(3. oycTicj. e9f: 
 
 <V1 
 
 
 >H 
 
 
 
 B 
 
 R 
 
 Pi 
 < 
 
 
 
 >, 
 
 o 
 
 & 
 
 
 
 ^ 
 
 
 pa 
 
 M 
 ■ 
 
 PS 
 
 w 
 
 
 £ 
 
 >* 
 
 >• 
 
 "So 
 
 a 
 
 
 ■ 
 D 
 N 
 
 
 *** 
 
 n, 
 
 K 
 
 a 
 
 9 J 
 2 fe 
 
 
 •** 
 v. 
 
 > 
 
 CO 
 
 J 
 pa 
 
 fc 
 & 
 
 
 
 H 
 
 o 
 
 ►j 
 o 
 o 
 
 <^ 
 
 
 D 
 
 
 
 ,*» 
 
 
 Q 
 
 
 
 <o 
 
 
 
 
 
Digitized by the Internet Archive 
 in 2010 with funding from 
 Duke University Libraries 
 
 http://www.archive.org/details/correspondencebOOgeor 
 

 CORRESPONDENCE 
 
 BETWEEN 
 
 GOVERNOR BROWJN 
 
 AND 
 
 A 
 
 PRESIDENT DAVIS, 
 
 ON 
 
 
 V 
 
 } 
 
 THE CONSTITUTIONALITY . W 
 
 OJf 
 
 THE CONSCRIPTION ACT. S 
 
 L 
 
 w 
 
 ATLANTA, GA.: 
 
 ATLANTA USTTKLLIGKNCKR PRINT. 
 
 1 862 
 
 
 i 
 
 
 I 
 
 X 
 
CORRESPONDENCE 
 
 
 GOVERNOR BROWN 
 
 A V D 
 
 PRESIDENT DAVIS, 
 
 ■• 
 
 THE CONSTITUTIONALITY 
 
 OF 
 
 THE CONSCRIPTION ACT. 
 
 ATLANTA. <;A.: 
 a: i .AVi a [NTELLIi r.K PRIKT. 
 
CORRESPONDENCE. 
 
 EXECUTIVE DEPARTMENT, ) 
 
 MlLLBDOEVILLB, G.\., Al'Rll. 22d, 1862. \ 
 
 His Excelled v Jeffsbsos Davis, 
 
 Richmond, Virginia : 
 
 _/?<?«/• iS»r: So soon as I received from the Secretin- of War 
 official notice of the passage, by Congress, of the Conscription 
 Act, placing in the military service of the Confederate States 
 all white men between the ages of 18 and 3S years, I saw that 
 it was impossible for me longer to retain in the field the Georgia 
 State troops, without probable collision and conflict with the 
 Confederate authorities, in the face of the enemy. I, therefore, 
 acquiesced in the necessity which compelled me to transfer the 
 State forces to the command of the Confederate General at Sa- 
 vannah, and tendered to General Lawton, who commands the 
 Military District of Georgia, not only the Conscripts in the State 
 Army, but, also, those not Conscripts, for the unexpired term 
 of their enlistment. General Lawton accepted the command 
 with the assurance that he would interfere as little a- ]■ 
 with the company and regimental organizations of the troops. 
 This assurance, I trust, the Government will permit him to carry 
 out in the same spirit of liberality in which it was given. If thu 
 State Regiments are broken up and the Conscripts beli 
 them forced into other organizations against their consent, it 
 will have a very discouraging effect. If the Regiments and 
 Companies were preserved, and permission giv< n to the officers 
 to fill up their ran ■■rails, then aid be n<> doubt of 
 
 their ability to do bo; and I think they I > ex- 
 
 pert this privilege. 
 
 Georgia ha* promptly responded to every call made upon 
 for you for troop«. and has always gives more than y 
 
 «•» 4«m/ 
 
she now lias about H0,000 in the field. Had you called upou her 
 Executive for 20,00c) more, (if her just quota,) they would have 
 been furnished without delay. The plea of necessity, so far, at 
 least, as this State is concerned, cannot be set up in defen 
 the Conscription Act. 
 
 When the Governmenl of the United States disregarded and 
 attempted to trample upon the rights of the State-. Georgia sel 
 its power at defiance and seceded from the Union, rather than 
 submit to the consolidation of all power in the hands of the Cen- 
 tral or Federal Government. 
 
 The Conscription Act not only puts it in the power of the Ex- 
 ecutive of the Confederacy to disorganize her troops, which she 
 was compelled to call into the field, for her own defence, in ad- 
 dition to her just quota, because of the neglect of the Confede- 
 racy to place sufficient troops upon her coast for her defence — 
 which would have required less than half the number she has 
 sent to the held — but, also, places it in his powe* to destroy her 
 State Government by disbanding her law-making power. 
 
 The Constitution oi' this State makes every male citizen who 
 has attained the age of 21 years eligible to a seat in the House 
 of Representatives of the General Assembly, and every one who 
 has attained the age of 25 eligible to a seat in the Senate.— 
 There are a large number of the members of the General As- 
 sembly between the ages of 18 and :;•">. They are white eitizeds 
 of the Confederate States, and there is no statute in the State, 
 and I am aware of none in the Confederate States Code, which 
 exempts them from military duty. They, therefore, fall within 
 the provisions of the Conscription Act. ft may become neoea 
 Sary for me to convene the General Assembly in extra session ; 
 >>r, if not, the regular session will commence the first Wednes- 
 day in November. When the members meet at the Capitol, if 
 not sooner, they might be claimed as Conscripts by a Confede- 
 rate officer, and arrested with a view to carry them to some re- 
 mote part of the Confederacy, as recruits, to fill up some Com- 
 pany now in service. They have no military power', and could 
 only look to the Executive of the State for military protection: 
 and I cannot hesitate to say that, in such case, I .should use all 
 the remaining military force of the State in defence of a < 
 dinate Constitutional branch of the Gov< i i can^ there 
 
fore; permit no enrollment oi* the members of the General As- 
 sembly under the Conscription Act. The same is true of the 
 Judges of the Supreme and Superior Courts should any of them 
 fall within the ages above mentioned; and of the Secretaries of 
 the Executive Department ; the heads and necessary clerks oi 
 the other Departments of the State Government ; and the Tax 
 Collectors and Receivers of the different counties, who arc now 
 in the midst of their duties, and arc not permitted by law t6 
 supply substitutes, and whose duties must he performed, or the' 
 revenues of the Stale cannot he collected. The same remark 
 applies to the Stall' of the Commander-in-Chief There is no 
 statute exempting them from military duty, for the reason that 
 they are at all times subject to the command of the Governor, 
 and are not expected to go into the ranks. 
 
 The State's Quartermaster, Commissary, Ordnance and En- 
 gineers 3 Departments, fall within the same rule. The Major 
 Generals, Brigadier Generals, and other officers of the Militia, 
 would seem to be entitled to like consideration. 
 
 Regain — the Western and Atlantic- Kail Road is the property 
 
 of the State, and is under the control ami management o\' the 
 
 Governor. It is a source of revenue to the State, and its suc- 
 
 il management is a matter of great military importance, 
 
 both to the State and the Confederacy. I now have an efficient 
 
 of officers and workmen upon the Road, and must 
 pend operations if all between L8 and 35 are taken away 
 the Road. 
 
 [would, also, invite your attention to the further fact ilia 
 the State owns and controls the Georgia Military Institul 
 Marietta, and now "has in the Institute over 125 Cadets, a largo 
 proportion of whom are within the age of Conscripts, [f thi 
 
 exempted, this most important Institution is broken \\)>. I 
 must not omit, in this connection, the students of the Stat' 
 
 \ersity, and of the other Colleges of the State. These valuable 
 Institutions <.f learning musl also be suspended if the law 
 forced against the students. 
 
 [ would, also, respectfully call your attention to the furl 
 faet that in portions of our State where the slave populati 
 heavy, almost the entire whit'- male population capable of bcar- 
 
 ing arms, except the overseers on the plantations, are now in 
 
 .i4.inf;4 
 
the military service of the Confederacy. Most of these over- 
 are over^lS and under 85, If they are carried to the field, 
 thousands of slaves must l>e left without overseers, and their 
 labor not only lost at a time when there is great need of it in 
 tin.' production of provisions and supplies for our armies, but the 
 peace and safety of helpless women and children must be imper- 
 iled for want of protection against bands of idle slaves, who 
 must he left to roam over the country without restraint, 
 • It is also worthy of remark, that a large proportion of our 
 best mechanics, and of the persons engaged in the various 
 branches of manufacturing now of vital importance 1<> the suc- 
 cess of our cause, are within the ages which subject them to the 
 provisions of the Conscription Act. 
 
 My remark that I cannot permit the enrollment of such State 
 officers as are necessary to the existence of the State Govern 
 ment, and the working of the State Road, does not, of course, 
 apply to persons engaged in the other useful branches of indus 
 try considered of paramount importance, but I must ask, in jus- 
 tice to the people of this State, that such exemptions among 
 these classes be made as the public necessities may require. 
 
 As you are well aware, the military operations of the Govern- 
 ment cannot he carried on without the use of all our 3 Jail 
 Roads, and the same necessity exists for the exemption of all 
 other Rail Road officers and workmen which exists in the case 
 of the State Road. 
 
 There are doubtless other important interests not herein enu- 
 merated which will readily occur to you, which must lie kept 
 alive or the most serious consequences must ensue. 
 
 The Constitution gives to Congress the power to provide for 
 organizing, arming and disciplining the militia, and for govern- 
 ing such part of them as may be employed in the service of the 
 Confederate States, reserving i<> tin: States, respectively \ the ap- 
 point, 7" offid rs, and the authority of training the mi- 
 litia according to the discipline prescribed by Congress. The 
 I scription Act gives thq President the power to enroll the 
 entire militia of the States between 18 and 35, and takes from 
 I States their constitutional right to appoint the officers and 
 to train the militia. 
 
 Wh ave to tie,- States the appointment 
 
( f a single officer to command the militia employed in the ser : 
 vice of the Confederate States under its provisions, it places it 
 in the power of the President to take a Major General of the 
 Militia of a State, if he is not •">■"> years of age, and place him in 
 the ranks of the Confederate States army, under the command 
 of a 3rd Lieutenant appointed by the President, and to treat 
 him as a deserter if he refuses to obey the call and submit to 
 the command of the subaltern placed over him. 
 
 I do not wish to be understood, in any portion of this letter, 
 to refer to the intentions of the President, hut only to the ex- 
 traordinary powers given him by the Act. 
 
 This Art not only disorganizes the military system of all the 
 States, but consolidates almost the entire military power of the 
 States in the Confederate Executive with the appointment of 
 the officers of the militia, ami enables him at his pleasure to 
 cripple or destroy the civil government of each State, by arrest- 
 ing and carrying into the Confederate service the officers charged 
 by the State Constitution with the administration of the State 
 *; ivernment. 
 
 I notice by a perusal bi the Conscription Act that the Presi- 
 dent may, with the consent of the Governors of the respective 
 States, employ State officers in the enrollment of the Conscripts. 
 While I shall throw no obstacle in the way of the general en- 
 rollment ot* persons embraced within the Act, except as above 
 stated, 1 do not feel that it is the duty of the Executive of a 
 State to employ actively the officers of the State in the execution 
 of a law which virtually strips the State of her constitutional 
 military powers, and, if fully executed, destroys the Legislative 
 Department of her Government, making even the sessions of her 
 ably dependent upon the will of the Confederate 
 : itive. I therefore respectfully decline all connection with 
 the proposed enrollment, and propose to reserve the question of 
 tin' constitutionality of the Act, and its binding force upon the 
 people of this State, for their consideration al a time when it 
 may less seriously embarrass the Confed< racy in the prosecution 
 of the war. 
 
 You will much oblige by informing me of the extent to which 
 you ] emptions, if any, in favor of the inti 
 
 otioned, ai Bider of vital 
 
importance. "■ at lo our peo- 
 
 ple, and they are anxious to know your pleasure in the prena- 
 
 Very respectfully, 
 
 Your obedieul servant, 
 JOSEPH E. BROWN. 
 
