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DECISION 
 
 OF TTTK 
 
 ^uincme €o«tt of $ 
 
 OONSTITUTIONALITV 
 
 ENROLLING ACTS OF THE CONGRE! 
 
 or THE 
 
 CONFEDERATE STA I ES OF AMERICA. 
 
 I 
 
 Slcam rower Preii Chronicle 4c .- • 
 
To 
 
 SUPREME COURT OF GEORGIA. 
 
 FIFTH DISTRICT, 
 
 AT MILLEDGEVILLE, NOVEMBER TERM, If 
 
 ASA <> JEFFERS, Plaintiff in Error, 
 vs. 
 JOHN FAIK, Enrolling Officer, U. S. A 
 
 Application for DiscJiarge, ttnrli It - C 
 
 Harris, at Chambers ; Application refu& 
 'Writ Error. 
 
 Jadge Jenkins delivered the opinion of the Court, as folio 
 The sole question, presented by tins record for the i 
 
 the Court, is the constitutionality of two A 1 by the ( 
 
 the Confederate States; the one, approved April 16th, 18G2, entitled 
 
 "An Act f" farther provide for the puMic defence ;" the other, ap] 
 iber 27, 1862, entitled "An Act, to amend an Act, entitle 
 
 Act to further provide for the public defence." 
 . those Art- alone, the defendant in em 
 
 hold the plaintiff in custody ; whilst the latter, admit; 
 
 within their purview, insists that (hey are unconstitutional, ai 
 
 authority claimed under them void, 
 enough to say of th 
 
 the President of the ConH in the 
 
 militai 
 
 shall have been S0OU( 
 
 Confederate 
 
 from military Bervi 
 
 I P 
 
d, and 
 liavo Dot fail 
 ition. Tin- inquiry and the c 
 
 1 : it u- 
 tion 
 ■ 
 I 
 
 ll 
 •in than ' 
 
 ftho 
 i repel 
 
 10 i iplining the militia, 
 
 f them, oa may be employed in thi 
 
 tively, the ar* 
 and the authority of training the militia accord- 
 ■ ' 
 all lawa which shrill ary and proper, for 
 
 . and .-ill other powi 
 anient of the Confederate States, or in 
 
 instruction of the grant of 
 i '..'ill clause, ab • 
 . int of "power t>> call J 
 In the argun i q( \ 
 
 tiled 
 
 lis of tin nit. 
 
 \\ Armies raised under the L2th 
 
 i r to 
 
 whether on our own, or <>n 
 ing armies, are separated 
 • . . I Irawn from the ordinan civil 
 Hunt, whether in pcucc <t in 
 \ ibjcct to the ( !o> cm- 
 
 no time, and under no 
 authority. 
 
 . Drolled, for military 
 ii y, i ith i . ronco to 
 red and disciplined b) Si 
 
 , (for the sake of 
 iinifbrmil inization and discipline. 
 
They are not separated from the mass of their fellow-citizens, nor with- 
 drawn from their ordinary pursuits, save occasionally for drill, or fbr 
 special, and usually short service, in the Geld. 
 
 For such special service they may be 'called forth, either by the 
 authority of the State wherein they are enrolled, or by that of the Con* 
 federate States ; but the power of the latter, to call them forth, is limited 
 to three specified emergencies, viz . to execute the laws of the Confed- 
 erate States — to suppress insurrections — to repel invasions. It is appa- 
 rent, then, that they cannot be used in offensive war, on foreign 
 
 Armies raised under the 12th clause, constitute the physical force, in 
 conjunction with the Navy, mainly relied upon, for national defence, and 
 exclusively for offensive, extra-territorial war, in tl .on of 
 
 national rights. The militia are, when called forth, citizen soldiery — 
 ed to bo used in the specified emergencies, at points where there 
 may he no portion, or an inadequate portion of a regular army. They 
 arc not intended, at any time, to lie merged in any army of the Con- 
 federate States, nor to be substituted for it ; hut as a separate organiza- 
 tion, to come in aid of it. Doubtless, the Constitutional provisions rela- 
 tive to the militia, were adopted in furtherance of the American | 
 of maintaining small standing armies in peace. But the grants of 
 power "to raise armies," and "to call forth the militia,"" arc entirely 
 separate and distinct — are not to he construed together, i\<r the i 
 
 tricting, or enlarging cither, \n I lead to the 
 
 most embarrassing confusion, the necessity of avoiding which 1 
 
 'it, in the course of the argument submitted, and 
 imperatively for this preliminary distinction. 
 It is • that the Confederate Congress ha 
 
 ndent, for military forces, upon 
 luntary enlistment of men ; and if it need mm an its 
 
 d, and its Navy, its only resource is t<> call forth the 
 militia of the Si 
 
 It is clear, under the view we have taken, that t' 
 
 the 12th clai ■luntary enlistment, 
 
 . enrollment, and we are oo\t 
 limit them to the firmer mode. The limitati 
 means only ; whether or not t', I mifa- 
 
 : the power, we will 
 under review, authorize, c enrollment ..f citis 
 
 clause of ' n, in virtue of which the power thus 
 
 claimed, ia very general in [I I fyiug 
 
 P419 
 
nor prohibiting any means. Let the phraseology be fixed in the mind 
 of (lie inquirer. "The Congress shall have poxcer to raise armies" 
 A.v. Language could not express a broader, more general grant of a 
 specific power. We look in vain for the limitation to voluntary enlist- 
 ment as a means. Is there any difference between a grant of "power 
 to raise armies," without superadded words of limitation, and a grant 
 oft "unlimited power to raise armies" 1 We think not. Yet, had 
 the latter/orm of expression been used, who would have affirmed the 
 existence of the limitation now insisted on ? We understand the rule 
 of construction, in such cases, to be, that "an unqualified grant of power 
 gives the"means necessary to carry it into effect." But the proposed 
 limitation reduces the grant to a "bare authority, to raise armies by 
 ling volunteers." Now, this idea, and the idea of "a power to 
 raise armies," are widely different : and not less so arc the terms appro- 
 priate i<> the expression of the one, and the other Presuming that the 
 framers of the Constitution used the words employed, in their ordinary 
 unambiguous significance, we hold that the clause, ex vi termini, ex- 
 presses a graut of Power — of power commensurate with the object — of 
 power over the populations of the several States, entering into and 
 becoming component parts of the Confederate States of America. 
 
