The Conscript act in Georgia--special message of Governor Brown--an Adverse opinion to the Governor from the Supreme Court of Georgia.
Gov. Brown, of Georgia, who has come prominently into public notice of late from the frequency of his protests against the constitutionality of the Conscript act, will now be at rest, the Supreme Court of his State having settled the question finally. The Macon (Ga.) Telegraph thus notices the special message of Gov. B. to the Georgia Legislature on this subject:‘ This is a plea against and violent denunciation of the Conscription law, and in substance calls upon the Legislature of Georgia to nullify it. Strange that such a demand should be made of staid old Georgia, while Carolina and Virginia, the great nurseries of those State-Rights doctrines which are claimed to be impugned by the act, quietly support and acquiesce in it. The document is further a highly inflammatory popular appeal against the act, and holds it up to the people as violently and unlawfully dragging them from their families ‘"in chains"’ to the camp, and thus opposed to a State system which would leave the matter of going to their own individual choice! How the Governor can reconcile such a presentation of the case with candor and fair dealing, it is for him to say, and not for us to conceive. The real choice is, as every one knows, between conscription and the draft; for volunteering, except to avoid either, has now reached its final limit. O, for plain and manly dealing with the people by our public men.
’ In the Supreme Court of Georgia, last week, the case of Asa C. Jeffers, a conscript, against John Fair, the enrolling officer, was decided against the former. The counsel for the conscript urged:
- 1st.
That Congress has no power "to raise armies" by compulsion, but is wholly dependent for military force upon the voluntary enlistment of men; and if it need "more force" than its army thus raised, and its navy, then its only resource is to "call forth the militia of the States." 2d.
That all armies raised by Congress in any other way than by voluntary enlistment, are necessarily "militia of the States," and to be commanded by officers appointed by the States alone, and not by the President, who has no power to appoint officers therefore.
3d.
That, in raising armies, Congress has no power to "discriminate between classes," for such power, it possessed, is unlimited, and involves a power in Congress "to disband and annihilate the State governments by conscription of all the State officers, executive, legislative, and judicial, whenever it may wickedly deem the State governments an evil or may, in its transition to imperial power, aim to destroy the States.
The Court in deciding the case held that the act approved the 4th day of April, 1862, is not unconstitutional in this, that the persons enrolled under said act have not the power to elect their own officers. - 2d. That said act is not unconstitutional in this, that it does not allow voluntary enlistments, but is compulsory.
- 3d. The act is constitutional in this, that it does not have a tendency to destroy the State governments.
- 4th. Any conscription act which has a tendency to destroy the State governments is unconstitutional.
It was manifest, on even a cursory reading, that the counsel for the plaintiff confounds these two provisions: one giving Congress power to raise armies; the other, the power to call out the militia to repel invasion, &c. At one view, it may appear that these powers are one and the same. It is necessary to consider them carefully to arrive at a proper distinction between them.
The 8th section, 1st article, of the Constitution, enumerates the powers of Congress as follows:
‘ To raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws, suppress insurrections, and repel invasion; to provide for organizing and arming them, &c., reserving to the States the authority to officer them.
’ It will be seen that the two clauses, ‘"to raise and support armies,"’ and ‘"to call forth the militia,"’ are not in juxtaposition. They are distinct.
The power to call forth the militia is for the purpose of repelling invasion, &c. It is apparent that this power, in the emergencies enumerated, is intended to meet a sudden, pressing necessity. It undertakes the calling out an army in addition to the grant to raise and support armies. In the United States Government, after which our Constitution, in reference to carrying on war, &c., is copied, it has never been the policy to have large standing armies enrolled and subject to central authority. Hence the framers of the Constitution thought proper to provide for emergencies. These considerations force us to the conclusion that the two powers are distinct, and so clear, it seems, that to state the position seems to prove it.
But it is maintained that the conscription act is an attempt on the part of Congress to call out volunteers, and that it deprives States of the power to appoint officers, &c. This point must be settled: Is this power exercised under the clause ‘"to raise and support armies,"’ or ‘"to call out the militia?"’ The only ground on which it can be applied to the last is that it takes the men constituting the militia. The status of the citizen is not merged in the militia. The militiaman does not cease to be a citizen; and the conscription acts upon a population not as militiamen, but as citizens. The policy of the militia law is so enroll the able-bodied men, though there might be many below and above the ages of whom militia duty is required — a general rule being the object to attain. If we are correct in holding that the two grants of power are separate and distinct, and the power claimed is decreed to Congress, how are armies to be raised? What resource has it, but foreign hirelings, from which to fill up its armies? and from this humiliating resource we are shut out by the blockade. The statute acts upon individuals as citizens and not as militiamen.
The next point is, that the power of Congress to raise armies is confined to voluntary enlistments. The limitation does not appear on the face of the grant. The power conferred on Congress as agent involves the duty to exercise it in the emergencies contemplated. Is there an occasion at this time?--We are engaged in a foreign war — our country is invaded — not to redress a wrong — but a war waged with a degree of ferocity to force us to submission or extermination. This is the occasion. There is, then, resting upon the Confederate Government the imperative duty to raise armies. Suppose volunteering has utterly failed, and to continue the war it were necessary to raise more troops; suppose, further, that the Confederate authorities meet the issue with folded arms; could they justify this supineness by saying that the Government had gone to the limit of its power? The Confederate authorities, in pursuing such a course, would be recreant to duty, and would excite the indignation of an outraged people.
