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Speech of Hon. George A. Gordon, of Chatham,
on the Constitutionality of the Conscription Laws,
Passed by the Congress of the Confederate States,
Delivered in the Senate of Georgia, on Tuesday, 9th of December, 1862:

Electronic Edition.

Gordon, George Anderson


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Library of Congress Subject Headings, 21st edition, 1998

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Title Page


SPEECH
OF
HON. GEORGE A. GORDON,
ON THE CONSTITUTIONALITY
OF THE
CONSCRIPTION LAWS,
PASSED BY THE CONGRESS OF THE CONFEDERATE STATES,
DELIVERED IN THE SENATE OF GEORGIA, ON TUESDAY,
9TH OF DECEMBER, 1862.

REPORTED EXPRESSLY FOR THE INTELLIGENGER, BY

A. E. MARSHALL

ATLANTA, GA.:
PRINTED AT THE OFFICE OF THE DAILY INTELLIGENGER.
1862.


Page 3

SPEECH
OF
HON. GEORGE A. GORDON,
OF CHATHAM,
ON THE CONSTITUTIONALITY OF THE CONSCRIPTION LAWS,
PASSED BY THE CONGRESS OF THE CONFEDERATE STATES,
Delivered in the Senate of Georgia, on Tuesday, 9th December, 1862.

        The Committee on Confederate Relations made two reports, one the Majority, and the other the Minority.

        The following resolutions were offered by Mr. Gordon as a substitute for both:

        "The General Assembly of Georgia, impressed with the conviction that their primary duty at this juncture of the nation's history is to bring this unhallowed war to a successful close, at whatever sacrifice of blood or treasure, do hereby

        Resolved, That they will take no action that shall impede the Acts of Congress, commonly called the Conscript Acts.

        But, under a deep sense of their obligations to the State, this General Assembly, in the name and behalf of the people of Georgia, do solemnly protest against said Acts as a violation of the Constitution of the Confederate States, and an infringement upon the sovereignty of the several States."

        Mr. President, were I disposed to consult my individual interests, or my personal feelings, I should not disturb the slumber of these resolutions; but I should let them rest, so far as any interference on my part is concerned, in the "tomb of the Capulets" beneath the Secetary's desk. But, sir, I believe this subject to be one of too great importance, of too grave moment, to be passed by in this manner. Sir, at such a time as this, when the temple of liberty itself is rocking at its very base, when clouds and darkness are obscuring its fair proportions, and when storms and tempests are howling around its battlements, it seems to me that the sentinels upon the watch-tower, placed as we are in authority to guard the sacred edifice, should give an answer to the anxious cry of the people we represent, "Watchman, what of the night?" I have made it a rule of my life to look conscientiously and prayerfully for the path of duty, and when I have found it, to endeavor to follow it irrespective of all personal considerations. But, sir, while I am impressed with the importance of the theme to be discussed, I desire to argue it calmly, coolly, dispassionately. In this discussion, nothing of personality, nothing of party, nothing of prejudice, nothing of passion, should enter in to debase it. We should aim at unadulterated, serene truth. I do firmly believe that the Senate of to-day is placed in a position where, should its action be correct, it will occupy in the eyes of posterity the same prominence that the Legislature of Virginia carved for itself by the memorable resolution of 1798; and that our action will serve as a beacon to guide our people in generations to come. I believe, if we write our record aright this day, that the action of the Legislature of 1862 will be, to our children and to our children's children, what Virginia's in 1798 has been to us in our day and generation.

        And in order that I may show my sincerity, my deep sincerity, in seeking to shut out from this discussion all shade of passion, I desire to say, before beginning my argument, that I am willing to submit to the enforcement of the Conscription Acts, notwithstanding I shall endeavor to demonstrate that


Page 4

they are unconstitutional. My purpose is to whip this fight, and I am willing, rather than submit to the tyranny of Lincoln, to yield obedience for a time to worse than oriental despotism. I do not characterize this act as such, but rather than not be successful in the contest in which we are now engaged, I will acquiesce, for the cause, in a temporary infraction of the Constitution itself. Recollect, therefore, that while I shall endeavor to make it clear that the Conscription Acts are infringements on the sovereign rights of this State, and a violation of the Constitution, I take that position as a legislator entrusted by Georgia with great interests which are to affect not merely the present, but future generations. As a citizen, I have drawn the sword and flung to the winds the scabbard, and seek to sheathe it only in the life-blood of the dastardly invader. But, as a legislator, I stand upon sacred and holy ground, and I feel that I am responsible, not only to my God, myself, and my constituents, but also to posterity, for the position which I shall this day defend. I therefore come forward, as a religious and solemn duty, to lay down the land-marks that should guide us amid the darkness of the future.

