Jefferson Davis, The Rise and Fall of the Confederate Government

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[433]

Chapter 14:

• Military laws and measures
-- agricultural products diminished -- manufactures Flourishing -- the call for Volunteers -- the term of three years -- improved discipline -- the law assailed -- important Constitutional question raised -- its discussion at length -- power of the Government over its own armies and the militia -- object of Confederations -- the war powers granted -- two modes of raising armies in the Confederate States -- is the law necessary and proper? -- Congress is the Judge under the grant of specific power -- what is meant by militia -- whole military strength divided into two classes -- powers of Congress -- objections answered -- good effects of the law -- the limitations enlarged -- results of the operations of these laws -- act for the employment of slaves -- message to Congress -- “died of a theory” -- act to use slaves as soldiers passed -- not time to put it in operation.

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The agricultural products were diminished every year during the war. Its demands diminished the number of cultivators, and their labors were more extensively devoted to grain crops. The amount of the cotton crop was greatly reduced, and numbers of bales were destroyed when in danger of falling into the hands of the enemy.

The manufacturing industry became more extensive than ever before, and in many branches more highly developed. The results in the ordnance department of the government, stated elsewhere in these pages, serve as an illustration of the achievements in many branches of industry.

During the first year of the war the authority granted to the President to call for volunteers in the army for a short period was sufficient to secure all the military force which we could fit out and use advantageously. As it became evident that the contest would be long and severe, better measures of preparation were enacted. I was authorized to call out and place in the military service for three years, unless the war should sooner end, all white men residents of the Confederate States between the ages of eighteen and thirty-five years, and to continue those already in the field until three years from the date of their enlistment. But those under eighteen years and over thirty-five were required to remain ninety days. The existing organization of companies, regiments, [434] etc. was preserved, but the former were filled up to the number of one hundred twenty-five men. This was the first step toward placing the army in a permanent and efficient condition. The term of service being lengthened, the changes by discharges and by receiving recruits were diminished, so that, while additions were made to the forces already in the field, the discipline was greatly improved. At the same time, on March 13, 1862, General Robert E. Lee was “charged with the conduct of the military operations of the armies of the Confederacy” under my direction. Nevertheless, the law upon which our success so greatly depended was assailed with unexpected criticism in various quarters. A constitutional question of high importance was raised, which tended to involve the harmony of cooperation, so essential in this crisis, between the general and the state governments. It was advanced principally by the governor of Georgia, Hon. Joseph E. Brown, and the following extracts are taken from my reply to him, dated

Executive Department, Richmond, May 29, 1862.

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

The main, if not the only, purpose for which independent 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 control its own domestic government, yet too feeble successfully to resist powerful nations, seeks safety by uniting with other states in like condition, and by delegating to some common agent the use of the combined strength of all, in order to secure advantageous commercial relations in peace, and to carry on hostilities with effect in war.

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

Now the war-powers granted to the Congress are conferred in the following paragraphs: No. 1 “gives authority to raise revenue necessary to pay the debts, provide for the common defense, and carry on the Government,” etc. No. 11, “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” No. 12, “To raise and support armies, but no appropriations of money to that use shall be for a longer term than two years.” [435] No. 13, “To provide and maintain a navy.” No. 14, “To make rules for the government and regulation of the land and naval forces.”

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

I know of but two modes of raising armies within the Confederate States, viz., voluntary enlistment and draft, or conscription. I perceive, in the delegation of power, to raise armies, no restriction as to the mode of procuring troops. I see nothing which confines Congress to one class of men, nor any greater power to receive volunteers than conscripts into its service. I see no limitation by which enlistments are to be received of individuals only, but not of companies, or battalions, or squadrons, or regiments. I find no limitation of time or service, but only of duration of appropriation. I discover nothing to confine Congress to waging war within the limits of the Confederacy, nor to prohibit offensive war. In a word, when Congress desires to raise an army, and passes a law for that purpose, the solitary question is under the eighteenth paragraph, viz., “Is the law one that is necessary and proper to execute the power to raise armies?”

