Democrat and sentinel. [volume] (Ebensburg, Pa.) 1853-1866, 1863-11-25

of Englishmen, that "that no freeman
shall be arrested, or imprisoned, or de-
prived of his freehold, or his liberties, or
free customs, or be outlawed or exiled, or
in any manner harmed nor will we (the
King) proceed against him, nor send any
one against h,1a By force Of arms, unless ac-
cording to the sentence of his peers (which -
includes trial by jury or the common
law Of England" Here was laid the
strong foundation of the liberties to which
we belong. And yet not here for Magma
Charta created no rights, but only reas-
serted those which existed long before at
common law. 1t was for the most part,
says Lord Coke, merely declaratory of the
principal grounds of the fundamental laws
of England. Far back of Magma Char
ia, in the customs and maxims of our
Saxon ancestry, those principles of liberty
lay scattered which were gathered to-
gether in that immortal document, which
four hundred years afterwards were again
reasserted in two other great declaratory
statutes, 60 The Petition of Rights" and
"Thc Bill of Rights" and which were
transplanted into our Declaration of In
| depenence, the Bill of righhts to our
/ holstlc SOuStlluLiOil lIl0 <tIuenCIDenlS
| to our Federal Constitution, and which
have thus become the heritage of these
plaintiffs. Says the 5th article of these
Amendments: GO No person shall be held
| TO answer for a capital or otherwise in
| famous crime unless on presentment or
indictment of a grand jury, except in
! cases arising in the lard or naval forces or
in the militia when in actual service in
time of war or public danger" What is
| the scope of this exception The land
or naval forces mean the regular military
| organization of the Govern nent-the
standing army and navy-into which citi-
zens are introduced by military education
from boyhood or by enlistments. and be-
come, by their own consent, subject to
the military code and liable to be tried
and punished without any of the forms
or safeguards of the common law. In
like manner the militia when duly called
out and placed :: in actual service " are
subject to the rules and articles of war,
all their common law rights of personal
freedom being for the time suspended
But when are militlamen in actual SER
vice ? When they have been notified of
a. draft i? Judge Story, in speaking of
the authority of Congress over the mill
tia, says: "The question when the au-
thority of Congress over the militia be-
comes exclusive, must especially depend
upon the fact when they are to be deemed
in the actual service of the United States.
There is q clear distinction between cal
ling forth the militia and their being in
, actual service. These are not contempor-
, aneous acts nor necessarily identical in
their constitutional leaning. The Presi-
dent is not COMMANDMENTS Chief of the
militia, except when in actual service, and
not merely when they are ordered into
5 service. 1hey are subjected TO marital hzlc
only tcten m actual Srrtlce, and not merely
,chen called ftrTh before they haze obeyed
/ the caV The acts of 1895 and other acts
on the subject manifesiy contemplate and
: and recognise this distinction. 70 bring
the "'ilitia tcitfin the 'oeaaing Of bang u, tie
, actual se''Uice there n,nst be an obcdissce 10
4 the call, and some acts Of organisation, mus
f teri'lg, re''iesro's, or nsarching dane IN obe-
: dicnce to tie call IN tie pubic scr11cc"
/ (Story's Con. Law, vol. 3, sec. l20S.)
: II II be suggested thBt this plain rule of
: common sense and constitutional law is
: not violated by the Conscription act be-
e cause 1t applies to the national
n torces,' reply as before, that this is only
q a new name Tor the militia, and that the
e constitutional rights of citizen are not
II to be sacrificed TO an unconstitutional
name. When Judge Strorg was endeav-
s orlng TO mark with 50 much distinctnes5
n the time at which the common law rights
y of the citizen ceased and his liability to
y military rule began-the time, in word,
e when he became soldier-why did il NO.
, occur to his fertile mind that Congress
y could render this distinction valueless and
e unmeaning by a new nomenciature-by
y calling the militia IS national forces % Il
t is not difficult TO conceive now such sue-
II gestion would have Jared had it occurred
OF been made to him. But il is difficult
re in the presence of the grave issues of the
IS the present day, to treat so frivolous 8
D. suggestion with the dignity and forbear-
of ance the occasion demands. l have
m shown what rights of personal liberty
,g these plaintiffs inherited from remote
er ancestry, and how they are guaranteed
ne .o-them by our constitutions, and at what
time they are TO give place TO martial law
nd and surely if wheel. set in motion by
n Congress, can crush and grind those rights
v out of existence, without regard TO the
ut limitations of the Constitution. some
ng weichtier reason should be found Ger !:
es rcosrEUE oE roCe!H rAae