 Undoubtedly, voluntary enlistment, as a means, would always be 
 preferred, when efficacious, to compulsory enrollment, but in many cases, 
 a limitation to the former, would render the power barren. So obvious 
 is (he necessity of compulsion to render the grant effective, that those 
 holding the position we combat, admit that it may be resorted to, but 
 only through the agency of the several States. The admission places 
 compulsory enrollment in the relation of incident, to the power to raise 
 ai mies. But their view imputes to the framers of the Constitution this 
 absurdity, viz : that having divested the States of the powers to declare 
 war. and to raise armies ; and having vested those powers in the Con- 
 federate Congress ; and knowing that the latter power would be incom- 
 plete without compulsory enrollment ; they, nevertheless, left it exclu- 
 sively in the hands of the States. Let us resolve this logic into the form 
 of a syllogism. 
 
 Compulsory enrollment is a proper incident of tho power to raise 
 armies ; the Confederate Congress have, and the States severally have 
 not the power to raise armies; ergo, the Congress may not, but the 
 several States may, resort to compulsory enrollment. 
 
 Again, if the grant contained in the 12th clause (wh^ch we have thus 
 Dsidered, per sr,) fall short of authorising the Congress to resort to 
 
compulsory enrollment, in execution of the power, surely the defect is 
 supplied hy the 18th and last clause, which applies equally to all the 
 preceding clauses of the section. It confers "power to make all laws 
 which shall he necessary and proper for carrying into effect the foregoing 
 powers," Arc. How docs this comport with the idea, that should compul- 
 sion become necessary, in the process of raising armies, the Congress 
 must appeal to the States to use it ? 
 
 "We have held that the power to raise armicsjs separate and distinct 
 from the power to call forth the militia, and that the only moans to 
 which Congress can resort in execution of the former, are voluntary en- 
 listment and compulsory enrollment. Conceding then, for the argu- 
 ment, that the latter is not authorised by the 12th clause, we are con- 
 strained to hold, that it is authorised by the 18th clause, whenever 
 voluntary enlistment shall fail, or shall cease to promise necessary 
 results. We by no means concede, that in a time of flagrant war, the 
 Congress would be constrained to wait until that resource had been 
 wholly exhausted of success before resorting to the other means. 
 
 Under such circumstances, promptness is an indispensable element, in 
 raising armies. Delay would often amount to failure. That scheme 
 which promises the greatest attainable promptness and efficiency, is both 
 ary and proper. Of these, the Congress must 1"' the J judges, 
 because in them is vested the power, and upon them rests" the 'responsi- 
 bility of declaring war, and raising armies to prosecute it. 
 
 Those who would thus limit the power of Congress, seem to forget, 
 that voluntary enlistment is not mentioned as a means iu the Constitu- 
 tion. Upon what, then, rests their limitation ? Clearly on their own 
 notions of fitness and propriety. And upon these points how variant are 
 men's ideas ! They are referable to no criterion, measurable by no 
 standard. Something more weighty than vague abstractions, must !»■ 
 invoked to induce us to fetter the Government, in the exercise el' a power, 
 upon the vigor of which depends our national exist 
 
 lint it is further argued that the proceeding by which the plaintiff in 
 error is held in custody, under whatsoever clause of the Constitution 
 attempted to be justified, is virtually a calling forth of the militi 
 violates the Constitution, in that, it takes from the Stat< - the y m r of 
 appointing officers of the militi I forth. This argu 
 
 upon the/act thai the men now being enrolled tor .'i\i,, ni the army, 
 have been previously enrolled by to 
 
 The simple and obvious reply is, that the status of the citizen 
 merged in the militia-man — thl of enrollment with the militia, 
 
8 
 
 does not exempt him from other duties, and liabilities of citizenship. If 
 it were so, and if the militia be so sacred a body that the Confederate 
 Government cannot touch the individuals composing it, then would it be 
 improper for that Government to seduce them from it, by the offer of 
 bounties, and wages as an inducement to voluntary enlistment The 
 consequence would be, that in times like the present, when our access 
 in foreign populations is cut off, the Government charged with the con- 
 ducl of the war would find it impossible to raise armies ; and the clause 
 of the < '(institution conferring that power, would be a dead letter, when 
 most necessary to "the general welfare." 
 
 The points remaining to be considered, are resolvable into this — That 
 the power claimed is violative of the spirit (if not of the letter) of the 
 Constitution — incompatible with State sovereignty — and subversive of 
 the State Governments. Having, as we think, established the existence 
 of an express grant of the power claimed, we might well decline entering 
 into so wide" a field of inquiry as that thus opened. The task would 
 seem more appropriate to a body clothed with authority to make, or to 
 alter, and amend the Constitution. Yet, as it has been pressed with 
 great earnestness, and, as under our peculiar institutions, it is desirable 
 not only that the National Government should possess necessary powers 
 but that its possession of them, should meet the sanction of public opinion, 
 we will consider this view. 
 
 The objection rests upon this basis — that throughout the Constitution, 
 there is manifested an intention to transfer from the States, previously 
 invested with all political powers, to the Confederate Government, only 
 such of them as are necessary to the attainment of the end for which it 
 was established, leaving the residuum unimpaired with the States. The 
 intention, and its rectitude, we fully recognize. "We accept it, as a 
 governing principle, with the Convention that framed, and the several 
 sovereign peoples that adopted it. For the ascertainment of their in- 
 tention regarding the power in question ("to raise armies") we propose 
 a candid application to the end in view, of this cardinal principle, in the 
 circumstances surrounding them. 
 