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

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

I hold that, when a specific power is granted by the Constitution, like that now in question, “to raise armies,” Congress is the judge whether the law passed for the purpose of executing that power is “necessary and proper.” It is not enough to say that armies might be raised in other ways, and that, therefore, this particular way is not “necessary.” The same argument might be used against every mode of raising armies. To each successive mode suggested, the objection would be that other modes were practicable, and that, therefore, the particular mode used was not “necessary.” The true and only test is to inquire whether the law is intended and calculated to carry out the object; whether it devises and creates an instrumentality for executing the specific power granted; and, if the answer be in the affirmative, the law is constitutional. None can doubt that the [436] conscription law is calculated and intended to “raise armies”; it is, therefore, “necessary and proper” for the execution of that power, and is constitutional, unless it comes in conflict with some other provision of our Confederate compact.

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

The several States agree “not to keep troops or ships of war in time of peace.”¹ They further stipulate that, “a well-regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed.”²

“That no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in times of war or public danger.”³

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

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

Now, if militia are not the citizens taken singly, but a body created by law; if they are not troops; if they are no part of the Army and Navy of the Confederacy, we are led directly to the definition, quoted by the Attorney-General, that militia are “a body of soldiers in a State enrolled for discipline.” In other words, the term “militia” is a collective term meaning a body of men organized, and can not be applied to the separate individuals who compose the organization.

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

In the delegation of power to the Confederacy, after exhausting the subject of declaring war, raising and supporting armies, and providing a navy, in relation to all which the grant of 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 [437] militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions.”⁴

“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 Confederate States; reserving to the States respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.”⁵

Congress, then, has the power to provide for organizing the arms-bearing people of the State into militia. Each State has the power to officer and train them when organized.

Congress may call forth the militia to execute Confederate laws; the State has not surrendered the power to call them forth to execute State laws.

Congress may call them forth to repel invasion; so may the State, for the power is impliedly reserved of governing all the militia, except the part in actual service of the Confederacy.

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 understood 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 war by armies raised and supported 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 enumerated power intended to strengthen the hands of the Confederate Government in the discharge of its paramount duty, the common defense of the States.

You state, after quoting the twelfth, fifteenth, and sixteenth 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 construction, 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 paragraphs quoted can 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 twelfth paragraph are a subject-matter as distinct from the militia mentioned in the fifteenth and sixteenth as they are from the navy mentioned in the thirteenth. Nothing can so mislead as to construe together, and as a whole, the carefully separated clauses which define the different powers .to be exercised over distinct subjects by the Congress.

But you add that, “by the grant of power to Congress to raise and support armies without qualification, the framers of the Constitution intended the regular armies of the Confederacy, and not armies composed of the whole militia of all the States.”

I 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 [438] the nature of things that armies raised by the Confederacy can “be composed of the whole militia of all the States.” The militia may be called forth in whole or in part into the Confederate service, but do not thereby 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 are of course raised out of the same population as the militia organized by the States, and to deny to Congress the power to draft a citizen into the army, or to receive his voluntary offer of services, because he is a member of the State militia, is to deny the power to raise an army at all; for, practically, all men fit for service in the army may be embraced in the militia organization of the several States. You seem, however, to suggest, rather than directly to assert, that the conscript law may be unconstitutional, because it comprehends all arms-bearing men between eighteen and thirty-five years; at least, this is an inference which I draw from your expression, “armies composed of the whole militia of all the States.” But it is obvious that, if 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 be coextensive with the exigencies of the occasion, or it becomes illusory; and the extent of the exigency must be determined by Congress; for the Constitution has left the power without any other check or restriction than the Executive veto. Under ordinary circumstances, the power thus delegated to Congress is scarcely felt by the States. At the present moment, when our very existence is threatened by armies vastly superior in numbers to ours, the necessity for defense has induced a call, not for “the whole militia of all the States,” not for any militia, but for men to compose armies for the Confederate States.

Surely there is no mystery in this subject. During our whole past history, as well as during our recent one year's experience 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 can not perceive how any one 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 letter 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 really that of “raising an army,” and bears no semblance to “calling forth the militia.” I think I may safely venture the assertion that there is not one man out of a thousand of those who will do service under the conscription act that will describe himself while in the Confederate service as being a militiaman; and, if I am right in this assumption, the popular understanding concurs entirely with my own deductions from the Constitution as to the meaning of the word “militia.” [439]

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. How 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 case, 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 are called upon to repel invasion, the State shall appoint the officers.