Let us take a broader view, and look at the object of States in forming the Confederation. In its last analysis, it will be found to be the embodiment of strength, to deter other nations from encroachments, repel invasions, and redress injuries when inflicted. If we could be assured that wars would cease — that man would no more war against his brother — in short, that the millennium was ushered in, we would say let each State stand upon its sovereignty; aye, abolish all government and all law, leaving each individual a law unto himself, Illustrating the principle of peace on earth and good will toward men. But, looking at the world as we find it, if there is any evidence of the approach of this happy era, it is in the old adage that ‘"the darkest hour is just before day."’
The object of Confederation being to prepare for self-defence, in carrying out this end the entire war-making power has been transferred to Congress. The States have no power to ‘"raise and support armies,"’ and no agency in making or carrying on war, save in response to the 2d clause of the Confederate Constitution. They are subsidiary agencies to the Confederacy in the exercise of these physical functions. The intention is that the financial and physical resources shall be consolidated for the purpose specified that Congress shall devise means, and that the great mass of the people shall be subject to be transformed into soldiers whenever the necessity requires it. This is the object and the policy of the Confederation.
If the Court might be pardoned for using a solecism, Congress cannot compel voluntary enlistments. And looking to the grant of power to Congress to call out militia, Congress cannot compel Governors to call them out. The history of the Government from which we have separated gives us an impressive lesson on this point. Several of the New England States held that there was no power to compel them to call out the militia to repel invasion, save of their own soil, and they refused to respond to the call for their quota of troops to aid in the struggle against a common foe. Whilst we tremble at consolidation and usurpation, and guard in all proper ways against them, let us not forget that there may be refractory Governors and too tardy Legislatures.
It cannot be shown that the power to raise armies was intended to apply to voluntary enlistments. On this subject we are not without authority. Our Constitution is an exact transcript of the old on the points under consideration. The Court referred to the authority of Chief Justice Story, the ablest publicist of that time. It is true he is, continued the Court, Northern authority, but his vision had never been jaundiced by political aspirations, or his judgment warped by sectional prejudices. He regarded the law ‘"as a jealous mistress,"’ and applied all his energies to its exposition.
It should also be remembered that he passed his life in one of the States which resisted the call of Congress, for the militia. The Court read from Judge Story's decision the points which had been commented on with great ability by the Court below. Our forefathers found that the militia were not a safe reliance — an army was required, and hence the grant based on their then recent experience of power ‘"to raise and support armies."’ --Judge Story maintained that the power to declare war would be a brutum fulmen without the authority ‘"to raise armies,"’ and his observations were presented in support of the wisdom of relieving the Governors of the routine of organization, and in illustration of the results of resisting the powers of this grant. The Court presented the views of eminent Southern minds in support of the opinion of this learned commentator. General Washington--the revered Father of his Country — had, in 1790, approved this plan of raising armies; and Mr. Monroe, of the strictest Virginia school of statesmen, in 1814, gave convincing arguments in support of the right claimed, as well as the policy of its adoption.
Gov. Troupe, one of the wisest, purest, most unflinching defenders of State sovereignty in Congress, from our-own State, had, as Chairman of the House Military Committee, favored the plan of conscription. He had declared that while he regarded the Government of the United States the strongest in the world, if it be true that troops cannot be raised except by volunteers furnished by the States, it is the weakest and most contemptible Government on earth, fit neither for war nor peace, He favored the plan of classification and draft, or classification and penalty, and maintained that the Government held absolute power over the persons of its citizens. Classification and draft are almost synonymous with conscription. Draft takes by lot from a class, and conscription includes a class, specifying exemptions.
The concluding clause of the Constitution authorizes Congress to make all laws necessary to carry into effect the other powers. If only voluntary enlistments are resorted to, the contributions are liable to be out of proportion to the population of the different States. It is a common cause, and all ought to contribute equally. If volunteers fail, compulsion must be resorted to preserve this equality, and citizens are the only objects of compulsion.
It is maintained that if there is no limitation of this power, it may be carried to the obliteration of all State authority including in its exactions the persons of Governors and officers of all the Departments. There is a limitation to the power; it is ten fold: 1st. Fundamental principles, which may not be disregarded; that the child shall not bind, maim, or destroy the parent; or bind, maim, or destroy itself. Can we have any Government in which it is not necessary to impose some confidence in its administrators? 2d In the 4th clause of the 3d section of the Constitution, a republican form of Government is guaranteed to every State. This extends to the working of its Government. Will any man say that the Congress of the Confederate States could, by conscribing the State authorities, destroy, suspend, or obstruct the regular functions of the State Government without violating this guarantee?
These fears of the destruction of State authority and sovereignty are therefore not well founded.--They are ‘"chimeras dire,"’ phantoms of the imaginations. Let not Governors, Judges, or Legislators, be frightened from their propriety, for there can be no interference in the exercise of the functions of their respective departments.
The Court (as a side remark) referred to the special message of the Governor, which had been introduced in the argument of the plaintiff in error. The Court regretted to differ from the Executive authority of the State, and accorded to the head of that department the most exalted patriotism. But it was a judicial question, as the plaintiff conceded in appealing to this tribunal.
The Court announced the inexpressible gratification with which, while war ravages the country, the Judiciary is able to uphold the hands of the war-making power in the exercise of the duties which the emergencies of the times demand, and unanimously declared the decision of the Court below affirmed.