 It is eminently proper to state, first the end proposed to be accom- 
 plished by the adoption of the Constitution. A careful perusal of the 
 instrument cannot fail to impress upon the mind of the inquirer the 
 significant fact, that in the distribution of powers between the State and 
 Confederate Governments, the regulation of internal affairs is left with 
 the former, whilst the external relations of all are committed to the 
 latter. From this we deduce, two inferences — First, that the former 
 
9 
 
 were deemed fully competent to regulate the civil conduct of individuals, 
 and to promote their domestic prosperity in the aggregate — and, there- 
 fore, all power necessary to those purposes remained with them. 
 
 11 v. that they were incompetent, severally, to manage successfully 
 the vast machinery of international relations; and, therefore, fur this 
 purpose, a common ag constituted for them, and invested with 
 
 try powers. The controlling inducement, then, was the better 
 and safer conducl of foreign relations — the great end aimed a!, the em- 
 bodiment of such strength as would deter encroachment, repel invasion, 
 and defend right, in those relations, i >ur constitution, (with a lew i 
 tions, not affecting tlii- investigation) is a literal copy of the Constitution of 
 the United States, under which our States, until recently, confederated with 
 others. The experience which induced its adoption was our experience. 
 Whatever light, therefore, may be derived from American history, and 
 whatever authority from eminent actors in the political arena, between the 
 Declaration of Independence, and our Secession from the Union, are 
 legitimate aids in the further pro- eutionof our inquiry. The Constitu- 
 tion of the United States had been preceded by articles of confederation 
 among the Slate- : being their first experiment in a bond ol Union. It 
 had been tried in war and in peace, and had been found defective. 
 Prominent among the defects thus developed, was a want of power in 
 the General Government to raise revenue, and to raise armies. Tl i 
 general Congress had authority " to defray charges of war and other 
 expenses, out of a common Treasury ;" but that treasury "was to be 
 supplied by the several States — the taxes for that purpose to ' e laid by 
 their several Legislatures." Tt had authority only to agree upon the 
 number of land forces, and to make requisition upon each State for its 
 quota." Our forefathers learned from experience, gathered in the Revo- 
 lutionary war, that requisitions upon the States for their several quotas 
 of land forci ol met with equal promptness. The States most 
 
 remote from the seat of war, and least affected by its ravages, responded 
 tardily, or not at all. Similar difficulties and delays occurred in raising 
 revenue. Hence resulted two onsequenccs — the full number 
 
 of force.- agreed upon by Congn try fa- defence, was never 
 
 supplied, and the burthen of the actual supply of men and ne : 
 tally upon the States, [t will be conceded that in furnishiu 
 quota of men, each State had the power of compulsory enrollment) and 
 in furnishing her quota of money, the power • ■ tyment 
 
 of tax 
 
 Cut the defect in the sysl that the power of making war was 
 
10 
 
 : in the General Congress, whilst the powers of raising revenue, 
 and armies remained with the States. The Congress could neither act 
 directly upon individual citizens, ncr compel the States toxloso. It wag 
 to remedy tl ts in the old system, that the framers of the Federal 
 
 ('(institution proposed to give such ample power, touching armies and 
 revenue, to the new Government. 
 
 The first testimony, we adduce, of the defects in the articles of Con- 
 federation, and the appropriate remedy, shall be from the Father of 
 his Country. Cen. Washington, whose position, as Commander-in- 
 chief of the ^Revolutionary army, gave him a clearer view of those de- 
 fects, than any cotemporary could possibly have, writes thus in 1781, 
 (in the midst of that war) to John Parke Custis, his friend and rela- 
 tive, then a Senator in the Legislature of Virginia. 
 
 After insisting upon the " necessity of having a permanent force," 
 instead of "temporary enlistments, and a reliance upon the militia," he 
 continues : •' It must be a settled plan, founded on system, order, and 
 economy, that is to cany us triumphantly through this war. Snpinc- 
 ncss, and indifference to the distresses and cries of a sister State, where 
 danger is far off, and a general, but momentary resort to arms when it 
 comes to our doors, are equally impolitic and dangerous, and prove the 
 necessity of a controlling power in Congress, to regulate and di- 
 rect all matters of general concern. The great business of war 
 can never be i cell conducted, if it can be conducted at all, while the 
 poivcrs of Congress arc only recommendatory. While one State 
 yields obedience, and another refuses it, while a third mutilates, 
 and adopts the 'measure in part only, and all vary in time and 
 manner, it seems hardly possible that our affairs shoidd prosper, or 
 that any thing but disappointment can follow the best concerted 
 plans. The willing States are almost ruined by their exertions ; dis- 
 trust and jealousy ensue. Hence proceed neglect, and ill-timed com- 
 pliances, one State waiting to sec what another will do. This thwarts 
 all our measures, after a heavy though ineffectual expense is incurred. 
 Do not these things show, in the most striking poi nt of view, the indis- 
 pensable necessity, the great and good policy, of each State sending its 
 ablest and best men to Congress ; men, who have a perfect understand- 
 ing of the Constitution of their country, of its policy and interests ; and. 
 of vesting that body with competent powers. Our independence, our 
 respectability, and consequence in Europe, our greatness as a na- 
 tion hereafter, depend upon it: The fear of giving sufficient pow- 
 ers to Congrcss,for the purposes I have mentioned, is futile. * * * 
 

 11 
 
 A nominal head, which, at present, is but another name for Con- 
 . will no longer do. That honorable body, after bearing the 
 interests and views of the several States fairlj discussed and explained, 
 by their respective representatives, must dictate, and not merely 
 <d, and leave it to the States afterwards, to do a they please, 
 which, as I have observed before, is in many cases to nothing at all. - ' 
 (7. Sparks" Writings of Washington, 442, .">, A.) We submit whether 
 any thing ehorl of the Constitution as it now is, and as we construe it, 
 would nieel the views of Washington, as here expressed. 
 