There seems to me to be a conclusive test on this whole subject. By our Constitution, Congress may declare war, offensive as well as defensive. It may acquire territory. Now, suppose that, for good cause and to right unprovoked injuries, Congress should declare war 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 not 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 depredations on our commerce, and that we may be compelled to assert our rights by offensive war. How is it to be carried on? Of what is the army to be composed? If this Government can not 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 must never be plaintiffs? Surely this can not have been the intention of the framers of our compact.

In no respect in which I can view this law can I find just reason to distrust the propriety of 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.

Jefferson Davis.

The operation of this law was suspended in the states of Kentucky, Missouri, and Maryland, because of their occupation by the armies of the federal government. The opposition to it, where its execution was continued, soon became limited, and before June 1st its good effects were seen in the increased strength and efficiency of our armies. At the same time I was authorized to commission officers to form bands of “Partisan rangers,” either of infantry or cavalry, which were subsequently confined to cavalry alone. On September 27, 1862, all white men between the ages of thirty-five and forty-five were placed in the military service for three years. All persons subject to enrollment might [440] be enrolled wherever found, and were made subject to the provisions of the law. Authority was also given for the reception of volunteers from the states in which the law was suspended. On February 11, 1864, it was enacted by Congress that all white men between the ages of seventeen and fifty should be in the military service for the war; also, that all then in the service between the ages of eighteen and forty-five should be retained during the war. An enrollment was also ordered of all persons between the ages of seventeen and eighteen and between forty-five and fifty years, who should constitute a reserve for state defense and detail duty. On February 17th all male free negroes between the ages of eighteen and fifty years were made liable to perform duties with the army, or in connection with the military defenses of the country in the way of work upon the fortifications, or in government works for the production or preparation of materials of war, or in military hospitals. The Secretary of War was also authorized to employ for the same duties any number of negro slaves not exceeding twenty thousand.

In the operation of the military laws we found the exemption from military duty accorded by the law to all persons engaged in certain specified pursuits or professions to be unwise. Indeed, it seems to be indefensible in theory. The defense of home, family, and country is universally recognized as the paramount political duty of every member of society; in a form of government where each citizen enjoys an equality of rights and privileges, nothing can be more invidious than an unequal distribution of duties or obligations. No pursuit nor position should relieve anyone who is able to do active duty from enrollment in the army, unless his functions or services are more useful to the defense of his country in another sphere. But the exemption from service of entire classes should be wholly abandoned.

The act of February 17, 1864 (above mentioned), which authorized the employment of slaves, produced less results than had been anticipated. It brought forward, however, the question of the employment of the negroes as soldiers in the army, which was warmly advocated by some and as ardently opposed by others. My own views upon it were expressed freely and frequently in intercourse with members of Congress, and emphatically in my message of November 7, 1864, when, urging upon Congress the consideration of the propriety of a radical modification of the theory of the law, I said:

Viewed merely as property, and therefore as the subject of impressment, the service or labor of the slave has been frequently claimed for short periods in the construction of defensive works. The slave, however, bears another relation to the state—that of a person. The law of last February contemplates only the [441] relation of the slave to the master, and limits the impressment to a certain term of service.

But, for the purposes enumerated in the act, instruction in the manner of camping, marching, and packing trains is needful, so that even in this limited employment length of service adds greatly to the value of the negro's labor. Hazard is also encountered in all the positions to which negroes can be assigned for service with the army, and the duties required of them demand loyalty and zeal.

In this aspect the relation of person predominates so far as to render it doubtful whether the private right of property can consistently and beneficially be continued, and it would seem proper to acquire for the public service the entire property in the labor of the slave, and to pay therefor due compensation, rather than to impress his labor for short terms; and this the more especially as the effect of the present law would vest this entire property in all cases where the slave might be recaptured after compensation for his loss had been paid to the private owner. Whenever the entire property in the service of a slave is thus acquired by the Government, the question is presented by what tenure he should be held. Should he be retained in servitude, or should his emancipation be held out to him as a reward for faithful service, or should it be granted at once on the promise of such service; and if emancipated what action should be taken to secure for the freed man the permission of the State from which he was drawn to reside within its limits after the close of his public service? The permission would doubtless be more readily accorded as a reward for past faithful service, and a double motive for zealous discharge of duty would thus be offered to those employed by the Government—their freedom and the gratification of the local attachment which is so marked a characteristic of the negro and forms so powerful an incentive to his action. The policy of engaging to liberate the negro on his discharge after service faithfully rendered seems to me preferable to that of granting immediate manumission, or that of retaining him in servitude. If this policy should commend itself to the judgment of Congress, it is suggested that, in addition to the duties heretofore performed by the slave, he might be advantageously employed as a pioneer and engineer laborer, and, in that event, that the number should be augmented to forty thousand.

