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The preamble to the Constitution establishes the broad republican principle that all the powers of government, whether national or State, are derived directly from the people. The Constitution further declares that for the purpose of war, foreign or domestic, absolute sovereignty is vested in the general Government. This principle, so vital to our independence as a nation, being admitted, an extreme nationalist might claim that under the authority "to provide for calling forth the militia" Congress in any great emergency would have the right to place the governors of States under the direct orders of the President. But far from adopting a policy which, as in 1812 and also in 1861, might invite a conflict between the Government and some of the States, Congress in 1795 went to the other extreme.

It mattered not whether the militia were wanted to execute the laws of the Union, repel invasion, or to suppress an insurrection against the authority of a State whose legislative or executive power had applied for assistance, the law of 1795, as if anticipating future conflicts, did not require the President to recognize the governors as even the channels of communication with their own subordinates. If he wanted a battalion, a regiment, brigade, or division, the law did not require him to set forth the necessity to the executives of the States, but authorized him to send his orders directly to the militia commanders. The first section of the law, which conveyed this authority, read:

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That whenever the United States shall be invaded, or be in imminent danger of invasion, from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders, for that purpose, to such officer or officers of the militia as he shall think proper."

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Although the governors were the commanders in chief of their respective militia, except when called into the service of the United States, the law in times of military emergency did not leave the members of the militia in doubt as to whom they should obey.

The fifth section prescribed:

That every officer, noncommissioned officer, or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court-martial; and such officer shall, moreover, be liable to be cashiered by sentence of a court-martial, and be incapacitated from holding a commission in the militia for a term not exceeding twelve months, at the discretion of the said court; and such noncommissioned officers and privates shall be liable to be imprisoned by a like sentence, on failure of the payment of fines adjudged against them, for one calendar month, for every five dollars of such fine. b *

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The spirit of this law which is still in force, sections 1642 and 1649, Revised Statutes, was observed in all the orders relating to the suppression of absenteeism issued in 1862. The governors in no instance were ordered, but were requested to lend their assistance.

a Callan's Military Laws, p. 108.

Callan's Military Laws, p. 109.

C While these sections of the Revised Statutes were repealed by the recent Militia Law approved January 21, 1903, section 7 of the latter law prescribes: "That any officer or enlisted man of the militia who shall refuse or neglect to present himself to such mustering officer, upon being called forth as herein prescribed, shall be subject to trial by court-martial, and shall be punished as such court-martial shall direct."-EDITORS.

In the regulations relating to the draft all this was changed. They were simply regarded as so many military satraps subject to the commands of the President and Secretary of War.

The regulations for the execution and enforcement of the draft, promulgated in General Orders, No. 99, August 9, 1862, read:

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The governors of the respective States will proceed forthwith to furnish their respective quotas of 300,000 militia called for by the order of the President, dated the 4th day of August, 1862. The governors of the several States are hereby requested forthwith to designate rendezvous for the drafted militia of said States, and to appoint commandants therefor and to notify the Secretary of War of the location of such rendezvous and the names of the commandants. It is important that the rendezvous should be few in number, and located with a view to convenience of transportation. The governors of the respective States will cause an enrollment to be made forthwith by the assessors of the several counties, or by any other officers to be appointed by such governors, of all able-bodied male citizens between the ages of 18 and 45, within the respective counties, giving the name, age, and occupation of each, together with remarks showing whether he is in the service of the United States, and in what capacity, and any other facts which may determine his exemption from military duty.

All reasonable and proper expenses of such enrollment, and of the draft hereinafter provided, will be reimbursed by the United States. * * * Where no provision is made by law in any State for carrying into effect the draft hereby ordered, or where such provisions are in any manner defective, such draft shall be conducted as follows:

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The governors of the several States shall appoint a commissioner for each county of their respective States, whose duty it shall be to superintend the drafting and hear and determine the excuses of persons claiming to be exempt from military duty. Such commissioner shall receive a compensation of $4 per diem for each day he may be actually employed in the discharge of his duties as such commissioner.