 Richmond, Aruit 28th, L862. 
 To His Excellency Joseph E. Brown, 
 
 Governor of the State ol Georgia : 
 ,■ Sir: — I have received your letter of the 22d inst., in- 
 forming riie of your transfer of the Georgia State troops to 
 General Lawton, commanding Confederate forces at Savannah 
 — suggesting that there be as little interference as possible cm 
 the part of the Confederate authorities with the present organi- 
 zation of those troops — and mentioning various persons and 
 classes as proper subjects for exemption from military service 
 under the provisions of an "Act to further provide for the pub- 
 lic defence,"' approved on the 16th inst. 
 
 1 enclose copies of the Act tor receiving State troops tender- 
 ed, as organized, and of the Exemption Ad. Bv the first, in- 
 terference with the present organization of Companies, Squad- 
 rons, Battalions or Regiments, tendered hy Governors of States, 
 is specially disclaimed. By the other, exemptions are made 
 which explain (satisfactorily, I trust,) the policy <>f Congress 
 with regard to tin persons and interests yon 
 
 The Constitutionality of : the Acl you refer to as thi 
 scription Bill," is clearly nol derivable from the power to call 
 out the militia, Imt from that to raise armios. With regard to 
 ili,. mode of officering tin-' troops now called into the servi 
 t he Confederacy, the intention of Congress is to me. as to you, 
 io he learned from its Act-; ami, from the terms employed, it 
 would seem that the policy of election by the troops themselves 
 is adopted by Congress. 
 
 With ureal regard, very respectfully, 
 
 Vour obedient servant, 
 
 Jefferson da vis. 
 
KXIXTTIVE DEPARTMENT, I 
 
 Mii.i.kookvu.i.k, Ga., May 9, 1862^ \' 
 
 His K\( ki.i.i:\< x .Ikfkkkson Payis: ' " 
 
 Dear /Sir: [ have the honor to acknowledge the receipt of 
 your favor of the 28tb ult., in reply to my letter to you upon the 
 subject of the Conscription Act. I should not trouble you with 
 a reply, were it not that principles are involved of the* most 
 vital character, upon the maintenance of which, in my opinion, 
 depend not only the rights and the sovereignty of the States, 
 but the very existence of State Government. 
 
 While I am always happy as an individual to render you any 
 assistance in my power, in the discharge of the laborious and 
 responsible duties assigned yon, and while 1 am satisfied you 
 will bear testimony that 1 have never, as the Executive of this 
 State, failed in a single instance to furnish all the men, and more 
 than you have called for, and to assist you with all the other 
 means at my command,! cannot consent to commit the State to 
 a policy which is in my judgment subversive of her sovereignty, 
 and at War with all the principles for the support of which Geor- 
 gia entered into this revolution. 
 
 It maybe said that it is no time to discuss constitutional 
 questions in the'mFdsl of revolution, and that State rights and 
 State sovereignty musl yield for a time to the higher law of ne- 
 cessity. If this he a safe principle of action, it cannot certainly 
 apply 4ill the necessity is shown to exist; and I apprehend it 
 would he a dangerous policy to adopt, were \vc i" admit that 
 isc i he power of setting aside the Consti- 
 tution, are to he the judges of the necessity for so doing. Bui 
 did th iy exisl in this case? The Conscription Act can- 
 
 ap\ "aid tin' Government in increasing its supply of a?'m» or 
 
 n only enable it to call a larger number oi 
 into the field. The difficulty has never been to eel men. The 
 States have already furnished the Government more than it can 
 arm, and have from their own means armed and equipped very 
 large numbers for it. Georgia has not only furnished more than 
 you have asked, and armed and equipped, from her own treasu 
 ry, a large proportion of those she has aenl to the field, hut she 
 i ready to furnish promptly her quota (organised as the 
 Constitution provides) of any additional number ealled tor by 
 the President 
 
10 
 
 I beg leave again to invite your attention to the constitutional 
 question involved. You say in your letter, that the constitu- 
 tionality of the act is clearly not derivable from the power to 
 call out the militia, but from that to raise armies. Let us exam- 
 ine this for a moment. The 8th section of the 1st article of the 
 Constitution defines the powers of Congress. The 12th para- 
 graph of that section declares, that Congress "shall have power 
 to raise and support armies." Paragraph 15 gives Congress 
 power to provide for calling forth f*he militia to execute the laws 
 of the Confederate States, suppress insurrections, and repel In- 
 vasions. Paragraph 16 gives Congress power to provide for or- 
 ganizing, arming ami disciplining the militia, and for governing 
 such part of them as may he employed in the service of the Con- 
 federate States, reserving to tho States respectively the appoint- 
 ment of the officers, and the authority of training the militia ac- 
 cording to the discipline prescribed by Congress. 
 
 These grants of power all relate to the same "subject matter, 
 and are all contained in the same section of the Constitution, and 
 by a well known rule of construction, must be taken as a whole 
 and construed together. 
 
 It would seem quite clear, that by the grant of power to Con- 
 gress to raise and support armies, without qualification, the fra- 
 mers of the Constitution intended the regular armies of the Con- 
 federacy, and not armies composed of the whole militia of all 
 the States. If all the power given in the three paragraphs 
 above quoted, is in fact embraced in the Hrst, in the general 
 words to raise armies, then the other two paragraphs are mere 
 surplusage, and the framers of the Constitution were guilty of 
 the folly of incorporating into the instrument unmeaning phrases. 
 When the States, by the 16th paragraph, expressly and care- 
 fully reserved to themselves the right to appoint the officers of 
 the militia, when employed in the service of the Confederate 
 States, it was certainly never contemplated that Congress had 
 power, should it become necessary, to call the whole militia 
 of the State into the service of the Confederacy, to direct that 
 the President should appoint (commission) all the officers of the 
 militia thus called into service, under the general language con- 
 tained in the previous grant of power to raise armies. If this 
 can be done, the very object of the State in reserving the pow- 
 
11 
 
 cr of appointing the officers is defeated, and that portion of the 
 Constitution is not only a nullity, bnt the whole military power 
 of the States, and the entire control of the militia, with the ap- 
 pointment of the officers, is rested in the Confederate Govern- 
 ment, whenever it chooses to call its own action "raising an ar- 
 my/'' and not "calling forth the militia. " Is it fair to conclude that 
 the States intended that their reserved powers should be defeated 
 in a matter so vital to constitutional liberty, by a mere change 
 in the use of terms to designate' the act ? Congress shall have 
 (lower to raisi armies, llow shall it be done? The answer is 
 dear. In conformity to the provisions of the Constitution 
 which expressly provides that, when the militia of the States are 
 called forth to repel invasions^ and employed in the serviee of the 
 Confederate States, (which is now the case.) the States shall ap- 
 point the officers. If this is done, the army is raised as directed 
 by the Constitution, and the reserved rights of the States are 
 respected; but, if the officers of the militia, when called forth, 
 are appointed by the President, the army composed of the mili- 
 tia is not raised as directed by the Constitution, and the reserved 
 rights of the States are disregarded. The fathers of the Re- 
 public in 1787, showed the utmost solicitude on this very point. 
 In the discussions in the Convention upon the adoption of this par- 
 agraph in the Constitution of the United States, which we have 
 copied and adopted without alteration, Mr. Ellsworth said: — 
 "The whole authority over the militia ought by m> means to be 
 taken away from the States, whose consequence would pine 
 away to nothing after such a sacrifice of power." In explana- 
 tion of the power which the committee, who reported this par- 
 agraph to the Convention, intended by it to delegate to the 
 General Government, when the militia should he employed in 
 the sen ice of that Government, Mr. King, a member of the com- 
 mittee, said: "By organizing, the committee meant propor- 
 tioning the officers ami men; by arming, specifying the kind, 
 size and calibre of arms; by disciplining, prescribing the man- 
 ual exercise, evolutions, Are." 
 
 Mr. Gerry objected to the del* >f the power, even with 
 
 explanation, and said : " This power. in the United State-, 
 - making the States drill aei B 
 
12 
 
 command from the States, and subject them to the Genera) Leg- 
 islature." 
 
 Mr. Madison observed, thai "arming, as explained, <li<l not 
 extend to famishing arms, nor the term disciplining to penal- 
 ties and courts martial lor enforcing tbenr." 
 
 Alter the adoption by the Convention of the first part of the 
 clause, Mr. .Madison moved t<> amend the next part of ii. so as 
 tejead <{ reserving to the States respectively the appointment 
 of the officers, tender the rank of general qfiici rs." 
 
 Mr. Sherman considered this as absolutely inadmissible, lie 
 said that "if the people should be so far asleep as to allow the 
 most influential officers of the militia to be appointed by the 
 General Government, every man o\' discernment would rouse 
 them by sounding the alarm to them." 
 
 Upon .Mr. Madison's proposition, Mr. Gerry said: "J 
 once destroy the State Governments, have an Executive for life, 
 or hereditary, and a proper Senate, and then there would be some 
 consistency in i;iv'mu- full powers to the General Government; 
 but as the States are not to be abolished, he wondered at the 
 attempts that were made to give powers inconsistent with then- 
 existence, lie warned the Convention against pushing the ex- 
 periment too far.''' 
 
 Mr. Madison's amendment to add to the clause the words 
 "und4ri?ie rank of gerierah ton by a major- 
 
 ity of eight State- against three, according to the "Ma 
 Papers," from which the above extracts are taken ; arid by nine 
 States against two, according < to the printed journals of the 
 Convention. The reservation in the form in which it now stands 
 in the Constitution,. " reserving to the States the appointment 
 of the officers," when the militia are employed in the service of 
 the Confederacy, as well the general officers as those under that 
 grade, was then adopted unanimously by the Convention. 
 
 At the expense of wearying your patience, J have been thus 
 careful in tracing the history of this clause of the Constitution, 
 to show that it was the clear understanding of those who origi- 
 nated this part of the fundamental law, that the States should 
 retain their power over their militia, even while in the service of 
 the Confederacy, by retaining the appointment of all the officers. 
 In practice, the Government of the United States, anions 
 
13 
 
 other Numerous encroachments of power, had usurped to itself 
 the power which the Convention, after mature deliberation, had 
 expressly denied to it, to wit: the power of appointing the 
 general officers of the militia, wheri employed in the service 
 
 the General Government. 
 
 But even that Goyernmenl had never attempted to go to the. 
 extent of usurping the power to appoint the field and company 
 Officers. If the framers of the Constitution were startled at the 
 idea of giving the appointment of the general officers to the 
 General Government, and promptly rejected it, how would they 
 have met a proposition to give the appointment of \u. mi: of- 
 itji EBB, down to the lowest lieutenant, to it? 
 
 But you say, "with* regard to the mode of officering the 
 troops no \* called into the service of the Confederacy, the in- 
 tention of Congress is td be learned from its acts; and from the 
 terms employed it Would seem that the policy of election by the 
 troops themselves, is adopted by Congress." 
 
 I confess I had not bo understood it, without, very essential 
 qualification. It is true, the twelve-months men who re-enlist 
 have a right, within forty days, to re-orgaui/.e and elect their 
 offie' 
 
 But if 1 understand the act, judging from the urn-,- used, all 
 oies which occur in the old regiments are to be tilled, not 
 by election, but .by the Presides^ by promotion, down to the 
 lowest commissioned officer, whose vacancy alone is tilled by 
 election, and even this rule ofcf promotion may be set aside by 
 the President at any time, under circumstances mentioned in 
 the act, and he may appoint any one he pleases to till the vacan- 
 cy, if, in his opinion, the person selected is distinguished for 
 skill or valor ; and the commission in either, and all tho cases 
 mentioned, must be issued by the President. 
 
 Quite a number of Georgia regiments are in for the war, 
 who- - hold commissions from the Executive of the State; 
 
 hut even in these regiments, under the act, every person ap 
 pointed to till any vacancy which may hereafter occur, must, it 
 would seem, hold his commission, notfr State, but from 
 
 the President. 
 
 But admit t: Intended e the 
 
 e right t 93 •■ rs ( which has 
 
14 
 
 not been the established practice, aa you have commissioned 
 many persons to command as field officers Without election.) 
 this does not relieve the acts of Congress from the charge o& 
 violation of the Constitution. The question is not as to the 
 mode of selecting the person who is to have the commission, 
 but as to the Government which has. under the Constitution; 
 the right to issue the commission. The States, in the exercise 
 of their reserved power to appoint the officers, may select them 
 by election, or may permit the Executive t<> select them; but 
 the appointment rests upon the commission, as there is no com- 
 plete appointment till the commission is issued ; and, therefore, 
 the Government that issues the commission exercises the ap- 
 pointing power, and controls the appointment. 
 
