Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-11-14
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The tsConscriptlon Law" Declared 70 be
Unconstitutional al by the Supreme Court
of Penn'ylsaannia' syylSanb 39t5 I.
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OPINION OF THE ooURT.
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ID
WIN. r. NIcKtts bs. samsJ Junction
WOODWARD, J,-Onthe 30 day of Marcb, j 1863,
the Congress of the United States passed an
Act for "enrolling and calling out the National
forces, and for other purposes" which ie COM
monty called the Conscribtion law !! Y The plain.
tiff, who are citizens OF Pennsy lvania, have
get forth the Act fully in their bills, and they
complain chat they have been drafted into the
military service of the Government in pursuance
OF said enactment, but that the same ia uncon.
stithtIbna al and void, and that the defendants,
who are engaged In executing the Act. have
violated the rights and are about to invade the
personal liberty Of the plaintiffs, and thereupon
they invoke the equitable Interpolation Of the
Court TO epjointhe defendants againsta fGrtb or
execution of said Act.
For the jurisdiction Of thle Court to set aside
an act Of Congress as unconstitutional, and 10
grant the relief prayed for, refer myself 10
tbo views of the Chief Justice In the opinion
he has just delivered In these cases, and como
at once to the constitutional question.
The Act begins with the preamble which re-
cites the existing iusnrrection and rebellion
against the authority of the United States, the
duty Of the Government to suppress insurrection
and rebellion, to guarantee to each State o
republican form of government, and to preserve
the public tranquility, and declares that for
these high purposes military force Is indie
pensable, "to raise and support which all, per-
sons ought willingly to contribute," and that
no service is more praiaworthy aud honorable
| than the maintenance of the Constitution and
Union; and then goes on to provide for the en-
rolling of all the able bodied male citizens Of
the United States, aud persons Of foreign birth,
who have declared their intention to become
citizens, between the ages Of tWenty-one and
forty-fve years, and these able-bodled citizens
and Foreigners, With. certain exceptions after
ward enumerated, ara declared "the national
torees," and made liable TO perform military
duty when called out by the President. Tie
Act divides the country into military districts,
corresponding with the congressional dlstrictP,
provides for provost marshals and enrolling
boards, and regulates the details of such drafts
as the President shall order TO be made from
| the national forces 80 enrolled. The payment
Of $500 excuses any drafted person, 60 that 1t
is, In effect, q law providing for compulsofy
draft or coHscription of such citzens az ate
unwilling OF unable 10 purchase exemption at
the stipulated price. II is the first instance,
In our history, Of Legislation forcing o. great
public burthen on the poor. Our State Iegislh-
tion which exempts men who are not worth more
than $500, from paying their own debts, ia In
striking contrast with this conscfi1tlon law
which devolves upon such men the burthen
which belongs to the whole "national forcesI'
and to which call persons ought willingly te
oontribute." This, however, lsrsn 7objectier
to the spirit of the enactmeht lrathet than h
its constitutlonality. -s a-.,an
The description OF persons to be enrolled
able-bodied citizens between twenty and forty
five years Of age, Is substantially the descrip,
tion of the militia az defined In onr Pennsylva.
uia statutes and probably in the statutes Of all
the States. The national forces, then, mean
the militia of the States-certaiuly include the
militia of Pennsylvanis. This expression
"national forces," is modern language, Whbr
90 applied. Its not found in our constitutions
either Siateor Federal, and II used in com
mentaries on the Constitution, and In history
It will generally be found applied TO our land
and naval forces In actual servioe--to what may
be called our standing army. II isa total mis-
nomer when applied to the militia, for the mi
litia is o State insiitution. The General GOV.
erninent has no militia. The State mIlltia; al
ways highly esteemed as one Of the bulWarkao o
our liberties, are recognized In the Fedeta
gress 10 obliterate them or to merge them In
Unless there Is more magic 10 a name thar
Il hhp oNoh bOVh puPpouotI thio oVuuOAtpo law Wut
intended to act upon the State militia, and oul
question lie. therefore, whether Congress has
power To- impress or draft the militia OF the
Stlte. cannot perceive what objection can
be taken to this statement of the question, for
surely It will not be argued that calling the
militia national forces, makes them something
else than the militia. II Congress did moi
mean to draft The militia under this law, where
did they expect TO find the national forces
"All able bodied white male cltizehs between
the ages Of twenty'one aud forty, five yeais,
reading In this State, and not exempted by the
laws of the United States" with certain speei-
fed exceptions, constitute ouR State militia. =
IWill 10 be said that the oonscfipt Law was not
intended to operate on these2 / think Il will
not. Then II IL does touch, and was framed
and designed to draft this very class Of citizens,
NJ possible objection can be taken to the above
statement of the question we have to decides
/, therefore, repeat the question with great
confidence In its accuracy, has Congress the
constitutional power to impress or draft into
the military service of the United States, the
militia men of Pennsylvania Il
This question has 10 be answered by the Con-
stitution of the United States, because that In
strument, framed by deputies of tho people Of
the States and rAtIfisdland put into effect BY
the Stakes 5heIpa9lyes IN thaIrse especlise oorpo-
rate capacities, delegs to- 20 g6befeae ell she
powers thai thody can exercIaes Those delega-
tions are either express Or such implications
as are essential TO the execution of expressly
delegated powers. ssSsa
i q There are but three provisions In the Con-
|sGthtion OF the United States that can be ap.
pealed to In support Of this legislaiion. II
our ordinary editions they stand numbered q.
clauses 13S a6, and II of tho VIII section oi
Act ], !, of the Constitution. ugY3 5Ei -
10 1l3. Congress shall have power to raise and
lsnpport armies, but no appropriation Of money
to that use ahall befor o longer term than twt
Il years. ID saoslim "a lEscsm ira gaela gGiiisi
'l6. Congress- shall have power to proyid,
for calling forth the militia to execute the lawi
OF the Uniop, 10 suppress insureesions and re
pei invaelonH. Vi 10 .si - bas iei.aDit 81 go,g
"17. Congressshall have power to provid
!! for organizing, arming and disqiplining th
militis, and for governing such. past of then
90 may be employed IN the service Of the uni
tod States. resefving TO the States respectively
1.-THE appointment Of the oficers, and the antboi
ity Of training the militia according to tho dls
! clpliIe prescribed by Congreaa, ,s,,e ,,ag
p "To raise armiesD D-these are large words
IWhat do they meanf There could be no linn
tation upon the number OF eIzeof The armies
be raised for all poaHlble contingencies ooul
not be fofeseen, but our question has not refer
: ence TO numbers OF Hixe but 10 the mode Of rail-
Il ~ la-D an - .aln.- T.