 Whilst the adoption of the Constitution by the people of the States 
 was an open question, its opponents insisted that those provisions were 
 inimical to the liberty of the citizen, and that they would render the 
 General Government too strong, and the State Governments too feeble. 
 Its advocates drew their replies from their then recent expcriei 
 peace and in war. Tn the State Conventions assembled, to consider and 
 itution, and through the medium of the Press, 
 these conflicting opinions were urged with unrestricted freedom, and 
 with the ui I ability, evinced by the statesmen of that (lav. In 
 
 those discussions, the concentrated lights of history and of reason 
 
 Jit to the aid of a pure and elevated patriotism. We quote, in 
 t : ii- connection, from the arguments of distinguished advocates of this 
 power, partly because their opinions arc of themselves high authority, 
 but chiefly, because those opinions having prevailed, we are justified in 
 assuming that their reasoning was ai cepted, in the adoption of the Con- 
 stitution, and in treating it as an index of intention. 
 In the Virginia Convention, Mr. Madison said: 
 " The power of raising and supporting armies, is exclaimed against, 
 :i- dangerous and unnecessary. I wish there were no neccs.-iiy i 
 ingthis power in the General Government. Bui Bupposo a C 
 
 ! to declare war against (!■ must not the general 
 
 legislature have the power of defending the I Ought it 
 
 to be known to foreign nations that the General Government of (lie 
 as no power t.> i support an army, even in the 
 
 when attacked by external enemies .' Would no! their 
 knowledge of such a circumstance stimulate them to fall upon us .' If, 
 sir, Ce' ted with this power, a ul nation, 
 
 prompted by ambition or avarice, will lie invited by our •■ 
 atta :k us; and such an attack, by disciplined rtainly 
 
 undisciplined 
 rs the peculiar situation of I ;y, the 
 
12 
 
 multiplicity of its excellent inlets and harbors, and the uncommon facili- 
 ty of attacking it, however much he may regret the necessity of such a 
 power, cannot hesitate a moment in granting it." He then shows that 
 the lack of the power, during the revolutionary war, had driven the 
 Government to purchase foreign aid by a cession of territory, and con- 
 eludes: " This fact shows the extremities to which nations will go in 
 cases of imminent danger, and demonstrates the necessity of making 
 ourselves more respectable. The necessity of making dangerous ces- 
 sions, and of applying to foreign aid ought to be excluded." — (3. Elliot's 
 Debates, 112.) No candid mind will imagine, that Mr. Madison was 
 here affirming the necessity, whilst he deprecated it, of conferring on 
 the General Government a simple authority to accept volunteers for 
 national defence, in a moment of pressing danger. 
 
 Mr. John Marshall," (afterwards Chief Justice U. S.,) in the progress 
 of the same debates, speaking of the powers to raise revenue and to 
 raise armies, says: " What arc the objects of the national government ? 
 To protect the United States, and to promote the general welfare. Pro- 
 tection in time of war, is one of its principal objects. Until mankind 
 shall cease to have ambition and avarice, wars will arise. The pros- 
 perity and happiness of the people depend upon the performance of 
 these great and important duties of the general Government. Can 
 these duties be performed by one State ? Can one State protect us, and 
 promote our happiness ? How then can these things be done ? By 
 the national government only. Shall we refuse to give it power to do 
 them ? We are answered that the powers may be abused ; that though 
 the Congress may promote our happiness, yet they may prostitute their 
 powers to destroy our liberties. This goes to the destruction of all 
 confidence in agents. Would you believe that men who had merited 
 your highest confidence, would deceive you ? Would you trust them 
 after one deception ? Why hesitate to trust the general Government ? 
 The object of our inquiry is, Is the power necessary, and is it guard- 
 ed ? There must be men and money to protect us. How are armies 
 to be raised ? Must we not have money for that purpose ? * * It 
 is then necessary to give the government that power in time of peace 
 which the necessity of war will render indispensable, or else we shall be 
 attacked unprepared. * * * The propriety of giving this power 
 will be proved by the history of the world, and particularly of modern 
 republics. I defy you to produce a single instance where requisitions 
 on several individual States, composing a confederacy, have been hon- 
 estly complied with. Did gentlemen expect to see such punctuality 
 
13 
 
 complied with in America? If the// did, ou shows 
 
 the contrary. We are told, that the confederation carried us through 
 the war. Had not the enthusiasm of liberty inspired us with unanimity, 
 that system would never have carried us through it. [l would have 
 been much sooner terminated, had the government been possessed oi 
 due energy. The inability of Congress, and the failure of States tu 
 comply with the constitutional requisitions, r< ndered our resistant 
 efficient than it uiighl have been. * * If requisitions will not avail, 
 fvernment must have the sinews of war some other way. Requisi- 
 tions canm tual. They will be producti' ty, and will 
 ultimately be ineffectual. " — (3. Elliot's D 
 
 Again, speaking of the dan reign aggressions ' lie said he 
 
 would give the general Governnv nl all necessary powers. If any thing 
 he necessary, it must be so to call forth the strength oi' the ("iiion, when 
 we may be attacked, or when the general purposes of America may 
 require it.'' — (3. Elliot's Dcba 
 
 In the New York Convention, Mr. Hamilton, (who was also a mem- 
 ber of the Federal Convention,) said : "Wo contend that the radical 
 vice in the old confederation, is that the laws of the Union apply • 
 Stat. - in their corporate capacity, tlas not every man who has b 
 our legislature, experienced the truth of this position .' 1( is inseparable 
 from the disposition of bodies, who have a constitutional [ wcr of 
 ance, to examine the merits of a law In this examination, not 
 furnished with those lights which directed the deliberations 
 oral Government, and incapable of ciubn _ meral interests of the 
 
 Union, the States have almost uniformly weighed the requisitions by 
 their own local interest, and. have only executed them, so far as answered 
 their particular conveuicncc and advantage. Hence there 
 
 thirteen diffcrci > judge of the measures oi ' i — and 
 
 the operations of governmcnl have I liffcr- 
 
 irscs. Th i were to ! mplicd with the 
 
 requisitions; others have totally dis Have not all of us 
 
 becnw • the unhappy emba ulted from these 
 
 Then aftc that two ; 
 
 "had perfectly discharged their fed ral dutj —I "had 
 
 itally delinquent," and . partial! 5 
 
 "What. si', is the cure lor I 
 < liable the nati 
 manner as thou 
 the subject, ;ir. The gentlemen appear to i 
 
14 
 
 While they yield to the principle, they seem to fear its application to the 
 government." (2. Elliot's Debates, 231-3.) Those who will take the 
 trouble to read this speech will perceive, the speaker did not refer ex- 
 clusively to requisitions either for men or for money ; but to the whole 
 subject of requisitions, upon which the Congress of the Confederation 
 were dependent, for both His reasoning is alike applicable to each, 
 [ndeed, it must be so in the nature of things. The sain.' motives which 
 would induce neglect of, or compliance with, one descrition »>f requisi- 
 tion, would lead to a like result regarding the other. 
 
