Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-11-21
DECISION 9R THE SUPREME CgURT
ON TME CONSCREPF LAW.
The .Fef or Congress DscTareS 10 Be Co.'s
sffFaEf0sEaE
From the Atlanta COnfederaey ]

From the Atlanta Confedsracy
: MBLEDGEYiLLE HOTEL, Nov. II, 1862.
stated il my letter last evening that the ex
pec.ed decision Of the Supreme Court to day on
the eonstitutonslity of the conscripiion act e
Congress- were creating the deepesf interest
: This morning at o'elock the opinion was pro.
nounced By Judge jenkins in the Senate cham
Der. The House Of Representatives was almost
deserted, and the Senate chamber was crowded
with some one in every seat aud standing al
over the floor where there was room to stand.
The case was broughi by A. o Jafsrs, of this
place, who wss enrolled by .Jehn B Fair. the
enrolling officer Of this county A writ Of ha-
beas cerpus was sued out by Jeffsrs, alleging
that he Was unlswfuilY detained aud deprived of
his liberty by the said Fair, made returnable to
Hon IYeTson L. HAMS, judge Of the Superior
court for the Ocmulgee circuit Both Fair and
Jeffsrs appeared before Judge Harris, when the
case was inquired into with all the fOrmslties of
law. Fair denied that be held Jeffsrs illegally,
but he was regularly enrolled as a c0nscript uu-
der tha late acts of Congress. Jefsrs BY his
counsel reioined that notwithstanding this, the
detention was illegal, because the acts Of Con-
gTess under which he was enrolled and detained
were unconstitutional. This was tho case pre-
! senteG for the consideration Of Judge Harris.
After hearing the argument and considering the
case, he decided that the acts were eonstitu tion-
al, and that the custody of Fair, the respondent,
over Jstfers, the applicant, was legal, and dis
| misse1 the complaint.
JetfsTs then took an appeal to thu Supreme
] CouIt-that OF the last resort in this State. It
presented the whole question at issue, which
has been such bore Of contention in this State,
and over which so much has been said and writ.
ten, pro and con. The whole case turned upon
the c0nstitutionality or the uuconstitutiona1itv
Of the law Of Congress. The counsel for the
applicant made this objection to the Law on three
considerations, as follows:
/ lss. That Con sTess has no power to raise
armies By cemPulsion, but by voluntary enlist
menti and that if Congress should require more
mea than It could raise by volunteer enlistment,
il must call upon the States for them
%. That all armies raised in any other way
are necessarily militia and the officers are to be
appointed by the State.
81. That in raising armies, Congress has no
power to discriminate between classes for such
power il possessed, is unlimited and involves
power in Congress to disbsnd and annihilate the
State governments by consumption of ali the
State officers, executive, legislative and judicial
whenever it may wickedly deem the State gov
ernmeuts sn evil OF may, IN It's transition to i'm
lpeTial power, aim to destroy the States
These were the points made on which a re-
versal of the decision ofJudge Harris was asked
for
Judge jenkins IN delivering the opinion of the court
and come TO its decision, deeply impressed with It's i'm
portsnos. It Of the greatest magnitude, IN
which tie public mind deeply concerned, and which
involved questions OF uoentous Importance and affect
ed the pub welfare the highest degree; but that It
was to adjudcate upon cases of this magnitude that the
court was organized and whatever might be the conse
quenees the court must do its duty, to look earnestly
and carefully into the Constitution aud its provisions
and determine upon the merits the case accordingly
He took occasion first ranaarx uoanif
cursory reading that the counsel the plan
tiff in error confirmed two provisions Of the Constitution
N0fna civ 60 HHa
the other call forth the militia Of the States into active
/ service in cases Of emergency.
In considering these powers it seemed a. time that
they were the same, and at another that in constituting
them it necessary to consider them together and
take them substantial grant Of power; but il
seemed to the court ths there was mistake in this view
Of the In the Sth section Of the LIST article Of the
Constitution the powers Of Congress were enumera
and found 10 be these
Par IL To declare war and grant letters Of rnarque
and reprisaI
Par. 70" To raise and support armies
/ Par. l3-" To provide and maintain a navy
Par IL To make rules for the government Of the
land ard naval forces"
Par I5-" To provide for calling forth the militia {,
execute the laws Of sho Confederate States suppress
insurrecti0ns aad repel invasions
Pdr. To-" To provide for organizing, aring and dis
cplnne the militia and for governing such part Of thea
be employed in the service Of the Confederate
States reservng the States respectively the appoint
ment Of he officers and the authority OF training the
militia according to the discipline prescribed By Con
gress
Judge Jenkins, after reading these provisions re
marked that IL would be observed that Congress lad
conferred upon by these provisions the power de
clare and to raise and 70 support armies. Ther
comes the clause to provide and maintain q navy
Then TO make rules and regulations for the govern
ment Of the land and naval forces and then the cause
to provide for calling forth militia 20 execute the laws
These two clsuses-that raise armies and tha
to cali forth the militia distinct and separate They
are put N JuNtapoon tnere ls an important claus
between them The power 70 raise and support arrnie
is general in its terms-ss general anything could b,
made by the use Of the English language. 1t Is unlmit
ed and unrestricted The power 10 call forth the mil
t Is TO be exercised only in Of invasion insurreotoa
etc aud is therefore limited Il is apparent that Ia.