 I am not, however, discussing the intention of Congress in 
 the assumption of this power, but only the question of its pow- 
 ers ; and whatever may have been its intention, I maintain that 
 it has transcended its constitutional powers, and has placed in 
 the hands of the Executive of the Confederacy that which the 
 States have expressly and carefully denied to Congress and re- 
 served to themselves. 
 
 But you may ask, why hold the Executive responsible for the 
 unconstitutional action of Congress ? I would not, of course, in- 
 sist on this any further than the action of Congress has been 
 sanctioned by the Executive, and acted upon by him. 
 
 Feeling satisfied that the Conscription Act, and such other 
 acts of Congress as authorize the President to appoint or com- 
 mission the officers of the militia of the State, when employed 
 in the service of the Confederate States to " repel invasion," are. 
 in palpable violation of the Constitution, I can consent to do no 
 act which commits Georgia to willing acquiescence in their bind- 
 ing force upon her people. I cannot, therefore, consent to have 
 anything to do with the enrollment of the conscripts in this 
 State ; nor can I permit any commissioned officer of the militia 
 to be enrolled, who is necessary to enable the State to exercise 
 her reserved right of training her militia, according to the dis- 
 cipline prescribed by Congress, at a time when to prevent trou- 
 bles with her slaves, a strict military police is absolutely neces- 
 sary to the safety of her people. Nor can I permit any other 
 officer, civil or military, who is necessary to the maintenance of 
 
15 
 
 the State Government, to be carried out of the State as a con- 
 script. 
 
 Should you at any time need additional troops from Georgia 
 to ijll up her just quota, in proportion to the number furnished 
 l>y the other States, you have only to call on the Executive for 
 the number required, to be organized and officered as the Con- 
 stitution directs, and your call will, as it ever lias done, meet a 
 prompt response from her noble and patriotic people, who, while 
 they will watch with a jealous eye, even in the midst of revolu- 
 tion, every attempt to undermine their constitutional rights, will 
 never be content to be behind the foremost in the discharge of 
 their whole duty. 1 am, with great respect, 
 
 Your obedient servant, 
 JOSEPH E. BROWN. 
 
 EXECUTIVE DEPARTMENT, ) 
 Richmond, May 29th, 1862- J 
 
 Dear Sir: I received your letter of the 8th inst., in due Course, 
 but the importance of the subject embraced in it required care- 
 ful 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 had been duly weighed before I recommended 
 to Congress the passage of such a 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 from the At- 
 torney-General. The constitutionality of the law was su>tained 
 by very large majorities in both houses. This decision of the 
 Congress meets the concurrence, not only of my own judgment, 
 but of every member of the Cabinet; and a copy of the opinion 
 of the Attorney-General, herewith enclosed, develops the rea- 
 sons on which his conclusion ar 
 
 I propose, however, from my high respect for yourself, and 
 for other eminent citizens who entertain opinions similar to 
 jours, 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 positions maintained in your letter. 
 
 The main, if not the only purpose for which indepen 
 States form Unions or Confederations, is to combine the power 
 of the several members in such manner as to form one united 
 force in all relations with foreign powers, whether in peace or in 
 war. Each State amply competent to administer and controlits 
 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 
 combined strength of all, in order t<» secure advai com- 
 
 mercial relations in peace and to carry on hos 
 in war. 
 
 Now, the powers delegated by the several States t<> th< Con- 
 federate Government, which is their common agent; are enume- 
 rated in the 8th section of the Constitution, each power being 
 distinct, specific, and enumerated in paragraphs separately num- 
 bered. The only exception is the 18th paragraph, which, by its 
 own terms, is made dependent on those previously enumerated, 
 as follows: 
 
 "18. To make all laws which shall be necessary ami proper 
 lor carrying into execution the foregoing powers," &c. 
 
 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 defence, and carry on the gov- 
 ernment," tfce. 
 
 No. 11, u to declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and Water i' 1 
 
 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 unquali- 
 fied delegation of the whole war power o\' each State than is hen- 
 contained, with the solitary limitation of the appropriations to 
 two years. The States not only gave power to raise money for 
 the common defence; to declare war ; to raise and support av- 
 
(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 3d paragraph of the 10th section, not 
 "to engage in war, unless actually invaded, or in such imminent 
 danger as will not admit of delay.*' 
 
 1 know of but two modes of raising armies within the ( on 
 federate States, viz : voluntary enlistment, and draft or conscrfp 
 tion. I perceive, in the delegation of power to raise armies, n<> 
 restriction as to the mode of procuring troops. I see nothing 
 which confines Congress to one class of men, nor any greater pow- 
 er to receive volunteers than conscripts Into its service. I see 
 no limitation by which enlistments are to be received of indi- 
 viduals 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 de- 
 Bires to raise an army, and passes a law for that purpose, the 
 solitary question is under the I8th paragraph, viz: " Is the law 
 one that is necessary and proper to execute the power to raise 
 armies,'' i&c? 
 
 On this point you saj : '* But did the necessity exist in tin* 
 The Conscription Act cannot aid the Government in in- 
 creasing the supply of arms or provision*, but can only enable 
 it to call a larger number of men into the field. The difficult) 
 has never been to get men. The States have already furnished 
 the Government more than it can arm," &c. 
 
 1 Would have very little difficulty in establishing to your en- 
 r.isfacti'in that the passage o\' the law was not only iv 
 nary, but that it was absolutely indispensable; that numerous 
 regiments of twelve months men were on the eve of being di* 
 banded, whose places could not be supplied by new levies in the 
 face of superior numbers of the foe, without entailing the most. 
 rous results; that the position of our armies was BO criti- 
 cal as to fill the bosom of every patriot, with the liveliest appre 
 <n ; and that the provisions of this law were effective iu 
 warding off a pressing danger. But I prefer to answer yom 
 objection on other and broader ground*. 
 
 I hold, that when a specific power is granted by the.Constitu 
 ! 
 
18 
 
 tion, 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, there- 
 fore, this particular way is not '•necessary/' The same argu- 
 ment 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 L- 
 armies." It is, therefore, "necessary and proper" for the exe- 
 cution 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 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 denning 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." Art. 1, sec 10, par. 3. 
 
 They further stipulate, that "a well regulated militia being 
 necessary to the security of a tree State, the right 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 oth- 
 erwise infamous crime, uulcss on a presentment or indictment 
 of a grand jury, except in cases arising in the laud or naval 
 forces, or in the militia when in actual service in time of war or 
 public danger," &c. Sec. 0, 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 
 
 , the men of a State capable of bearing arms are no more 
 
 militia than they are seamen. 
 
 The Constitution also tells ns that militi t troops^ nor 
 
1!) 
 
 are they any part of the land or naval forces ; for militia exist 
 in time of peace, ami the Constitution forbids the States to keep 
 troops in time of peace, and they are expressly distinguished 
 ami placed in a separate category from land or naval forces, in 
 the 10th paragraph, above quoted ; and the words land <■ 
 vat forces are shown, by paragraphs 12, 13 and 1 J, to mean tin; 
 army and navy of the Confederate States. 
 
 Now, if militia are not the citizens taken singly, but a body 
 created bylaw; if they are not troops, if they arc no part of 
 the army and navy of the Confederacy — we arc led directly to 
 the definition quoted by the Attorney General, that, militia 
 are a "body of soldiers in a State enrolled for discipline." 1:: 
 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 (he 
 States into ohly two classes of organized bodies — one, the armies 
 of the Confederacy; the other, the militia of the. States. 
 
 In the delegation of power to the Confederacy, after exhaust- 
 ing the subject of declaring war, raising and supporting armies, 
 and providing a navy, in relation to all which the grant, ot' 
 authority to Congress is exclusive, the Constitution proceeds to 
 deal with the other organized body, the militia, and instead of 
 delegating power to Congress alone, or reserving it to the 
 States alone, the power is divided as follows, viz: Congress is 
 to have power — 
 
 "To provide for calling forth the militia to execute the laws 
 ot the Confederate States, suppress insurrections, ami repel 
 invasions." Sec. 8. Par. 15. 
 
 "To provide for organizing, arming, ami disciplining the 
 
 militia, and for governing such part of them as may be employed 
 
 in theservic- of the Confederate States; reserving to the States 
 
 ittvely thi appointment of offi <:<■.<•* and the authority of 
 
 mg the militia according to the discipline prescribed by 
 
 Congress." Par. 10. 
 
 CongresSj then, lias the power to p 
 arms-bearing people of the Stai' ilitia. Eacl 
 
 the power to officer and train them win n organi 
 laress ma j call forth the militia to execute 
 
laws The State has not surrendered the power to call thorn 
 forth to execute StaU laws. 
 
 Congress may call them forth to repel invasion ; so may the 
 State, for it lias expressly reserved this right. 
 
 ( 'ongress may call them forth to suppress insurrection; and 
 so may the stat< , t*<>r the power is impliedly reserved of govern- 
 ing all the militia except the part in actual service of the Con- 
 federacy. 
 
 I confess myself at a loss to perceive in what manner these 
 careful and well defined provisions of the Constitution regulating 
 the organization and government of the militia, can be under- 
 stood as applying in the remotest degree to the armies of the 
 Confederacy ; nor can I conceive how the grant of exclusive 
 power to declare and carry on WW by armies raised and sup- 
 ported by the Confederacy, is to be restricted or diminished by 
 the clauses which grant a divided power over the militia. On 
 the contrary, the delegation of authority over the militia, so far 
 as granted, appears to me to be plainly an additional enume- 
 rated power, intended to strengthen the hands of the Confed- 
 erate Government in the discharge of its paramount duty, the 
 common defence of the States. 
 
 You state, after quoting the 12th, 15th, and 16th grants of 
 power to Congress, that, "These grants of power all relate 
 to the same subject matter, and are all contained in the same 
 section of the Constitution, and by a well known rule of con- 
 Kt ruction, must be taken as a whole, and construed together." 
 
 This argument appears to me unsound. — All the powers of 
 Congress are enumerated in one section; and the three para- 
 graphs quoted ean no more control each other by reason of their 
 location in the same section, than they can control any of the • 
 other paragraphs preceding, intervening, or succeeding. So far 
 as the subject matter is concerned, I have already endeavored to 
 show that the armies mentioned in the 12th paragraph are a 
 subject matter as distinct from the militia mentioned iu the 15th 
 a.nd 16th, as they are from the navy mentioned in the 13th. 
 Nothing can so mislead as to construe together and as a wholes 
 the carefully separated clauses which define the different powers 
 to be exercised over distinct subjects by the Congress. But, you 
 add, that, " by the gram of power to. Congress to raise and 
 
'1 1 
 
 support armies, without qualification, the framers of the < 
 tution intended the regular armies of the Confederacy, and not 
 armies composed of the whole militia of all the States." 
 
 1 must confess myself somewhat at a loss to Understand this 
 position; If I am right, .that the militia is a body of enrolled 
 State soldiers, it is not possible, in the nature of things, that 
 armies raised by the Confederacy can "be composed of tho 
 whole militia of all the States." The militia may be called fc 
 in whole, or in part, into the Confederate service, hut do not 
 therehy become part of the "Armies raised" by Congress. — 
 They remain militia, and go home when the emergency which 
 provoked their call has ceased. Armies raised by Congress li • 
 of course raised out of the same population as the militia organ- 
 ized by the States ; and to deny to Congress the power to draft 
 a citizen into the army, or to receive his voluntary offer of ser- 
 vices because he is a member of the State militia, i< to deny 
 the power to raise an army at all; for, practically, all men (it 
 for service in the army may he embraced in the militia organ- 
 izations Of the several Stales. You seem, however, to sugg 
 rather than directly to assert, that tie- I onscript law may 
 be unconstitutional, because it comprehends all arms-bear- 
 ing men hetween 18 and 35 years: at least iliis is an infer- 
 ence which I draw from your expression, '■•armies com! 
 of the />•/,,>/<■ militia of </// the States. M But it i> obvious, 
 that it Congress have power to draft into the armies raised 
 by it any citizens at all (without regard to the fact whether 
 they are or not members of militia organizations,) the power 
 must he co-extensive with the exigencies of the occasion, or 
 it becomes illusory; and the extent o! the exigency musl be 
 determined hy Congress ; for the Constitution has left the power 
 without any other check or restriction than (he Executive veto. 
 Under ordinary circumstances, the power thus delegated to< 
 <_rre>s is scarcely felt hy the States. At the present moment 
 when our very existence is threatened, hy armies vastly sip 
 in numbers to ours, the necessity for defence has induced a 
 not " for the whole militia of all the Stales," not tor any militia, 
 
 but for men to compose armies for the Confederate Si 
 
 Sureiv, there is no mystery on this subject. 1 taring our whole 
 past history, as well us during ou ' ul one year's 
 
22 
 
 as a new Confederacy, the militia "have been called forth to 
 repel invasion" in numerous instances: and they never came 
 otherwise than as bodies organized by the States, with their 
 company, field, and general officers : and when the emergency 
 had passed, they went home again. 
 