        And now, Mr. President, first, as to the right of the Legislature to express an opinion on a subject which has met the approval of Congress, and of the Courts of our country. In the whole history, Mr. President, of the United States, there has been one continual assertion on the part of the Legislatures of assertion on the part of the Legislatures of the Southern States, a continual assertion of the doctrine that the decisions of Congress and the opinions of the Supreme Court were proper subjects of criticism by the Legislatures of the States. Need I point you to the history of Georgia to demonstrate this? When judicial decisions of the Supreme Court have come in conflict with the interests of Georgia, and the express law of the State; Georgia never hesitated an instant, through her Executive and Legislature, to take a stand in opposition. In 1830, it will be remembered that there was a conflict of this kind, in reference to the occupation of our soil by the Indians. An Indian was condemned to death by the Courts of this State for a crime committed on disputed soil. The Supreme Court of the United States ordered a suspension of the execution. The Chief Executive of Georgia (Gov. Gilmer,) brought the matter before the Legislature in his regular annual message, in which he took the ground that, notwithstanding the decision, he would carry out the laws of Georgia, unless the Legislature should otherwise direct. The subject was referred to a committee, and two reports were submitted--one, the minority report, referring the whole matter to his Excellency to do with as he thought proper; the other, the majority, instructing the Governor to execute the law, irrespective of the mandate of any power. The latter report was adopted by an overwhelming vote of both branches of the Legislature.

        We all recollect the action of that distinguished statesman whose portrait hangs before us, (Gov. Troup,) whose memorable words, in reference to a similar conflict between the State and Federal authorities, have become historical: "The argument is exhausted; let us stand by our arms!"

        The fact is, Mr. President, each department of the Government has its own appropriate sphere of action, and in that sphere is supreme; and when all move harmoniously in their respective spheres, the system is well-nigh perfect. If there were a single doubt in reference to this subject, I would call the attention of the Senate to the Virginia and Kentucky resolutions passed but a few years after the adopting of the Constitution, in which the rights of the States respectively are distinctly and clearly set forth. The resolutions of Virginia in 1798 were passed in reference to solemn acts of the Federal Congress, the Alien and Sedition laws, and I call the attention of all who doubt our power in the premises to the stern and measured language of the Old Dominion. One of these resolutions is in these words:

        Resolved, That the General 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 forced constructions of the Constitutional 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 powers in the former Articles of Confederation were the less liable to be misconstrued) so as to destroy the meaning and the effect of the particular enumeration which necessarily explains and limits the general phrases, and so as to consolidate the States by degrees into one sovereignty the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States into an absolute, or at best, a mixed monarchy.

        Resolved, That the General Assembly doth


Page 5

particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the "Alien and Sedition Acts," &c., (Political Text Book, page 664.)

        Mark, Senators, how perfect is the parallel between the legislation which we propose to-day and that had by the Legislature of Virginia. We propose to say this day, as did Virginia in 1789, that the Congress of the Confederate States by "expounding certain general phrases so as to destroy the meaning of the effect of the particular enumeration" has put upon the States an unconstitutional act and we propose that this General Asssembly shall "particularly protest against the palpable and alarming infractions of the Constitution. I have gone back, sir, to the refreshing fountains of early legislation springing from the rock of revolutionary experience to the days of Washington, Jefferson and Madison.

        I have gone back to those fountains of living waters to drink in the hope that we may dig from the soil of Georgia perennial streams of living water. I wished to show that, if this water be bitter to taste and repulsive to the palate of the opponents of this resolution, its constituent elements when analysed, will be found the same as that which slaked the thirst of the sages of the Revolution.

        Go back with me, Mr. President and Senators, in imagination, to that venerated hall where sat the illustrious men who framed the Constitution of the United States. I confess, sir, that as my eye glances over the list of names that composed that assembly, I stand appalled and abashed as in the presence of departed greatness. There was the venerable Franklin, who, in the Courts of Europe, had proved that the power of the pen was second only to the sword. There sat, as the presiding officer, the Father of his country. Above his head hung the portrait of a rising sun. How beautiful the remarks of Dr. Franklin, as the end of these weary weeks was at hand and the immortal constitution of '87 had been ratified by the unanimous vote of the convention.

        "I have," said he, "often and often in the course of the session and the vicissitudes of my hopes and fears as to its issue, looked at that picture of the sun behind the president, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising and not a setting sun."

        I have gone back to that Convention for the purpose of beginning this discussion, in the presence of the "glorious company of the apostles" of liberty. If I can prove to you, Senators, that the intention of the framers of the Constitution in providing safeguards against encroachments from the Federal Government, was what I have assumed, then I have gone far towards establishing the correctness of the principles which are set forth in the resolutions under discussion.

        And here let me remark that the delegates to the Convention that framed the Constitution were from Sovereign States. The war had just ended; and the Convention was called for the purpose of establishing a more perfect union. The States could pass any laws they might see fit to pass; they were under no obligation to any other power.--They were sovereign and independent, and it was with them as sovereigns that Great Britain had made the treaty of peace, and not with the United States as a consolidation or Confederacy. I call your attention to what the Constitution is, and was intended to be. It was a charter of checks and balances; a charter of delegated powers granted by the Sovereign States to the General Government for the purposes of general defence. I defy any man to show in any portion of the Constitution of the United States any power delegated by the Sovereign States in which there is not some balance of power reserved to the respective States for the purpose of preventing the abuse of the power delegated. And so also there was on the other side bestowed upon the General Government power to enable the wheels of government to roll on smoothly and undisturbed. It is important to keep this principle clearly in view, that the Constitution, which we are about to expound, is a chart of delegated powers, of checks and balances, and that, in every part of this instrument, you will find a check over the delegated powers by which despotism may be avoided.

