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t^M^j Correspondence

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CORRESPONDENCE

BETWEEN

GOVERNOR BROWN

AND TIIS

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rPON THE RICrHT OF

THE GEORGIA VOLUNTEERS,

IN CONFEDERATE SERVICE,

TO ELECT THEIR OWiV OFFICERS,

f^JlXlHC.

BODGHTON, lUISBET, BARNES & MOORE, State PkiStjirs.

MILLEDGEVILIE, GA., 18G3.

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CORRESPONDENCE.

Executive Department, ^

Milledgeville, Georgia, May 30th, 1S63. 5

}ion. James A. Scddon, Secretary of War :

Dear Sir : — Coir.plaint is made^. to me that the gallant 51st Regiment of Georgia volunteers, which covered itself with so much glory in the late battle of Chancellorville, and whose gallant Colonel fell mortally wounded and died of his wounds next day, has been denied the right to elect a Colonel to fill the vacancy of the lamented Col. Slaughter, and that the General in command has appointed a Colonel by promotion.

This is one of the Regiments sent into service by me, under the requisition made upon me in February, 1SG2, for twelve Regiments, and I am at a loss to know why the General in command shi3uld have refused to allow the Reg- iment to exercise its plain constitutional right of election. I have understood this question to be settled in favor of the right of all State Regiments, organized as the 51st was, to elect their own officers to hll all vacancies which have or may occur. Indeed, the right of election is too plain to be questioned. I am daily commissioning the officers elected by other Georgia Regiments in like cases, to fill vacancies, and I am at a loss to understand why the right should be withheld from the 51st, which is allowed to others, and to which all arc unquestionably entitled.

I have advised the Regiment that it is their right to elect, and have directed them to hold an election and send the re- turns to the Adjutant & Inspector General of this State, when I will order a commission to issue to the person elec- ted. I have stated to them, that this right is allowed to ■others, and that they arc entitled to it, and that I doubt not, you will recognize the person elected as the Colonel of the Regiment.

I trust you will at once instruct the General command- ing to permit the Regiment to exercise its right of election, and recognize their officers when elected and commissioned •by the proper authority in this State.

I will be greatly obliged by an early reply. I am, very respectfully, Your ob't servant,

JOSEPH E. BROWN.

4

Confederate States of America, ^

JJ'ar Dcparfintut, >

tlichmonil, Va., June SGtb, 1503. )

To Gov. J. E. Broia), Millalgccillc, Ga. :

Sir: — Your communication of the 30th May last has been received, uiid the consideration given to it required as well by the serious consequences of the claim of a right to fill the vacancy occasioned by the death of the lamented Col. Slaughter, of the Olst Ga. Rog't, by election, as of the earnestness and contidence with which the claim is presen- ted.

It appears from the muster rolls filed in the office of the Adjutant & Inspector Gcfteral, that the -3 1st Ga. Reg't was mastered directly into the Confederate service on the 4th of March, 1SG2, for three years or the war.

The Regiment was raised under the act of January 23d, .LSG2, which authorized the President to call upon the several States for troops to serve for three years or the war, and a circular on the subject from the War Department of Feb. 2d, 1SG2, w^as addressed to the several Governors.

By the 10th section of the act of April IGth, 1SG2', com- monly known as the conscription act, it is provided that all vacancies shall be filled by the President from the company, battalion, squadron, or regiment in* which such vacancy shall occur, by promotion according to seniority, &c., <tc. This provision was supposed to apply only to the troops re- ferred to in that act.

But, as if ^intending to put the question at rest on this point, Congress, five days after, to-wit : on the 21st April, 1 802, passed a general act, providing that all vacancies shall be filled by the President, &c.. *tc., by promotion ac- cording to seniority, &c. It seems to me, therefore, that in accordance with the last act, all vacancies in volunteer or- ganizations are to be filled by promotion according to seni- ority, &c., and that the vacancy referred to in the 51st Ga-. Keg't should be so filled, and not by election.

The laws and regulations provide for a stringent investi- gation as to the fitness of an oflicer for the promotion to which he would be entitled by seniority, if worthy ; and, as you state, that such promotion has boen made of the offt- cer entitled by seniority, it is presumed that he is worthy to fill the place.

