Richmond Whig. [volume] (Richmond, Va.) 1862-1865, 1862-11-19
cossrrrurIosALlrr o. rna cornasfs Law.
Decision or m, svrrns coulr OF sroHaA.


coSsrrYuYIoNALIYY % YHa coEsufHfs Law.
ppuuys or rus surnsus oouar OF sEozaA.
The iollosihe y Tho dseiiOu Of the Supreme Osuri 81
Georgia Ia the habsAs corpus cass Of An O. JsfsrA, Gen.
script, against John Fair, Enrolling 0niss, htay Do.
livsrsd BY Judge JsnhinL We ash for ID an s1tsniivs
perasAl:
! PLABryys BAIF.
fhs return Of defandant 70 the writ Of hshsas eorpus
shows no laSaltJ In the sarolmeat % inpreannnnf q
plaintiff! b, csuss the eonscrpt sc.s Of oongfss ere
unconstitutional. In this; Let. That Oongrsas hasne pew
or ITO raise arnes" by eonpalsisA, but b vponJ -
pendent for military force upon The voluntary salstnsnt
Of men; and u Is need "moU fogc," thAa In afny thM
raised, and is navy, then is only resource Is 2 'saii
forth the militia Of the States !" 81 fhet az arniss
raised BY Congress. In any ether way taan y vfssnnsy
snIstment are necessarily ''nilitiA Of ths 6tAttsr and
10 b commanded BY ehcsn appointed By " stAaes
rlons, and not by the President, Who has no pcPE y
.ppoint officers therefor; 81 That, In raising trmies,
Congress has no power to "dscrininste between classes.
for tush poser, If possessed, Il unlimited, and involves
q power in Copgrcss 40 disbAnd and ~annihilate t1e Stats
Govtraments" by CONSUMPTION Of all the Stts ttissrs,
executive, legislative, and Judicial vheneves nay
Veksdly deem the State GovsInnons IN tvi, or nay N
10 transition 70 impefial power. aim 70 destroy The pla,ea.
Held BY the Supreme Uourt thai the &C: Approval ne
9th day OF April, 1852, 10 not uneonsslsuhonai 2 thh,
IO4b y DcfhDub ouI0lCu hueoN 4hN ~ -"
power to eIecL thsir own officers
II. That said acs is not unconstitutional 10 t43 that
IL does not sllos voluntary e~nIs!msnu, but iNsea-
pulsory. NJ
81. Tho act ID constitutional in this, Is. Il A9<s ast
have q tendsncy 70 destroy the State governneet
9Th. Any oorschpi0u col uheh As q hnadhD q
dmRoy the State governments 70 unconsutuh0nA
fHs Cour-Judgs JenLirs delivering The opinion
Wa profoundly impressed with The importance OF the
decisioa and the consequence involved; and, With o
conviction Of its duty conscisntiousy 70 constxus the
consutu ionsl powers Of the Confederate Govsrnmsnt
and Of the S.Atea-
Il Vas manifest, on even . cursory reading, that the
counsel for the plaintiff confounds these two psoviions:
one giving Congress rossr 70 rAse Arnie Tho o:hes,
the power 10 call out the militia 10 repd invasion, a.
Al one viss, il may appear that thsss powers ars one
aud the sane. Il % necessary 70 eousidef then eirsfu u,
70 arrive OF . proper distinction between them.
The sh Section, lJs Article OF the CJnsiu!ion emu.
merates the powers Of Congress - follows: 70 rsiss
and support armies; 70 provide aud maintain . Navy;
TO make rules for the government and regulation Of the
land and naval foreH; 10 provide for calling forth the
militia TO eItclts the lass, suppress insurrscions and
repsl inc siou; 20 provide for organising aud arminy
them, Sc, reser'ins TO the S1Asss the Auhofiiy TO eli
esF them.
Il will bs s,sn ,bat the too clauses, "to ra's, and
support armies" and 80 call forth the militia, are not
10 jcI sposid0n. They are distinct.
