a committee of three, to take into consideration
the condition of the prisoners of war from Ten
nessee now held in custody by the Government,
and endeavor to obtain their release and return
to their allegiance, upon terms alike compatible
with the interests of the Government and the*
Hon. E. M. Stanton, Secretary -of War:
Every hour proves our victory more complete, j honor of the soldier.
le enemy s loss is great, especially in officers. ! 4. That the forbearance, moderation, and gen-
1 tlemanly deportment of the officers and soldiers
of the Federal army, since their occupation of
Tennessee, challenge our highest admiration.
I have just heard of live more of their guns cap- \
tured. Prisoners are constantly arriving.
G. B. McCLELLAX,
UNION CONVENTION AT NASHVILLE.
PREAMBLE AND RESOLUTIONS, ADOPTED MAY 12.
Whereas, It is manifest to the most unreflect
ing that whilst the State of Tennessee was an
integral part of the Government of the United
States, its citizens were in the enjoyment of the
full protection of life, liberty, and property, un
der the Constitution of the United States, and the
laws passed in accordance therewith, and all of
their material and political interests were watch
fully and carefully guarded by laws, introduced
by Southern men representatives of our selec
tion, identified thoroughly with all the interests
of our people which laws were decided to be pie that may occur hereafter must be the work
constitutional by the Supreme Court of the United of evil-minded citizens, and will subject those
States, the constitutional tribunal to decide all | citizens to summary punishment. Many Union
such questions : people have been taken from their homes and
And Whereas, Because of the election consti- i confined in prisons on frivolous charges. It is
tutionally of a President of the United States, j my intention, on any recurrence of such outrages,
who received no support in the State of Tennes- j to seize two secessionists for every Union man
see, and the effort of that President to maintain | thus seized, and to subject them to precisely the
5. That this meeting most cordialty approve
of the address made to the people of Tennessee
by his Excellency Governor Andrew Johnson,
dated March eighteenth, 1862, and the policy of
his administration since that time.
6. That a committee of five be appointed by
the chairman, who shall prepare an address to
the people of Tennessee expressive of the objects
of the meeting.
LIEUTENANT FLUSSER S LETTER
To THE MAYOR OF ELIZABETH CITY, N. C.
U. S. STEAMER COMMODORE PERP.T, )
OFF ELIZABETH CITY, Sunday, May 18, 1862. J
SIR : There being no confederate troops in this
city or its vicinity, any persecution of Union peo-
the integrity of the Union, and enforce the laws
against armed resistance, our people, in common
with the people of other States, were precipitated
into a revolution resorting to the arbitrament
same treatment which one loyal man receives at
the hands of the disloyal.
I am here to protect the Union people, and this
duty will be performed .to the best of my ability.
of arms for the settlement of our political differ- i It is my earnest desire that this duty maj be
REBELLION RECORD, 1862.
executed without any forcible demonstrations
against those who unhappily differ with us in po
litical sentiments. In other words, overlooking
the past, I hope all citizens will remain quietly
at home, attend to their own business, and at
tempt no persecution for opinion s sake. I insist
that citizens be allowed to trade with us unmo
lested, and that my officers and men shall be per
mitted to land and go about the city without a
guard. If officers or men violate any municipal
law, they will be punished on a report being
made to me by the city authorities. If any offi
cer or man is detained, I shall be obliged, how
ever unwillingly, to open fire on the town. Very
respectfully, your obedient servant,
C. W. FLUSSER,
Lieut. Commanding U. S. Naval Forces in Albemarle Sound.
To his Honor the Mayor of Elizabeth City.
THE REBEL CONSCRIPTION LAW.
JEFF DAVIS S LETTER TO GOV. BROWN OF GEORGIA.
EXECUTIVE DEPARTMENT, RICHMOND, May 29.
DEAR SIR : I received } our letter of the eighth
inst., in clue course, but the importance of the
subject embraced in it required careful considera
tion ; and this, together with other pressing du
ties, has caused delay in my reply.
The constitutional question discussed by you
in relation to the conscription law, had been fully
weighed before I recommended to Congress the
passage of such a law ; it was fully debated in
both Houses, and your letter has not only been
submitted to my Cabinet, but a written opinion
has been required of the Attorney-General. The
constitutionality of the law was sustained by
very large majorities in both Houses. This de
cision of Congress meets the concurrence not only
of my own judgment, but of every member of this
Cabinet ; and a copy of the opinion of the Attor
ney-General, herewith inclosed, develops the rea
sons on which his conclusions are based.