 In the Connecticut convention, Mr. Elsworth, having enforced by 
 historical examples the necessity in confederated sovereignties, of coer- 
 cive power in the Federal Government, continues : " But, to come 
 nearer home, Mr. President, have we not seen and felt the necessity of 
 such a coercive power ? What was the consequence of the want of it 
 during the late war, particularly towards the close ? A few States bore 
 the burden of the war. While we, and one or two more of the States 
 were paying eighty or a hundred dollars per man, to recruit the conti- 
 nental army, the regiments of some States had scarcely men enough to 
 wait on their officers. * * * But I do not wish to continue the 
 painful recital ; enough has been said to show, that a power in the 
 general Government to enforce the decrees of the Union, is absolutely 
 necessary. The constitution before us is a complete system of legisla- 
 tive, judicial, and executive power. It was designed to supply the de- 
 fects of the former system : and I believe, upon a full discussion, it will 
 be found calculated to answer the purposes for which it was designed." 
 (2. Elliot's Debates, 192-:].) 
 
 In the convention of South Carolina, Mr. Pinckney, (a delegate in 
 the Federal convention,) upon the general subject of the nature of the 
 power proper to be confided to the general Government, said, "He re- 
 peated, that, the necessity of having a government which should operate 
 upon the people, and not upon the States, was conceived to be indispen- 
 sable by every delegation present:" (in the Federal convention,) "that 
 however they may have differed with respect to the quantum of power, 
 no objection was made to the system itself," (4. Elliot's Debates, 251.) 
 And in the same argument, reviewing the different powers, to all of 
 which the foregoing remark is applicable, he continues: "As to the 
 power of raising troops, it was unnecessary to remark upon it, further 
 than to say that this is a power the government at present possesses, and 
 exercises, a power so essential, that he should very much doubt the good 
 sense or information of the man, who should deem it improper — it is 
 
15 
 
 guarded by a declaration, that no grants for the ; ball be Ionj 
 
 than two year? at a time." (lb!.. 255.) 
 
 It. is obvious that Mr. Pinckney must be understood as saying, that 
 the power of raising armies was essential to the government, and that in 
 the exercise of it, as well as of other powers, it was necessary that the 
 government a slwuld operate upon the \ pon the 
 
 States," Thi id, but we deem tli 
 
 sufficient to present clearly, the reasoning upon which, and the 
 to attain which the people were urged to adopt the Constitution. Did 
 i: comport with limits appropriate to this : might fortify < 
 
 tionbylaigc quotations from adverse views ime 
 
 conventions, by reason of the fact thai the advarsc arguments and coun- 
 sels, however able, eloquent and earnest, were •: of 
 adoption. To lingwe will add a few extracts from the Feder- 
 alist, a publication in L788, by Madison, Hamilton and Jay, urging 
 upon the whole Fthe I nited States the adoption of the Federal 
 Constitution. In the 1 ~> 1 1 1 No., pgs. 67-70, Mr. Hamilton reiterates the 
 view presented by him in the New York convention, and in No. 26, p. 
 116, he remarks : "The idea of restraining the legislative authority in 
 tlic means for providing for the national defence, is oi 
 ments, which owe their origin to a zeal for liberty, more ardent than 
 enlightened. We have seen, however, that it has not had thus far an 
 extensive prevalence ; that even in this country, where it - 
 appearance, Pennsylvania and North Carolina ar mly two 
 States by which it has been in any degree patroniz d and that 
 all the others have refused to give it the 
 
 Mr. Madison, commentii same defects of the 
 
 reviews the construction and epitomizes the history of several similar 
 systems ; the Amphyct -and the 
 
 'manic Empire. After enumerating th I in the G 
 
 manic Diet, he Baj b a parade of C I 9 in 
 
 the repi I head of this confederacy, the ition 
 
 would be, that it must form an excepts 
 
 which belong- to its bin; further 
 
 from the reality. The ft] ll principle on which 
 
 that the Empire is a gommun pre- 
 
 ■ 
 
 render the Empil 
 
 members, in 1 v\ith unc 
 
 fermentations in its own bow< 
 
TO 
 
 apology for having dwelt so long on the contemplation of these Federal 
 precedents. Experience is the oracle of truth ; and where its responses 
 are unequivocal, they ought to be conclusive and sacred. The impor- 
 tant truth, which it unequivocally pronounces in the present case, is, 
 that a sovereignty over sovereigns, a government over governments, a 
 legislation for communities, as contradistinguished from individuals, as it 
 is a solecism in theory, so in practice, it is subversive of the order, and 
 end- of civil polity, by substituting violence in the place of law, or the 
 destructive coercion of the sword, in place of the mild and salutary co- 
 ercion of the magistracy." (Fed. No. 20, p. 92.) The substance of the 
 lesson thus inculcated by these sages, is, that in the exercise of the pow- 
 ers to raise revenue, and to raise armies, for the protection of the country, 
 the federal arm should be so lengthened, and strengthened, as to enable 
 the government to reach individuals, instead of registering edicts, to be 
 enforced upon them, by the States, if in their sovereign discretion 
 they should choose so to do. 
 
