The total amount of the public debt on October 1, 1864, on the books of the Register of the Treasury, was $1,147,970,208, of which $530,340,090 were funded debt, bearing interest, and $283,880,150 were Treasury notes of the new issue, and the remainder consisted of the former issue of Treasury notes which were converted into other forms of debt, and ceased to exist on December 31st. In consequence, however, of the absence of certain returns from distant officers, the true amount of the debt was less by $21,500,000 than appeared on the books of the Register; so that the total public debt, on October 1st, might have been fairly considered to have been $1,126,381,095. Of this amount, $541,340,090 consisted of funded debt, and the balance unfunded debt, or Treasury notes. The foreign debt is omitted in these statements. It amounted to £2,200,000, and was provided for by about two hundred and fifty thousand bales of cotton collected by the Government.¹⁹²

The aggregate appropriations called for by the different departments of the Government for the six months ending on June 30, 1865, amounted to $438,416,504. It was estimated that the remains of former appropriations would, on January 1, 1865, amount to a balance of $467,416,504. No additional appropriations were therefore required for the ensuing six months.

A system of measures by which to obtain a revenue from direct taxes and duties was commenced at the first session of Congress under the provisional Government. The officers who, at the time of the adoption of the provisional Constitution, held any office connected with the collection of the customs, duties, and imposts in the several States of the Confederacy, or as assistant treasurers intrusted with the keeping of moneys arising therefrom, were continued in office with the same powers and subject to the same duties. The tariff laws of the United States were continued in force until they might be altered. The free list was enlarged so as to embrace many articles of necessity; additional ports and places of entry were established; restrictive laws were repealed, and foreign vessels were admitted to the coasting-trade. A lighthouse bureau was organized; a lower rate of duties was imposed on a number of enumerated articles, and an export duty of one eighth of one cent per pound was imposed on all cotton exported in the raw state. At the second session, in May, a complete tariff law was enacted, with a lower scale of duties than had previously existed. On August 19, 1861, a war-tax of fifty cents on each hundred dollars of certain classes of property was levied for the special purpose of paying the principal and interest of the public debt, and of supporting the Government. The different classes of property on which the tax was levied were as follows: real estate of all kinds; slaves; merchandise; bank-stocks; railroad and other corporation stocks; money at interest, or invested by individuals in the purchase of bills, notes, and other securities for money, except the bonds of the Confederate States, and cash on hand, or on deposit; cattle, horses, and mules; gold watches, gold and silver plate, pianos, and pleasure-carriages. There were some exemptions, such as the property of educational, charitable, and religious institutions, and of a head of a family having property worth less than five hundred dollars. An act was passed for the sequestration of the property of alien enemies, as a retaliatory measure, to offset the confiscation act of the United States.

On April 24, 1863, a new act was passed relative to internal or direct taxes. It was designed to reach, as far as practicable, every resource of the country except the capital invested in real estate and slaves, and, by means of an income-tax and a tax in kind on the produce of the soil, as well as by licenses on business occupations and professions, to command resources sufficient for the wants of the country. On February 17, 1864, an amendment to this last-mentioned act was passed. It levied additional taxes on all business of individuals, of copartnerships and corporations, also on trades, sales, liquor-dealers, hotel-keepers, distillers, and a tax in kind on agriculturists. On June 10, 1864, an act was passed which levied a tax equal to one fifth of the amount of the existing tax upon all subjects of taxation for the year.

Within six months after the passage of the war-tax of August 19, 1861, the popular aversion to internal taxation by the General Government had so influenced the legislation of the several States that only in South Carolina, Mississippi, and Texas were the taxes actually collected from the people. The quotas of the remaining States had been raised by the issue of bonds and State Treasury notes. The public debt of the country was thus actually increased instead of being diminished by the taxation imposed by Congress.

At the first and second sessions of Congress in 1862 no means were provided by taxation for maintaining the Government. The legislation was confined to authorizing further sales of bonds and issues of Treasury notes. An obstacle had arisen against successful taxation. About two thirds of the entire taxable property of the Confederate States consisted in land and slaves. Under the provisional Constitution, which ceased to be in force on February 22, 1862, the power of Congress to levy taxes was not restricted by any other condition than that "all duties, imposts, and excises should be uniform throughout the States of the Confederacy." But in the permanent Constitution, which took effect on the same day (February 22d), it was specially provided that "representatives and direct taxes shall be apportioned among the several States according to their respective numbers, which shall be determined by adding to the whole number of free persons—including those bound to service for a term of years, and excluding Indians not taxed—three fifths of all slaves." According to the received construction of the Constitution of the United States, which had been acquiesced in for sixty years, taxes on lands and slaves were direct taxes. In repeating, without modification, in our Constitution this language of the United States Constitution, our Convention necessarily seems to have intended to attach to it the meaning which had been sanctioned by long and uninterrupted acquiescence—thus deciding that taxes on lands and slaves were direct taxes. Our Constitution further ordered that a census should be made within three years after the first meeting of Congress, and that "no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken."