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9. As soon as the draft has been made and the names marked on the enrollment list, the commissioner will send a copy of the draft to the commandant of rendezvous, and another of the same to the adjutant-general of the State, who will immediately organize the drafted men into companies and regiments of infantry, by assigning 101 men to each company, and 10 companies to each regiment, and send a copy of the organization to the commandant of the rendezvous.

10. At the expiration of the time allowed for the drafted men to reach the rendezvous, the commandant shall proceed to complete the organization of the companies and regiments by proclaiming the names of the regimental commissioned officers, which shall be designated in accordance with the laws of the respective States, the number and grade being the same as in the volunteer service; and in case the laws of any State shall provide for the election of officers, they shall be elected under the direction of the commandant of the rendezvous, a * * *

Provost-marshals were therefore appointed by the War Department in the several States, on the nomination of the governor thereof, such assistants as might be necessary to enforce the attendance of all drafted persons who should fail to attend at such places of rendezvous.'

While the governors, who took no exception to this order, were as earnest in their determination to suppress the Rebellion as the soldiers in the front line of battle, let us see in how many ways under the foregoing regulations it was in the power of these eighteen loyal men to absolutely defeat the Government.

First. They could have refused to furnish their quotas, and could not have been compelled to do so except through military coercion and civil war.

Second. They could have declined to designate rendezvous and appoint their commandants.

a Report of Provost-Marshal-General, vol. 2, pp. 105, 106.
Ibid., vol. 2, pp. 105, 106, 107.

Third. They could have refused to make or permit the enrollment. Fourth. Had an enrollment already been made, as required by the law of 1792, they could have declined to appoint the commissioners to determine cases of exemption.

Fifth. Had no rendezvous been designated and no commandants and commissioners been appointed, it is manifest that however anxious the people might have been to save the Republic, there would have been no place for them to organize or assemble.

Sixth. Had the people voluntarily assembled, the governors could have prevented their organization by declining to issue commissions to their officers.

Seventh. Had they been believers in the fallacy of "State sovereignty," they could have refused to nominate provost-marshals who, as Government agents, they might have denounced as conspirators against the liberty of the people. But the folly and danger of the State system may better be established by its application to disloyal governors.

At the date the order was issued the Union and Confederate armies were hastening to the second battle of Bull Run. A crisis was approaching. Eighteen of the governors were the recognized champions of the Union; 10 others, although ignored by the laws of the Confederacy in the matter of raising troops, were exerting all the influence and power of their station to insure the triumph of Rebellion. Had the fate of the Republic in the approaching battle depended on the presence of militia, what response would these 10 disloyal governors have made to this call for 300,000 men? What would have been the effect if any or all the loyal governors had told the Government that, having furnished volunteers by the hundred thousand, they would neither aid nor assent in the execution of a draft? Pertinent to the situation, these questions we leave to be answered by those who still advocate the Confederate system.

The effort to assemble a grand army of militia ended as might have been expected. The draft was nowhere executed, but instead, 72 regiments of volunteers, credited as drafts, and aggregating 87,000 men, were permitted to be raised for the period of nine months. Called out, but as usual not organized till after the crisis had passed, recruited to the prejudice of the three year volunteers, too undisciplined to be trusted in the autumn campaign of 1862, these regiments with their inexperienced officers were maintained through the winter at the same expense as veteran troops, only to claim their discharge at the opening, or, as it often happened during the Revolution, at the middle of the ensuing campaign. Profitless as was the experiment, it, nevertheless, conveyed a valuable lesson. The war was slowly educating our statesmen. The word "draft" or "conscription" had been uttered by the President. More hopeful still, the conviction was growing that we were no longer a confederacy, but a nation. The people saw that liberty must survive or perish with the Union, and to save both they began to urge upon Congress a declaration of the broad republican principle, that every American citizen owes his country military service."

@Under the act of Congress reorganizing the militia (approved January 21, 1903), it is prescribed that the latter shall be divided into two classes-the organized militia or National Guard, and the remainder to be known as the reserve militia.-EDITORS.

CHAPTER XXX.

MILITARY POLICY OF THE CONFEDERATE STATES OF AMERICA.

THE CONSTITUTION OF THE PROVISIONAL GOVERNMENT OF THE CONFEDERATE STATES OF AMERICA."