The act of the General announcing the promotion is in accordance with the laws of Congress, with the regulations and uniform usage of the service, and is approved by the Department.

It is to be regretted that this difference of opinion should have existed, and that the expression of your views should have been given such direction as may possibly excite some dissatisfaction among the officers of that gallant Regiment

It is hoped that upon a reconsideration, you will concur with the views herein expressed.

With esteem, respectfully yours,

^JAMES A. SEDDON,

Secretary of War.

Marietta, Ga.; July 10th, 1SG3. Hon. James A. Scddon, Secretary of War:

Dear Sir :-^I have the lionor to acknowledge the re- ceipt of your letter of 2Gth June last, in reply to my letter claiming for the gallant olsL Georgia Regiment the right to elect an officer to till the vacancy of the late Colonel Slaugh- ter, who was killed in battle, and whose vacancy has been filled by the General in command, by promotion, denying to the regiment the right of election. This action I consider in palpable violation of the plain constitutional rights of the Regiment, and while I thank you for the courtesy of your reply, I must express both my surprise and mortifica- tion at your denial of the right of election to this Regi- ment and others which entered the service as it did ; and your announcement that the conduct of the General in re- fusing to permit the Regiment to exercise this right, and assigning to it a commander by promotion, without regard to the wishes of the troops, "is approved by the Depart- ment."

You predicate this decision . upon the act of Congress known as the Conscription Act and a subsequent act which provides that "all vacancies shall be filled by the President." I predicate my objection to the decision. ujjon the Constitu- tion of the Confederate States, which is of higher autherity than any act of Congress, and hold that the acts referred to by you, so far* as they deny to the State of Georgia the right to fill this and all similar vacancies, ure in conflict with the Constitution, and therefore void and of no binding force.

The 16th paragraph of the Sth section of the 1st article of the Constitution of the Confederate States declares, that Congress shall have power "to provide for organizing, arm- ing and disciplining the militia, and for governing such 'part of them as may be cmyloycd in the service of the Confederate

States, RESERVING TO THE STATES RESPECTIVELY THE AP- POINTMENT OF OFFICERS, and the authority of training the militia according to the discipline prescribed by Congress." By this paragraph of the Constitution, the State of Geor- gia, in plain language, reserved to herself the ajijmintmerit of the officers to command any part of her militia, when emp~ 2)loi/cd in the service of the Confederate States. And by her own Constitution and laws, she has provided that such ap-

G

jHtintment shall be made by dcrtlon of those to be commanded by these officers, and commission from the Governor, and that vaauidcs sliall be filled in the same manner.

By the militia, I understand the Constitution to mean the whole arms-bearing population of the State, who are not enlisted in the regular armies of the Confederacy. I am aware that writers upon English law define the militia to be an organhcil body of troops, &c.

That the framers of the Constitution did not intend to use the term in this sense, is evident from the fact, that they speak of the militia as in existence at the time they are making the Constitution, and give Congress the power, not to make a new militia, nor to organize that already in in existence, but to jirovlJc for organ'izhig the militia. In other words, to provide for forming into militar}' organiza- tions the arms-bearing people of the respective States. Had the Constitution given Congress the power to organize the militia without the qualifying words, it would have had the power to appoint the officers to command them, or to authorize the President to appoint them, as they cannot be organized without officers. The language is, however, very guarded. Power is u;iven to Congress to provide for orsianiz- ing that which was then in existence, without effective or- ganization, the militia or arms-bearing people of the States. • When Congress has provided for the organization, and the States have organized the militia. Congress may authorize the President to employ them, or a part of them in the ser- vice of the Confederate States, but in that case the States expressly reserve to themselves the right to appoint the officers to command them, and Congress cannot, without usurpation, exercise that power, or confer it upon the Pres- ident.