        And now, Mr. President, the Convention commenced its sessions on May 14, 1787; and on that day Washington assumed the chair as President by a unanimous vote.--This book, now in my hand--the Madison Papers, was prepared by Mr. Madison, a member of the Convention. In this volume (2d) we have an account of the discussions on the powers preceding the war power, on the power of the Judiciary, Congress, and the Executive. All these subjects were discussed, amendments proposed and rejected, and all the deliberation given to them that their merits required. The volume is a large one and the discussions must have been frequent


Page 6

and elaborate. During this time the war power never came before them but once, and that incidentally. And I cite it to show the extreme sensitiveness of the members of this Convention to anything that looked to an emasculation of the military powers of the States, and to prove that a subject, considered so vital as to call forth such forcible language, would be thoroughly sifted when the time for its consideration should arrive.

        In the month of June (7th) when they were arguing the extent to which they might entrust the veto power of the President,

        "Mr. Gerry could not see the extent of such a power, and was against every power that was not necessary. He observed that the proposed negative would extend to the regulations of the militia, a matter on which the existence of the State might depend.--The National Legislature, with such a power, may enslave the States. Such an idea as this will never be acceded to. It has never been suggested or conceived among the people." (Madison Papers, page 823.)

        Now I simply cite this authority for the purpose of impressing on the minds of Senators the extreme care, the nervousness and sensitiveness of the men who framed the Constitution in regard to any power which could control directly, or indirectly, or impair the sovereignty of the States; and establish by the power of the sword a despotism in this country. Now, sir, they passed on with various amendments to the resolution which had been rejected, introduced others and did not reach the 18th Article until August. They began the session early in the Spring and did not reach the Article that declares the power of Congress to raise and support armies until the 14th of August. For four months had the Convention been engaged before they reached this question of raising armies. When this subject was brought up an amendment was added "and to support;" the proposition passed nem. con. The subject of supporting armies was introduced, and it also passed nem. con. Now, Senators, as impartial men, I ask if these men who, when the veto power was under consideration, thought of restraining it because it might be made to interfere with the military powers of the States, would have been unanimously in favor of a proposition to raise and support armies which would have effectually interfered with the military powers of the States, if the opinion entertained by gentlemen of such power had been the one held by the members of the convention? I ask you, suppose Mr. Gerry, of Massachusetts, had risen from his seat and stated to the Convention that this power to raise and support armies contained not only a power to raise armies in times of peace, but, also, the power to take every one of the arms-bearing men of the State in the service of the United States, contrary to the will of the States, would that body of venerable men have listened to such an announcement with the apparent indifference which marked their action on the subject? It is not so. It could not have been so. The idea would at once have sprung into their minds that by this means despotism of some sort might be established. The inference is clear that they did not understand by those terms to raise and support armies any such power as is claimed for them by the advocates of Conscription. The clause passed nem. con. Where was Elbridge Gerry that his voice should have been silent when Congress was receiving, as gentlemen say, unlimited powers? Senators, he never dreamed of such a power being concealed in this phrase. The only remark that was elicited, and that after this clause had been adopted was, on a motion to reconsider it, for a verbal alteration to the Grand Committee.

        Mr. Sherman took notice that the States might want their militia for defence against invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point. In giving up that of taxation they retain a concurrent power of raising money for their own use.

        Mr. Gerry thought this the last point remaining to be surrendered. If it be agreed to by the Convention, the plan will have as black a mark as was set upon Cain.--(Madison's Papers, pp. 1,363:1,364.)

        Thus you can see the light in which a proposition to give up all the militia was regarded by one of the brightest lights that adorned the galaxy of statesmen composing that Convention. Such a plan would, in his estimation, have as black a mark set on it as that which was set on Cain. On the question for submitting the question to the Grand Committee to which questions that required further discussion was submitted, all of the States voted in the affirmative, except Connecticut and New Jersey, and Maryland, which was divided.

        That was all that was said at that time in regard to the question of raising and supporting armies. And I must confess my astonishment that in the decision of this question by our Supreme Court, pronounced by