So long as there seemed to be a probability of being able to carry out these provisions of the Constitution fully, and in conformity with the intentions of its authors, there was an obvious difficulty in framing any system of taxation. A law which should exempt from the burden two thirds of the property of the country would be as unfair to the owners of the remaining third as it would be inadequate to meet the requirements of the public service. The urgency of the need, however, was such that, after great embarrassment, the law of April 24, 1863, above mentioned, was framed. Still, a very large proportion of these resources was unavailable for some time, and, the intervening exigencies permitting of no delay, a resort to further issues of Treasury notes became unavoidable.

The foreign debt of the Confederate States at the close of the war was twenty-two hundred thousand pounds. The earliest proposals on which this debt was contracted were issued in London and Paris in March, 1863. The bonds bore interest at seven per cent. per annum, in sterling, payable half-yearly. They were exchangeable for cotton on application, at the option of the holder, or redeemable at par in sterling, in twenty years, by half-yearly drawings, commencing March 1, 1864. The special security of these bonds was the engagement of the Government to deliver cotton to the holders. Each bond, at the option of the holder, was convertible at its nominal amount into cotton at the rate of sixpence sterling for each pound of cotton—say four thousand pounds of cotton for each bond of a hundred pounds, or twenty-five hundred francs; and this could be done at any time not later than six months after the ratification of a treaty of peace between the belligerents. Sixty days after the notice, the cotton was to be delivered, if in a state of peace, at the ports of Charleston, Savannah, Mobile, or New Orleans; if at war, at points in the interior of the country, within ten miles of a railroad, or a stream navigable to the ocean. The delivery was to be made free of all charges, except the export duty of one eighth of one cent per pound. The quality of the cotton was to be the standard of New Orleans middling. An annual sinking fund of five per cent. was provided for, whereby two and a half per cent. of the bonds unredeemed by cotton should be drawn by lot half-yearly, so as finally to extinguish the loan in twenty years from the first drawing. The bonds were issued at ninety per cent., payable in installments. The loan soon stood in the London market at five per cent. premium. The amount asked for was three million pounds. The amount of applications in London and Paris exceeded fifteen million pounds.

Great efforts had previously been made by agents of the United States Government to reflect upon the credit of the Confederate States, by resuscitating an almost forgotten accusation of repudiation against the State of Mississippi, and especially by an emissary sent to Great Britain, than whom no one knew better how false were the attempts to implicate my name in that charge. The slanderous tongues of Northern hatred even went so far as to style me "the father of repudiation." How unjust all such assertions were, will be manifest by a simple statement of the case.¹⁹³

We should not omit to refer once more to the most prolific source of sectional strife and alienation, which is believed to have been the question of the tariff, or duties upon imports. Its influence extended to and affected subjects with which it was not visibly connected, and finally assumed a form surely not contemplated in the original formation of the Union. In the Articles of Confederation, the first Constitution of the United States, the theory was that of direct taxation, and the manner was to impose upon the States an amount which each was to furnish to the common Treasury to defray expenses for the common defense and general welfare.

During the period of our colonial existence, the policy of the British Government had been to suppress the growth of manufacturing industry. It was forcibly expressed by Lord North in the declaration that "not a hobnail should be made in the American colonies." The consequence was that in the War of the Revolution our armies and people suffered so much from the want of the most necessary supplies that General Washington, after we had achieved our independence, expressed the opinion that the Government should by bounties, encourage the manufacture of such materials as were necessary in time of war.