 I cannot perceive how anyone can interpret the Conscription 
 Law as taking away from the States the power to appoint 
 officers to their militia. You observe on this point in your let- 
 ter, that unless your construction is adopted, "the very object 
 of the States in reserving the power of appointing the officers, 
 is defeated, and that portion of the Constitution is not only a 
 nullity, but the whole military power of the States, and the 
 entire control of the militia, with the appointment of the officers, 
 is vested in the Confederate Government, whenever it chooses to 
 call its own action ' raising an army,' and not calling forth the 
 militia." 
 
 I can only say, in reply to this, that the power of Congress 
 depends on the real nature of the act it proposes to perform, not 
 on the name given to it; and I have endeavored to show that its 
 action is merely that of " raising an army," and bears no sem- 
 blance to " calling forth the militia." I think I may safely ven- 
 ture the assertion, that there is not one man out of a thousand 
 of those who will do service under the Conscription .Vet that 
 would describe himself, while in the Confederate service, as 
 being a militia man; and if I am right in this assumption, the 
 popular understanding concurs entirely with my own deduc- 
 tions from the Constitution as to the meaning of the word " mil- 
 itia." 
 
 My answer has grown to such a length that I must confine 
 myself to one more quotation from your letter. You proceed : 
 "Congress shall have power to raise armies. Mow shall it be 
 done ? The answer is clear. In conformity to the provisions of 
 the Constitution, which expressly provides that when the militia 
 of the States are called forth to repel invasion, and employed 
 in the service of the Confederate States, which is now the ease, 
 the State shall appoint- the officers." 
 
 I beg you to observe that the answer which you say is clear, 
 is not an answer to the question put. The question is : How 
 are armies to be raised? The answer given is, that when militia 
 
23 
 
 are culled forth to repel invasion, the State shall appoint the 
 officers. 
 
 There seems tome to be a conclusive te>t on this whole sub- 
 ject. By our Constitution Congress may declare war, offensive 
 as well as defensive. It may acquire territory. — Xow, suppose 
 that for good cause, and to right unprovoked injuries, Congress 
 (should declare Avar against Mexico, and invade Sonora. The 
 militia could not be called forth in such a case, the right to call 
 it being limited "to repel invasions.'' Is it Dot plain that the 
 law now under discussion, if passed under such circumstances, 
 could by no possibility be aught else than a law to " raise an 
 army ?" Can one and the same law be construed into a " calling 
 forth the militia," if the war be defensive, and a " raising of 
 armies,"" if the war be offensive ? 
 
 At some future day, after our independence shall have been 
 established, it is no improbable supposition that our present 
 enemy may be tempted to abuse his naval power, by depredation 
 on our commerce, and that we may be compelled to assert oiir 
 rights by offensive war. How is it to be carried on ? Of what 
 is the army to be composed'? If this Government cannot call 
 on its arms-bearing population otherwise 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 protect our rights. 
 War has been well styled "the terrible litigation of nations." 
 Have we so formed our Government, that in this litigation we 
 never be plaintiff? Surely this cannot have been the inten- 
 tion of the framers of our compact. 
 
 In no aspect in which I can view this law, can I find just rea- 
 son to distrust the propriety vl' my action in approving and 
 signing it ; and the question presented involves consequences, 
 both immediate and remote, too momentous to permit me to 
 leave your objections unanswered. 
 
 In conclusion, I take great pleasure in recognizing that the 
 history of the past year affords the amplest justification for your 
 assertion, that if the question had been, whether the Conscription 
 Law was necessary in orderto raise men in Georgia, the answer 
 
 have been in the negative. Your noble State has promptly 
 responded to every call that it ha- been my duty to make on 
 her; and to you, personally, as her Executive, I acknowledge 
 
24 
 
 adebteduess for the prompt, cordial, and effective co-opera- 
 tion you have afforded Die in the effort to defend our common 
 country against the common enemy. 
 I am, very respectfully, 
 
 Your ohedicnt servant, ■ 
 
 JEFFERSON DAVIS, 
 ilis Excellency Jos. E. Brown, 
 
 Governor of Georgia, 
 
 Milledgeville. 
 
 Atlanta, June 21st, 1862. 
 His Excellency Jeferson Davis, President, <{•". 
 
 Dear Sir: — I have the honor to acknowledge the receipt of 
 your letter of the 20th ult., in reply to mine of the 8th of the 
 game month, which reached my office, at jlilledgeville, on the 
 8th instil, together with a copy of the written opinion of the 
 Attorney General, and has since heeu forwarded to me at Can- 
 ton, where I was detained by family affliction. 
 
 Your reply, prepared after mature deliberation and consulta- 
 tion with a Cabinet of distinguished ability, who concur in your 
 view of the constitutionality of the Conscription Act, doubtless 
 presents the very strongest argument in defence of the Act, of 
 which the case is susceptible. 
 
 Entertaining, as I do, the highest respect for your opinions 
 and those of each individual member of your Cabinet, it is with 
 greai diffidence that I express the conviction, which I still enter- 
 tain, after a careful perusal of your letter, that your argument 
 fails to sustain the constitutionality of the Act ; and that the 
 conclusion at which you have arrived is maintained by neither 
 the contemporaneous construction put upon the Constitution by 
 those who made it, nor by the practice of the United States 
 Government, under it, during the earlier and better days of the 
 Republic, nor by the language of the instrument itself, taking 
 the whole context, and applying to it the well established rules 
 by which all constitutions and laws are to be construed. 
 
 Looking to the magnitude of the rights involved, and the dis- 
 astrous consequences which, I fear, must follow what 1 consider 
 
a bold ami dangerous usurpation 'by Coi erved 
 
 rights of the States, and a rapid stride towards military d< 
 ism, 1 very much regret that I have not, in the preparation oi' 
 this reply, the advice and assistance of a number equal to your 
 Cabinet, of the many "eminent citizens" who, you admit, enter- 
 tain with me, the opinion that the Conscription Act is a palpable 
 violation of the Constitution of the Confederacy. Withoutthis 
 assistance, however, I must proceed individually to expree 
 you some views, in addition to those contained in my former 
 letters, and to reply to such points made by you in the argument, 
 as seem to my mind to have the most plausibility in sustaining 
 your conclusion. 
 
 The Sovereignty and independence of each one of the thirl 
 States at the time of the adoption of the Constitution of the 
 United States, will not, I presnme, be denied by any, nor will it 
 be denied that each of these States acted in it- separate capacity, 
 as an independent sovereign, in the adoption of the Constitution, 
 The Constitution is, therefore, a League between sovereigns. In 
 order to place upon it a just construction, we must apply to it 
 the rules, which, by common consent, govern in the construc- 
 tion of all written constitutions and laws. One of the first of 
 these rules i<. to inquire what was the intention of those who 
 made the constitution. 
 
 To enable us to learn this intention, it is important to inquire 
 what they did, and what they said they meant, when they were 
 making it. In other words, to inquire for the contemporaneous 
 construction put upon the instrument by those who made it, and 
 the explanations of its meaning by those who proposed each 
 part in the Convention, which induced the Convention to adopt 
 each part. 
 
 I incorporated into my last letter a number of quotations from 
 the debates of prominenl members of the Convention upon the 
 very point in question, showiag thai it was not the intern i 
 the Convention to give to Congress the unlimited control of all 
 the men able to bear arms in the States, but that i: 
 intention to reserve to the States the control over l 
 composed their militia, by retaining to th«> States the ap, 
 ment of the officers to command them, even while " emi 
 'm the service of the < - " I might add 
 
26 
 
 other quotations containing Rtrong proofs of this position, from 
 the debates of the Federal Convention, and the action of the 
 State Conventions which adopted the Constitution ; but I deem 
 t unnecessary, as you made no allusion to the contemporaneous 
 construction in your reply, and I presume you do not insist that 
 the explanations of its meaning given by those who made it 
 sustain your conclusion. 
 
 I feel that I am fully justified by the debates ami the action of 
 the Federal and State Conventions, in saying that it was the 
 Intention of the thirteen sovereigns, to constitute a common 
 agent with certain specific and limited powers, to be exercised 
 for the good of all the principals, but that it was not the inten- 
 tion to give the agent the power to destroy the principals. 
 The agent was expected to be rather the servant of several mas- 
 ters, than the master of several servants. I apprehend it was 
 never imagined that the time would come when the agent of the 
 sovereigns would claim the power, to take from each sovereign 
 every man belonging to each, able to bear arms, and leave them 
 with no power to execute their own laws, suppress insurrections 
 in their midst, or repel invasions. 
 
 In reference to the practice of the United States Government 
 under the Constitution, I need only remark, that I do not pre- 
 sume it will be contended that Congress claimed or exercised 
 the right to compel persons constituting the militia of the States, 
 by conscription or compulsion, to enter the service of the Gen- 
 eral Government, without the consent of their State Govern- 
 ment, at any time while the Government Mas administered, or 
 its councils controlled, by any of the fathers of the Republic who 
 aided in the formation of the Constitution. 
 
 If, then, the constitutionality of the Conscription Act cannot 
 be established by the contemporaneous construction of the Con- 
 stitution, nor by the earlier practice of the Government while 
 administered by those who made the Constitution, the remaining 
 inquiry is, can it be established by the language of the instru- 
 ment itself, taking the whole context, and applying to it the usual 
 rules of construction, which were generally received and admit- 
 ted to be authoritative at the time it was made. 
 
 The Constitution, in express language, gives Congress the 
 power to "raise and support armies. "' You rest the case here, 
 
27 
 
 and Kay you know of but two modes of ' raising armies," to 
 wit : " by voluntary enlistment, and by draft or conscription," 
 and you conclude that the Constitution authorizes Congress to 
 raise them by either or both these modes. 
 
 To enable us to arrive at an intelligent conclusion as to the 
 meaning intended to be conveyed by those who used this lan- 
 guage, it ie necessary to inquire what signification was attached 
 to the terms used, at the time they were used ; and it is fair to 
 infer that those who used them intended to convey to the minds 
 of others the idea which was at that time usually conveyed by 
 the language adopted by them. Apply this rule, and what, did 
 the Convention mean by the term " to raise armies?" 1 prefer 
 that the Attorney General should answer. He says in his writ- 
 ten opinion: 
 
 "Inasmuch as the words ' militia,' ' armies,' 'regular troops,' 
 and 'volunteers,' had acquired a detinite meaning in Great Brit- 
 ain before the Revolutionary war, and as we have derived most 
 of our ideas on this subject from that source, we may safely 
 conclude that the term ' militia,' in our Constitution, was used 
 in the sense attached to it in that country." 
 
 Upon this statement of the Attorney General rests his definition 
 of the term "militia/' which is an English definition ; and upon 
 that definition rests all that part of your argument, which draws 
 a distinction, however unsubstantial, between calling forth tho 
 militia by authority of Congress, and calling forth all men in 
 the State who compose the militia by the same authority. In 
 the one case, you term it railing forth the militia, and admit that 
 the State has the right to appoint the officers: in the other case 
 while every man called forth may be the same, you term it 
 ing an army, and deny to the State the appointment of the 
 officers. As this is necessary to sustain the constitutionality of 
 the Conscription Act, you cannot disapprove the statement of 
 the Attorney General above quoted. If. then, the Attorney 
 General is right, that the terms " militia," M armies," regular 
 troops,'' and u volunteers" had acquired a detinite meaning in 
 Great Britain before the Revolutionary war, and we have derived 
 <>f our ideas on this subject from that BOUroO, and if we 
 may - elude that the term " militia"' in our Constitution 
 
 was used in the sense attached to it in that country, is it not 
 
28 
 
 equally safe to conclude thai the terms "armies/ 1 and to " raise 
 armies.'' having acquired a definite meaning in Great Britain 
 before the Revolutionary war, were used in our Constitution in 
 the same sense attached to them in that country? 
 