Page 7

a man, whom I reverence and esteem for his purity as a man, and eminence as a jurist, it should have been said that the power to raise armies is unabridged by anything in the Constitution of the United States, and that the proposition is so clear, that to state the proposition, is to demonstrate it. Why, Senators, that is the whole question in dispute. The whole matter turns upon that very point. Would no voice have been raised against a grant that might detach from the State our fathers, brothers, and sons, our young men and our old men, all, it may be, from 16 to 70 years of age, all the arms-bearing men in the Confederacy? And yet not one word is heard against it from Ellsworth, from Gerry, from Franklin--not one word of protest against the granting of such a power? When, on the 5th of September, the Committee of Eleven reported, and to the clause to declare war was added, "and grant letters of marque and reprisal;" and to the clause to raise and support armies was added "but no appropriation of money shall be for a longer term than two years;" this report being taken up was adopted nem con. No prophetic voice of warning is lifted up in that Hall, notwithstanding the experience through which they had just passed in the revolutionary struggle. I repeat the question, Senators, do you believe that any such power as that claimed by the advocates of Conscription ever entered the minds of these men when the clause in the Constitution to raise armies was up for discussion? Would these great and good men, who had lived under the laws of a country which Blackstone declares forbids the raising of men for armies except by voluntary enlistment, and with whose writings they were familiar; and still further would these men who had lived under a Government whose people had dethroned one King for exercising such a power, have sat still and silently seen such a principle engrafted on the Constitution as that the general government might raise armies by compulsion? I cannot believe it; you cannot believe it. There was the venerable President of the Convention, who had not been long from the battle-field, and whose deeds had illustrated that had he seen tyranny lurking in the words he would have risen and rebuked the error.

        I ask you, then, Senators, if it is not a fair and legitimate deduction, that the framers of the Constitution never intended to confer upon the general government such a power--a power greater than any constitutional government ever before possessed?

        Well now, Mr. President and Senators, I have endeavored, in the course of remarks which I have submitted to you, to demonstrate this proposion, that the intention of the framers of the Constitution in the Convention of 1787 was not to give a power which the Congress of the Confederate States have claimed in this paragraph. Let us go still one step further, now, and see whether we cannot gather what was the real intention of these framers of the Constitution, by the clauses which follow, and explain this grant.

        Having passed upon this clause to raise and support armies, the next clause was that in relation to organizing, arming, and disciplining the militia. The history of this clause is so important, and, to the lover of the history of our country, so peculiarly interesting, that I beg the indulgence of the Senate while I read at length the report of Mr. Madison:

        "In the Convention report of the Committee of Eleven, made the 21st of August, being taken up, and the following clause being under consideration, to wit: 'To make laws for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and authority of training the militia according to the discipline prescribed,'

        "Mr. Sherman moved to strike out the the last member--'and authority of training,' &c. He thought it unnecessary. The States will have this authority of course, if not given up.

        "Mr. Ellsworth doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation of the appointment to offices. He remarked at the same time that the term 'discipline' was of vast extent, and might be so expounded as to include all other power on the subject.

        "Mr. King, by way of explanation, said that by organizing, the Committee meant proportioning the officers and men; by arming, specifying the kind, size and calibre of arms; and by disciplining, prescribing the manual exercises, evolutions, &c.

        "Mr. Sherman withdrew his motion.

        "Mr. Gerry--This power in the United States, as explained, is making the States drill-sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the General Legislature. It would


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be regarded as a system of despotism.

        "Mr. Madison observed that furnishing explained, did not extend to 'arming' as arms; nor the term 'disciplining' to penalties and courts-martial for enforcing them.

        "Mr. King added to his former explanation that arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury; that laws for disciplining must involve penalties, and everything necessary for enforcing penalties.

        "Mr. Dayton moved to postpone the paragraph, in order to take upthe following proposition: 'To establish an uniform and general system of discipline for the militia of these States, and to make laws for organizing, arming, disciplining, and governing, such part of them as may be employed in the service of the United States; reserving to the States respectively the appointment of the officers, and all authority over the militia, not herein given to the General Government.'

        "On the question to postpone in favor of this proposition, it passed in the negative: New Jersey, Maryland, Georgia--aye, 3; New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina--no, 8.

        "On the question to agree to the first part of the clause, namely, 'To make laws for organizing, arming and disciplining the militia and for governing such part of them as may be employed in the service of the United States'--New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia--aye, 9; Connecticut, Maryland--no, 2.

        "Mr. Madison moved to amend the next part of the clause so as to read, 'reserving to the States respectively the appointment of officers, under the rank of general officers.'

        "Mr. Sherman considered this as inadmissible. He 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 of discernment would rouse them by sounding the alarm to them.

        "Mr. Gerry--Let us at once destroy the State Governments, have an Executive for life, or hereditary, and a proper Senate; and then there would be some consistency in giving 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 their existence. He warned the Convention against pushing the experiment too far. Some people will support a plan of vigorous government at every risk. Others, of a more democratic cast, will oppose it with equal determination; and a civil war may be produced by the conflict.

        "Mr. Madison--As the greatest danger is that of disunion of the States, it is necessary to guard against it by sufficient powers to the common government; and as the greatest danger to liberty is from standing armies, it is best to prevent them by an effectual provision for a good militia.

        "On the question to agree to Mr. Madison's motion: New Hampshire, South Carolina, Georgia*--aye, 3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina--no, 8."--Madison Papers, pp. 1402-1408.


        *In the Printed Journal, "Georgia, no."



        Now mark with what jealousy this august body viewed any attempt to overshadow the States. Mr. Madison, a great and shining light, admits the fact that he desires so to shape this grant as that a disunion of these States should be impossible, and, therefore, urges that the States should be deprived of the power to appoint general officers, which was the check to balance the grant of power.