But suppose I adopt tlie definition of the term militia in- sisted upon by those who differ from me. The result is the same. In our correspondence upon the constitutionality of the Conscript Act, the President says, "the term militia is a collective term, meaning a body of men organized." In February, 18.62, the President made re((uisition upon me, under the act of Congress of the 23d of January, lS(i2, for twelve regiments of troops, to be employed in the service of the Confederate States. I proceedt!d under the laws in existence at the time to organize the regiments called for. The 51st Ptegimcnfc w^as tendered as one of the twelve, and, with the other eleven and several additioucal regiments which , offered their services as volunteers, was accepted by the President, as organized and officered by the State. This Regiment, when tendered, was therefore an organized body cf men, taken indiscriminately from the arms-bearing peo- ple of the State, who tendered their services and were ac- cepted by the President as a body of men organized by the State, or as militia, according to his own definition. The

rigiit ot the State to ajypoint the officers, which she does upon the election of those to be commcanded, was distinctly recognized in the organization of the Regiment. If the State possessed this right then, how has she lost it since ? If it is her right to appoint the officers when the Regiment is organized, how does she lose the right when a vacancy is to be filled ?

But the case does not rest here, undoubted as wore the States' rights under ithe Constitution. Before this Regi- ment and others called for at the same time were formed, I wrote Mr. Benjamin, the Secretary of War, upon the ques- tion, tliat the reserved rights of the State and of her troops might be distinctly recognized, to avoid any misunderstand- ing in future.

In his reply of JGth February, 1SG2, after the requisi- tion had been made, and before the regiments were organ- ized, Mr. Benjamin said, "I will add, that the officers of the regiments called for from the State under the recent act of Congress, are, in my opinion, to be commissioned by the Governor of Georgia, as they are State troops tendered to the Confederate Government."

This opinion of the Secretary of War was communica- ted to the troops, and they were assured by me that they had the right to elect all the field and company officers by whom they were to be commanded, while employed in the service of the Confederate States. "With this assurance from the Secretary of War and the Governor of this State, they volunteered and entered the service with the officers elected by them.

Aside from their constitutional right, here was a fair con- tract between them and the Government, under which they entered its service, and have nobly performed their part ; and I deny that Congress possess !s the power, by any sub- sequent act, to wrest from»them this constitutional right, or that the Government, without a most unjustifiable breach of its plighted faith, can now deny to them the exercise of tiiis right. I beg to be excused for the use of strong language which may appear to show too much zeal on my part in this cause.

By the act of the Secretary of War, I was made a party to this contract M'ith the troops, and my action under ic was ratified by the President when he accepted the troops or- ganized under it with officers elected by them, and I feel in honor bound to exert all the energy and power I possess to prevent the injustice which is being done to these gallant, self-sacrificing men. If the right is still denied, it will be my duty to communicate the f"acts to the General Assembly of this State, when again convened, and to ask them to take such action in the premises as will secure justice to their injured fellow-citizens and constituents, and protect their plain constitutional riirhts.

You say you regret that "the expression of my views should have been given such direction as may probably ex- cite some dissatisfaction among the officers of that gallant Regiment." Much as I may regret to excite the dissatis- faction of thu ofiicers who may be unwilling to submit their claims to preierment to a fair vote of those whom they as- pire to command, I cannot be silent when the rights of the Regiment in the selection of its officers are no longer re- spected. But I cannot suppose that the dissatisfaction of any meritorious officer who treats his men humanely, and has showii himself worthy to lead them in battle, will be excited, as such an officer has no reason to fear the decision of the gal i ant troops with whom he has been long associa- ted, and who are well acquainted with his character and his capacity to command them, and protect t'.icir lives in battle. It can only be those officers whose chief claim to preferment rest^ upon their rank and the date of commis- sions acquired by them, when less known to the troops, whose dissatisfaction can be excited when the troops are in- formed that the Executive of their State claims that they shall be permitted to exercise what they believe to be their constitutional right of election, and what thoy and their officers know was guaranteed to tiieni when they entered the service.

You say, further, that "the act of the General in announc- ing the promotion, is in accordance with the laws of Con- gress, Vv'ith the regulations and uniform usage of the ser- vice." I trust I have shown that the act of Congress, so far as it confers the right of appointment in tliis case upon the President, is a nulity, on account of its conliict with the Constitution, and it follows as a necessary consequence that any regulation of your Department carrying into exe- cution that which is void, is also unauthoritative. In refer- ence to the nnifurm mage of the service, I can only remark, that you labor under a very great mistake. I think it safe to say that a majority of the whole number of vacancies which have occurred in regiments in Confederate service from this State, which entered the service as did the 51st, under requisition from the President, have been filled by election and commission from the State. There has been therefore, no uniform usage in favor of your construction, but rather the contrary.

