Mineral Point weekly tribune. (Mineral Point, Wis.) 1859-1868, 1863-04-08

We a.. .ch all Dane In our welcome to thee,
Alexandria
The Supreme Court on the Constitu
tionality of the Draft
Nv Justice Cole, Chief Justice Dixon
and Justice Paine Concurring.
sths matter of the application of FREDERICK
Wonrnns, LOUIS LuoKEa, PETER PAUL TURK, and
others, for : wit of Habeas Corpus.
This is an application on behalf of Fred
rick Griner, Louis Tucker, Peter Paul
Tnrk. and others, residents of the COUNTY
al Hanitowoc, who are jointly restrained
of their liberty, and are Jointly imprisoned
in the county of Dane on the same cause
or pretext, for a writ of hsDeas corpus
to discharge them from military restraint
or control.
The petition sets forth and states that
thew were all drafted as militia men by a
draft commissioner appointed to make the
draft for Aanitowec county, and they al
leQe and insist that the said draft was, and
i. wholly illegal and void. This is the
principal matter stated in the application.
As these allegations fairly and necessa-
rily present upon the face of the petition
the question whether the recent draft in
this state was without color of legal au-
thority under any statute or law of this
state, or of the United States, and alto
together arbitrary and unlawful we
deemed that question of sufficient impor-
lance to justify Us in requiring an
argument npon it before the writ was
granted. Besides it was understood that
this was the real question upon which the
decision of the court was desired. IL the
draft shall be held valid, or authorized by
law, then it follows that this application
must fail, as no other ground than its al
legged invalidity 10 relied upon to show
that the military restraint is unlawful.
And further it is veil establish principle
of law that before a writ of habeas corpus
is granted, sufficient probable cause must
be shown; and when it appears upon the
party's own showing that there is no sui
ficient ground prixaa .tacis, for his dis
charge, the court will not go through the
idle ceremony OF bringing before it the
petitioner when he must be Immediately
remsnded to his former custody.-Er
Parte Booth 3 Wis. R. 145 ); Sims Case
z Gushing r. 2S5 Passmaore Williamso1s's
Case &c Penn. s. r. g.; and other cases
cited By Hurd on Ha6eas Corpus, 224.
The inquiry then presented at the very
outset of our examination is whether the
draft was authorized by law.
The power of Congress to raise and
support armies; to provide for calling
forth the militia TO execute the laws OF
the Union, suppress Instructions. and re-
pei invasions and to provide for or
gsnizing, arming and disciplining the
militia, and tor governin. such part of
them as may be employed in the service
OF the United States, Is clear and indispa-
table. The language used in the cOnstitu-
ton in making this grant oil power Is so
plain, precise and comprehensive as TO
leave no room for doubt or controversy
as to where the supreme control over the
military force Of the country resides. Thi.
power of commanding the services of the
militia in timSs o. Instruction and inva
sion are natural incidents to the duties o
experimenting the common defence, ant
of watching over the internal peace o
the country, and was wesley visited Ia Con
gress by the trainers of the constitution
And the main question we have now e
consider is as to the manner and exten
which this power has been exercised oil
the part of Congress.
By the first section of chapter 201 G
the United States statutes at large of 1865
Congress provided that whenever the Pres
ident of the United States shall call fort
the militia of the States to be employe
in the service of the United States, b
may specify in his call the period tor whic
service will be required, not exceedln
nine months and that the militia SO calle
shall be mustered in and continue to sery
for and during the term SO specified, III
less sooner discharged by command OF tt
President. This act is supplemental
and amendatory Of the act of Februsr
2Sth, 1875, U U. 5. s. a. large 424) whic
provides for calling forth the militia
execute to laws of the Union, suppre
instructions, and repel invasions. The
is another act of Congress which perhal
1t may be proper to refer to in this col
nection, which Is that OF May, Sth, 179
for este slishing an uniform militia in Il
United states. Il o. s. s. at large 27D.
These are the principal laws passed
Congress providing tor calling forth al
organizing the militia of the country f
its defence and support. 1t must be co
oeded that they are not as full and e
tended In their provisions regulating Il
manner in which the militia in each Sta
is to be drafted and detached as Oongre
might have prescribed, Laws might ha-
been passed regulating tie whole deta
IN which draft was TO be made, had tI
been deemed essential to fall execute
OF the powers conferred upon Congress
the constitution. But instead OF this, oe
eral provision were made authorizing q
President to call forth the militia, and
issue his orders for that purpose to sue
officers OF the militia as he might thir
proper and as the particular emerge,
cy should arise. In the last els n
of the FIRST section of the act of Jolv
1852, discretionary authority is vested
the President for executing the draft
the following language: " Ii by reason
defects in existing laws, or in the exec
ton of them in the several states, or al
of them, it shall be found necessary
"provide for enrolling the militia and OF
wise putting this act sinto executio
the Presidents is authorized in such c
" ses to make all necessary rules and re.
ulations, and the enrolment of the mil
tia ehall in all case. include all the alb
bodied male citizens between the az
of eighteen and forty-fve, and shall
apportioned among the states accordir
70 representative population
Now 1t Is insisted that this proyisio
renoers the law of 1862 unconstitution
and VOID, because it is said TO be- an a.
Tempt on the part of Congress to deleos,
its legislative power upon the snhiscy :
detaching, drafting and calling 49, -
vvNSt % h.