        "Let us then destroy the State Governments," are the burning words of the intrepid Gerry, and the Convention shows its appreciation of the whole matter by the decisive vote with which they negatived Mr. Madison's proposition.

        Now, Senators, my argument does not hinge upon this question of the appointment of general officers. I only advert to it to illustrate one of the propositions, with which I started, that to every grant of power to the General Government is coupled a check against centralization. But I have thus quoted at large to deduce from the jealous scrutiny with which they examined the powers of Congress in cases of invasion, the conclusion of the intentions of the members of the Convention as to the former grant.

        Now, I can imagine the venerable form of the president rising at this point of their deliberations and saying--"Gentlemen of the Convention, why this heat and fervor in reference to the militia? They are to be used only in cases of invasion and insurrection, and, perhaps, not then. For you have already granted full and plenary power to Congress


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in the premises, and this argument is but a waste of time. Do not, I pray you, stultify yourselves by arguing elaborately a question already fully decided."

        How, think you, such an address would have been received? Do you believe that it would have embodied the sentiments of that body? Nay, I ask you in all candor, do you believe that there was one man in that assembly who would not have risen in his place and solemnly protested against such a construction being placed upon his former action? Mr. President, the question lies in a nutshell. The militia clause is or is not a modification of the army clause. If it is, my proposition is demonstrated. If it is not, these papers of Mr. Madison lead us to no other conclusion than that the fathers of the Republic were incapable of intelligent reason.

        Mr. President, I will not farther elaborate this point. It seems to me that I have sufficiently shown by these Madison papers, prepared with great care by one of the most illustrious members of that Convention, the intention of that body in the grant of military power to the General Government. Recollect that there were lawyers in that body, who knew the value of words and who weighed the measure of language by the standard of history. When they used the term "raised armies," they presupposed a knowledge of English law, and applied it to the words. When they came to militia they knew the full extent of their power under English precedents, and prepared to guard it jealously.

        I think I have demonstrated that these Gamaliels of the revolution, at whose feet we have been content to sit and drink of their words of wisdom; the men, who had been baptized in the blood of the immortal struggle for liberty, and who had emerged sanctified by their undying efforts for right; these men must have been devoid of reason if they construed the power to raise armies to include a military power over every citizen of the respective States, and, yet, two months afterwards, should consume days in the discussion of a military power in a few specified cases. It seemed to be an axiom with them that standing armies were dangerous in time of peace; and yet in the militia clause they provide for every occasion, in which there could be a defensive war.--To maintain the construction of the advocates of conscription, and yet accord good sense to the members of the Convention, the power to raise armies could only be exercised in times of peace or in a foreign war. The fact is, these powers were necessarily to be construed together, or the members of that Convention have stultified themselves.

        Well, Mr. President, there is still another method by which lawyers are enabled to arrive at the proper construction of an instrument which they are investigating. I have endeavored to reach this end by the intention of the framers of the instrument. I shall now proceed to examine the constitution by the light of contemporaneous history. it is well known that in ecclesiastical matters, it is the custom of divines to seek, in the writings of the fathers, who lived near the times of the apostles, the light which they are often unable to gather from the sacred writings, themselves, and no safer guide can be found, in the determination of doubtful dogmas, than the action and commentaries of the fathers of the church.

        I now propose to demonstrate by the writings of Washington, Jefferson, and the action of Congress uniformly, that the construction I placed upon the Constitution is the correct one.

        The distinguished jurist, who has decided the Conscript Acts to be constitutional, has declared that George Washington had recommended to Congress, through his Secretary of War, a plan for raising armies identical with conscription, and argues that we walk in the safe paths when we tread in the footsteps of the Father of our country. I confess that this position is a fascinating one, and that, if it can be demonstrated that this power to conscribe has been endorsed by Washington, it is a strong argument on their side. But I deny, in unequivocal terms, that the plan of Mr. Knox embraced the obnoxious features of conscription, and I challenge an investigation of the fact.

        The plan of Mr. Knox was a recommendation of a legionary organization, by which the arms-bearing people of the States might be divided into three classes of ages specified, by which education might be advancing with the first class, while the second was on the field of action, and the third held as a reserve. The act lies before me, (American State papers, vol. 12,) and its whole operation was through the instrumentality of the States.

        But granting, for the sake of argument, that this was a conscript act, there are three distinct facts in connection with it, which entirely destroy the force of the position assumed.

        1st, George Washington never recommended


Page 10

it to pass. He sedulously avoids any expression of opinion, contenting himself with simply transmitting the views of his Secretary to Congress.

        2d, Gen. Washington never conceived that this plan of Mr. Knox was to be based upon that clause of the Constitution, which provides for raising armies, but expressly declares that it is "a plan for the general arrangement of the militia," thus plainly showing that if it was a Conscript Act, it must be justified under the power in Congress to organize the militia.