 Since then, with these objections urged on the one hand, and answer- 
 ed on the other, with all possible clearness and force, the people of the 
 several States, adopted the Constitution, what is the just conclusion as 
 to their intention regarding the clauses under consideration ? Clearly 
 it would seem to transfer the entire powers to raise revenue and to raise 
 armies, for the uses of the general government, from the States to that 
 government; to place them side by side with the war-making power. 
 But to make the transfer complete it was necessary, that it should em- 
 brace touching revenue, the power to enforce 'payment, and touching 
 armies, that of compulsory enrollment. 
 
 Armies, it is said, may be raised b} r voluntary enlistment ; so revenue 
 may be collected by voluntary payment. Yet, all concede, that the 
 intention was to grant the power of enforcing payment. Then why 
 not, 'pari passi/, with it, that of compulsory enrollment ? The grants 
 are both expressed in general, comprehensive terms : as promotive of 
 national defence, they are mutually dependent — inseparable : the gov- 
 ernment bereft of either cannot possibly make the other available. Then, 
 why subject them to different rules of construction ? So much for 
 intention, in the adoption of the Federal Constitution. 
 
 The people of the Confederate States, when tliey came to perform a 
 similar act, had received additional historical enlightenment. They 
 learned from the history of the intervening period, that during the last 
 war with England, there had been convened a Hartford Convention, 
 with a view to the organised opposition of several States to a war in 
 
IT 
 
 actual progress — that the Governors of several of those States had 
 boldly denied the power of the Federal Government, to call their militia 
 beyond their respective boundaries. They were thus taught that re- 
 fractory Governors, and recusant Stales were to say the least, possibili- 
 ties. They might readily infer that States which could not be r< lied 
 upon for militia service, were scarcely reliable for army requisitions. 
 
 It thus appears that, with the same end in view, guided by tin 
 and additional historical lights, and prompted by the further c n- 
 tion that, in the very hour of their action, the cloud of terrible war 
 hung portentously over them, the people of the Confederate 
 adopted, quo ad these powers, the same Constitution. Our conclusion 
 is, that the power of raising armies by compulsory enrollment, was 
 necessary to the attainment of the end : that it was seen by them to 6c 
 so ; that they intended by the terms used to grant it ; and consequently 
 that it is not violative of the -drit of the Constitution. 
 
 That the grant of this power in the plenitude claimed 03 tli 
 gress, and conceded by this Court, "is incompatible with original, una- 
 bridged State Sovereignty, is a self-evident truth, for it is a very high 
 political power. But we are precluded this test, by the Act of the 
 States, partioning between themselves and the Confederate Government, 
 the powers, which, aggregated, make absolute sovereignty. The true 
 test, is, whether it be the exercise of a delegated, or an usurpation of a 
 reserved power. We hold that it is the former, and therefore compatible 
 with the large residuum of sovereignty which the States intended to re- 
 tain. If the true construction of the constitution be, that, in del 
 to State sovereignty, the Confederate Government must depend upon 
 the separate, unconcerted action of the several State-, for th ■ exercise 
 of powers, granted to it in general comprehensive term.-, it is bul the 
 shadow of a Government : the experiment of confederated Republics 
 must inevitably fail, and the soouer it is abandoned the better. The 
 alternative then remaining to the advocates of Republican Government, 
 will be either the separate nationality of the States, each, facing the 
 great powers of earth, in its pitiable imbecility ; or the obliteration of 
 State lines, and the formation of a consolidated Republic I 
 
 however, that, construing th>' Constitution by a jnsl and intelli- 
 gent discrimination, unbia 1 either hand, the existing 
 happy mean- may be made to work safely and beneficently. 
 
 N it' it In' true that th of this power as w 
 
 struc it "would be subversive ofii 
 made ■•>". ' then indeed is it violative of the spirit of the Constitution. 
 
18 
 
 That such is its character, say its opponents, is apparent from the fol- 
 lowing view. "If the Congress have the power to enroll, and force into 
 the army, the citizens of the States, they may enroll their Governors, 
 Legislators, Judges and Ministerial officers, and thus annihilate civil 
 "overmncnt within their borders." It seems not to have occurred to 
 
 o 
 
 the objectors, who, conceding that the power, as an incident to that of 
 raising armies, must ex necessitate rei, exist somewhere, claim it for 
 the States, that they might enroll the corresponding officials of the 
 Confederate Government, and thus in the midst of war, annihilate the 
 agency charged with its prosecution. Should it be said that this sug- 
 gestion is the offspring either of an excited imagination, or of a distrust- 
 ful hvpercriticism, we must allow the justice of the impeachment. But, 
 then, how shall the first escape the like condemnation, seeing that the 
 two exhibit plain traits of a common lineage ? 
 
 The earnestness with which this objection has been pressed, and the 
 countenance given it, in high quarters, must be our apology for bestow- 
 ing upon it graver and more extended notice. 
 
 We have said that the "power to raise armies" is unlimited as to the 
 use of means : we have not said, it is unlimited as to the subjects upon 
 whom it may operate. There are certain first principles which under, 
 lie all governments, and all organised society : the violation of which 
 the framers of Governments are not supposed to intend, and the at- 
 tempted violation of which will always be arrested. 
 