I am informed that soon after the passage of the conscrip- tion act, this question was raised in Colonel Benning's Reg- iment, General Toomb's Brigade, and was carried up regu- larly to the War Department for decision, and was decided in favor of the right of the State to appoint the officers to fill these vacancies, and against the right of the President to fill them by promotion. I am also informed, that a case involving this very principle, has been submitted to the Attorney General for his opinion, and that his opinion sus-

tsiined the right of ayj)ointme7U hy the States, in regiments tendered and accepted under the requisition of the Presi- dent upon the State for troops, under the act of Congress aforesaid. If I am mistaken in either of these points, I will thank you to inform me of the error, and what has been the decision of your predecessor, and of the Attorney .General in cases similar to that now under discussion. Certain it is, within my own knowledge, that since the report of the de- cision above referred to, most of the Georgia regiments, or- <Tanized as this was, have exercised the right of election, and i hiive commissioned the persons elected, and they now have command under their State commissions, and are recog- nized by the superior oilicers as entitlt;d to their rank and command.

In conclusion, I must express my profound regret that you have felt it your duty to make a decision in this case, which, in my opinion, denies the State the exercise of a right expressly reserved by her in the constitution, and which does great injustice to the troops, not only because it de- prives them of a legal right, which they consider of great, importance to them, but- because it violates the express guaranty of this right, under which the}^ entered tlie service.

Amidst the weight of cares and responsibilities by which you are surrounded, lam induced to hope that your decision was predicated upon the act of Congress, without having given that mature rellection to the Constitutional question involved in the case, which its importance demands, and that you were not aware of the understanding between me and tlie Secretary of War, which I have mentioned above, and upon which the troops acted when they entered the service. I therefore most respectfully ask a reconsidera- tion of this case, and trust I may soon have the pleasure to inform the gallant olst regiment, and all others organized as it was, that their right of election, which I consider so clear, and tliey regard so valuable, is recognized and respect- ed by the Confederate Government.

I am, with great respect,

your obedient servant,

JOSEPH E. BROWN.

Confederate States of America, ^

IVai- Department f ^

Richmond, Va., July 2oth, iS63. >

His ExccUcnci/ Jos. E. Brown,

Governor of Georgia : Your letter of the 10th inst., has been received. The difference between yourself and this Department upon the subject of the right of the 51st Georgia Regiment, to elect

10

their officers depends upon the fact whether this regiment coinposes a part of the militia of the State of Georgia. If the regiment be a portion of the militia ••eniplo3'ed in the servicjof the Confederate States," the appointment of the officers is reserved to the State, otlierwise, not. The com- pany muster rolls of this regiment on file in the olfice of the Adjutant and Inspector General, are entitled "muster Roll of Capt. Company in the 51st Regt. of Geor- gia vols., commanded by Col. \Vm. M. Slaughter, called int,o the service of the Confederate States in the Provisional ar- my, under the provisions of the act of Congress by Gov. Jos. E; Brown, from the 4th March, 1S62, (date of the mus- ter) for the term of three years, unless sooner discharged," and the muster corresponds with this title. This shows that this Regt. was composed of volunteers who were enlisted as a part of the Provisional army of the Confederacy, under the supervision of the Governor of Georgia.

The legislation of the Confederate States will very clear- ly exhibit that troops of this description have not been re- garded as belonging to the militia. By the act of Feb. 2Sth, ISOl, to raise Provisional forces for the Confederate States of America, the Congress enacted ''th^t to enable the gov- ernment of the Confederate States to maintain its jurisdic- tion over all questions of peace and war, and to provide for the public defence, the President be, and he is hereby au- thorized and directed to assume control of all military oper- ations in every State having reference to, or connection with questions between said States, or any of them and powers fbreinn to them." The third section of the act is "that the President be authorized to receive into the service of the government such forces now in the service of said States as may be tendered, or who may volunteer by consent of their State in such numbers as he may require, &c., Sec, &c. The 4th section is, that sucli forces may be received with ;their officers by companies or regiments, and when so re- ceived shall form a part of the Provisional army of the Confederate States, according to the terms of their enlist- ment; and the President shall appoint, by and with the consent of Congress, such general officer or officers for said forces as may be necessary ibr the service. 'The 5th section provides "that said forces when received into the service of this government, shall have the same pay and allowances as- may be provided by law for volunteers entering the service, or for the army (regular) of the Confederate States, and shall be subject to the same rules and government.