"Organization Militia communicated to the Senate on the 21st of January, 1790:

        Gentlemen of the House of Representatives: The Secretary for the Department of War has submitted to me certain principles to serve as a plan for the general arrangement of the militia of the United States.

        Conceiving the subject to be of the highest importance to the welfare of our country, and liable to be placed in various points of view, I have directed him to lay the plan before Congress for their information, in order that they may make such use thereof as they may judge proper.

        

[Signed,] GEO. WASHINGTON.

United States, January 21 1790." (American State Papers, vol. 12: p. 6,)

        But there is a third fact, more striking than either of the foregoing in this connection, and that is that Congress rejected the plan, and therefore, were, though it had been demonstrated that George Washington approved the plan, and that it was in consonance with the power to raise armies, both of which we have refuted, the first Congress of the United States of America set its seal of condemnation upon what gentlemen on the other side are pleased to term the first Conscription Act.

        Now, there is no record of the reasons which animated them in the rejection of Mr. Knox's plan. We do not know what arguments may have brought them to that conclusion. But, in a body composed of men so distinguished, it is reasonable to suppose that a plan which had worked so favorably under the auspices of Napoleon, and was recommended by so able a Secretary, would not have been rejected but for grave and, may I not say, constitutional objection.

        But, sir, this is not all. This plan was recommended to Congress for the arrangement of the militia. If they rejected it, what plan did they adopt?

        Turn, sir, to the Military Laws of the United States, and there you find the Act of 1792, the first Militia Law. (Page 295.)

        Let us read the first five lines:

        "That each and every free white able-bodied citizen of the respective States, resident therein, who is or shall be of the age of 18 and under 45, shall severally and respectively, be enrolled in the militia."

        Now, pause for a moment at this point.--Every citizen between 18 and 45 is enrolled in the militia. Suppose, at this juncture, Congress had wanted to raise an army.--How would it have been done? Where are the men to come from? Not from the able bodied citizens between 18 and 45, for they are formally enrolled in the militia. Sir, I ask you, in all candor, had an insurrection broken out, or an invasion been made, would Congress have dared to enter by force the ranks of the militia, to form an army.

        But, sir, to return. In the course of an argument some days since with the honorable Senator from Richmond, I stated that there was a view of this subject, which I had not seen taken, which cleared from my mind all difficulties concerning the harmonious workings of the State and General Governments.

        If you will examine the act of 1792, and 1790, (Military Laws p. 295 to 303,) you will perceive an arrangement of the militia as complete as that of Mr. Knox and having the additional merit of being constitutional. By these acts, a uniform militia establishment is created in each State under the direction and control of the President of the United States. Annual reports were to be made by the Adjutant General's of the several States to the President, who was required to lay them before Congress each and every year. Over this militia, the President had, on the occasions specified by the Constitution, full and complete control, and that, too, without the necessity of calling upon the Governors of States for them. The act of 1795 makes it "lawful for the President to call forth such number of the militia as he may judge necessary to repel invasion and to issue his orders for that purpose to such officer or officers of the militia as he shall think proper."

        Now, my idea is that, had this system been adopted, under a clear grant of power, much more could have been accomplished than has been done under the Conscript acts, and the rights of the States been preserved.

        But, sir, my main argument is that the Acts of 1792 and 1795 were a rejection and


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condemnation of the plan submitted by Mr. Knox.

        But this is not the only condemnation of it, and as we proceed in the history of Congressional legislation, you will perceive that my assumption, that that plan was rejected on constitutional grounds is not a mere inerence but is plainly announced by Congress itself.

        (Communicated to the House of Representatives, March 24, 1794.)

        Mr. Cobb from the Committee appointed to report whether any and what alterations are, in their opinion, necessary to the act, more effectually to provide for the national defence, by establishing an uniform militia throughout the United States, made the following report:

        That they are impressed with the importance of a more energetic system for the establishment of an uniform militia than what is contemplated by the present existing laws of the U. S.; but in viewing this subject as applied to the Constitution of the United States and the powers therein expressly reserved to the different States, they have their doubts how far Congress can, consistent therewith, make any important alterations or amendments in the present law; and as the right of training the militia is constitutionally reserved to the States, it they can be impressed with the importance of exercising this power, and directing its operation more especially to the light infantry and grenadier companies of each regiment, an efficient force may be thereby created, and equal to any that can probably be obtained by any additional law of the United States made under the constitutional powers of Congress. Under this view of the subject, and until further experience shall be had under the existing law, the committee are of opinion that no amendment is necessary to an act for establishing an uniform militia throughout the United States. (American State Papers, vol. 12, p. 66.)

        Now, mark the language. In viewing this subject, as applied to the Constitution, they have their doubts how far Congress can alter the present law. What law? The act of 1792, which, as we have seen, was passed by the Congress that rejected Mr. Knox's plan. Does this not prove that the Congress of 1794 believed that they had exhausted their power in the legislation of the preceding Congress?