 Says Burlamaqui, the great expounder of Natural and Civil Law : 
 " We must not confound an absolute power, with an arbitrary, despotic 
 and unlimited authority. For, from what we have now said concerning 
 the origin, and nature of absolute sovereignty, it manifestly follows, that 
 it is limited, from its very nature, by the intention of those who con- 
 ferred it." The Government of the Confederate States was formed by 
 the sovereign people of the respective States, Cor specific, well defined 
 purposes ; but they retained for other purposes, equally well defined, 
 their several pre-existing Governments. To enable it to accomplish one 
 of the purposes for which it was instituted, we say, they granted it un- 
 limited power in the use of means, to raise armies, from their popula- 
 tions. But if ever that Government shall apply those means to the 
 enrollment of the officers, and agents, by whom the State Governments 
 are operated, and without whose agency their machinery must stop, it 
 will manifestly transcend its limit, by violating "the intention of those 
 who conferred the power." We quote also to the same effect, Prof. 
 Rutherforth. In his institutes of Natural Law, after explaining how 
 
10 
 
 despotic Governments are produced, he proceeds ; "In all the 
 the same body, which prescribes what is to he done having the public 
 force in its hands to compel the execution of it, is suited to no constitu- 
 tional checks or controls ; it is ] ossessed of the whole power of Govern- 
 ment, and consequently is as absolute as it is possible for civil power to 
 be. T say, as it is possible for civil power to lie ; because civil power 
 when it is vested any where, unless in the collective body of the Society, 
 however absolute it may be in some respects, is not so in all. We c J 
 it absolute, where the Constitution has provided no constant and uniform 
 control of it; that is, we call it absolute, when it is so in respect "I' any 
 constitutional restraint. But still, as it is only civil power, it will be 
 limited by its own nature : for as this is a power formed for certain 
 purposes, it cannot in its own nature be so far absolute, as to be free 
 cither to promote those purposes, or to pi-event them." (2 Ruth: '.'!•. 
 397.) 
 
 The preamble of our Constitution recites, that 'the people of the 
 ('onfedcratc States, eaoh State acting in its sovereign and independent 
 character, in order to form a permanent federal government, establish 
 justice, insure domestic tranquility, and secure the blessings of liberty 
 * * * do ordain and establish this Constitution," &c. 
 
 Now is it not apparent that whenever the Government thus instituted, 
 shall use a power granted to it. so as to annihilate, suspend or obstruct 
 the State Governments, eharged with the administration of interna], 
 domestic polity — with "establishing justice," between man and man, it 
 will "prevent the purposes for which it was established," and 
 its limits ' 
 
 Sir Wm. Blackstone, affirms that the law of nature is superior to civil 
 power, and that "no human laws arc of any validity if contrary to it." 
 (1st Blac's Com.41.) 
 
 Vatel say-. " The law of Nations limits the civil power." (Vatel's L. 
 X. (preliminaries) Sec. '•'. p. 51.) 
 
 We learn from these Commentators, (of acknowledged authority) 
 that civil power, even in d in and 
 
 trained within limits, by great first principles, or by limitations inh 
 in each particular system. Were there do more certain or definite 
 irity, in our case, we might confide that a Government adminisb - 
 
 by agents, eh 
 
 and therefore responsible to them, would respect tic - 
 oised limit- of even irresponsible power. 
 
 But there are in the Constitution itself, express limitation . 
 
20 
 
 this point. The .sixth clause of the Gth article, is in these words. " The 
 poivers not delegated to the Confederate States, by the Constitution, 
 nor prohibited by it, to the States, are reserved to the States, respec- 
 tively, or to the people thereof" As a general grant of power includes 
 the means necessary to its exercise, so a general reservation of power, 
 includes its necessary instrumentalities. As no interference of State 
 authority, with the exercise of granted powers, should be permitted; so 
 no suspension, or obstruction, by Confederate authorities, of reserved 
 p >wcrs, should be permitted. Without descending to particulars, we 
 remark that, that whole class of powers, not delegated to the Confederate 
 States, (and it is a large one) requires governmental functions, which 
 were previously in full exercise. Any interference with these, would 
 violate this clause. 
 
 Again, the fourth clause, third section, fourth article, reads thus : 
 " The Confederate States shall guaranty to every State that now 
 is, or hereafter may become, a member of this Confederacy, a Re- 
 publican form of Government " SfC. Can a Eepublican form of Gov- 
 ernment be maintained, without the necessary instrumentalities ? 
 
 If by any Act of the Confederate Government, such instrumentalities, 
 whilst in the exercise of their proper functions, within any State, were 
 forcibly withdrawn, would not that Act violate the constitutional guar- 
 anty ? 
 
 In the populations of the States, there is ample scope and verge for 
 the exercise of the power in question, without invading the departments 
 of the State Governments. So far, the Congress have recognised the 
 limit here pointed out, by an Act of exemption, directory of their enroll- 
 ing officers. 
 
 We have said that they may be safely trusted for its observance, and 
 we now add, that in our opinion, if ever regardless of it, the judicial 
 interposition, sought and refused in this case, might properly be invoked. 
 
 < >ur conclusion, then is, that as to the use of means, the power is 
 unlimited, but clearly limited, so as to exempt the civil officers of the 
 several States. 
 
 Such is the construction we give to the Constitution, and wc now cite, 
 in addition to those previously cited on particular points, high authorities, 
 which seem to us, to cover the whole ground. 
 
 Judge Story, who by his judicial opinions, and by his voluminous 
 Commentaries on the Law, has established a wide and exalted reputa- 
 tion, as a jurist ; and whose dear legal vision was never jaundiced by 
 
21 
 
 political aspirations, or party associations, Las treated this subject fully, 
 both in its historical and political relations. 
 
 We commend to the impartial inquirer, his entire commentary on the 
 clause in question, from section 1 17-1 to 11^7, inclusive — commencing 
 mi page 64 of the 3d volume of liis Commentaries on the Constitution 
 
 r. s. 
 
 Our quotations must necessarily be limited. In see. 1174, p\ 64, vol 
 3, he remarks : "The power to raise armies is an indispensable incident 
 to the power to declare war ; and the latter would be literally brutum 
 fulmen without the former, a means of mischief without a power of 
 defense. Under the Confederation Congress possessed no power what- 
 ever to raise armies : but only 'to agree upon the number of land forces, 
 and to make requisitions from each State for its quota." " kv. It will 
 bo observed that the learned Commentator considers the grant under the 
 old Confederation, "no power wJiatever to raise armies." 
 
