Jeffers v. Fair

• Decision Date: 30 November 1862
• Citation: 33 Ga. 347
• Parties: Asa O. Jeffers, plaintiff in error. vs. John Fair, enrolling officer, etc., defendant in error.
• Court: Georgia Supreme Court

33 Ga. 347

Asa O. Jeffers, plaintiff in error. vs. John Fair, enrolling officer, etc., defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1862

Habeas corpus, from Baldwin county, decided by Judge Iverson L. Harris, at Chambers.

A sufficient statement of this case will be found in the able opinion of the Court as pronounced by Mr. Justice Jenkins.

McKinley, for plaintiff in error.

A. H. Kenan and Blandford, contra.

By the Court.—Jenkins, J., delivering the opinion.

The sole question presented by this record for the consideration of the Court, is the Constitutionality of two Acts passed by the Congress of the Confederate States; the one approved April 16th, 1862, entitled "An Act to further provide for the public defense;" the other approved September 27th, 1862, entitled " An Act to amend an Act entitled an Act to further provide for the public defense." From those Acts alone the defendant in error derives his authority to hold the plaintiff in custody, whilst the latter, admitting that he is within the purview, insists that they are unconstitutional, and the authority claimed under them void.

It is enough to say of those Acts, in this connection, that they authorize the President of the Confederate States to call out and to place in the military service of the Confederate States for three years, unless the war shall have sooner ended, all white men who are residents of the Confederate States, between certain ages, who are not legally exempt from military service.

The Court is impressed with the importance of the question, and the responsibility involved in its decision, have not failed to give it careful and anxious consideration.

The inquiry and course of argument pursued, bring under review the following clauses of the Constitution of the Confederate States. They are contained in the 8th section of the 1st article, and numbered as herein noted: The Congress shall have power: 12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years; 15. To provide for the calling forth the militia to execute the laws of the Confederate States, to suppress insurrections and repel invasions; 16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the Confederate States, reserving to the States, respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress; 18. To make all laws which shallbe necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the Confederate States, or in any department thereof.

Before considering the extent and proper construction of the grant of "power to raise armies" contained in the 12th clause above recited, we must distinguish between it and the grant of "power to call forth the militia" etc., contained in the 15th clause.

In the argument presented against the constitutionality of the Acts in question, we are called upon to construe these two clauses together as parts of the same grant. We regard them as wholly distinct. Armies raised under the 12th clause are instrumentalities whereby Congress executes the power to carry on war, whether offensive or defensive, whether on our own or foreign territory.

The individuals composing armies are separated from the mass of our population, and withdrawn from the ordinary civil pursuits during the time of their enlistment, whether in peace or in war. Armies are at all times and in all places, subject to the Government of the Confederate States; they are at no time and under no circumstances, subject to any State authority. The militia may be defined a body of citizens enrolled for military discipline. They are enrolled by State authority with reference to State boundaries; they are organized, officered and disciplined by State authority, the Confederate Congress having authority, (for the sake of uniformity) only to prescribe the mode of organization and discipline. They are not separated from the mass of their fellow-citizens, nor withdrawn from their ordinary pursuits, save occasionally for drill or for special and usually short service in the field. For such special service they may be called forth either by the authority of the State wherein they are enrolled, or by that of the Confederate States; but the power of the latter to call forth is limited to three special emergencies, viz: to execute the laws of the Confederate States, to suppress insurrections, to repel invasions. It is apparent, then, that they cannot be used in offensive war on foreign soil.

Armies raised under the 12th clause constitute the physical force, in conjunction with the navy, mainly relied upon for national defense, and exclusively for offensive, extra-territorial war in the assertion of national rights. The militia, when called forth, are citizen soldiery, designed to be used in the special emergencies, at points where there may be no portion, or an inadequate portion of the regular army.

They are not intended at any time to be merged in any army of the Confederate States, nor to be substituted for it; but as a separate organization to come in aid of it. Doubtless the constitutional provisions relative to the militia, were adopted in furtherance of the American policy of maintaining small standing armies in times of peace.

But the grants of power "to raise armies" and "to call forth the militia" are entirely separate and distinct—are to be construed together for the purpose of restricting or enlarging either. Any such attempt must lead to the most embarrassing confusion, the necessity of avoiding which became apparent in the course of the argument submitted, and seemed to call imperatively for this preliminary distinction.

2nd. It is insisted "that the Confederate Congress has no power to raise armies by compulsion, but is wholly dependent for military forces upon the voluntary enlistment of men; and if it need more force than its armies thus raised and its navy, its only resource is to "call forth the militia of the States." It is clear under the view we have taken, that Congress can raise armies under the twelfth clause, only by voluntary enlistment or by compulsory enrollment, and we are now asked so to construe the grant as to limit them to the former mode. The limitation now considered is, as to means only; whether or not there be any other constitutional limitation of the power, we will hereafter consider. The acts of Congress under review, authorizes compulsory enrollment of citizens. The clause of the Constitution, in virtue of which the power thus exercised is claimed, is very general in its terms— neither specifying nor prohibiting any means.

Let the phraseology be fixed in the mind of the inquirer. The Congress shall have power to raise armies, etc. Languagecould not express a broader, more general grant of a specific power. We look in vain for the limitation to voluntary enlistment as a means. Is there any difference between a grant of "power to raise armies?" We think not. Yet had the latter form of expression been used, who would have affirmed the existence of the limitation now insisted on? We understand the rule of construction in such cases to be, that " an unqualified grant of power gives the means necessary to carry it into effect." But the proposed limitation reduces the grant to "a bare authority to raise armies by accepting" volunteers. Now this idea and the idea of a power to raise armies, are widely different; and not less so are the terms appropriate to the expression of the one, and the other. Presuming that the frame of the Constitution used the words employed in their ordinary unambiguous significance, we hold that the clause, ex vi termini, express a grant of power—of power commensurate with the object—of power over the populations of the several States, entering into and becoming component parts of the Confederate States of America. Undoubtedly, voluntary enlistment as a means, would always be preferred, when efficacious, to compulsory enrollment, but in many cases, a limitation to the former would render the power barren. So obvious is the necessity of compulsion to render the grant effective that those holding the position we combat admit that it may be resorted to, but only through the agency of the several States.

The admission places compulsory enrollment in the relation of incident to the power to raise armies. But their view imputes to the frames of the Constitution this absurdity, viz: That having divested the States of the powers to declare war and to raise armies, and having vested those powers in the Confederate Congress, and knowing that the latter power would be incomplete without compulsory enrollment, they nevertheless left it exclusively in the hands of the States. Let us resolve this logic into the form of a sylologism. Compulsory enrollment is a proper incident of the power to raise armies; the Confederate Congress have, and the States severally have not the power to raise armies; ergo, the Congress may not, but the several States may resort to compulsory enrollment.

3d. Again, if the grant contained in the twelfth clause (which we have thus far considered per se) fall short of authorizing the Congress to resort to compulsory enrollment, in execution of the power, surely the defect is supplied by the eighteenth and last clause, which applies equally to all the preceding clauses of the section. It confers " power to make all laws which shall be necessary and proper for carrying into effect the foregoing powers, " etc. How does this comport with the idea, that should compulsion become necessary, in the process of raising armies, the Congress must appeal to the States to use it?

We have held that the power to raise armies is separate and distinct from the power to call forth the militia, and the only means to...