In the Convention which framed the Constitution for a "more perfect Union," one of the greatest difficulties in agreeing upon its terms was found in the different interests of the States, but, among the compromises which were made, there prominently appears the purpose of a strict equality in the burdens to be borne, as well as the blessings to be enjoyed, by the people of the several States. For a long time after the formation of the "more perfect Union," but little capital was invested in manufacturing establishments; and, though in the early part of the present century the amount had considerably increased, the products were yet quite insufficient for the necessary supplies of our armies in the War of 1812. Government contracts, high prices, and to some extent, no doubt, patriotic impulses, led to the investment of capital in the articles required for the prosecution of the war. With the restoration of peace and the renewal of commerce, prices naturally declined, and it was represented that the investments made in manufacturing establishments were so unprofitable as to involve the ruin of those who had made them. The Congress of the United States, in 1816, from motives at least to be commended for their generosity, enacted a law to protect from the threatened ruin those of their countrymen who had employed their capital for purposes demanded by the general welfare and common defense. These good intentions, if it be conceded that the danger was real which it was designed to avert, were most unfortunate as the beginning of a policy the end of which was fraught with the greatest evils that have ever befallen the Union. By the Constitution of 1789 power was conferred upon Congress—

"To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."

In the exercise of this delegated trust, tariff laws were enacted, and had been in operation to the satisfaction of all parts of the Union, from the organization of the Government down to 1816; but throughout that period all of those laws were based upon the principle of duties for revenue. It was true, and of course it was known, that such duties would give incidental protection to any industry producing an article on which the duty was levied; but, while the money was collected for the purposes enumerated, and the rate kept down to the lowest revenue standard, the consumer had no cause to complain of the indirect benefit received by the manufacturer, and the history of the time shows that it produced no discontent. Not so with the tariff law of 1816: though sustained by men from all sections of the Union, and notably by so strict a constructionist as Mr. Calhoun, there were not wanting those who saw in it a departure from the limitation of the Constitution, and sternly opposed it as the usurpation of a power to legislate for the benefit of a class. The law derived much of its support from the assurance that it was only a temporary measure, and intended to shield those whose patriotism had exposed them to danger, thus presenting the not uncommon occurrence of a good case making a bad precedent. For the first time a tariff law had protection for its object, and for the first time it produced discontent. In the law there was nothing which necessarily gave to it or in its terms violated the obligation that duties should be uniform throughout the United States. The fact that it affected the sections differently was due to physical causes—that is, geographical differences. The streams of the Southern Atlantic States ran over wide plains into the sea; their last falls were remote from ocean navigation; and their people, almost exclusively agricultural, resided principally on this plain, and as near to the seaboard as circumstances would permit. In the Northern Atlantic States the highlands approached more nearly to the sea, and the rivers made their last leap near to harbors of commerce. Water-power being relied on before the steam-engine had been made, and ships the medium of commerce before railroads and locomotives were introduced, it followed that the staples of the Southern plains were economically sent to the water-power of the North to be manufactured. This remark, of course, applies to such articles as were not exported to foreign countries, and is intended to explain how the North became the seat of manufactures, and the South remained agricultural. From this it followed that legislation for the benefit of manufacturers became a Northern policy. It was not, as has been erroneously stated, because of the agricultural character of the Southern people, that they were opposed to the policy inaugurated by the tariff act of 1816. This is shown by the fact that anterior to that time they had been the friends of manufacturing industry, without reference to its location. As long as duties were imposed for revenue, so that the object was to supply the common Treasury, it had been cheerfully borne, and the agriculture of one section and the manufacturing of another were properly regarded as handmaids, and not unfrequently referred to as the means of strengthening and perpetuating the bonds by which the States were united. When duties were imposed, not for revenue, but as a bounty to a particular industry, it was regarded both as unjust and without warrant, expressed or implied, in the Constitution.

Then arose the controversy, quadrennially renewed and with increasing provocation, in 1820, in 1824, and in 1828—each stage intensifying the discontent, arising more from the injustice than the weight of the burden borne. It was not the twenty-shilling ship-money tax, but the violation of Magna Charta, which Hampden and his associates resisted. It was not the stamp duty nor the tea-tax, but the principle involved in taxation without representation, against which our colonial fathers took up arms. So the tariff act in 1828, known at the time as "the bill of abominations," was resisted by Southern representatives, because it was the invasion of private rights in violation of the compact by which the States were united. In the last stage of the proceeding, after the friends of the bill had advocated it as a measure for protecting capital invested in manufactures, Mr. Drayton, of South Carolina, moved to amend the title so that it should read, "An act to increase the duties upon certain imports, for the purpose of increasing the profits of certain manufacturers," and stated his purpose for desiring to amend the title to be that, upon some case which would arise under the execution of the law, an appeal might be made to the Supreme Court of the United States to test its constitutionality. Those who had passed the bill refused to allow the opportunity to test the validity of a tax imposed for the protection of a particular industry. Though the debates showed clearly enough the purpose to be to impose duties for protection, the phraseology of the law presented it as enacted to raise revenue, and therefore the victims of the discrimination were deprived of an appeal to the tribunal instituted to hear and decide on the constitutionality of a law.