 At that period, the Government of Great Britain had no, 
 Conscription Act, and did not " raise armies" by conscription , 
 therefore the Convention which made our Constitution, "having 
 derived most of their ideas on this subject from that source," it 
 is "safe to conclude" that they used the term to "'raise armies 
 in the sense attached to it in that country." It necessarily fol- 
 lows, the Attorney General being the judge, that your conclu- 
 tion is erroneous, and that Congress has.no power to "raise 
 armies," not even her " regular armies," by conscription. 
 
 But, as those who framed the Constitution foresaw that Con- 
 gress might not be able by voluntary enlistment, to raise regu- 
 lar or standing armies sufficiently large to meet all emergencies, 
 or that the people might refuse to vote supplies to maintain in 
 the field armies so large and dangerous, they wisely provided, 
 in connection with this grant of power, another relating to the 
 same subject-matter, and gave Congress the additional power 
 to call forth the militia to execute the laws of the Confederate 
 States, suppress insurrections, and repel invasions. 
 
 In this connection, 1 am reminded by your letter, that Con- 
 gress has power "to declare war," which you say embraces 
 the right to declare offensive as well as defensive war ; and you 
 argue, as I understand, that the militia can only be called forth 
 to repel invasions, and not to- invade a foreign power, and that 
 Congress would be powerless to redress our wrongs, or vindi- 
 cate our honor, if it could not "raise armies" by conscription, 
 to invade foreign powers. If this were even so, it might be an 
 objection to the Constitutional Government, for want of suffi- 
 cient strength, which is an objection often made by those who 
 faVor more absolute power in the General Government, and 
 who attempt, by a latitudinarian construction of the Constitu- 
 tion, to supply: powers which were never intended to be given 
 to it. But does the practical difficulty which you suggest, in 
 fact exist ? I maintain that it does not. And I may hero 
 remark, that those who established the Government of our 
 fathers, did not look to it, as a great military power, whose 
 
people were to live by plundering other nations in foreign 
 aggressive war, but as a peaceful Government, advised by the 
 Father of his Country, t<> avoid ''entangling alliances" with 
 ign powers. 
 
 But you suppose, alter our independence is established, that 
 our present enemy may be tempted to abuse his naval power, 
 by depredation on our commerce* and that we maybe compelled 
 to assert our rights by offensive war, and you ask, "How is it. 
 to be carried on?" "Qf what is the army to be composed? 1 ' 
 The answer is a very simple one. If the aggression is such as 
 to justify ux in the declaration of offensive war, our people will 
 have the intelligence to know it, and the patriotism and valor to 
 prompt them to respond by voluntary enlistment, and to offer 
 themselves under officers of their own choice, through their 
 State authorities, to the Confederacy, just as they did in the 
 offensive war against Mexico, when many more were offered 
 than were needed, without conscription <>r coercion; and just 
 as they have done in our present defensive war, when almost 
 every State has responded to every call, by sending larger num- 
 bers than were called for, and larger than the Government can 
 arm and make effective. There is no danger that the honor of 
 the intelligent freeborn citizens of this Confederacy will ever 
 suffer because the Government has not the power to compel- 
 them to vindicate it. They will hold the Government responsi- 
 ble if it refuses to permit them to do it. To doubt this, would 
 seem to be, to doubt the intelligence and patriotism of the peo- 
 ple, and their competency for self-government. 
 
 It would be very dangerous, indeed to give the General Gov- 
 ernment the power to engage in an offensive foreign war, the 
 justice of which Mas condemned by the Governments of tin- 
 States, and the intelligence of the people, and to compel thou 
 to prosecute it for two years, the term for which appropriation- 
 can be made and continued l»y the Congress declaring it. I lei:. « 
 the wisdom of our ancestors in limiting the power of Congress 
 <>\i r the militia, or great body of our people, »,, ;is to prohibit 
 the prosecution, by conscription <>r coercioji^ of an offensive 
 foreign war, which may be condemned by an intelligent public 
 opinion. 
 
 France has a oonftcriptioi Britain ha* not. 
 
30 
 
 Both are warlike powers, often engaged in foreign offensive wars. 
 What advantage has the conscription law given to France over 
 Great Britain ? Has not the latter been as able as the former 
 to " raise armies" sufficient to vindicate her honor and maintain 
 her rights ? When Franco had no conscription law at one 
 period of her history, she was a Republic. Soon after she had 
 a conscription law, she became an Empire, and her ruler an 
 Emperor, leaving her people without the constitutional safe- 
 guards which protect the people of Great Britain. 
 
 But you ask, " Shall we never be plaintiff iu this ' terrible 
 litigation of nations '?' " If the litigation commends itself to 
 the intelligence of the people as just, they will not hesitate to 
 put themselves at the command of the Government to assume 
 the plaintiff's position. The eagerness with which the people 
 of the Confederacy now desire that we assume the plaintiff's 
 position, and become the attacking and invading party, instead 
 of acting constantly upon the defensive, is evidence to sustain 
 my conclusion on this point. 
 
 That those who framed the Constitution looked to a state of 
 war as tending to concentrate the power in the Executive, and 
 as unfavorable to constitutional liberty, and did not intend to 
 encourage it, unless in cases of absolute necessity, and did not, 
 therefore, form the Government with a view to its becoming a 
 power often engaged in offensive Avar, may be inferred from 
 the language of Mr. Madison. He says: 
 
 " War, is, in fact, the true nurse of Executive aggrandize- 
 ment. In war a physical force is to be created, and it is the 
 Executive will which is to direct it. In war the public trea- 
 sures are to be unlocked, and it is the Executive hand which is 
 to dispense them. In war, the honors and emoluments of office 
 are to be multiplied, and it is the Executive patronage under 
 which they are to be enjoyed. It is in war, finally, that laurels 
 are to be gathered, and it is the Executive brow they are to 
 encircle. The strongest passions and most dangerous weak- 
 nesses of the human breast — ambition, avarice, vanity, the hou- 
 orable or venial love of fame, are all in conspiracy against the 
 and duty of peace." See Federalist, page 452. 
 In connection with this remark of Mr. Madison, it may not 
 be amiss to add one from Mr. Calhorfri. Ttrat great and good 
 
31 
 
 man who may justly be styled the champion of State Rights 
 and Constitutional Libert;/, in the first volume of his works, 
 page 301, while speaking of the war which was forced upon Mr. 
 Madison while President, by Great Britain, says: 
 
 "It did more; tor the war, however just and necessary, 
 a strong impulse adverse to the Federal and favorable to the 
 national line of policy. This is, indeed, viw of the unavoidable. 
 consequences of war, and can be counteracted only by briuging 
 into full action the negatives necessary to the protection of the 
 reserve dpaieers. These would, of themselves, have the effect of 
 preventing wars, so long as they could be honorably and safely 
 avoided.; and when necessary. o\' arresting, to a great extent, 
 the tendency of t/<>- Government to transcend the limits of the 
 Constitution during its prosecution, and of correcting all de- 
 partures alter its termination. It was by force of the tribunitial 
 power that the plebeians retaiuedfor so long a period their liber- 
 ty in the midst of SQ many war-." 
 
 1 beg to call special attention to the portions o\' the above 
 quotation which I have italicised. 
 
 Having rested the constitutionality of' the Conscription .V' 
 upon the power given to Congress to "raise armies," you enun- 
 ciate a doctrine which I must be pardoned for saying, struck me 
 with surprise; not that the doctrine was new, for it was firsl 
 proclaimed, I believe, almost as strongly, by Mr. Hamilton in 
 the Federalist, but because it found an advocate in you, whom 
 I had for many years regarded as one of the ablest and boldest 
 defender^ of the doctrines of the State Rights school, in th 
 government. Your language is : 
 
 " I hold that when a specific power is granted by the Consti- 
 tution, like that now in question, to • raise armies,' Congress is 
 the judge whether the law passed for the purpose of executing 
 that power. is accessary and proper." 
 
 Again you say : 
 
 "The true and only test is. to enquire whether the law : 
 tended and calculated to carry out the object, whether it devi- 
 Bes and creates an instrumentality for executin • 
 power granted, and if I ' . 
 
 is constitutional." 
 
From this you argue that the Conscription Act is calculated 
 
 and intended to "raise armies,"' and, therefore, constitutional. 
 
 I am not aware that the proposition -was ever -stated more 
 broadly in favor of unrestrained Congressional power, by Web- 
 ster, Story, or any other statesman or jurist of the Federal 
 school. 
 
 This is certainly not the doctrine of the republican party of 
 1798, asset forth in the Virginia and Kentucky Resolutions. 
 The Virginia Resolutions use the following language, that, " It 
 (the General Assembly of Virginia,) views the powers of the 
 Federal Government as resulting from the compact to which 
 the States are parties, as limited by the plain sense and inten- 
 sion of the instrument constituting that compact, as no further 
 valid than they are authorized by the grants enumerated in that 
 compact; and that in the case of a deliberate, palpable and daii- 
 geroas exercise of other powers not granted by said compact, 
 the States who are parties thereto, have the right and are in du- 
 ty bound to interpose for arresting the progress of the evil, 
 and for maintaining within their respective limits the authori- 
 ties, rights and liberties appertaining to them. That the Gene- 
 ral Assembly doth also express its deep regret, that a spirit has 
 in sundry instances been manifested by the Federal Government, 
 to enlarge its powers by a forced construction of the Constitu- 
 tional charter which defines them; and that indications have 
 appeared of a design to expound certain general phrases—* 
 (which having been copied from the very limited grant of pow- 
 ers in theformer articles of Confederation were the less liable 
 to be misconstrued) — so as to destroy the meaning and effect of 
 the particular enumeration, which necessarily explains and lim- 
 its the general phrases, so as to consolidate the States by degrees 
 into '"" sovereignty, the obvious tendency and-inevitable result 
 of which would be to transform the present Republican .system 
 at' the United States, into an absolute or ' 7/ least a mixed mon- 
 arcfiy." 
 
 -The following quotation* are from the Kentucky Resolutions 
 drawn up by Mr. Jefferson himself, (the italics, as in the last 
 quotation, are my own.) u That the several States composing 
 the United States of America are not united on the principle of 
 unlimited submission to the General Government; but that, by 
 
33 
 
 a, compact under the style and title of a Constitution of the 
 United States, and of amendments thereto, they constituted a 
 General Government for special purposes — delegated to that 
 Government certain definite powers ; reserving, each State to it- 
 self, the residuary moss of right to their own self-government f 
 that, whensoever the General Government assumes undelegated 
 powers its acts are unauthoritative, void and of no force ; that, 
 to this compact each State acceded as a State, and is an integral 
 party — its co-States forming as to itself the other pari v ; that 
 the Government created by this compact was not mode, the ex- 
 clusive >>r final Judge of the extent of the pavers delegeiteel t» 
 it — since that would hoc/ mode its discretion and not the 
 Constitution the measure of its powers ; hut that as in all other 
 rases of compact among parties having no common Judge, 
 each has an equal right to Judge for itself as well of infrac- 
 tions as of the modi, and measure of redress* 
 ' And again : 
 
 " That the construction applied by the General Government 
 (as evinced bj sundry of their proceedings) t<> those pans of 
 the Constitution of the United States which delegate to Con- 
 gress a power to lay and collect, taxes, duties, imposts and exci- 
 ses ; to pay the dents and provide for the common defence and 
 general welfare of the United States; and to make all laws ne- 
 cessary and proper for carrying into execution the powers ve.v- 
 ted by the Constitution in the Government of the I 1 nit ed Stales. 
 or any department thereof, goes to the destruction, of oil the 
 limits prescribed to their poicer by the Constitution. That 
 words meant by that, instrument to he subsidiary only Up the, 
 execution of the limited powers ought not to he so construed, a* 
 themselves to give unlimited powers, nor a part so to be '"kin 
 as to destroy the whole residue of the instrument." 
 
 But let u> examine your doctrine a little further and see 
 whether it can be reconciled to the construction lately put upon 
 the Constitution by the States composing the Confederacy, over 
 which you preside, and the action lately taken by them. 
 