I propose, however, from my high respect for
yourself, and for other eminent citizens who en
tertain 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 views maintained
in your letter.
The main if not the only purpose for which in
dependent States form unions, or confederations,
is to complete 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 war. Each State, amply competent to admin
ister and control its own domestic government,
yet too feeble to successfully meet powerful na
tions, seeks safety by uniting with other States
in like condition, and by delegating to some com
mon agent the combined strength of all, in order |
to secure advantageous commercial relations in
peace, and to carry on hostilities with effect in
Now, the powers delegated by the several
States to the confederate government, which is
their common agent, are enumerated in the eighth
article of the Constitution, each power being dis
tinct, specific, and enumerated in paragraphs re
spectively numbered. The only exception is in
the eighteenth paragraph, which by its own
terms, is made dependent on those previously
enumerated, as follows :
No. 10. " To make all laws which shall be ne
cessary 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 nece?
sary to pay the debts, provide for the common
defence, 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
appropriation 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, am
ple, and unqualified delegation of the whole power
of each State than is here contained, with the
solitary limitation of the appropriations to nearly
two years. The States not only gave power to
raise money for the common defence, 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 para
graph 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 in
the confederate States, namely, voluntary enlist
ment or draft and conscription. I perceive in
the delegation of power to raise armies no restric
tions as to the mode of procuring troops. I seo
nothing which confines Congress to one class of
men, nor any greater power to receive volunteers
than conscripts into its service. I see no limita
tions by which enlistments are to be received of
individuals only, but not of companies, or bat
talions, 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,
namely : "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 cannot
aid the government in increasing the supply of
arms or provisions, but can only enable it to call
a large number of men into the field. The diffi-
.culty has never been to get men. The States law so order ; but, in the absence of a law to that
government more ; effect, the men of a State capable of bearing arnus
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 exists in time of peace,
have already furnished the
men than it can arm," etc.
I would have very little difficulty in establish
ing, 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 > troops in time of peace; and they are exprcsslv
of being disbanded, whose places could not be I distinguished and placed in a separate category
supplied by raw levies in the face of superior from land or naval forces, in the sixteenth para-
numbers of the foe, without entailing the most j graph above quoted ; and the words, land and
disastrous results ; that the position of our naval forces are shown by paragraphs twelve.
thirteen and fourteen to mean the army and
and the Constitution forbids the States to keep
armies was so critical as to fill the bosom of
every patriot with the liveliest apprehension ;
and that the provisions of the law were effective
in warding off a pressing danger ; but I prefer
to answer your objection on other and broader
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 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 prac
ticable, 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 de
vises 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 into
of the confederate States.
Now, if militia are not the citizens taken sin
gly, but a body created by law ; if they are no i
troops, and 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 " mili
tia" is a collective term, meaning a body of men
organized, and cannot 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 Con
federacy ; 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 authori
ty in Congress is exclusive, the Constitution pro
ceeds to deal with the other organized body of
the militia, and, instead of delegating power to
Congress alone, or reserving it to the States alone,
the power is divided as follows, namely :
Congress is to have power
"To provide for calling forth the militia to
conflict with some other provision of our confede- ! execute the laws of the confederate States, sup-
You express the opinion that this conflict ex
ists, and support your argument by the citation
of those clauses which refer to the militia. There
are certain provisions not cited by j r ou, 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 de
termining the respective powers of the States and
the Confederacy over them.
The several States agree " not to keep troops
or ships of war in times of peace." [Art. 1, sec.
10, part 3.]
They further stipulate that " a well-regulated
militia being necessary to the security of a free
State, the rights of the people to keep and bear
arms shall not be infringed." [Sec. 9, part 13.]
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, ex
cept in cases arising in the land or naval forces,
or in the militia when in actual service in time
of war or public danger," etc, [Sec. 9, part 10.]
What, then, are militia ? They can only be
created by law. The arms-bearing inhabitants
of a Stace are liable to become its militia, if the
VOL. V. Doc. 22
press insurrections and repel invasions." [Sec. 8,
" To provide for organizing, arming and disci
plining the militia, and for governing such part
of them as may be employed in the service of the
confederate States ; reserving to the States re
spectively the appointment of officers and the
authority of training the militia according to the
discipline prescribed by Congress." [Par. 16.]
