Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1863-11-25
'UsTICE wooDwARD's OPINION
ON TIRE
UNCONS7TTUTTONALITY
OF THE
SCRIPTI0N ACT,

q Woodgud J. On the 81 day Of March,
e1863 tho Congress Of the United States
passed an act Tor "eurolling and calling
out the Natiora forces, aud for other pur-
pose" which is commonly called the Con-
scrlption Law. The plaintiffs, who are
citizens Of PennsyIvanla, have set forth
the act fully in their bills, and they COM
plain that they have been drafted into the
Il .t.miltary service Of the Government in
n pursuance of said enactment but that the
same is unconstitutional aud void, and
that the defendants, who are eng ged in
\ Aexeculing the act, have violated the rights
naDd are about to invade the personal lib
erty OF the plaintiffs, ard thereupon they
sinVoke the equitable interposition Of this
'Gourt to enioin the defendants against a
farther execution of the said act.
For the Jurisdiction Of ibis Court to set
aside an act of Congress as unconstitution-
al, aud to grant the relief prayed for, |
refer myself to the views of the Chief us
tice in the opinion he has just delivered
ia these cases, and come at once to the
constitutional question
The act Legins with preamble which
fecites the existing insurrection and re-
bellion against the authority Of the United
States. the duty OF the Government to
suppress instruction and rebellion, to
guarantee TO each State q republican form
'of government, aud to preserve the public
Tranquility, and declares that for these
high purposes a military folce is indispen-
sable, "to raise and support which all
persons ought willingly TO contribute
and that no service is more praiseworthy
aud honorable than the maintenance OF
ithe Constitution and Union aud then
goes on TO provide for the enrolling of all
. The able-bodied male citizens Of the United
States, and persons Of foreign birth, who
a have declared their intention to become
citizens, between the ages OF twenty-one
and forty-Gye years, and these able-bodied
citizens and foreigners, with certain excep-
iious aIterward enumerated, are declared
{" tie nai,ohd forces" and made liable to
perform military duty when called out
Nv the President The act divides the
country into military districts, correspon-
ding with the congressional districts, pro
gides tor provost marshals and enrolling
boards, and regulates the details OF such
drafts as the Preslden shall order to be
made from the national forces 81 enrolled.
The payment of $500 excuses any draft
ed perso., so that II ls, IN effect, Ia%
providing for compulsory draft or con
seyuiion Of such cilzens as are unwilling
or unable to purchase exemption at the
stipulated price. 1t is the first instance,
in our history, Of legislation forcing Il
great public burthen on the poor Our
State legislation, which eXcmpts men who
are not worth more than $500 from paying
their own debts, is in striking contrast
. with this Couscription law, which doyolves
upon such men the burthen which be-
lonr, to the whole national forces and
to which "all persons ought willingly TO
contribute" This, however, is an object
ion to the spilit Of the enactment rather
than to is ConsututlonaIity,
The des escription of persons TO be en-
Yolled. able bodied citizens between twenty
one aud lorty-ive years Of age, Is substan-
tally the description of the militia rs de-
fined in our Pennsylvania statutes and
probably in the statutes OF all the States.
The national forces, thea, mean the mill
tia of the States certainly include the
militia of Pennsylvania. his expression,
national forces" is modern language,
when so applied. 1t is not found IN our
Constitutions, either Stale or Federal and
il used in commentaries on the Consutu-
ton, and in history, It will generally be
found applied to our land aud naval
forces, in actual seryice--to what may be
called our standing army. 1t is total
missioner when applied 10 the militia, for
the militia is a State institution. The
General Government has no militia. The
State militia, always highly esteemed as
one Of the bulwarks 0t our liberties, are
recognized in the Federal Constitution and
it Is not in the power of Congress to obht
crate them or TO merge them in national
!srcas" ..- a..r
Unless there is more magic in name
than has ever been supposed, this con
script law was intended to act upon the
State militia, aud our question is, there
fore, whether Congress has power TO I'M
press or draft the militia of the State
cannot perceive what objection can be
taken to this statement Of the question,
for surely it will not be argued that calling
tle militia national forces, makes them
something else than the militia, IT Con
gress did not mean TO draft the militiS
under this law, where did they expect ia
find the national forces IAN able-bod
led white male citizens between the age.
of twenty-one and forty-fve years residing
in this State and not exempted By thC
laws of the United States" with certain
exceptions, constitute our oth'e mlIltla, -
Will il be said that the conscnpt law wa
not intended to operate on thesel
think IL will not. Then If it does touch
and was framed and designed 10 DRAFT thi
very class of citizens, no possible objection
can be taken 10 the above statement G
the question we have to decide. -,
therefore repeat the question Wit
great confidence in its accuracy, has Cor
gress the constitutional power to impres
or draft into the military service OF tE
United States, the militia men OF Penn
sylvania2
This question has to be answered b
the Constitution OF the United States, b'
csnse that instrument, framed by depu
ties OF the people Of the States and rat
ned and put into effect by the state
themselves in their respective corporal
capacities, delegates to Congress all tn
powers that body o4n exeroise lhes