Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-04-09
The Supreme Court on the Constitu
-tionality Of the Draft
By Justice Cole, CHIEF Justice Dixon
and Justice Paine Concurring.

HGRINER, LOUIS LUoKKR, PETER PAUL TURK, anC
others, for writ of Habeas Corpus.
This is an application on behalf of Fred.
rick Griner, Louis Tucker, Peter Pau
Turk, and others, residents of the county
of Manitowoc, who are Jointly restrained
of their liberty, and are Jointly imprisoned
in the county of Dane on the same cause
or pretext, for writ of habeas CORPUS
to discharge them from military restraint
or control.
The petition sets forth and states that
they were all drafted as militia men by q
draft commissioner appointed to make the
draft for Manitowoc county, and they al.
lepe and insist that the said draft was. and
is 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
I" together arbitrary and unlawful" we
deemed that question of sufficient impor-
lance to justify Us in requiring an
argument upon 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. If 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 iLvalidity is relied upon to show
that the military restraint is unlawful
And further it is we'll establish principle
of law that before 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 DO SUIT
tcient ground prinaa .tacie, for his dis
charge, the court will not go through the
idle ceremony OF bringing before it the
petitioner when he must be Immediately
remanded to his former custody.-Er
Parte Booth Wis. R. 145 Sims Case
Gushing Il. 285 Passmore Williamsoaa's
Case 26 Penn. s. E. 81 and other cases
cited By Hur3 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
ganizing, armiDg and disciplning the
militia, and for governing such part of
them as may be employed in the service
of the United States, is clear and indispu-
table. The language used in the constitu-
TON IN WAXING this giant n: rnwar 10 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. This
power of commanding the services of the
militia in times o. insurrection and inva-
sion are natural incidents to the duties of
experimenting the common defence, and
OF watching over the internal peace of
the country, and was wesley visited in Con.
gress by the trainers of the constitution.
And the main question we have cow to
consider is as to the manner and extent
which this power has been exercised on
the part of Congress.
BY the first section of chapter 2O1 of
the United States statutes at large of 1862,
Congress provided that whenever the Pres
ident of the United States shall call forth
the militia of the States to be EMPLOYED
in the service of the United States. he
may specify in his call the period for W hich
service will be required, not exceeding
nine months; and that the militia so called
shall be mustered in and continue to serve
for and during the term so specified, un.
less sooner discharged by command OF the
President This act is supplemental to
and amendatory of the act of February
2Sth, 1895, Il Q. S. S. at large 42) which
provides for calling forth the militia to
execute to laws of the Union, suppress
instructions, and repel invasions. There
is another act of Congress which perhaps
it may be proper to refer to in this con-
nection, which is that of May, Sth, 1892
for establishing an uniform militia in the
United States, q 0. S. S. at large 27D.
These are the principal laws passed by
Congress providing for calling forth and
organizing the militia of the country for
its defence and support. 1t must be con.
ceded that they are not as full and ex.
tended in their provisions regulating the
manner in which the militia in each State
is to be drafted and detached as Congress
might have prescribed, Laws might have
been passed regulating tie whole details
in which draft was 70 be made, had this
been deemed essential to full execution
of the powers conferred upon Congress by
the constitution. But instead of this, gen.
eral provision were made authorizing the
President to call forth the militia, and tc
issue his orders Tor that purpose to such
officers of the militis as he might think
cy should arise. In the last clause
Of the first section of the act of July II
1852, discretionary authority is vested in
the President for executing the draft IN
the following language: If by reason OF
defects in existing laws, or in the execu-
I" ton of them in the several states, or any
of them, it shall be found necessary to
"provide for enrolling the militia and 9th
wise putting this act into execution,
the President is authorized In such ca
ses to make all necessary rules and reg
ulations, and the enrolment of the mill
I" tie shall in all cases include all the able
bodied male citizens between the ages
of eighteen and torty-fve, and shall be
spportioned among the states according
to representative population.
Now it is insisted that this provision
renders the law of 1862 unconstitutional
and void, because it is said to be an at
Tempt on the part of Congress to delegate
It's legislative power upon the subject OF
bleaching, drafting and calling forth the
militia to the President. This, it is argued,
Is apparent, as we'll from the language of
the provision as from it's scope and object.
lne reasoning by which this position was
attempted to be sustained was very able
and elaborate and may be briefly stated as
ioi!oWs: The making draft or con-
soriPtlon law, Is the highest exercise of
Legislative power; that all power on this
subjest is vested exclusively in Congress !:
that BY the spirit of and principles of the
constitution the powers of the government