 The Constitution of the United States gives Congress the 
 r to provide for calling forth the militia to "suppress in 
 Rurrections." Carry out your doctrine, and Congress must of 
 the Judge of what constitutes 'in insurrection, as well 
 
34 
 
 as of the means "necessary and proper" to be used in execu- 
 ting the specific power given to Congress to suppress it. Geor- 
 gia, claiming that the Congress of the United States had abused 
 the specific powers granted to it, and passed laws which were 
 not "necessary and proper" in executing these specific pow- 
 ers, which were injurious to her people, and claiming to be her- 
 self the Judge, seceded from the Union. Congress denied her 
 power or right to do so, and acting upon the doctrine laid down 
 by you, Congress claiming to be the Judge, proceeded to adju- 
 dicate the case, and determined that the action of Georgia 
 amounted to an insurrection, and passed laws for its suppres- 
 sion. Among others, they have passed a law, if Ave may credit 
 the newspapers, which authorizes the President to arm our ne- 
 groes against us. Congress will, no doubt, justify this act, un- 
 der the specific power given to it by the Constitution, to "raise 
 armies," as the armies, as well as the militia may be used to 
 suppress insurrection, and to execute the laws. Apply the test 
 laid down by you, and inquire, is this law " calculated and in- 
 tended" to carry out the object (the suppression of the insur- 
 rection, and the execution of the laws of the United States in 
 Georgia) ? and does it " devise and create an instrumentality 
 for executing the specific power granted ? " Congress, the 
 Judge, answers the question in the affirmative. Therefore the 
 law is constitutional. 
 
 Again, suppose you are right, and Congress has the constitu- 
 tional power to " raise armies " by Conscription, and without 
 the consent of the States, to compel every man in the Confede- 
 racy, between 18 and 35 years old, able to bear arms, to enter 
 these armies, you must admit that Congress has the same j>ow- 
 er to extend the law, and compel every man between 16 and GO 
 to enter. And, you must admit that the grant of power is as 
 broad in times of peace as in times of war, as theie is in the 
 grant no language to limit it to times of war. It follows that 
 Congress has the absolute control of every man in the State, 
 whenever it chooses to execute to the full extent the power giv- 
 en it by the Constitution to "raise armies." How easy a matter 
 it would have been, therefore, had the Congress of the United 
 States understood the full extent of its power to have prevented 
 in a manner perfectly constitutional, the secession of Georgia 
 
35 
 
 and Mississippi from the Union. It was only necessary to puss 
 a Conscription Law declaring every man in both States, able 
 to bear arms, to be in the military service of the United States, 
 and that each should be treated as a deserter if he refused to 
 serve; and that Congress, the Judge, then decide that this law 
 was "necessary and proper," and that it created an instrumen- 
 tality for the execution of one of the specific powers granted 
 to Congress to provide for the execution of the laws of the 
 Union in the two States, or to provide for "raising armies.' 1 
 This would have left the States without a single man at their 
 command, without the power to organize or use military force, 
 ami without free men to constitute even a Convention to pass 
 an ordinance of secession. 
 
 If it is said, the people of the States would haw refused to 
 obey this law of Congress, and would have gone out in defiance, 
 of it; it may be replied that this would have been revolution 
 and not peaceful secession, the right for which we have all con- 
 tended — though our enemies have not permitted us to part with 
 them in peace — the right for which we are now fighting. 
 
 Your doctrine carried out not only makes Congress supreme 
 over the States, at any time when it chooses to exercise the full 
 measure of its power to "raise armies," but it. places the very 
 existence of the State Governments subject to the will of Con- 
 gress. The Conscription Act makes no exception in favor ol* 
 the officers necessary to the existence of the State Government, 
 but in substance declares that they shall all enter the service of 
 the Confederacy, at the call of the President, under officers 
 which are in future to be appointed by the President. 
 
 A- already remarked, Congress has as much power to <■■ 
 the act to embrace all between 16 and 80, .•■■> it had to take all 
 between 18 and 35. If the act is constitutional, it follows that 
 Congress has the power to compel tie' Governor of every State 
 in the Confederacy, every member of every Legislature of 
 ry State, every Judge "i' every Court in every State, every offi- 
 cer of the militia <>t' every State, and all be offic -rs to 
 enter the military service as privates in the armies of the Con- 
 federacy, under officers appointed by the President, at any time 
 when it so decides. In other wordsj Congr ss may disband the 
 State Governments any day when it, as ides that 
 
by -bo doing it "creates an instrumentality Cut- executing the 
 specific power " to " raise armies." 
 
 If Congress ha? the right to discriminate, and take only those 
 between 1 8 and 35, it has the right to make any other discrimi- 
 nation it may judge "necessary and proper" in the "execu- 
 tion of the power," and it may pass a law in time of peace or 
 war, if it should conclude the State Governments are an evil r 
 that all State officers, Executive, Legislative, Judicial, and Mili- 
 tary, shall enter the armies of the Confederacy as privates un- 
 der officers appointed by the President, and that the army shall 
 from time to time be recruited from other State officers as they 
 may be appointed by the States. 
 
 To state the case in different form, Congress has the power 
 under the 12th paragraph of the 8th section of the 1st Article 
 of the Constitution to disband the State Governments, and leave 
 the people of the States with no other Government than such 
 military despotism, as Congress in the exercise of the specific 
 power to "raise armies'' (which I understand you to hold is a 
 distinct power to be construed separately) may, after an appli- 
 cation of your test, judge to be best for the people. 
 
 For, as all the State officers which I mem ion might make effec- 
 tive privates in the armies of the Confederacy, and as the law 
 passed to compel them to cuter the service might "create an 
 instrumentality for executing the specific power to "raise ar- 
 mies," Congress, the fUZlge, need only so decide and the r.ct, 
 would be constitutional. 
 
 I may be reminded, however, that Congress passed an Exemp- 
 tion Act after the passage of the Conscription Act, which ex- 
 empts the Governors of the States, the members of the State 
 Legislatures, the Judges of the State Courts, <fcc, from the ob- 
 ligation to enter the military service of the Confederacy as pri- 
 vates under Confederate officers. It must be borne in mind, 
 however, that this very act. of exemption by Congress is an as- 
 sertion of the right vested in Congress to compel them to go^ 
 when Congress shall so direct, as Congress has the same power 
 to repeal which it had to pass the Exemption Act. All the State 
 officers, therefore, are exempt from Conscription by the grace 
 and special fabor of Congress and not by right as the Gov- 
 ernments of the independent States whose agent, ami not mas- 
 
tor, Congress had been erroneously supposed to he. If this 
 •doctrine be correct, of what value arc Staty rights and 
 sovereignty > 
 
 In my former letter I insisted, under the general rule, tin ' 
 12th, 15th and 16th paragraphs of the section under considera- 
 tion, all relating to the same Subject Mattel; should be construed 
 together. While your language on this point is not so clear a> 
 an other parts of your letter, 1 understand you to lake issue 
 •with me here. You say : 
 
 •• Nothing can so mislead as to construe together and as 
 whole, the carefully separated clauses, which define the different 
 powers to be exercised over distinct subjects by Congress ,1 
 
 These are n ol carefully separated clauses which relate to dif- 
 ferent powers, to be exercised over distinct subjects. The) all 
 relate to the satin subject matter, the authority given to ( 
 gress over the question of war and peace. They all relate to 
 the use of armed force by authority of Congress. It", theri 
 Coke, Blaokstone and Mansfield of England, and Mars 
 Kent and - nntry, with all other intelligent wri- 
 
 ters on the ruh i , are to be respected as author- 
 
 ity, there can, if would seem, be n<> doubt of the oorrectne* 
 the position that these three paragraphs, together with all oth ? 
 er8 in the Constitution which relate to the same subject in • 
 are to be construed together "as One whole.*' 
 
 Construe them together, and the general language in oile par- 
 agraph} is so qualified by another paragraph, upon the sam 
 jrrt matter, thai all can stand together, and the whole when ta- 
 ken together, establishes to my mind the unsoundness of your 
 argument and the fallacy of your conclusion. 
 
 But I must not omit to notice your definition of the 
 '•militia,*' and the deductions which you draw from it. 
 
 You adopt, the definition of the Attorney General, that "the 
 militia are a body of soldiers in a State enrolled for discipline.'' 
 Admit, for the purposes of the argument, the correctness of the 
 definition. All persons, therefore, who are enrolled for disci- 
 pline under the laws of Georgia constitute her militia. V 
 the persons thus enrolled (the militia) are employed in tic 
 vice of the Confederate States, the Constitution expressly re- 
 serves to Georgia the appointment of tl The Con- 
 
scription Act gives the President the power by compulsion to 
 employ < very one of those persons, between 18 and 35, in the 
 service of the Confederate States; and denies to the State the 
 appointment of a single officer to command them, while thus 
 "employed."' Suppose Congress at its next session should ex- 
 tend the act so as to embrace all between 18 and 45, what is 
 the result? "The body of soldiers in the State enrolled for 
 discipline" are every man "employed in the service of the 
 Confederacy," and the right is denied to the State to appoint a 
 single officer, when the Constitution says she shall appoint them 
 all. Is it fair to conclude, when'the States expressly and care- 
 fully reserved the control of their own militia, by reserving the 
 appointment of the officers to command them, that they inten- 
 ded under the general grant of power to " raise armies," to 
 authorize Congress to defeat the reservation and control the 
 militia, with their officers, by calling the very same men into 
 the field, individually and not collectively, organizing them ac- 
 cording to its own will, and terming its action "raising an ar- 
 my" and not calling forth (he militia f Surely the great men 
 of the revolution when they denied to the General Government 
 the appointment even of the^ General Officers, to command the 
 militia when employed in the service of the Confederacy, did 
 not imagine that the time would come so soon when that Gov- 
 ernment, under the power to " raise armies," would claim and 
 exercise the authority to call into the field the whole militia of 
 the States, individually, and deny to the States the appointment 
 of the lowest lieutenant, and justify the act on the ground that 
 Congress did not choose to call them into service in their collec- 
 tive capacity, and deny that they were militia if called into ser- 
 vice in any other way. 
 
 If Congress has the power to call forth the whole enrolled 
 force or militia of the States in the manner provided by the 
 Conscription Act, there is certainly no obligation upon Congress 
 ever to call them forth in any other manner, and it rests in the 
 discretion of Congress whether or not the States shall ever be 
 permitted to exercise their reserved right ; as Congress has the 
 power in every case to defeat the exercise of the right by call- 
 ing forth the militia under a conscription act, and not by requi- 
 sitions made upon the States. It cannot be just to charge the 
 
States with the folly ol* making this important reservation, sub- 
 ject to any such power in Congress to render it litigatory at its 
 pleasure. 
 
 Again, you say "Congress may call forth the militia to exe- 
 cute Confederate laws ; the State has not surrendered the pow- 
 er to call them forth to execute State laws. 1 ' 
 
 "Congress may call them forth to. repel invasion; so may the 
 State, for it has expressly reserved this right/'' 
 
 " Congress may call them forth to suppress insurrection and 
 so may the State" 
 
 If the conscription law is to control, and Congress may, with- 
 out the consent of tin' State Government, order every man com- 
 posing the militia of the State, out of the State, into the Con- 
 ate service, how is the State to call forth her own militia, 
 as yon admit she has reserved the right to do, to execute her 
 own laws, suppress an insurrection in her midst, or repel an in- 
 vasion of her own territory? 
 
 Could it have been the intention of the States to delegati \<- 
 Congress the power to take from them without their consent 
 the means of self preservation, by depriving them of all tin 
 strength upon which their very existence depends? 
 
 After laying down the position that the citizens of a State arc 
 not her militia, and affirming that the militia are "a body or- 
 ganized by law,"" you deny that the militia constitute any part 
 of the land or naval forces, and say they are distinguished 
 from the land end naval forces, and you further say they have 
 al ways been called forth as " bodies organized by the States," 
 witli their officers; that they " do not become part of the armies 
 raised by Congress," but remain militia, and that when they 
 had been called forth, and the exigencies which provoked the 
 call had passed, " they went home again." The militia when 
 vailed fn-th are taken from the body of the people, to meet an 
 emergency, or to repel invasion. If they go in as "bodies or- 
 ganized by the States," you hold that they go in militia, remain 
 militia, and when the exigency is passed they go home militia, 
 but if you call forth, the same men by the Conscription Act for 
 the same purpose, and they remain for the same length of time, 
 and do the same service, they are nol militia but the armies of 
 the Confederacy, part of the land or naval force. In connec- 
 
40 
 
 tion with this part of the subject you use. the following lan- 
 guage : 
 
 "At the present moment when our very existence is threat- 
 ened by armies vastly superior in numbers to ours, the necessity 
 for defence has induced a call, not for the whole militia of 
 all the States, not for any militia, but for men to compose ar- 
 mies for the Confederate States." 
 