Your Excellency must perceive that the 51st Georgia regiment stands upon exactly the same footing as the troops tendered by the States, or volunteering under this act, and that this act contains not the slightest intimation that the troops received under it were received as State mililm.

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There is a direct provision that a portion of the officers shall be appointed by the President. -

The act of Congress of the Gth March, ISGl, authorizes the President to employ the militia, military and naval for- ces of the Confederate States, and to ask for and accept the • services of any number of volunteers, not to exceed 100,000^ ice, &c. The -jtli section of that act permits the President to accept the services of volunteers in companies, squadrons. Battalions and regiments, whose officers shall be appointed in the manner prescribed by law in the several States, ta which they shall respectively belong. But when inspected, mustered, and received into the service of the Confederate States, said troops shall be regarded in all respects as a part of the army of the said Confederate States, according to their respective enlistments.

The President was authorized to organize the companies into superior organizations at his discretion, and to appoint Brigade and Division officers. It was supposed that these volunteers would be raised through the different States, for by the act of 11th May 1S(31, he was authorized to receive volunteers directly w^ithout the formality and delay of a call upon the States. In this act there is a broad discrimi- nation made between the volunteers and militia, and the terms of the act forbid the conclusion that the volunteers obtained through the instrumentalities of the States, were to be regarded as militia "employed in the ser^-ice of the C/jnfederate States." The act of the 23d January, 1862, under which the ^Ist Georgia Regt. was called into the service, has immediate relation to the act of March Gth, 1861» The object of the act was to obtain from the States the complement of the troops authorized by the act of March ISGl, by the apportionment among them and requisition upon their public authorities. The conditions upon which the troops were to enter the service were prescribed in that act. These were that "the said troops shall be regarded in all respects as a part of the army of the Confederate States, according to the terms of their respective enlistments," and as before shown, they were mustered into service conform- ably to these conditions. Forming as they did, a part of the army of the Confederate States, they became subject to the authority of Congress, who were authorized by the Constitution "to make rules for the government and regu- lation of the land and naval forces." Among the rules and regulations proper on the subject, are these relating to tlie selection and promotion of ofiicers.

The act of Congress of March Gth, ISGl, provided for the organization of the volunteer troops then called for by adopting the State regulations. The acts of the 4th session of the Provisional Congress (acts of 11th Dec, 22d Jan. and 27th January, 1SG2,) provided a rule of promotion in regard to a portion of those troops who were about to re-

1-3

inlist. The acts of the Kith April 186:2 aiul 21st April 1SG2, made a rule applicabl'> ro the entire Provisional army, and this rule was repeated in the act of 13th Oct. 1SG2.

The Conscription acts of April and October have been the source from which the army has been recruited for more than fifteen months. It is probable that one half of those 'wlio now compose the -3 1st Ga. Regt. have come into it through the agency of these acts. This regiment and oth- ers accepted under the same conditions are regarded by this Department, since their acceptance b}'- the Confederate States as a part of the Provisional army, and therefore to be recruited by the agency of the Confederate States. The rule of promotion prescribed by Congress, is one uniform in its operation, was adopted after the experience and ob- servation of a year, and clearly embodies the judgment of Congress as the mode best calculated to insure the selection of competent officers.

It is unnecessary in "this inquiry to undertake a definition of what the meaning of the word militia is. Neither the acts of Congress of the U. S., prior to the separation of the Confederate States, nor the acts of Congress of the Confed- ■erate States, have regarded as militia, volunteers who have come into the service of the Federal Union, or the Confed- erate service, to form a portion of the army upon which they rely for the common defence, and it would be difficult, in the opinion of this Department, to assign a meaning to the term that would properly embrace such troops.

