravely advocating the policy of determined resistance to sectional aggressions, and insisting that the country should be defended from the perils of Congressional usurpation. His argument was that reverence for the constitutional reservations of power would alone save the Union, and upon this view he taught that statesmen who revered the Constitution most, loved the Union best. The overwhelming sentiment of Mississippi that year was to accept the compromise measures of 1850 as a finality, and consequently the State rights party which had been organized upon a vague platform proposing to devise some undefined method of securing guarantees against sectional usurpations, was defeated. Mississippi accordingly joined the other Southern States in acquiescence with the settlement of 1850 "as a finality."

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"The election for governor of the State was to occur later in the same year. Governor Quitman had been nominated for re-election, but his political antecedents so decidedly committed him to disunion as to imperil his success. Therefore he withdrew from the nomination, and Senator Davis was called on by the executive committee to take his place, because his conservative record accorded more nearly than Governor Quitman's with the recent ballot of the people. It was only six weeks to the day of the election, the State rights party had been lately beaten by a majority of over 7,000 votes, Davis was at that time too sick to leave home, and acceptance of the nomination required his resignation of the high office he then held secure for nearly six years. Nevertheless he accepted the trust, resigned the senatorial office and was defeated by less than one thousand votes. Mr. Davis retired for a short time to private life, from which he was called by President Pierce, who had been elected to the presidency in 1852. At first the tender of a place in the cabinet of the new President was declined, but on further consideration he accepted the office of secretary of war. Mr. Davis had ably supported Pierce in the race of the previous year upon the platform which emphasized beyond all else the finality of the compromise measures, and the cessation of sectional hostilities. He was therefore in this as in other respects in complete agreement with the President from the beginning to the closing of his administration The duties of the war office were discharged with characteristic energy and ability, and at its close his portrait was added to others of eminent men who had enjoyed the same distinction, and it remains suspended in its proper position to this day. A few years later the friendly and confiding letter of the President to Mr. Davis expressed his painful apprehension concerning the Southern movement for secession, accompanied with the kindest expressions of regard for his former able associate in the executive department of government.

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"Mr. Davis went now from the cabinet of President Pierce, March 4, 1857, to re-enter the United States Senate by the election of the legislature of Mississippi. He was there assigned to the chairmanship of the committee on military affairs, opposed the French spoliation measures, advocated the Southern Pacific railroad bill, and antagonized Senator Douglas on the question of popular or "squatter" sovereignty in the territories, while on the other hand he disputed the claim set up by the Free-soilers of power in Congress to legislate against those territorial domestic institutions which were not in conflict with the Constitution. During the Kansas troubles he aligned himself with those who endeavored to prevent the dangerous hostilities which the opening of that section to occupation had produced, and when the settlement of 1858 was made by the passage of the conference Kansas-Nebraska bill, he wrote hopefully to the people of Mississippi that it was "the triumph of all for which he had contended." At that moment he believed that the danger of sectional discord was over, that peace would reign, and the Union be saved through the policy pursued by the Buchanan administration. From this date, 1859, he was nationally acknowledged as a statesman in counsel, a leader of the people, ranking among the most eminent living Americans...."

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- Excerpted from "Jefferson Davis (1808 - 1889) President of the Confederate States of America". [Home of the American Civil War.]