 In the midst of such pressing danger, why was it that there 
 was no necessity for any militia ; in other words, no necessity 
 for any " bodies of men organized by the States," as Avere many 
 of the most gallant regiments now in the Confederate service, 
 who have won on the battle-field a name in history, and laurels 
 that can never fade V 
 
 Were no more such bodies " organized by the States " needed, 
 because the material remaining within the States of which they 
 must be composed was not reliable V The Conscription Act. 
 gives you the very same material. Was it because the officers 
 appointed by the States to command the gallant State regiments 
 ^and other "organized bodies" sent by the States were less 
 ■brave or less skillful than the officers appointed by the President 
 %o command similar "organized bodies?" The officers ap- 
 pointed by the States who now command regiments in the. ser- 
 vice, will not fear to have impartial history answer this question. 
 Was it because you wished select men for the armies of the 
 Confederacy ? The Conscription Act embraces all, without dis- 
 tinction, between !8 and 3"> able to do military duty and not 
 legally exempt. You do not take the militia. What do you 
 take? You take every man between certain ages, of whom the 
 militia is composed. What is the difference between taking the 
 militia and taking all the men who compose the militia*? Sitr,- 
 ply this: In the one case you take them with their officers ap- 
 pointed by the States, as the Constitution requires, and call them 
 by their proper name, "militia," "employed in the service of 
 the Confederate States." In the other case you take them a!! 
 as individuals — get rid of the State officers — appoint officers of 
 your own choice, and call them the "armies of the Confede- 
 racy." And yet these armies, like yon say the militia do, will 
 "go home" when the exigency has passed, as it is hoped 
 <lhey are not expected to be permanent like the regular ar 
 
of the Confederacy; or, in other words, like the land and 
 forces provided for in the Constitution, from which you distin- 
 guish the militia. Indeed, the similarity between those "armies 
 of the Confederacy," called forth in an - inergency, to repel an 
 invasion, to be disbanded when the emergency is passed; and 
 the militia or bodies of troops organized ami officered by the 
 States, called forth for the same purpose, to be composed of the 
 same material and disbanded at the same time, is most remark- 
 able in everything, except the name and the appointment of the 
 officers. 
 
 Excuse me for calling your attention to another poiut in this 
 connection. 
 
 As you admit that the militia have always been called j 
 as "bodies organized by the States,'' and when thus called forth 
 that the States have always appointed the officer's, 1 presume 
 you will not deny that when the President, by authority oft 
 gross has made a call upon a State for "organized bodies of 
 soldiers," and they have been furnished by the State from the 
 body of her people, they ha ice as part o 
 
 ■ • Slate " of the < 'oufi 
 
 s" under the 15th and 16 graphs of tin 
 
 Section of the 1st Article of the Constitution. 
 
 Your message to Congress recommencing it- passage 8 
 that there wasno necessity for the act, to enable von to 
 troops, as you admit that the Executives of the States had ena- 
 bled you to keep in the field adequate forces, and also that the 
 spirit oi' resistance among the people was such that it ne 
 I jtllatcd and not stimulated. You say: 
 
 • l I am happy to assure you of the entire harmony of pur] 
 and cordiality of feeling which have continued to exist between 
 myself and the Executives o\' the several States, and it is to this 
 cause thai our success in keeping adequate forces in the fie 
 tq be attributed.'" Again yon say : 
 
 "The vast preparations made by the enemy for a combined 
 assault al numerous points on our frontier and sea coast, hava 
 produced the result that might have been expected. They have 
 animated the people with a spirit of resistance bo general, so 
 resolute and so self-sacrificing, that it require s rati 
 ulated than Co be st'mulat i 
 
42 
 
 If then the Executives of the States by their cordial co-ope- 
 ration had enabled you to keep in the held " adequate forces," 
 and the spirit of resistance was as high as you state, there was 
 no need of a Conscription Act to enable you to " raise armies." 
 
 Since the invasion of the Confederacy by our present enemy, 
 you have made frequent calls upon me as Governor of this State 
 for " organized bodies " of troops. I have responded to every 
 call and sent them as required, " organized " according to the 
 laws of the State, and commanded by officers appointed by the 
 State, and in most instances, fully armed, accoutred and equipped. 
 These bodies were called forth to meet an emergency,' and as- 
 sist in repelling an invasion. The emergency is not yet passed, 
 the invasion is not yet repelled, and they have not yet returned 
 home. If your position be correct they constitute no part of 
 the land or naval forces as they were not organized nor their 
 officers appointed by the President, as is the case with the ar- 
 mies of the Confederacy, but they were called forth as bodies 
 " organized and their officers appointed by the States." Hence 
 they are part of the militia of Georgia employed in the service 
 of the Confederate States as provided by the two paragraphs 
 of the Constitution above quoted, and by paragraph 16 of Sec- 
 tion 9 of the 1st Article which terms them "militia in actual 
 service in time of war or public danger." They entered the 
 service with only the training common to the citizens of the 
 State. They are now well trained troops. But having gone in 
 as " bodies organized by the State," or as militja, you say they 
 remain militia, and go home militia. In this case we seem to 
 agree that the State, under the express reservation in the Con- 
 stitution, has the right to appoint the officers. I have the writ- 
 ten opinion of Mr. Benjamin, then Secretary of War, about the 
 time of the last call for twelve regiments, concurring in this 
 view, and recognizing this right of the State. And it is proper 
 that I should remark that the State has, in each case, been per- 
 mitted to exercise this right, when the troops entered the ser- 
 vice in compliance with a requisition upon the State for " or- 
 ganized bodies of troops." The right does not stop here, how- 
 ever. The Constitution does not say the State shall appoint the 
 officers while the organizations may be forming to enter the ser- 
 vice of the Confederacy, but while they " may be employed in 
 
43 
 
 the service of the Confederate States." Many thousands are 
 now so employed. Vacancies in the different offices are fre- 
 quently occurring by death, resignation, &c. The Laws of this 
 State provide how these vacancies are to be filled and it is not 
 to be done by promotion of the officer next in rank, except in a 
 single instance, but by election of the regiment, and commission 
 by the Governor. The right of the State to appoint these offi- 
 cers seems to be admitted, and is, indeed, too clear to be ques- 
 tioned. 
 
 The Conscription Act, if it is to be construed according to its 
 language, and the practice which your Generals an- establishing 
 under it, denies to the State the exercise of this right, and pre- 
 scribes a rule lor selecting all officers in future, unknown to the 
 laws of Georgia, and confers upon the President the power to 
 commission them. Can this usurpation (I think no milder term 
 expresses it faithfully) be justified under the clause in the Con- 
 stitution which gives Congress power to "raise armies?" and 
 is this part oJ the Act constitutional? If not, you have failed 
 to establish the constitutionality of the Conscription Act. 
 
 The 14th paragraph of the 9th Section of the 1st Article of 
 the Constitution of the Confederate States declares that — 
 
 "A well regulated militia being necessary to the security of 
 a free State, the right of the people to keep and bear arms shall 
 not be infringed." This was no part of the original Constitu- 
 tion as reported by the Convention and adopted by the States. 
 But " The Convention of a number of the States having at the 
 time of their adopting the Constitution expressed a desire in 
 order to prevent misconstruction or abuse of its powers, that 
 further declaratory and restrictive clauses should be added, 
 Congress at the session begun and held at the city of New York 
 on Wednesday the 4th of March, 1789, proposed to the Legis- 
 latures of the several States twelve amendments, ten of which 
 only were adopted." 
 
 The second amendment was the one above quoted, which 
 shows very clearly that the States were jealous of the control 
 which Congress might claim over their militia, and required on 
 this point a further " restrictive clause " than was contained in 
 the original Constitution. 
 
 The 16th paragraph of the preceding Section expressly re- 
 
44- 
 
 ■serves to the States "the authority of training the miiitia ac- 
 cording to the discipline prescribed by Congress/' In connec- 
 tion with this, you admit that the States reserved the right to 
 •call forth their own militia to execute their own laws, suppress 
 insurrections or repel invasions. This authority to call them, 
 forth would have been of no value without the authority to ap- 
 point officers to command them ; and the further authority to 
 train them; as they cannot without officers and training be the 
 well regulated militia which the Constitution says is " necessary 
 to the security of a free State." 
 
 The conclusion would seem naturally to follow, that the States 
 did not intend by any general words used in the grant of power, 
 to give Congress the right to take from them, as often as ap- 
 pointed, the officers selected by them to train and regulate their 
 militia and prepare them for efficiency, when they may be called 
 forth to support the very existence of the State. 
 
 The Conscription Act embraces so large a proportion of 
 militia officers of this State, as to disband the militia in the event, 
 they should be compelled to leave their commands. This would 
 leave me without the. power to reorganize them, as a vacancy 
 can only be created in one of these offices by resignation of the 
 incumbent, or by the voluntary performance of some act which 
 amounts to an abandonment of his command, or by a sentence 
 of a Court Martial dismissing him from office. The officer who 
 is dragged from his command by Conscription, or compulsion, 
 and placed in the ranks, is in neither category ; and his office is 
 no more vacated than the office of a judge would be, if he were 
 ordered into military service Without his consent. And unless 
 there be a vacancy I have no right to fill the place, either by or- 
 dering an election, or by a brevet appointment. I have no right 
 in either case to commission a successor so long as there is a le- 
 gal incumbent. 
 
 Viewing the Conscription Act in this particular as not only 
 unconstitutional, but as striking a blow at the very existence of 
 the State, by disbanding the portion of her militia left within 
 her limits, when much the larger part of her " arms-bearing 
 people" are absent in other States in the military service of the 
 Confederacy, leaving their families and other helpless women and 
 children, subject to massacre by -negro insurrection for want of 
 
an organized force to suppress it, I fell it an imperative duty 
 which I owed the people of this State, to inform you in a former 
 letter that I could not permit the disorganization to take place, 
 iic: the State officers to be compelled to leave their respective 
 commands and enter the Confederate service as Conscripts. — 
 Were it not a fact well known to the country that you now 
 have in service tens of thousands of men without arms and with 
 no immediate prospect of petting arms, who must remain for 
 months consumers of our scanty supplies of provisions, without 
 ability to render service, while their labor would be most valua- 
 ble in their farms and workshops, there might be the semblance 
 of :i plea of necessity for forcing the State officer* to leave their 
 commands, with the homes of their people unprotected, and go 
 into camps of instruction, under Confederate officers, often much 
 more ignorant than themselves of military science or training. 
 1 must, therefore, adhere to my position and maintain the integ- 
 rity of the State Government in its Executive, Legislative, Ju- 
 dicial and Military Departments, as long as I can command suf- 
 ficient force to prevent it from being disbanded, and its people 
 reduced to a st;Ue of provincial dependence upon ihc Central 
 power. 
 
 If I have used strong language in any part of this letter, 1 
 beg you to attribute it only to my zeal in the advocacy of prin- 
 ciples and a cause which 1 consider u<> less than the cause of 
 constitutional liberty, imperiled by £he erroneous views and 
 practice of thQse placed upon the watch-tower as its constant 
 guardians. 
 
 In conclusion, I beg to assure you that 1 fully appreciate your 
 expressions of personal kindness, and reciprocate them in my 
 feelings towards you to the fullest extent. 
 
 I know the vast responsibilities resting upon you, and would 
 never willingly add unnecessarily to their weight, or in any way 
 embarrass you in the discharge of your important dm 
 While 1 cannot agree with you in opinion upon the grave ques- 
 tion under discussion, I beg you to command me at all times 
 when 1 can do you a person; ce, or when 1 can, without a 
 
 violation of the constitutional obligations resting upon me, do 
 o . ' ■ . which we arc all go vitally in- 
 
 bed. 
 
46 
 
 Hoping that a kind Providence may give you wisdom so to 
 conduct the affairs of our young Confederacy as may result in 
 the early achievement of our Independence, and redound to the 
 ultimate prosperity and happiness of our whole people, 
 I have the honor to be, very respectfully, 
 
 Your obedient servant, 
 JOSEPH E. BROWN. 
 