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 \vhen 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
Congress may call them forth to repel invasion ;
so may the State, for it has expressly reserved
Congress may call them forth to suppress in
surrections ; and so may the State, for the power
is implicitly reserved of governing all the^miliMa
except the part in actual service of the Confede
I confess myself at a loss to perceive in what
REBELLION RECORD, 1862.
manner these careful and well-defined provisions
oi the Constitution, regulating the organization
and government of the militia, can be understood
as applying in the remotest degree to tfie 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 Con
federacy, is to be restricted or diminished by the
clauses which grant a divided power over the
militia. On the contrary, the delegation of au
thority 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
permanent duty, the common defence of the
You state, after quoting the twelfth, fifteenth
and sixteenth grants of power to Congress, that
u these grants of power all relate to the same sub
ject matter, and are all contained in the same
nection 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 con
trol any of the other paragraphs preceding, inter
vening or succeeding. So far as the subject
matter is concerned, T 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 six
teenth, as they are from the navy, mentioned in
the thirteenth. Nothing can so mislead as to
construe together, and as one whole, the care
fully separated clauses which define the different
powers to be exercised over distinct subjects by
But you add, that "by the grant of power to
Congress, to raise and support armies without
qualification, the framers of the Constitution in
tended the regular armies of the Confederacy, and
not armies composed of the whole militia of all j
[ must confess myself somewhat at a loss to j
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, 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 arm}*-, or to receive his
voluntary offer of service, because he is a mem
ber 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 organizations of the several States. You
seem, however, to suggest rather than directly to
assert, that the conscript law may be unconstitu
tional, because it comprehends all arms-bearing
men between eighteen and thirty- five years ; at
least this is an inference which 1 draw from your
expression, " armies composed of the whole mili
tia 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 not members of mili
tia organizations,) the power must be coexten
sive with the exigencies of the occasion, or it
becomes illusor}^ ; and the extent of the exigency
must be determined by Congress ; for the Con
stitution 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 supe
rior in numbers to ours, the necessity for defence
has induced a call, " not for the whole militia of
all the States," not for any militia, but for men to
compose armies of the confederate States.
Surely there is no mystery on this subject.
During our whole past history, as well as during
our recent one year s experience as a new Con
federacy, the militia " have been called forth to
repel invasion," in numerous instances. I can
not perceive how any one can interpret the con
scription law as taking away from the States the
power to appoint officers to their militia ; as they
never came otherwise than as bodies organized
by the States with their company, field and gene
ral officers ; and when the emergency had passed,
they went home again.
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 onl} r a nullity,
but the whole military power of the States, and
the entire control of the militia, with the ap
pointment of the officers, is vested in the con
federate Government, whenever it choose to call
its own action raising an army, and not call
ing 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 out 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
would describe himself, while in the confederate
service, as being a militia-man ; 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
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 V The answer is clear. In conformity to
the provisions of the Constitution, which ex
pressly 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
I beg you to observe that the answer, which
you say is clear, is not an answer to the question j
put. The question is, how are armies to be
raised ? The answer given is, that when militia
are called forth to repel invasion, the States shall j
appoint the officers.
There seems to me to be a conclusive test on i
this whole subject. By our Constitution Con-
gress may declare war, offensive as well as de
fensive. It may acquire territory. Now, sup- 1
pose that, for good cause and to right unpro
voked injuries, Congress should declare war
against Mexico, and invade Sonora. The mili
tia, could not be called forth in such 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 depreda
tions on our commerce ; and that we may be
compelled to assert our rights by offensive war. !
How is this to be carried on? Of what is the
army to be composed ? If this government >
cannot call on its arms-bearing population more !
than as militia, and if the militia can only be !
called forth to repel invasion, we should be utter- !
ly 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 may never
be plaintiff? Surely this cannot have been the
intention of the frarners of our compact.
In no aspect 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.
In conclusion, I take great pleasure in recog
nizing that the history of the past year affords j
the amplest justification for your assertion that |
if the question had been, whether the conscrip- !
tion law was necessary in order to raise men in
Georgia, the answer must have been in the nega- !
tivc. Your noble State has promptly responded !
to every call that it has been my duty to make
on her ; and to you, personally, as her Execu
tive, I acknowledge my indebtedness for the !
prompt, cordial, and effective cooperation you
have afforded me in the effort to defend our com
mon country against the common enemy.
I am, very respectfully, your ob t serv t,
His Excellency, JOSEPH E. BROWN,
Governor of Georgia, Milledgeville.
GEN. BUTLER S ORDER ON CURRENCY.