At a Congress of the sovereign and independent States of South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana, begun and holden at the capital in Montgomery, in the State of Alabama, on the fourth day of February, in the year of our Lord one thousand eight hundred and sixty-one, and thence continued by divers adjournments until the eighth day of February, in the same year.

We, the deputies of the sovereign and independent States of South Carolina, Georgia, Florida, Alabama, Mississippi, and Louisiana, invoking the favor of Almighty God, do hereby in behalf of these States, ordain and establish this Constitution for the provisional government of the same; to continue one year from the inauguration of the President, or until a permanent constitution or confederation between the said States shall be put in operation, whichsoever shall first occur.

ARTICLE I.

SECTION 1. All legislative powers herein delegated shall be vested in this Congress now assembled until otherwise ordained.

SEC. 2. When vacancies happen in the representation of any State the same shall be filled in such manner as the proper authorities of the State shall direct.

SEC. 3. (1) The Congress shall be the judge of the elections, returns, and qualifications of its members; any number of deputies from a majority of the States being present shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may be authorized to compel the attendance of absent members; upon all questions before the Congress each State shall be entitled to one vote, and shall be represented by any one or more of its deputies who may be present.

SEC. 4. The members of Congress shall receive a compensation for their services to be ascertained by law and paid out of the treasury of the Confederacy.

SEC. 6. (1) The Congress shall have power to lay and collect taxes, duties, imposts, and excises, for the revenue necessary to pay the debts and carry on the government of the Confederacy, and all duties, imposts and excises shall be uniform throughout the States of the Confederacy.b

The other clauses of this section, viz, (2) to borrow money; (3) to regulate commerce; (4) to establish a uniform rule of naturalization, and uniform laws relating to bankruptcy; (5) to coin money; (6) to provide for punishment of counterfeiting the coin and currency of the Confederacy; (7) to establish post-offices and post roads; (8) to promote science; (9) to constitute tribunals inferior to the supreme court; (10) to punish piracies and offenses against the law of nations; (11) to

a Matthew's Constitution and Statutes of Confederate States of America, p. 1. 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. (Hickey on the Constitution of the United States, sec. 8, p. 8.)

declare war; (12) to raise and support armies; (13) to provide and maintain a navy; (14) to make regulations for the land and naval forces; (15) to provide for the calling forth of the militia; (16) to provide for organizing, arming, and disciplining the militia, were identical with the same clauses in section S, Article II, Constitution of the United States, substituting the word "Confederacy" for "United States; (17) to make all laws that shall be necessary and proper for carrying into execution the foregoing powers and all other powers expressly delegated by this constitution to this provisional government; (18) the Congress shall have power to admit other States; (19) the Congress shall also exercise executive powers, until the President is inaugurated." SEC. 7. * * (17) The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. (18) The powers not delegated to the Confederacy by the Constitution nor prohibited by it to the States are reserved to the States, respectively, or to the people.

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These clauses are identical with articles 9 and 10, amendments to the Constitution of the United States.

PROHIBITED POWERS.

Clause 1, section 8, Article II, identical with clause 1, section 10, Article I, Constitution of the United States.

Clause 2, relating to imposts or duties to aid execution of inspection laws, identical with clause 2, section 10, Article II, Constitution of the United States.

Last part of clause 2, corresponding to clause 3, section 10, Article II, Constitution of the United States, reads:

No State shall, without the consent of Congress, lay any duty of tonnage, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

EXECUTIVE POWER.

ARTICLE II.

SECTION 1. (1) The executive power shall be vested in a President of the Confederate States of America. He, together with the Vice-President, shall hold his office for one year, or until this provisional government shall be superseded by a permanent government, whichsoever shall first occur.

(2) The President and Vice-President shall be elected by ballot by the States represented in this Congress, each State casting one vote, and a majority of the whole being requisite to elect.

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(1) The Congress, by a vote of two-thirds, may, at any time, alter or amend this constitution.

Adopted by the unanimous consent of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana.

March 2, the Confederate Congress authorized Texas deputies to sign the provisional constitution.

To make all laws which shall be necessary and proper for the carrying into execution the foregoing powers and all other powers vested by this constitution in the Government of the United States or in any department or officer thereof. (Hickey on the Constitution of the United States, sec. 8, p. 10.)

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