Raftsman's journal. [volume] (Clearfield, Pa.) 1854-1948, 1863-11-25


the accompanying affidavts aver that tht
complainants are not subject TO enrolmen
and draft, into the military service of the
u United States, under the act of Congress, i
the act be valid, nor is it asserted that they
have been improperly or fraudulently drawn
1t is not alleged that the defendants have done
anything, or that they propose TO do anything
not warranted or required by the words anC
spirit of the enactment. The complainant:
rest wholly upon the assertion that the act o.
Congress is unconstitutional, and, therefore
void. 1t is denied that there is any power il
the Federal Government to compel the militia
ry service of a citizen by direct action upor
him, and it is insisted that Congress can con
stitutionally raise armies in no other way thar
by voluntary enliStments.
The necessity ofvesting in the Federal Gov.
ernment power to raise, support ana employ
a military force was plain to the trainers Of
the Constitution. as well as to the people o.
the States by whom it was ratified. This is
manifested by many provisions OF that jnstru,
ment. as well as by its general purpose, de-
cared to be for common deftnce.'' Indeed
such power is necessary to preserve the eX-
istence of any independent government, and
none has ever existed without it. 1t was
therefore, expressly ordained in the eighth
article, that the Congress of the United States
should have power to ''provide for calling
forth the militia to execute the laws of the
Union, suppress Instructions, aud repel in
vasious.'' 1t was also ordained that they
should have power to provide for organizing,
arming and disciplining the militia, and for
governing such part of them may be en-
ployed in the service of the United States,
reserving to the States respectively, the APP
pointment of the officers and the authority OF
training the militia according to the discipline
prescribed by Congress. Nor is this all. 1t
is obvious that if the grant of power to have
a military force had stopped here, ii would
not have answered all the purpoaes for which
the Government was formed. 1t was inten-
ded to frame a government that shou Id make
a new member in the family of nations. To
this end, within limited sphere, every at
tribute of sovereignty was given. To it was
delegated the absolute and unlimited power
of making treaties with other nations, pow
er explicitly denied to the States. This un-
restricted power of making treaties involved
the possibility of offensive and defensive al
liances. Under such treaties the new gov
ernmeht might be required to send armies be-
yond the limits of its territorial jurisdiction.
And, in fact, at the time when the constitu-
ton was formed, treaty of alliance offensive
and defensive was in existence between the
old cOnfederacy and the Government of
France. Yet more. Apart from the obliga-
tions assumed by treaty, it was we'll known
that there are many cases, where the rights of
a nation, and Its citizens, cannot be protected
or viudicated within ITS own boundaries. But
the power conferred upon Congress over the
mi lita is insufficient 10 enable the fulf llment
OF the demands of such treaties, or to protect
the rights of the government, or its citizens,
in those cases in which protection must be
sought beyond the territorial limits of the
country. The powerSO call the militia into
the service OF the Federal Government is Iimi-
ted by express terms. 1t reaches only three
cases. The call may he made ssto execute the
laws of the Union, to suppress Instructions,
and to repel invasiOnS,'' and for no other
uses. The militia cannot be summoned for
the invasion OF a country without the limits
of the United States. They cannot be en-
ployed, therefore, to execute treaties of often
sive alliance, nor in any case where military
power is needed abroad, to enforce rights
necessarily sought in foreign lands. This
must have been understood by the trainers of
the constitution, and it was for such reasons,
doubtless, that other powers to raise and
a military force were conferred up-
on Congress, in addition to those which were
given over the militia. By constitution, it
was ordained, in words of the largest meaning,
that Congress should have power to ssraise
and support armies" power not to be con-
founded with that given over the militia of
the country. Unlike that, it was unrestricted
unless it could be considered a restriction
that appropriations of money to the use of
raising and supporting armies were forbidden
far longer term than two years. In one
sense this was practical restriction. With
out appropriations no army can be maintained,
and the limited period for which appropria-
tions can be made, enables the people 70 pass
judgement upon the maintanance and even
the existence OF the army every two years,
and in every new Congress. But in the clause
comforting authority to raise armies. no lmi-
70
either upon the magnitude of the force which
Congress is empowered to raise, or upon the
uses for which 1t may be employed, or upon
the mode in which the army may be raised.
II there be any restriction upon the mode of
exercising the power, it must be found else
where than in the clause of the Constitution
that conferred it. And, if a restricted mode
OF exercise was intended, it is remarkable
that it was not expressed, when limitations
were so carefully imposed upon the power
given to call for the militia. and more especi-
ally, when, as it appears from the prohibition
OF appropriations for the army for a longer
term than two years, the subject of limiting
the power was directly before the minds of
the authors of the Constitution.
This part of the Constitution, like every
other, must be held to mean what its trainers,
and the people who adopted it, intended it
should mean. We are not at liberty to read
it in any other sense. We cannot insert re-
strictions upon powers given in unlimited
terms, any more than We can strike out re-
strictions imposed.
There is sometimes great confusion of ideas
in the consideration of questions arising un-
der the Constitution OF the United States,
caused by misapprehension of well-recogni-
zed and oft-repeated principle. 1t is said,
and truly said, that the Federal Government
is one of limited powers. 1t has no other
han such as are expressly given TO it, and
such as (in the language of the Constitution
ITSELF 'sare necessary and proper for Carrying
nto execution" the powers expressly given.
By the tenth article of the amendments it is
ordained that the powers not delegated to the