 P. S. — Since the above letter was written I see, somewhat to 
 tny surprise, that you have thought proper to publish part of 
 our unfinished cor espondence. 
 
 In reply to my first letter you simply stated on the point in 
 question that the constitutionality of the Act was derivable from 
 that paragraph in the Constitution which gives Congress the 
 power to raise and suppport armies. I replied to that letter 
 with no portion of your argument but the simple statement of 
 your position before me. You then with the aid of your Cab- 
 inet replied to my second letter, giving the argument by which 
 you attempt to sustain your position, and without allowing time 
 for your letter to reach me, and a reply to be sent, you publish 
 my second letter and your reply which is your first argument 
 of the question. I find, these two letters not only in the news- 
 papers but also in pamphlet form, I presume by your order for 
 general circulation. 
 
 While I cannot suppose that your sense of duty and propriety 
 would permit you to publish part of an unfinished correspon- 
 dence for the purpose of forestalling public opinion, I must con- 
 clude that your course is not the usual one in such cases. As 
 the correspondence was an official one upon a grave constitu- 
 tional question, I had supposed it Avould be given to the country 
 through Congress and the Legislature of the State. 
 
 But as you have commenced the publication in this hasty and 
 as I think informal manner, you will admit that I have no other 
 alternative but to continue it. I must, therefore, request as an 
 act of justice that all newspapers which have published part of 
 the correspondence, insert this reply. J. E. B: 
 
47 
 
 EXECUTIVE DEPARTMENT, 
 Richmond, July 10th, 1862. 
 
 Dear Sir: I have received your letter of 21st ult., and 
 would have contented myself with the simple acknowledg- 
 ment of its receipt but for one or two matters contained 
 in it, which seem to require distinct reply. 
 
 I deemed it my duty to state my views in relation to the 
 constitutionality of the conscript law for the reasons men- 
 tioned in my letter to you, but it was no part of my inten- 
 tion to enter into a protracted discussion. It was conve- 
 nient to send my views to others than yourself, and for this 
 purpose I caused my letter together with yours to be prin- 
 ted in pamplet form. I am not aware of having omitted 
 any part of your observations, nor did I anticipate any fur- 
 ther correspondence ou the subject. I supposed you had 
 fully stated your views as I had stated mine, and no prac- 
 tical benefit could be attained by further discussion. 
 
 It is due however to myself to disclaim in the most poin- 
 ted manner a doctrine which you have been pleased to at- 
 tribute to me, and against which you indulge in lengthened 
 argument. Neither in my letter to you nor in any senti- 
 ment ever expressed by me, can there be found just cause to 
 impute to me the belief that Congress is the final judge of 
 the constitutionality ot a contested power. 
 
 I said in my letter that ''when a specific power is granted, 
 Congress is the judge whether the law passed for the pur- 
 pose of executing that power, is necessary and proper." 
 
 I never asserted nor intended to assert, that alter the pas- 
 sage of such law it might not be declared unconstitutional 
 by the Courts ou complaint made by au individual ; nor 
 that the judgment of Congress was conclusive against a 
 State, as supposed by you ; nor, that all the co-ordinate 
 branches of the general government could together finally 
 decide a question of the reserved rights of a State. The 
 right of each State to judge in the last resort whether its 
 reserved powers had been usurped by the general govern- 
 ment, is too familiar aud well settled a principle to admit 
 of discussion. 
 
 As I cannot see however, after the most respectful con 
 sideration of all that you have said, anything to change my 
 
48 
 
 conviction that Congress has exercised only a plainly gran- 
 ted specific power in raising its armies by conscription, I 
 cannot share the alarm and concern about State rights 
 which you so evidently feel, but which to me seem quite 
 unfounded. I am very respectfully 
 
 Yours, 
 JEFFERSON DAVIS. 
 Gov. Joseph E. Brown, 
 
 Atlanta, Ga. 
 
 Atlanta, July 22d, 1862. 
 
 His Excellency Jefferson Davis, 
 
 Dear Sir : — I have the honor to acknowledge the re- 
 ceipt of your letter of the 10th inst., and am very happy 
 to know that you disclaim the doctrine, which I think every 
 fair minded man has attributed to you who has read your 
 letter of the 29th May last, and has construed plain Eng- 
 lish words according to their established meaning. 
 
 When a writer speaks of a tribunal that is to be "the 
 judge" of a case, without qualification, we certainly un- 
 derstand him to mean, that this judge has the right to decide 
 the case. And if the judge has this right, the decision 
 must be binding upon all the parties, and no distinct and 
 separate tribunal, as a different department of the Govern- 
 ment, for instance, has the right to decide the same case, af- 
 ter it has been decided by the judge having competent ju- 
 risdiction. It would seem to be a contradiction iti terms to 
 say, that when a specific power is granted, Congress is the 
 judge "whether the law passed for the purpose of execu- 
 ting that power, is necessary and proper," and that, "the 
 true and only test is to enquire, whether the law is inten- 
 ded and calculated to carry out the object, whether it de- 
 vises and creates an instrumentality for executing the spe- 
 cific power granted ; and if the answer be in the affirmative, 
 the law is constitutional," and then to say, after this test 
 has been applied, and Congress has passed judgment, that 
 another department of the Government, as the President, 
 or the Judiciary,, or another Government, as a State, may 
 itke up the case, thus decided by the tribunal, having, under 
 the Constitution, complete jurisdiction, and make a differ- 
 
49 
 
 ent decision. It is, I believe an established principle in all 
 civilized nations, that when a Court of competent jurisdic- 
 tion, — unless guilty of fraud or mistake, — has finally deci- 
 ded a case, the judgment is conclusive upon all the parties. 
 
 But you say, you never asserted nor intended to assert, 
 that the judgment of Congress was conclusive against a 
 State. Pardon me for saying that you did assert that Con- 
 gress is the judge, and that you did not qualify the asser- 
 tion, by saying, the judge in the first instance, nor did you 
 annex any other qualification or exception in favor of the 
 rights of a State, or any other party. J had no right there- 
 fore to suppose that you intended to engraft exceptions 
 upon a rule which you laid down in the plainest terms 
 without exception. 
 
 I make the above reference to your former letter, to show 
 that I had no disposition to do you injustice, and that I 
 do not consider that I misrepresented your position, as con- 
 tained in your letter. The thousands of intelligent citi- 
 zens, in different parts of the Confederacy, who have placed 
 upon your letter the same construction which I had, will 
 doubtless be gratified that you now disclaim the dangerous 
 doctrine as to the power of Congress to which your strong 
 unqualified language seemed clearly to commit you. 
 
 In reference to the publication by you of the two letter* 
 containing part of our correspondence, I need only say, that 
 you had devoted a large portion of your letter to a reply 
 to my argument which was before you, and hac^in the same 
 letter, for the first time, given the arguments by which you 
 maintain your own position. These I had never seen, and 
 as you had replied at length to my argument, it was, 1 
 think, but fair and just, according to all rules of discussion, 
 that I have an opportunity to reply to yours, and that the 
 whole case be submitted to the country together. Unless 
 there were important reasons of State which in your judg- 
 ment made it necessary to place the discussion before the 
 country, incomplete in order to satisfy the discontents 
 which existed in the public mind, on account of what a 
 very large proportion of our people regard as a dangerous 
 usurpation, or unless other good reasons existed for a depar- 
 ture from the usual rule in such cases, I am unable to see 
 why the whole correspondence, when given to the public, 
 should not have gone through the usual official chauneli. 
 
50 
 
 I have certainly had no wish to protract the discussion 
 of this question, further than duty, and justice to the peo- 
 ple of this State required. I feel that I cannot close, how- 
 ever, without again earnestly inviting your attention to a 
 question which you must admit is "practical." 
 
 I think I have established beyond a doubt, in my former 
 letters, the constitutional right of the State of Georgia, to 
 appoint the officers to command the regiments and battal- 
 ions, which she has sent into the service of the Confederate 
 States, in compliance with requisitions made by you upon 
 her Executive for "organized bodies" of troops. You ad- 
 mitted in your letter, that these bodies "organized by the 
 States," when called forth by the Confederacy to repel inva- 
 sion, never came otherwise than with their Compuvij, Field 
 and General officers. Your former Secretary of War, now 
 Secretary of State, has also admitted the right of the State 
 to appoint the officers to command the troops sent by her 
 into the service of the Confederacy, under requisition from 
 you. 
 
 You have not thought proper in either of your letters, to 
 give any reason why the State should be denied the exercise 
 of this clear constitutional right. In this state of the case, 
 you still exercise the appointing power which belongs to 
 the State, and commission the officers who are to commund 
 these troops. The laws of this State give to these gallant 
 men, the right to elect their own officers, and have them 
 commissioned by the Executive of their own State. This 
 question is of the more practical importance at present, on 
 account of a large number of gallant officers belonging to 
 these regiments, having lately fallen upon the battle held, 
 whose places are to be filled by others. The troops volun- 
 teered at the call of the State, with a knowledge of their 
 right to elect those who are to command them, and went 
 into the held with the assurance that they would be per- 
 mitted to exercise this right. It is now denied them 
 under the Conscription Act. Some 1 of them have appeal- 
 ed to me to see that their rights are protected. As an 
 act of justice to brave men, who, by their deeds of 
 valor, have rendered their names immortal, and as an 
 act of duty, which, as her Executive I owe to the people 
 of this State, I must be pardoned for again demand- 
 ing for the Georgia State troops, now under your com- 
 
51 
 
 ra and, permission in all cases in which they have already 
 been deprived of it, or which may hereafter arise, to have 
 the Company, Field and General officers, who are to com- 
 mand them, appointed by election, and commissioned from 
 the Executive of Georgia, as guaranteed to them by the 
 constitution of the Confederacy and the laws of this State. 
 I make this demand with the greater confidence, in view 
 of the past history of your life. I have not the documents 
 before me, but if I mistake not, President Polk, during the 
 war against Mexico, in which you were the Colonel of a 
 
 'gallant Mississippi regiment, tendered you the appointment 
 of Brigadier General for distinguished services upon the 
 battle field, and you declined the appointment upon the 
 ground that the President had no right under the constitu- 
 tion, to appoint a Brigadier General to command the State 
 volunteers then employed in the service of the United 
 
 i States, but that the States, and not the general Govern- 
 ment, had the right, under the constitution, to make such 
 
 'appointments. If Congress could not at that time, confer 
 upon the President the right under the constitution, to ap- 
 point a Brigadier General to command State troops in the 
 service of the Confederacy, Congress certainly cannot now, 
 under the same constitutional provisions, confer upon the 
 President the right to appoint, not only the Brigadier Gen- 
 erals, but also all the field and company officers of State 
 troops employed in the service of the Confederacy. May I 
 not reasonably hope, that the right for which I contend, 
 will be speedily recognized, and that you will give notice 
 to the Georgia State troops, now under your control, who 
 went into service under requisitions made upon the State 
 by you, that they wi'I no longer be denied the practical 
 benefit resulting from the recognition. 
 
 You conclude your letter by snyng, yon "cannot share the 
 alarm and concern about State Rights, which I so evidently 
 feel." I regret that you cannot. The views and opinionsof the 
 best of men, are however influenced more or less by the posi- 
 tions in which they are placed, and the circumstances by 
 Which they are surrounded. It is probably not unnatural, that 
 those who adminu -. md dispense the patronage 
 
 of a confederation of States, should become, to some extent, 
 biased in favor of the claims of the Confederacy, when its 
 
52 
 
 powers are questioned ; while it is equally natural that 
 those who administer the affairs of the States, and are res- 
 ponsible for the protection of their rights, should be the 
 first to sound the alarm, in ease of encroachments by the 
 Confederacy, which tend to the subversion of the rights of 
 the States. This principle of human nature may be clearly 
 traced in the history of the Government of the United 
 States. While that Government encroached upon the rights 
 of the States from time to time, and was fast concentrating 
 the whole power in its own hands, it is worthy of remark, 
 that the Federal Executive, exercising the vast powers and 
 dispensing the immense patronage of his position, has sel- 
 dom, if ever, been able to "share in the alarm and concern 
 about State Rights," which have on so many occasions, 
 been felt by the authorities and people of the respective 
 States. 
 
 With renewed assurances of my high consideration and 
 esteem, I am, very Respectfully, 
 
 Your ob't. Serv't., 
 JOSEPH E. BROWN.