The postscript to the letter of Mr. Benjamin of the 16th Jul)^ 1S6L, quoted by you, seems to refer to the original or- ganization of the troops prior to their muster, and before their acceptance into the Confederate service, and the prac- tice since their acceptance, if inconsistent with the opinion expressed in this letter, was probably a transient or casual toleration of an existing opinion, without a full considera- tion of the import of the legislation of the Congress of the Confederate States. After a careful consideration of that legislation I do not ^^^^l that I have any authority to dis- pense with its conditions, however, agreeable it might be to conform to tlie wishes of those who have maintained this opinion. Notwithstanding my deference to the views of your Excellency, I must confine my official actions to what I conceive the clear mandate of the laws. With high esteem,

very respectfully, &c., (Signed.) JAMES A. SEDDON,

Sec'y of War.

13 Marietta, August 21st, 1S63. Hon. James A. Scddon, Secretary of War:

Dear Sir : — I have to acknowledge the receipt of your letter of 25th July, and to express my regret that I have been disappointed in what I considered a reasonable expec- tation, that upon a review of the question, )*ou would per- niit the Georgia troops, to whom our correspondence reters, to exercise the right of electing their officers.

It does not seem to me that the constitutional objection which I make to the acts of Congress, which deny to the troops the right of election, and give to the President the povs'er to appoint the officers to command them, is success- fully met, by additional ({notations from the acts of Con- gress, to show the intention. 1 have not called its inten- tion into question, as I think it Cjuite clear that it intended to confer the appointing power upon the President, but I have called in question its right, under the Constitution to do so. With all due deference, I cannot see, how the pow- er of Congress to pass a Statute, can be established by quotations from a Statute, showing what Congress did en- act, but not what its powers were.

I cannot admit that the distinction which you attempt to draw between volunteers and IMilitia, has any substan- tial foundation in law or fact, or that the length of time for which they are called into service, affects the question. It is very clear from the letter of the Constitution, that the militia of a State, may "be employed in the service of the Confederate States," in which case, Congress has power to provide for o-oi-c7V)?/?o- them, but even this power is made subject to the right of the State, to appoint the officers to com- mand them. It matters not what Congress may choose to call the arms bearing people of the State, who are in fact her militia. When Congress asks the State, to permit the President to employ them in the service of the Confederate States, and he makes requisition for them, and the State organizes and tenders them, they may be called the armies of the Confederacy, or the provisional or regular army, or by any other name which Congress may adopt, but neither their existence, their identity nor their character is changed by the name. The arms bearing people of a State, are her militia, and w^hen the President, under the authority of the act of Congress, makes requisition upon the Governor of a State for them, to repel an invasion, and they are tender- ed as organized and officered by the State, and accepted with their State officers and State organization, they are without regard to the term used by Congress to designate them, the militia of the State, "employed in the service of the Confederate States." Nor does the fact, that the State tenders them as drafted men, or as volunteers, or for a longer or shorter time, affect their character or their identi-

14

ty. Suppose a State is invaded, or thete is a sudden insur- rection, and the President, by virtue of an act of Congress, requires the Governor to call out the whole militia of a State for ten days, to repel the invasion, or suppress the in- surrection, and every man in the State vohintecrs, does the fact that they are not drafted, but volunteer, destroy their character of militia, and convert the whole militia of the State, into an army of the Confederacy, and thereby give the President the power to appoint all the officers, and take from the State this right which she has carefully re- served in the Constitution? If not, how is the principle changed, in case the call is for one month, one year, or three years, instead of ten days? "When thus tendered by the State, for what length of time must they "be employed in the service ot the Confederate States," before they lose their character of militia of the State? and how long must they serve before the President may, without usurpation, deny to the State, her reserved right to appoint the officers, and assume to do it himself ? Must it be for one month, one year, two years, three years, or what other period ?

Under the act of Congress, the President called on me, as Governor of this State, tor troops to serve for twelve months. They were furnished, and the States' right to ap- point the officers to fill all vacancies was never ques- tioned.

