Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-11-14
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D lof thia exeeptioD7 The land or naval forces
4 mean the regular military o,gsnix, ion Of the
8 Govsrnmeut=the standing army and navy
E into which oitizens are introduced by military
8 education from boyhopd or by eulissmauts. and
become, by their own consent, subject to the
military codoand liable TO be tiiedand punished
without any Of the forms or safegpaEds OF the
common law. In like manner the mllitla when
duly called out and placed "ln actual service"
are subject to the rules and articles OF war all
their common law rights Of personal freedom
being for the time suspended, But when are
militia men Ia actual service7 When they have
been notified Of dfslt7 Judge StoFy,in speak.
ing Of the authority Of Congress over the militia
leays: "The question when the authority Of Con-
gress over the militia becomes exclusive, must
essentially depend uron the fact when they are
to be deemed in the ctual service of The United
States. There issa clear distinction between
calling forth the militia and their being 10 actual
service. These are not contemporaneous acts
nor neceAsafily Identical 10 their CONSTITUTIONAL
lleanings. The President 10 not Commander
In Chief OF the militia, except when in actual
seFVice; and not merely when they are ordered
into service. They are bjected to martiailaw
only, when In actual service, and not merely
when called forth before they have obeyed the
call. The acts of 1855 and other acis on the
subject maniiestly contemplate and recognize
this distinctioh. To bring the militia within
the meaning of being in the actual service there
must be an obedience 10 the call, and coma acts
OF organization, mastering, rendezvous or
marching done In obedience to the call 10 the
public services" (st6ty's Con. Law, voi'3,
Sec. 1909 l' -il3 ,l-Amn.3 a $50
If IL be suggested that this plain rule OF com
mon sense and Constitutional Law Ia not violat.
ed By tho conscrIption act because II applies 10
| the "Nstlonal forces, !" reply as before that
this ie only new name for the militia, and
that the constitutional rights Of a oitizep,a
not TO be sacrificed to sn unconstitutional name.
When Judge Story was endeavoring to mark
with 60 much disllnotness the time at which
the common Law rights OF the citizen ceased
and his liability. to militfy rule begsn--the
time, in word, when he became soldier
why did u not occur TO his fertile mind that
Congress could render this dis,ihution value
less and unmeaning by new nomenclature
by calling the militia national forcesf" II is
not difficult TO conceive how such suggestion
would have Jared had 10 occurred or been made
to him. But It ia difficult 10 thei preseuceo of
the grave issues of the present day, to treat %
| frivolous suggestion with the dignity and for
| bearsnce the occasion demands. | have shown
what rights Of personal liberty these plaintiffs
inherited from o remote anoealfy, and hoWthey
are guaranteed to them by our constitutions,
and at what time they. are to give place TO
martial law aud surely II wheel, set In mo
tion by Congress-, can crush and grind those
rights out of existence, without regard 10 the
limitations OF the Constitution, some weightisr
reaaon should be found for II than the mig
nomer which the act so studiously applies to
the militia--some reas0n that deserves to stand
instead of Magma Charta, our Constitution and
all our traditional freedom. ,-.,i.a ..
il The only general reason tina! | have ever
heard suggested, and which ls applicable
d against all the views advanced in this upin-
: ion, Ia called military necessity. The country
Ia involved In great civil war which can b.
: brought to an honorable close only by an cher
gctic use OF ell our resources, and no featratnt
y should bo tolerated, In such circumstances
save only those which christian civilizatlon has
Q imposed on all warfare. Whatever Ia accord
Ing to the Constitution, the argument claims,
| may be done, OF courBe--whatever 10 over and
beyond tie Constitution Ia justified aa military
/, necessity, and of that the President and Con-
I gress are exclusive and final jndges. & e.Fr
The amount Of the argument Ia that the ex-
igencies of the tmes Justify the snbstltutIon OF
martial law for the Constitution. BIT wf,ay Is
Q martial laW2 Blackstone and SIPMatAew Hale
tells us at 10 built upon no aettled prlnoipes;
bnt Ia entirely arbitrary in, its decisions, Ia in
{ Truth and reality no law bull something indulg.
o ed rather than allowed aB law.'su The unre-
% strained will Of one or auumber of men, then,
10 the rule which the argument substltutes for
the Consultation. IL In of no consequence that
4 the win thus set up for the supreme law is
! that or men whom a majority Of The people
: have chosen, because, according TO our sys.
tenn, the majority can only choose men
to administer the Constitution as Il Is written.
! Majorities, as q power recognized by law, have
! no more right to establish despotlsm than
minority would have. Bat may im6jorilies or
, minorites set aside the Constitution under
pressure Of rebellion and inaurrection2 As the
4 Constitution anticipates and provides for such
oalamitles, 10 is reproaoh TO its wisdom 10 say
thsI IL is inadequate 70 such emergencies. No
man has any historical right to cast this re-
Iproaoh upon 1t. No current experience proves
+, liz. 70 never can be proved except BY "a an
.. successful use Of the legitimate powers Of the
Constitution against rebellion, and then the
thing proved, will be that the Instrument needs
\ amendment, which lta machinery is flexible
lenough to allow. Even such Q melancholy
demonstration would do nbImorethan point ont
-, necessary amendmenta7it would not surrender
! the people to the arbitrsry will Of anybody
Presidents and Congressmen are only servants
of the people, to do their will, not as shat will
may be expressed under passion Or excitement,
Q but as It stands recorded In the Constitution
J It is the Constitution, indeed, which makes
9 them Presidents and Congressmen. They have
no more power TO set up their will against the
Constitution than 90 many private citizens
would have. Outside of thas they are only
lprivate citizens. ban ,sy SD SeliESlnAe
4 do not, thersfore, feel Che, force Of sths.Ar-
gument, drawn from the Distressing Sclscum-
, stances Of. the time. Bad as they are, we
make them worse, BY substituting arbitrary
power for constitutional ruie, dbutn If We made
them bettcr and not worse, the judicial mind
ought not to be expected 70 approve the aubsti-
tltuton, for il osn recognize no violation Of the
4 Constitution as q legitimate vlndioatlon Of Che
b, Constitution, To place ourselves nader ties-
Ipotie sway in order 10 bring back rebels to the
! Constitution We have given up, b ptocsqhre
that perplexeS the student OF political rS66hcs,
4 and will quite coniound the historian pf iour
. times. 1ao0 1sn n rois "a 800 .sssdualr
0 There are other features Of ibis ConRsript
!, Law that deserve criticism, but not to extend
1 my opinion farther, rest my sobiections % ita
r ccustt ttutlonality upon these eroundas DIDO
g lats That the power Of Cong5sss, 70 raise ant
n suppcrt armies, does rot include the power Il
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