        But, again, in 1803, Mr. Varnum, from the committee to whom was referred that part of the President's message of the 15th day of December last, which relates to the militia institution of the United States, and a bill which was reported to the House at the last session of Congress, on the same subject, made the following report:

        "That after a full investigation of the subject they are of the opinion that a law which passed the 8th day of May, 1792, entitled "An act more effectually to provide for the national defence, by establishing an uniform militia throughout the U. S.," embracing all the objects of a militia institution, delegated to Congress.

        Resolved, That the President of the United States be requested to write to the Executive of each State urging the importance and indispensable necessity of vigorous exertions, on the part of the State governments, to carry into effect the militia system adopted by the National Legislature, agreeably to the powers reserved to the States respectively, by the Constitution of the United States, and in a manner the best calculated to insure such a degree of military discipline and knowledge of tactics as will, under the auspices of a benign Providence, render the militia a sure and permanent bulwark of national defence." (American State Papers, vol. 12, p. 163.)

        Here, again, Congress has before it the act of 1792, and, after mature consideration, declare that that act embraceth all the objects of a militia institution delegated to Congress. Can language be more conclusive?

        But, still further, in 1806, the Committee of Congress examine at length the classification proposition of Mr. Knox, and the result is another verdict against it:

        "Mr. Varnum, from the Committee to whom was referred so much of the message of the President of the United States, of the 3rd of December, as relates to the organization and classification of the militia, and to the augmentation of the land forces, made the following report, in part, in relation to the classification and new organization. of the militia.

        "If the proposed system should be adopted, the total derangement of the existing organization of the militia must be the consequence. It may be proper here, again to remark that, by the Constitution of the United States is vested in the General Government the power to provide for organizing, arming, and disciplining the militia, and for governing such part of them, as may be employed in the service of the United States, but the same article of the Constitution is


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express in 'reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.' By this derangement in the Constitution, the powers necessary to produce an efficient militia are divided between the General Government and the State Governments.--In pursuance of the power vested in the General Government on this subject, Congress did in the year of 1792, pass an act to establish a uniform militia throughout the United States, which act seems to embrace all the principles in the case delegated to Congress. Soon after the passage of that law by Congress, a consideration of the subject was assumed by the Legislatures of all the States, and laws have been passed by all the States for carrying that system into effect, so that by the co-operation of the General Government and the State Governments, the militia are now completely organized and officered throughout the Union. It is now thirteen years since this system has been in operation; the people practicing under it have, in a great degree, become acquainted with it and attached to it; and, in many parts of the Union, military discipline is rapidly progressing under it, and it cannot with propriety be doubted that the militia of the United States, under the existing organization, are amply competent to a defence against the intrusion of any invading enemy. To derange this system, then, and introduce one totally new and untried, one in which it is not certain that the State Legislatures will concur, and which is of doubtful aspect as it relates to the approbation of the body of the people, would, in the opinion of the Committee, at this important crisis of our national affairs, be putting too much to risk." (American State Papers, vol. 12, p. 189.)

        Now, by the way, I would remark that this report discloses the fact that our fathers believed that the State legislatures had some little power in the premises, and were to be occasionally consulted. These notions are, perhaps, too antiquated for the enlightenment of 1862, but the Congress of 1806 did not deem it beneath their dignity to advert to the fact that the State Legislatures had concurrent power with them over the militia.

        I would now ask any impartial hearer whether it has not been demonstrated that the plan of Mr. Knox, misquoted as it has often been, received for the twenty years of legislation, immediately subsequent to the adoption of the Constitution, the condemnation of the men who lived cotemporaneously with its birth.

        But, Mr. President, we have still additional light upon this subject, which enables me not only to prove what Congress cannot do under the power to raise armies, but what they can do. If Senators have followed my line of argument, they very clearly deduce the idea, which I am now reaching, that all power in Congress to raise an army by compulsory process is through the militia clause, and that the power to "raise armies" applies to a regular army, to be raised by voluntary enlistment. The method I have not yet shown specifically. But Congress comes to my aid in this emergency and shows how the regular army is to be recruited.

        "An act supplementary to the act, entitled "An Act for the more perfect organization of the army of the United States:"

        "SEC. 6. And be it further enacted, That it shall be lawful for any person, during the term he may be performing a tour of militia duty, to enlist in the regular army of the United States; and the recruiting officers are hereby authorized to enlist any such person in the same manner, and under the same regulations, as if he were not performing such militia duty; and every person who shall enlist, while performing a tour of militia duty as aforesaid, shall be thereby exonerated from serving the remainder of said tour; and the State to which he may belong shall not be required to furnish any other person to serve in his stead" (Military Laws of U. S., p. 159 )

        Mr. President, this extract solves, to my mind, all difficulties about this problem.--To repel invasion, suppress insurrection, the Confederate States can come to this State, and, through the machinery of the militia, officered by herself, compel every man to do military service. But, sir, beyond this the General Government cannot go. They cannot enter this Sovereign State and force a freeman of Georgia to enter their regular army. If he chooses to volunteer, well and good. He may be relieved from his militia duty, and the State shall have credit for that man, as a militia man, in any future draft upon her for troops.--But to force him to go is a power which the Constitution does not give, and against which, as a Senator, I solemnly protest.--There were, at one time, five armies in the United States, under the power to raise armies, but no man dared claim that the ranks of either of them could be filled by compulsion. Mr. Jefferson calls them the


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regular army, the additional army, the provisional army, the army of volunteers, and the eventual army. They existed at the same time for protecting our exposed borders and filling up the peace military establishment of the United States. But no President dreamed of forcing a citizen of the States against his will, into the ranks.