 But if the present Constitution does not give the power to coerce 
 individuals, it will be exceedingly difficult to appreciate the gain of 
 power. After giving a summary of the arguments adduced for 
 and against the power, whilst the Constitution was before the peo- 
 ple of the States for their adoption or rejection ; he adds, (section 
 1 178, inclusive.) "Indeed, in regard to times of wat , it seems 
 utterly preposterous to impose any limitations i/]X)?i the power . 
 since it is obvious that emergencies may arise, which would require the 
 most various and independent exercise of it. The country would 
 otherwise be in danger of losing both its liberty and \t< sovereignty, 
 from its dread of investing the public councils with the power of defend- 
 ing it. It would be more willing to submit to foreign conquest than to 
 domestic rule. But in times of peace, the power may, be at last equally 
 important, though not so often required to be put in full exei 
 
 In 181 1, Mr. Monroe, then Secretary of the War Department, pre- 
 sented to the Congress a plan for the increase of the army involving 
 compulsory enrollment. For this plan, see 7 Niles AVccklv B 
 294. 
 
 Whilst hi- plan was under consideration, Mr. Monroe addn ssed to the 
 Chairman of the Committee on Military affairs, a letter, from which we 
 extract, as foil- 
 
 " The idea that the United Si lai army in any 
 
 other mode than by accepting the voluntary i f individu 
 
 pugnant to the uniform 
 , and equally so to the first principles and leading objecta of the 
 
22 
 
 federal compact. An unqualified grant of power gives the means ne- 
 cessary to carry it into effect. This is an universal maxim which admits 
 of no exception. Equally true is it that the conservation of the State 
 is a duty paramount to all others. The commonwealth has a right to 
 the service of all its citizens, or, rather, the citizens composing the com- 
 monwealth have a right collectively and individually to the service of 
 each other, to repel any danger which may be menaced. The manner 
 in which the service is to be apportioned among the citizens, and render- 
 ed by them, are objects of legislation. All that is to be dreaded in such 
 case, is the abuse of power, and happily our Constitution has provided 
 ample security against that evil. 
 
 "The limited power which the United States have in organizing the 
 militia may be urged as an argument against their right to raise regular 
 troops in the mode proposed. If any argument could be drawn from 
 that circumstance, I should suppose that it would be in favor of an op- 
 posite conclusion. The power of the United States over the militia has 
 been limited, and that for raising regular armies granted without limita- 
 tion. There was, doubtless, some object in this arrangement. The fair 
 infereuce seems to be, that it was made on great consideration ; that th 
 limitation in the first instance was intentional, the consequence of the 
 unqualified grant of the second.*' (7. Niles TV. R. 138-9.) 
 
 George M. Troup, of Georgia, a man " without fear and without re- 
 proach," a profound Statesman, an early, consistent and unrelenting 
 advocate of State-rights ; whom the people of Georgia, at least, always 
 delighted to honor, and felt safe in following, was then Chairman of that 
 Committee. As Chairman he reported a bill, for the increase of the 
 army, based upon Mr. Monroe's recommendation, and supported by an 
 argument from which we extract the following : 
 
 " Rut is there no mode to which you can resort for filling the ranks, 
 but voluntary enlistment ? I would be extremely sorry if we could not. 
 I have always thought this Government, when administered in the 
 true spirit of the Constitution, the strongest Government in the world, 
 even for the purposes of war ; but if the doctrine set up of late be true, 
 this is the weakest and most contemptible Government on earth ; it is 
 neither fit for war or peace, it has failed of all the ends for which Gov- 
 ernments are established ; it cannot be true that this Government, 
 charged with the general defence, authorized to declare war and to 
 ■raise armies, can have but one mode of raising armies, whilst every 
 other Government that has ever existed, has had an absolute p>oiccr 
 over the 'population of the country for this purpose, and has actually 
 
23 
 
 exercised it ; but this question is not properly before the Souse, and I 
 will not go into an argument to shew thai you can, like other Govern, 
 raente, resort to other modes of raising armies than that of voluntary 
 enlistment ; that you can resort to classification and draft, to classification 
 and penalty, or any other mode which a sound discretion may, in a par* 
 ticular state of the country, dictate and justify. All I intend to say at 
 present is, that you have an absolute power over the population of /he 
 country for this purpose, and that in the present stale of the country, 
 it is wiser to resort to classification and draft, than to resort to the bill 
 from the Senate : the one will give the men certainly and expedi- 
 tiously^ the other will not" (7. Niles Weekly Register, 79.) 
 
 Thus sustained, by cotemporary, and subsequent expositions of the 
 Constitution, we rest upon our conclusions, undisturbed by any lingering 
 doubt. And it is a high gratification, that in the crisis of our late a- a 
 nation ; when flagitious war is desolating our country, we are enabled 
 in perfect consistency with the obligations of official duty, to " stay-up 
 the hands" of our Confederate authorities, in the wise and timelj 
 cise o\' a power expressly granted. 
 
 We. therefore, unanimously adjudge, that the judgment of the (V 
 below he affirmed. 
 
 
 
t. 
 
 infers 
 
 limitation i 
 
 unqualified gr;w . .) 
 
 George M. Trouj ... ». .r and without re- 
 
 proach," a profound Steu. ,n, an early, con. Jnt and unrelenting 
 advocate of State-rights ; 'whom the people of Georgia, at least, always 
 delighted to honor, and felt safe in following, was then Chairman of that 
 Committee. As Chairman he reported a bill, for the increase of the 
 army, based upon Mr. Monroe's recommendation, and supported by an 
 argument from which we extract the following : 
 
 " But is there no mode to which you can resort for filling the ranks, 
 but voluntary enlistment ? I would be extremely sorry if we could not. 
 I have always thought this Government, when (id ministered in the 
 true spirit of the Constitution, the strongest Government in the world, 
 even for the purposes of war ; but if the doctrine set up of late be true, 
 this is the weakest and most contemptible Government on earth ; it is 
 neither fit for war or peace, it has failed of all the ends for which Gov- 
 ernments arc established ; it cannot be true that this Government, 
 charged with the general defence, authorized to declare 'tear and to 
 raise armies, can have but one mode of raising armies, whilst every 
 other Government that has ever existed, lias had an absolute poiccr 
 over the population of ihc country for this purpose, and has actually