Beyond this limit and these employments it does not seem to me desirable under existing circumstances to go.

A broad, moral distinction exists between the use of slaves as soldiers in defense of their homes and the incitement of the same persons to insurrection against their masters. The one is justifiable, if necessary, the other is iniquitous and unworthy of civilized people; and such is the judgment of all writers on public law, as well as that expressed and insisted on by our enemies in all wars prior to that now waged against us. By none have the practices of which they are now guilty been denounced with greater severity than by themselves in the two wars with Great Britain, in the last and in the present century, and in the Declaration of Independence in 1776, when an enumeration was made of the wrongs which justified the revolt from Great Britain. The climax of atrocity was deemed to be reached only when the English monarch was denounced as having “excited domestic insurrection among us.” [442]

The subject is to be viewed by us, therefore, solely in the light of policy and our social economy. When so regarded, I must dissent from those who advise a general levy and arming of the slaves for the duty of soldiers. Until our white population shall prove insufficient for the armies we require and can afford to keep in the field, to employ as a soldier the negro, who has merely been trained to labor, and, as a laborer, the white man accustomed from his youth to the use of arms, would scarcely be deemed wise or advantageous by any; and this is the question now before us. But should the alternative ever be presented of subjugation, or of the employment of the slave as a soldier, there seems no reason to doubt what should then be our decision. Whether our view embraces what would, in so extreme a case, be the sum of misery entailed by the dominion of the enemy, or be restricted solely to the effect upon the welfare and happiness of the negro population themselves, the result would be the same. The appalling demoralization, suffering, disease, and death, which have been caused by partially substituting the invaders' system of police for the kind relation previously subsisting between the master and slave, have been a sufficient demonstration that external interference with our institution of domestic slavery is productive of evil only. If the subject involved no other consideration than the mere right of property, the sacrifices heretofore made by our people have been such as to permit no doubt of their readiness to surrender every possession in order to secure independence. But the social and political question which is exclusively under the control of the several States has a far wider and more enduring importance than that of pecuniary interest. In its manifold phases it embraces the stability of our republican institutions, resting on the actual political equality of all its citizens, and includes the fulfillment of the task which has been so happily begun—that of Christianizing and improving the condition of the Africans who have by the will of Providence been placed in our charge. Comparing the results of our own experience with those of the experiments of others who have borne similar relations to the African race, the people of the several States of the Confederacy have abundant reason to be satisfied with the past, and to use the greatest circumspection in determining their course. These considerations, however, are rather applicable to the improbable contingency of our need of resorting to this element of assistance than to our present condition. If the recommendation above, made for the training of forty thousand negroes for the service indicated, shall meet your approval, it is certain that even this limited number, by their preparatory training in intermediate duties, would form a more valuable reserve force in case of urgency than threefold their number suddenly called from field-labor, while a fresh levy could to a certain extent supply their places in the special service for which they are now employed.

Subsequent events advanced my views from a prospective to a present need for the enrollment of negroes to take their place in the ranks. Strenuously I argued the question with members of Congress who called to confer with me. To a member of the Senate (the house in which we most needed a vote) I stated, as I had done to many others, the fact of having led negroes against a lawless body of armed white men, and the assurance which the experiment gave me that they might, under [443] proper conditions, be relied on in battle, and finally used to him the expression which I believe I can repeat exactly: “If the Confederacy falls, there should be written on its tombstone, ‘Died of a theory.’ ” General Lee was brought before a committee to state his opinion as to the probable efficiency of negroes as soldiers, and disappointed the probable expectation by his unqualified advocacy of the proposed measure.

After much discussion in Congress, a bill authorizing the President to ask for and accept from their owners such a number of able-bodied negro men as he might deem expedient subsequently passed the House, but was lost in the Senate by one vote. The Senators of Virginia opposed the measure so strongly that only legislative instruction could secure their support of it. Their legislature did so instruct them, and they voted for it. Finally the bill passed, with an amendment providing that not more than twenty-five per cent of the male slaves between the ages of eighteen and forty-five should be called out. But the passage of the act had been so long delayed that the opportunity was lost. There did not remain time enough to obtain any result from its provisions. [444]