        Mr. President, I will not weary you by further quotations. I have before me the writings of Washington and of Jefferson, of Webster and of Woodbury, leading minds of the first and last days of the American Republic. Their sentiments upon this great question are almost identical. With all, it seemed clear that the military power of the United States by compulsion was restricted to the militia, and that the regular army of the country could be raised only by voluntary engagement. But my time is growing short, and as I perceive that my remarks are being reported by the press, and as the flattering attention you have given me evinces your appreciation of the importance of the subject, I will record the reference to the authorities I had prepared.

        WASHINGTON.
Sparks Writings, vol. vii, pp. 51, 441, 442, 205; vol. viii, p. 143; vol. xii, pp. 48, 51, 61, 74,80.

        JEFFERSON.
Jefferson's Complete Works, vol. iv, p. 469, 279, 282, 291; vol. v, pp. 76, 159, 423; vol. viii, pp. 49, 108.

        WEBSTER.
Life of Webster, vol. ii, pp. 48, 95, 613.

        WOODBURY.
Woodbury's Writings, vol. 1, pp. 102, 472.

        I particularly invite attention to the clear distinction drawn by Mr. Jefferson in his message of December 3, 1805. between the regular army and the militia.

        And now, Mr. President, transport yourself back to another scene of more recent date! We have traveled through the distant paths of varied years, and delved into the musty records of Congressional action, to discover the thoughts and opinions of those whose names are history. Go with me to Savannah, and enter the Convention of Georgia which ratified, in 1861, the Confederate Constitution. I see before me the Senators from Hancock, (Mr. Harris,) from Troup, (Mr. Beasley,) from Whitfield, (Mr. Jackson,) and I ask them in all sincerity to say whether, when Mr. Alexander reported the resolution that Georgia ratify the Constitution, in her sovereign capacity, it ever entered their imaginations that they were conferring upon the Congress of the Confederate States such a power as is claimed under the Conscription Acts? Nay, had one arose and prophesied to them that, in a year after their adjournment, Congress could have exercised that power under the grant to raise armies, would not the vote upon its adoption have been as unanimously in the negative, as by the light of history, it had the right to be, and was, affirmative? I see that my friends reply approvingly to my inquiries, and I gather again the intention of the framers of the Confederate Constitution.

        And now, Mr. President, Cui bono?--What is the object of the remarks, which I have had the honor to make this day? Do I intend to ask you to oppose the operations of the Conscript Acts, while clouds and darkness are round about us? Do I seek to induce Georgia to assert her own separate sovereignty by reason of this infringement of it? God forbid. That is not my object. As a citizen I am willing to submit to much more than this to bring this war to a successful close. Such is my action, such my advice. But as a Senator I stand upon sacred ground, and I feel it my duty to erect on yonder journal a record that shall be a landmark to posterity.

        But to do this, I need not indulge in invective against any one. Sir, in my heart I believe that, if we could probe the secret thoughts of that illustrious man, who now presides over the destinies of this Confederacy, we should perceive the sadness, with which he forced himself to sacrifice on the altar of his country the principles of a lifetime.

        He knew better than I, better than any of us here, the laws, on which I have commented, for in his message recommending conscription, which I believe he meant to be State conscription, be suggested the repeal of all militia laws. But when Congress had passed the laws, he knew not how better to fight this great battle, and he yielded, I believe, his conviction of law to the necessities of desperate times. That he will use the power to our injury, I spurn the thought.--He is a pure patriot, and my argument requires no aspersion of him.

        Mr. President, all of us must make sacrifices in this war. Our women are bleeding over desolated homes and broken hearts.--Our children are suffering for a father's guiding hand. Our property is being ruined and our prospects in life shattered--and shall I not, as a citizen, yield to my country the


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obedience and aid, which as a Senator I cannot do? I will.

        Sir, it may be that ere the time shall arrive for our adjourned session, my bones may be bleaching beneath the battlements I have builded. It may be that the gallant band, who now cluster around me, may be sleeping amid the shells of the ocean they are guarding. But peace will some day come. And then! Georgia! Georgia! thy mountains shall belch forth the liquid ore that shall dot thy surface with the materials of prosperity. Thy fields shall be white with the kingly plant, that, with African muscle and Caucasian skill, shall enable thee to rule the world. Prosperity and plenty shall be in thy borders and our God shall give us His blessing. I may not live to see these blessed days; but, sir, my ambition is that when in the future our children shall recount the deeds of this revolution, they may probably say that their fathers not only achieved the blessings of a free government for them by the power of the sword, but that, despite the darkness that hung over them, they handed down to them a country redeemed, regenerated, disenthralled by the irresistible genius of the external principles of constitutional liberty.