Other calls were made for troops to serve lor tliree years. These were promptly responded to, and among others, the 51st Regiment was tendered and accepted, and the right of the State to appoint the olRcers, expressly admitted upon the record, with no qualification and no denial of her right to fill vacancies. Again, the President, has lately, through you, made requisitions upon me for S,000 troops for six months, for home defence, to bo used in case of emergency, and in repelling raids, &C. These men are expected to be. most of their time, at home, attending to their ordinary business of producing supplies, &c. But the act of Con- gress says, where they volunteer and are accepted, they shall form part of the provisional armies of the Confeder- ate States. It will take nearly all the men remaining in theState, between 18' and 45, to fill this last requisition. Part of them will be volunteers, and part drafted men.

Now, if all these six months men, twelve months men. and three years men, have been converted into armies of the Confederate States, in the sense in which the constitu- tion uses the term, (I do not mean the sense in which Con- gress uses it,) and no part of them are militia, "employed in the service of the Confederate States," what has become of the militia of Georgia? Nearly the whole arms-bearing people of the State, between IS and 45, are in the service of the Confederate States, the larger number of them~ or- ganized by the State and tendered to, and accepted by the

15

Confederate Government, with their officers appointed by ■ the State, and you now deny that any part of the railitia of Georgia are "employed in the service of the Confederate States," or that the State has the right to appoint a single officer to command them.

Again, I ask, how did Georgia get rid of her militia, and where are they? They are, in fact, all employed in the service of the Confederate States. She has expressly and * carefully reserved the right, when they are thus employed, to appoint all the officers to command them. You do now, so employ them, but you deny her right to appoint even one of the lowest officers who is to command them, and you justify this by quoting from the acts of Congress to show, not the 'power to take from the State this plain con- stitutional right, but, that it was its mtcntmi to do it. I have never denied the intention^ but I can never admit the power. I look upon it as a clear usurpation, which finds no jurisdiction, either in the Constitution, or in the plea .of neccmty, which is usually resorted to in such cases.

In my last letter, I referred to the opinions of your pre- decessors in office, and of the Attorney General, which are all reported to concur in the view^ take of this question, and requested you to correct the error, if I had fallen into one, and to inform me what had been their ruling upon this point. As your reply passes this part of my letter in si- lence, I understand the fact to be admitted, that I am fully sustained in the view I take of the rights of the State, by the opinion of the Attorney General and the opinions and practice of the different distinguished gentlemen, who have successively filled the position you now occupy. I deeply regret that you have felt it )^our duty to overrule the opin- ions of such able and distinguished statesmen, as those just mentioned, upon a question involving a principle so vital to the rights and sovereignty of the States, when the de- nial of the rights of the States can only increase the power and patronage of the President, but cannot for the reasons given in my former letter, result in prac tical benefit to the public service. If your process of reasoning be correct, that the right of the States to ap- point the officers no longer exists, when it can be shown by reference to the acts of Congress, that it intended to con- fer this power upon the President, then the Constitution is' of no binding force, and Congress has power, by the use of. a term, or the change of a name, to abrogate the most sa- cred rights of the States, and confer them all upon the President.

In reply to that part of your letter in which you state that the 0 1st Georgia Regiment, has been recruited under the conscript act, and that probably, one half of its present number, have been in that way added to it, I need only re- mark, that if it is the right of the State to appoint the offi-

10 V.

cers to fill vacancies in the regiment, by commissioning those elected by tlip troops, the President, can certainly have no legal power to deprive the State of this right. > r the men who originally formed the regiment, of the riuiit of election, by adding conscripts to the regiment. If he chooses to put them in a regiment of volunteers, which has the right of election, he should not interfere with this right, but should permit all to vote. • ---

But I need not trouble you with further remarks, as I perceive vour decision is made up, doubtless after confer-. ing with the President, and it is determined that you shall enforce y?ur construction. The President has the power ,n his own hands, and I am obliged for the present, reluc- rantly to acquiesce in, what I consider a great wrong, to thousands of gallant Georgia troops and a palpable infring- me'.it of the rights and the sovereignty of the State.

I will only add, that this letter is intended more as a j)ro- :.<;.' against your decision, than as an eflbrt to protract a dis- c'ts.^ion. which it seems, can be productive of no practical results. I am, dear sir,

Very respectfully,

Your ob"t servant,

JOSEPH E. BROWN.

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