South Carolina, oppressed by onerous duties and stung by the injustice of a refusal to allow her the ordinary remedy against unconstitutional legislation, asserted the right, as a sovereign State, to nullify the law. This conflict between the authority of the United States and one of the States threatened for a time such disastrous consequences as to excite intense feeling in all who loved the Union as the fraternal federation of equal States. Before an actual collision of arms occurred, Congress wisely adopted the compromise act of 1833. By that the fact of protection remained, but the principle of duties for revenue was recognized by a sliding scale of reduction, and it was hoped the question had been placed upon a basis that promised a permanent peace. The party of protective duties, however, came into power about the close of the period when the compromise measure had reached the result it proposed, and the contest was renewed with little faith on the part of the then dominant party and with more than all of its former bitterness. The cause of the departure from a sound principle of a tariff for revenue, which had prevailed during the first quarter of a century, and the adoption in 1816 of the rule imposing duties for protection, was stated by Mr. McDuffie to be that politicians and capitalists had seized upon the subject and used it for their own purposes—the former for political advancement, the latter for their own pecuniary profit—and that the question had become one of partisan politics and sectional enrichment. Contemporaneously with this theory of protective duties, arose the policy of making appropriations from the common Treasury for local improvements. As the Southern representatives were mainly those who denied the constitutional power to make such expenditures, it naturally resulted that the mass of those appropriations were made for Northern works. Now that direct taxes had in practice been so wholly abandoned as to be almost an obsolete idea, and now that the Treasury was supplied by the collection of duties upon imports, two golden streams flowed steadily to enrich the Northern and manufacturing region by the impoverishment of the Southern and agricultural section. In the train of wealth and demand for labor followed immigration and the more rapid increase of population in the Northern than in the Southern States. I do not deny the existence of other causes, such as the fertile region of the Northwest, the better harbors, the greater amount of shipping of the Northeastern States, and the prejudice of Europeans against contact with the negro race; but the causes I have first stated were, I think, the chief, and those only which are referable to the action of the General Government. It was not found that the possession of power mitigated the injustice of its use by the North, and discontent therefore was steadily accumulating, and, as stated in the beginning of this chapter, I think was due to class legislation in the form of protective duties and its consequences more than to any or all other causes combined. Turning from the consideration of this question in its sectional aspect, I now invite attention to its general effect upon the character of our institutions. If the common Treasury of the States had, as under the Confederation, been supplied by direct taxation, who can doubt that a rigid economy would have been the rule of the Government; that representatives would have returned to their tax-paying constituents to justify appropriations for which they had voted by showing that they were required for the general welfare, and were authorized by the Constitution under which they were acting? When the money was obtained by indirect taxation, so that but few could see the source from which it was derived, it readily followed that a constituency would ask, not why the representative had voted for the expenditure of money, but how much he had got for his own district, and perhaps he might have to explain why he did not get more. Is it doubtful that this would lead to extravagance, if not to corruption? Nothing could be more fatal to the independence of the people and the liberties of the States than dependence for support upon the public Treasury, whether it be in the form of subsidies, of bounties, or restrictions on trade for the benefit of special interests. In the decline of the Roman Empire, the epoch in which the hopelessness of renovation was made manifest was that in which the people accepted corn from the public granaries: it preceded but a little the time when the post of emperor became a matter of purchase. How far would it differ from this if constituencies should choose their representatives, not for their integrity, not for their capacity, not for their past services, but because of their ability to get money from the public Treasury for the benefit of their local interests; and how far would it differ from a purchase of the office if a President were chosen because of the favor he would show to certain moneyed interests?

Now that fanaticism can no longer inflame the prejudices of the uninformed, it may be hoped that our statesmen will review the past, and give to our country a future in accordance with its early history, and promotive of true liberty.

Footnote 192: (return)

These bales were the security for the foreign cotton bonds, and were seized by the United States Government. Was it not liable to the bondholders?

Footnote 193: (return)

The facts with regard to the Mississippi "Union Bank" bonds may be briefly stated as follows:

The Constitution of Mississippi required that no law should ever be passed "to raise a loan of money on the credit of the State, or to pledge the faith of the State for the payment or redemption of any loan or debt," unless such law should be proposed and adopted by the Legislature, then published for three months previous to the next regular election, and finally reënacted by the succeeding Legislature. The object was to enable the people of the State to consider the question intelligently, and to indicate and exercise their will upon it by the election of representatives to the ensuing Legislature, whose views upon the subject would be known, and with such instructions, express or implied, as they might think proper to give.

