The Alleghanian. [volume] (Ebensburg, Pa.) 1859-1865, 1863-11-26
The C0NSCRIPTi0N LAW.
ntssentfng Opinion of Justices
strong and Read, amrming ITS
ConstLtuttOnalfty

kneeder VS.. Lane, Barret, Wells and Ash.
nsnd. Smith VS.. Lane, Barret, Wells and
Young. Nickells VS.. Lehman, Marsdis, MUIR
bby and Scanlan.
In the Supreme Court of Pennsylvania, in
equity. Motion for an Injunction.
STRONG, 1.-The con,plainants having
heen enrolled and drafted, under The pro-
visions of the act of Congress of March
Sd. 1868, entitled "An Act for enrolling
and calling out the pational forces, and
for other purposes" have presented their
bills in this court against the persons who
constitute the board Of enrolment, and
against the enrolling officers, praying that
they may be enjoined against proceeding
under the act of Congress, with the requi-
sition, enrolment, and draft of citizens of
the Commonwealth, and of persons of for
eign birth who have declared their inten-
ton to become citizens under and In
pursuance of tue laws to perform compul-
sory military duty in the service of the
United States, and particularly that the
defendants may be enjoined from ali
proceedings against the persons OF the
ceupssinants, under preteuce of executing
ohe said laws of the United States. The
bills having been filed, motions are now
made for preliminary injunctions, until
final hearing. These motions have been
argued only on The part of the complain
ants. We have, therefore, nothing before
us but the bids and the special afhdavits
Of the complainants.
1t is to be aoticed that neither the bills
nor the accompanying afidavits aver that
the complainants arc not subject to enrol
ment and draft into the military service of
the United States, under the ac. Of Con-
g-ess, if the act be valid nor is it asser-
ted that they have been Improperly or
fradulently drawn. 1t is not alleged that
the defendants have done anything, or
that they propose to do anything, not
warranted and required by the words and
spirit of the enactment. The complain
ants rest wholly upon the assertion that
the act Of Congress is unconstitutional,
and, therefore, void. 1t is denied that
there is any power in the Federal Govern
ment to compel the military service OF
citizen by direct action upon him, and 1t
is insisted that Congress can constitution
ally raise armies In no other way than by
voluntary enlistments.
The necessity of vesting in the Federal
Government power TO raise, support, and
employ military force was plain to the
trainers of the Constitution, as well as to
the people of the States by whom it was
ratified. This is manifested by mahy
provisions of that instrument, as well as
by its general purpose, declared to be for
common defence" Indeed, such a pow
er is necessary to preserve the existence
Of any independent government, and none
has ever existed without it. It 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,
and repel invasions." L. was also ordained
that they should have power to provide
70. organizing, arming, and diseiplining
the militia, and for governing such part
of them as may be employed in the service
Of the United States, reservinS to the
States respectively the appointment of the
Oficers and.the authority of training the
militia according to the discipline pre-
scribed by Congress. Nor is this all. 1t
is obvious that if the grant OF power to
have military force had stopped here, it
would not have answered all the purposes
Tor which the Government was formed
1t was intended to frame a4kovernment
that should make a new member in the
family of nations TO this end, within a
limited sphere, every attribute Of sover-
eighty was given. To it was delegated
,ae absolute and unlimited power of ma
KING treaties with other nations-a power
explicitly denied to the States. This
Unrestricted power of making treaties
involved the possibility of offensive and
defensive alliances. Under such treaties,
'ne new government might be required to
SEND armies beyond the limits of its terri
.ofial Jurisdiction. And, in fact, at the
au'e when the Constitution was formed, a
treaty of alliance, offensive and defensive,
Was In existence between the old Confeo-
sTracy and the Government of France
Let more. Apart from the obligations
- sssumed by treaty, it was well known that
uere are many cases where the rights of
nation and its citizens cannot be protec-
'ea or vindicated within its own bounda-
n nes' But the. power conferred upon
uongress over the militia is insufficient to
snaole the fulflment of the demands of
,sCn ,s treaties, or to protect the rights of
cas s government, or It's citizens, in those
>N'cs In which protection must be sought