The Alleghanian. [volume] (Ebensburg, Pa.) 1859-1865, 1863-11-26
s. PA.

seizures was always an asserted and gen.
orally an admitted right, while exemption
from liability to being compelled to the
performance of military service was, as
has been seen, never claimed. There are,
therefore, limitations upon the means
which may be used for the support Of the
| army, while none are imposed upon the
means of raising it.
Again, it is said this act of Congress is
a violation of the Constitution, because it
makes drafted man punishable "a de-
serter before he is mustered into service.
The contrary was declared by Chief JUS
tice Marshall, when delivering the judg-
ment of the Supreme Court of the United
States in Houston vs. Moore, Wheaton.
Under the act of 1895 the drafted men
were not declared to be subject to military
law until mustered into service. This is
| the act of which Judge Story speaks in
his commentaries. But in the opinion of
Judge Marshall, Congress might have
declared them in service from the time of
the draft, precisely what this act of Con-
gress does. Judge MarshalPs opinion, of
course, explodes this objection.
The argument must pressed in support
of the alleged unconstitutionality of the
act of Congress is that it interferes with
the reserved rights Of the States over their
own militia. 1t is said the Graft takes a
portion of those who owe militia service
to the States, and thus diminiskes the
power oe the States to protect themselves
The States, it Is claimed, retain the prin-
cipal power over the militia, and therefore
the power given to Congress to raise
armies must be so construed as not 20
destroy or impair that power of the State.
Ii, say the complainantS, Congress may
draft into their armies, and compel the
service OF portion Of the State militia,
they may take the whole, and thus the
entire power of the States over them may
be annulled, for want of any subject upon
which it can act. | have stated the argu-
ment quite as strongly as it was presented.
1t Is more plausible than sound. 1t
assumes the very matter which is the
question in debate. 1t ignores the fact
that Congress has also power over those
who constitute the militia The militia
of the States is also that of the General
Government 1t is the whole able bodied
population capable of bearing arms, whether
organized or not. Over it certain powers
are given to Congress, and others are
reserved to the States. Besides the power
of calling it forth, for certain defined uses,
Congress may provide for its organization,
arming aud discipline, as we'll as for
governing such portion as may be employed
in its service. 1t is the material and the
only material, contemplated by the Consti-
tuition, out of which the armies of the
Federal Government are to be raised
Whether gathered by coercion or enlist
ment, they are equally taken out of those
who form part of the militia of the
States. Taking given number by draft
no more conflicts with the reserved power
of the States than does taking the same
number of men in pursuance of their own
contract No citizen can deprive State
of her rights without her consent. None
could, therefore, voluntarily enlist, if
taking militiaman into military service
in the army of the United States is in
conflict with any State rights over the
militia. Those rights, whatever they may
| be, it is obvious, cannot be affected by the
mode of taking. 1t is clear that the
States hold their power over the militia,
subordinate to the power of Congress to
raise armies out of the population that
| constitutes it. Were it not go, the
delegation of the power to Congress would
have oeen an empty gift. Armies can be
raised from no other source. Enlistments
in other lands are generally prohibited py
foreign enlistment acts, and even where
they are not, they may, under the law OF
nations, involve breach Of neutrality.
Justly, therefore, may it be said the
objection now under consideration begs
the question in debate 1t assumes a
right in the State which has no existence,
to wit right to hold all the population
that constitutes its militia men exempt
from being taken, in any way, into the
armies of the United States. When it is
said, if any portion of the militia may be
coerced into such military service, the
whole may, it is but repetition of tho
common but very weak argument against
the existence Of power because it may
possibly be abused. 1t might with equal
force be urged against the existence of
any power in either the State or General
Governments. 1t applies as we'll to a de-
NAL of power to raise armies by voluntary
enlistment. 1t is as conceivable that high
motives of patriotism, or inducements held
out by the Federal Government, might
draw into its military service the entire
able bodied population of State, as that
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