In 1837 a law was passed by the Legislature for incorporating the "Union Bank of Mississippi," with a capital of fifteen million five hundred thousand dollars, "to be raised by means of a loan to be obtained by the directors of the institution." In order to secure this loan, the stockholders were required to give mortgages on productive and unencumbered property, to be in all cases of value greater, by a fixed ratio, than the amount of their stock. When the stock had been thus secured, as a further guarantee for the redemption of the loan, the Governor was directed to issue bonds, in the name and behalf of the State, equal in amount to the stock secured by mortgage on private property. No bonds as thus directed were ever issued.

This act was duly promulgated to the people, and duly reënacted by the succeeding Legislature on the 5th of February, 1838, in strict accordance with the Constitution.

Ten days afterward, however, viz., on the 15th of February, the Legislature passed an act supplemental to the act chartering the Union Bank, which materially changed or abolished the essential conditions for the pledge of the credit of the State. By this supplemental act the Governor was instructed, as soon as the books of subscription should be opened, to "subscribe for, in behalf of the State, fifty thousand shares of the stock of the original capital of said bank, to be paid for out of the proceeds of the State bonds to be executed to the said bank, as already provided for in the said charter." This act was passed in the ordinary mode of legislation, and was not referred, published, nor reënacted, as prescribed by the Constitution. As soon as the directory was organized and the books of subscription were opened, and before the mortgages required by the charter were executed, the Governor, in behalf of the State, subscribed for fifty thousand shares of the stock, and issued the bonds of the State for five million dollars, payable to the order of the bank.

These bonds were sold to Nicholas Biddle, President of the United States Bank of Pennsylvania, and by him sent to Great Britain as collateral security for a loan previously made. None of the money received for them went into the Treasury of the State of Mississippi, nor was any of it used for a public improvement. All the consideration ever received by the State was its stock in the Union Bank. The bank soon failed, and the stock became utterly worthless.

Before the bonds became due, the Governor of the State had declared them to be null and void, among other causes, in consequence of the failure to sell them at par, as required by the "supplemental act," under which they were issued.

It is not necessary here to discuss the question of the validity or nullity of the bonds. The object is merely to state the principal facts.

While these events were occurring, and until a period several years subsequent to their consummation, I, who had just resigned my commission in the army, was a private citizen, had never held any civil office, and took no part in political affairs. Indeed, I have never at any time before, during, or since those events, held any civil office under the State government, and neither had nor could have had any part in shaping the policy of the State. When brought out as a candidate for office, my nomination was opposed by that section of my party which advocated "repudiation," on account of my opinions in favor of the payment of the bonds.

As a private citizen, it may be stated that I held that the question of the validity of the bonds should be decided by the courts. The Constitution of Mississippi authorized suit to be brought against the State in such cases in her own courts, and this I regarded as the proper course to be pursued by the bondholders, holding that the State would be bound by the judicial decision, if it should sustain the validity of the claim. This course, however, was not adopted until long afterward, when the question had become complicated with political issues, which rendered the effort to obtain a settlement entirely nugatory.

When I was a member of the Senate of the United States, my official influence was exerted to promote the objects of a citizen of Mississippi, who, with quasi-credentials from the United States Secretary of State, Mr. Buchanan, went to London to propose to the bondholders an arrangement by which the claim, or the greater portion of it, might be paid by private subscription, on consideration of the cancellation of the bonds. This effort failed, from a mistaken estimate on the part of some of the principal bondholders, to whom the proposition was made, of the extent to which State pride would induce our citizens to contribute, and to the belief in a power to coerce payment. The gentleman who bore the proposal, indignant at the offensive manner of its rejection, and conscious of the disinterestedness of his motives, abandoned the negotiation in disgust, and the opportunity was lost.

CHAPTER XIV.

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, etc., was preserved, but the former were filled up to the number of one hundred and 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 coöperation, 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.' 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 limitation of the appropriations to two years. The States not only gave power to raise money for the common defense, to declare war, to raise and support armies (in the plural), to provide and maintain a navy, to govern and regulate both land and naval forces, but they went further, and covenanted, by the third paragraph of the 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 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 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 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.'¹⁹⁴ 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.'¹⁹⁵

"'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.'¹⁹⁶

"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 militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions.'¹⁹⁷

"'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.'¹⁹⁸

"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 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.'

"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 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.