h power cal out the militia in the enumerated
Intended to meet sudden pressing emergeacies whicl
are expressly enumerated It Is calling force adj
tiona 20 the independent Of the army Il l5ok
TO the employment Of the militia for these specific pus
poses, and is limited to the time that this emeFeenel
may last In the United States government, from hic
ours has been remodeled it Waa always the policy not
have large standing armies and that the military shou
II always be subject to the civil authority hence Cor
gress had found proper 10 provide FOR ordering out tn
! ! militia in certain emergencies that might arge,
had stand ng army TO meet every OF invasion o
< insurrectior that might suddenly happen.
The careful consideration Of those two clauses sal
Judge jenkins must satisfy intelligent mind tina
10 they entirely separate and distinct and must not
construed together It was 50 clear To his mind that
state it clearly was to provei It.
- But it said that executing the eonscript law
- virtually calling out the militia, but in the
J contemplated by the Com tituton; and tnst It deprived
the States of appointing the officers provided for D.
" the Constitution Now, said the judge, is this power eE
ercsed by Congress under the first broad grant to rails
armies OF under the other one TO call out the mill ia
Is This point must be settled Upon what the
is Il held that this is attempt to call the mil
10 tiai The only ground urged that the couscrps sr
the militia Of the States It seemed that this va
- very narrow view Of the subject II Is true the pc
upon whom the act was intended operate const
q the militia. But the Of the individual i II,
or emerged into mtianlSn. The c9nsoription law
upon its subjects citizens and not III is men II
policy OF the ates Is to enrol in the militia all Il
n sbeboded men OF the States Iho view that the ts
e. esgses OF the Ooustution alluded TO be he
as separate Gnd distinct s correct then the embOdYiE
or enrolling Of the people Of the States into ulis,
moves them beyond the power Of Congress raise
ed mics. How then 70 raise armies II Congre
de has power to raise armies independent Of calling out
Ia militia, but cannot take who is enrolled in Il
Il militia then the only power left by which Congress
u raise armies is by foreign hirengs-
Ter Then the eonseriptlon law acts upon people
I'M | citizens and not IS militia men.
-. But it is said in the second place that the power
- raise armies Is confined to voluntary enlisssns No
TN said be, ask for that limitation Il is nowhere to
found The grant is az broad az language can make
This limit does not appear the fac OF the grant
power 70 raise armies involves elave duty z
ercse that power whenever the occasion presents its
her makes it necessary to have armies IS the occ8
Il, existing At this timer What is the condition Of
~ countryf We are engaged in dreadful war. His1
5ht war Of revenge part Nor is 1t to avenge a
for particular wrong done TO ug such the npressment
r our any national insult special of mi
~ tce. It iss urged by an unserupuloos enemy "
has invaded and desolated our country wherever tb
Io have beena terrific war, not only against our nat
IN atty but our libertYWAged with all the feroeity
led hends IN which out two alternatives presented
/ conditional submission utter desolat0u aud ruin
uA This said the Judge is the occasion for raising srm
IN Thus there Is resting upon the Confsderae governm
on imperative duty to exercise the power raise
Suppose is bad proceeded by voluntary enlistment to
ted S TO do aptb5 fui her bv t5a, 49, ,ss ~ s1f
ret stir absolutely necessary to have more troops supp
lot the Confederate government should then fold It's arr
tb could IT oe justified, charged 1t 5olemply f. with
public defense IN saying that had gone 70 the extent
the lis p0werl II the gayernent should then be asked
and show that had exhausted its power and author
Eas could il show iti 4 could not Be done By referring
lts duty and would well excite the indignation Of
JUST outraged people.
her Let take alsrger and broader view aud look at
ex object Of ne people in forna ae Confederate COVE
3 neut III reduced 20 Its last analysis il would be foI
30 20 provide such embodiment Of power 10
lei sent national injuries and repel invasiouE The OBJ
lag aimed a looks iueTc and controversies witt
lUss ana otler natios I . lels sy y 49, 'eso % . me =.