Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 11.
Frank Moore, Ed.

The committee are free to confess, therefore, that leaving out of account all considerations touching the constitutional right and power of Congress involved, the mere object of the bill is one which they could not commend at the present juncture, except upon grounds of the most urgent and imminent necessity; and, in the opinion of the committee, no such necessity now exists, nor is any likely to exist in the future.

Passing, however, from the consideration of the object of the bill to its subject matter, the committee find serious grounds of objection to it, both in respect of its unconstitutionality and its inexpediency. No fact is more clearly deducible from the Constitution than this, that there should always exist in the country two different and distinct classes of military organizations: the one, a permanent organization to be raised, supported, armed, and disciplined by, and to belong to, and represent, the whole Union, as a Federal army; the other, a temporary organization, to be raised by the respective States, whenever the exigencies of public danger, in the obstruction of the laws, the raising of insurrections, and the fact of invasions, should necessitate the use of a larger force than that possessed by the Federal Government, to be called into being only upon extraordinary occasions, to preserve their distinct character as volunteers or militiamen during the term of their service, and to be disbanded again when the occasion which called them forth had passed away.

The absolute and continually existing necessity of an army to maintain the power and dignity of the nation; the constitutional prohibition that “no State shall, without the consent of Congress,” “keep troops ;” and the express authority granted by the Constitution to Congress, “to raise and support armies,” are all confirmatory, beyond question, of the right, power, and duty of the Government to maintain a regular standing army as a Federal establishment; while the clauses of the Constitution which provide for “calling forth the militia,” and for their arming, discipline, and governance by Congress, in “reserving to the States, respectively, the appointment of the officers, and the authority of training” them, while “employed in the service of the United States,” mark the latter as a fundamentally separate and distinct organization, and one which cannot, under the Constitution, be amalgamated with, and made a part of, the regular army.

The committee, therefore, are of the opinion that, as the volunteers were recruited under State authority, and constitute a part of the militia system of the country, the clause of the bill which provides that the “officers, non-commissioned officers, musicians, and privates of volunteers shall form, and hereafter be considered, a part of the regular army of the United States,” is in violation of the Constitution, and cannot become law. The provision of the bill above recited, and which embodies its whole substance, being thus, in the opinion of the committee, violative of the letter and spirit of the Constitution, they would be justified, perhaps, in closing their report, at this point, with a recommendation that the bill do not pass; but they find, on examination, that the details of the bill are as objectionable as its general features.

The sixth section provides “that the commissions given by Governors of States to such volunteer officers shall be considered the same as if given by the President of the United States, and the officers holding them shall take rank according to the date of such commissions.” It is believed that the Constitution of the United States interposes an obstacle against such officers being “considered” officers of the regular army by any such process. The second clause of the second section of Article H. of the Constitution, provides that the “President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not otherwise provided for, and which shall be established by law.” It is further provided, that “Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments.” No one who considers the subject will assume that officers of the army belong to that “inferior” class specified in the latter clause, whose appointment can vest solely in the President. On the contrary, a uniform interpretation has been given to both these clauses by Congress since the foundation of the Government; and, according to that interpretation, all officers of the rank, dignity, and responsibility of officers of the regular army, have been held to belong to that higher grade specified in the first of these clauses, whose appointment could only be constitutionally made “by and with the advice and consent of the Senate.”

The seventh section of the bill provides “that all vacancies hereafter occurring in said volunteer regiments shall be filled by the President, according to existing laws and regulations for the government of the Army of the United States.” This section is open to the same objection as the preceding one; for, while the Constitution (section 8, article 1) gives Congress the power “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” and “to provide for organizing, arming and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States,” the right of “the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress,” is, by the same section, “reserved to the States respectively.” The committee are not able to reconcile the proposition