The poser 10 call fo.th the militia Is for the purpose
Of repeliOg invasion, ~ Ii Is apparent that thu pow
eE, in the emergencies enumerated, 10 intended 10 meet
A sudlen, pressing necessity. Ii undertakes tho calling
"a. an army in adj tios to the grant 70 raise aud sup
port armies. Ia tbs United States Goverpmsnt, Afar
1hicA cur Constitution in reference to carrying on var,
g., l. copied, /! hes never bean the policy to have
large standing armies enrolled aud subject 20 central
authority. Hence the trainers Of the Constitution
thought proper to provide Tor emergencies. These COZ
sidersdons fotcs Us to The conclusion that tie two pow
ars are distinct, and 70 clear il seems, that 10 stats the
position seems TO proveL
But i; 10 maintained that the Oonscription Act Is IN
attempt on the part Of Congress 70 call out volunteers;
and that il deJrises States Of The power 70 appoint OF
cen, H.. This point must be setlled-is this power sI-
srcised under the clause ITO raise Aad supper. armies"
or ito call out the militia :" The only ground on which
q can be applied 70 The LIST, is, that t takes the men
eons itutOg tie militia The stEiLS Of tbs ciuHN 10 not
m,rgei In the n ilita. Tue nihhs man does not eeass
70 bs Q ci,z q aud the con scrip ion .sch upon . popS-
lAion, not as militia men, bat ~ citE ,ns. fhe pol cy
of the militia lag 10 to enrol the able bodied men, tho
there might be many b low and above the ages OF shom
militia duy Is re- CURED general ysIs being the object
10 attain. II &c are correct in holiing that the two
grants Of power a,e separate And distinct and the poe.
er claimed is dec. eed TO Congress, how are armies 10 be
raised What resources has il, but foreiga hirslings
{ ON which to ill up its armies : and from this humiha
ling resource Ve are shui OCT BY the blockade. The
statute lc.s upon individuals as cit ,s and no. a. Mill
Ea man.
Luz uNAN POAhEA ~ sh.h az PSNSa ~ 49, ~ isN
armies IA conf Led - voluntary ell s;nenls. The lmns
ton does not appear on tie face OF the grant. The
power cont. rred on Congress a. agent, involves toe duy
% exercise { in the emsrgenc IS contemplated. IL there
an 1c.lsiou 81 tina timer We srs engaged in q foreign
Uar-our country is invsded-not 70 redress Q wrong
oul . var vAged With a degree 1t ~fefoeity, to force u
70 submission or determination. f0is 10 the oceason.-
Tters Ia then resting upon tue Confederate Govsrnmsnt
she imperative duty 10 raise srniA Suppose volunteer
Jag has utterly failed, aud 10 continue the var ig were
necessary 10 rare mofe troops; suppos, further, taai
the Confederate suthOditl, meet the Issue vi h folded
arms could they justify this snpiGeness by ssyiog that
the Government had gone 10 the limit OF It's poEtrl-
Toe Confederate authorities, 10 pursuing such . course,
could be recreani 10 duty, and would excite the indig.
nation vi sn outraged people.
Let 70 tsko Q broader visv, and look Of the OBJECT Of
5ta,esi in forming the Cooled ntoa. 10 in las suLyss,
/: Gill bN found 10 bs the embodiment Of srSngIh, to Do.
ter other nations iron o. coachasnb, rspsl invAslons,
and redress ! jurts When II ctet. II 70 could be -.
s1rsd that u4n would cess-ihaI man you'll no more
var against his b;oiher-iu short that the nillen.um vas
ushsred in, vs would say let each State stand upon 10
sovereignty sye sbohsh all government and all lav,
Having each individual a Law unto himsd lustrsting
the principle OF peace on eArsh and good viii tok.rd
men. But, locking At the world ~ We fad II, il there IL
6ny evidence Vi The approach u this happy era, Iii IL
the old AdASe, that "the darkest hour L ~. before day"
The Chi CT OF Consideration icing 10 prepare for self.
defence, III cAnying out this end, the entire var making
poser has been ira sterrsl 70 Congress. The stsss
nave NJ power TO "rslse and support arnlts," and no
agency in making or carrying on gar, rave In response
90 the ~ clause oil the Confederate Oonnituion. Thsy
are subtidiAry agsrces TO che CenGedtrsey In tie
exercise OF ihese physical flnc lions. TIE intention Is
that financial and physic,l resource, shall Be consolidated
for the purpose spch.d; that O,ngres shall devise
msAus, and that the great mas Of the people shall bs
subject TO be trADsf a ed into soldiers v ben ,vsr the To-
csssity r,Quires It Thus t1e OH oct and the policy Of
the ConfedeIA iou.
II the Court might be pardolsd for using q solecism,
OongrGss cannot compel voluntary eniistmenis. Add
looking 70 the grant Of power to Congress 70 call out
militii, Congr,s canno; compel Governors 10 call thea
out. The h story OF the government from which We
have separated gives US al impressive lesson on this
ponL. Several Of the Nes Englind States held thai
theFe vu no power to compel them to call out the militia
10 repel invasion, save Of their own soil, and they 70.
lnsad 10 rhnond 70 the ca for their quota Of ttoona 10