New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1863-09-11
THE CONsCRsPTIoN ACT.
Decision Of Judge Cadwai"dcr OF The
United states District lour,-fi, Com
stitutiouaIiiy Affirmed.

The following is the text Of Judge Cadwala-
aers opinion in regard the constiiuionaliy Of TIE
act Of March s. 1852. The opinion Is Of great length
but the following has reference specially to the coustu-
ionality Of the act:
The powers conferred by the Constitution upon Con.
gcsr 10 raise and support armies and Lake rre' iof
ihcir government distinct from the powers "hci
sre conferred on il 20 The militia 81 the respective
States. Until the act IN question. The national arilc
bad been raised By voluntary enlistment The s' tom
Of enrolment and draft had long been maturef - 70 Tie
militia OF The states BIT unii the Summer 81 rl- me
Utmost penalty foi rot serving when dried i-'n such
militia ioT The service 81 TIE United States ba1 been pc
evniafy With limited imprisonment Tor non -. inlH.
The act q Congress Of 18th July l-5 auiD1Il'd iu
;rssucut into the military service II Tic Unef Saes
OihOse persons drafted from The militia under tat act
WHO wbea ordered to attend at tie place u! muster dis
Oh yed
lie specific power Of imprcssmont had not been prrg
onAy conferred. But under te iOfuef y-cm though the
tne for nOt serving had when received bcan considered
equ.a lent for service the payment Lad nevertheless
been enforced the penalty Of mpgis Oncnt inflicted
By courts martial when tie money was Do' Other 8lsf
collected The oonstiwionafy u this former ilrI-
diciiOl q cOuis-marial may De considered cftlh
L.Lel G. Wheaton j. IL wOald not have been cOahtIn
i'Ona d.sObedience 10 attend at pace OF muster
had no. been military Oncnse. '"ngrrss. unless 4
had TIE power Of absolutely sunccine drafted person
% military rule from the tine ~ me afaii. could not
have thus made his disohcdieacc before he rI
into service a military 0hense.
The act Of Congress OF 1898. which fixed The time -
arrival at the place o. rendezvous as the period o. the
OF the military rtlNl'cf might tJii fiiN
ncnally IN ihe opinion Of The supcne Cont haze made
TIE time 81 draft tie period % Wheaton. H. j. 30 and
- Pr -, 81 So - oj) The constiiutionaliy Of the
a. Of eth July leO2 when the question was considered
| bie In March Last ~ McCans case Appeared ihclc-
'e % De established b. authority. iAo question lad
ben thought open the view OF the ecc y.
i IL Constitution would haye been taken.
The act Of 80 Of March. ic'J hls adopted Ike svs-
ten on an extended scale for the purose OF raj ing VA
toh armies independently o. The militia of the states
Under tic former laws whish have been nentoned a
aquesOn such that uOR Under sGeratIOn could
sIise Tie question under those laws could only have
been that Of military cOurs exercise 81 Jurisdiction
80yer person who having been lawfully drafted sady
foyed military service. There could not have been any
aspnte that the primary question whether nc had been
lawfully drafted VI liable 70 serve, was open 10 de
eision By the ordinary Tribunals under "r oi hbeas
eorpus. Here however the question Is Whether Mill.
iary commission decide the Original question "
thlbuhalf Of cocnlzaucc vi ..
The enctments u the law in question are not 20 ar
lGged r,at IL provision ion fle preparatory enroll
Inent, am those for the draft are always separated
They NUT, however be kept distinct when they are
IrAsidere with reference 10 the Constitution. The
N, uni.tsl s!stem oi mere enrolment could moi be
Bat ssteu Of drafting might De arbitrary aud lah
Nnarla "a sneA an extent As 10 encroach upon Con.
LWflona rights Tie Constitutional
horty o enact the law which il ufdcr cousjdcration
,ss eeryd exclusively from the power 10 raise armies
aealnot 70 enlarged under The authority which tie
Shstfutu confers 10 make al laws Hcccisaiy and
for FOR arrying the powers delegated this ole in
@ded, iDtcxecutiOn
After cg the provision Of the act the Judge gays.
This reyiw Of the priucpJ enactment Of The law sui
1s 10 iBdate IFS general purposes The organization
ainies ureT II H. the termination 81 the
~ war, ir whose cXigeIcies 10 provides and the
IN Of serve II those drafted under It cannot exceed
sste years though the should continue longer.
,a nniLaons Of the time would have prevented The
t-pl'syry qliIemcDt Of military service RON beng
1o,ntuthai though IL lad Included every able.
'Hied MalenLabitaut"