North Branch democrat. [volume] (Tunkhannock, Pa.) 1854-1867, 1863-12-02

mer which the act SO studlously applies to
the militia-some reason that deserves to
stand instead of Magma Charta, our Constitu'
ton, and all our traditional freedom.
The only one that have ever heard sug-
gested, and which is applicable against all the
views advanced in this opinion, is called mill
tary necessity, The country Ia involved in o
great civil war which can be brought TO an
honorable close by an energetic use Of all our
resources, and no restraint should be tolerated
in such circumstances, save only those which
christian civilization has imposed on all war
fare Whatever is according to the Constitu-
lion, the argument claims, may be done, OF
course-whatever is over and beyond the Con-
stitution is justified as military necessity, and
of that the President and Congress are exclu-
sive and final judges.
The amount of argument is that the exi.
gencies of the times justify the substitution
of martial law for the Constitution. But what
IS martial law Blackstone and Sir Mathew
Hale tells us It is built upon no settled
principles, but is entirely arbitrary in its de
cisions, is in truth and reality no law, but
something INDUCED rather than allowed as
law" The unrestrained will of one or q
number of men, then is the rule the argument
substitutes for the Constitution. 1t is of no
consequence that the will thus set up for su-
preme law is that of men whom majority oil
the people have chosen, because according to
our system the majority can only choose men
to administer to Constitution as it is written
Majorities, as power recognized by law,
have no more right to establish despotism
than minority would have. But by ma
joFity thas set aside the Constitution under
pressure Of rebellion and insurrec,on.
As the Constitution anticipates and pro-
vides for such calalni ties, it is reproach to
it's wisdom, to say that it is inadequate to
sach emergencies. No man has any histori-
cal right to cast his reproach upon it. No
current experience proves il. 1t never can
be proved except by an unsuccessful use OF
the legitimate powers of the Constitution,
against rebellion, and then the thing proved
will be that the instrument needs amendment,
which its machinery is flexible enough to al
low. Even such melancholy demonstration
would do no more than point out necessary
amcndments-it would not surrender the peo-
pie to the arbitrary will of anybody. Presi-
dents or Congressman are only servants oil
the people, to do their will, not as that will
may be expressed under passion or excitement
but as it stands recorded in the Constit utlon.
1t is the Const tuition indeed which makes
them Presidents and Congressman. They
have no more power to set up their will
against the Constitution, than so many pri
vate citizens would have. Outside Of that
they are only private citizens.
do not therefore, feel the force Of the ar
gument drawn from the distressing circum,
stances of the time. Bad as they are, we
make them worse, by substituting arbitrary
power for constitutional rule, but if We made
them better, or not worse, the judicial mind
ought not to be expected to approve the sub
sttution, for it can recognize no violation OF
Of the Constitution. To place ourselves un-
der despotic sway in order to bring back reb-
els to the Constitution we have given up, is
procedure that perplexes the student of po
ltical science, and will quite confound the
historian of our times.
There are other features Of the conscript
law that deserves criticism, but not TO ex-
tend my opinion farther, rest my objections
to its constitutionality upon these grounds.
1st. That the power Of Congress to raise
and support armies, does not include the pow
er to draft the militia Of the State.
Cd. That the power of Congress to call
forth the militia cannot be exercised in the
forms of this enactment.
3. That citizen Of Pennsylvania cannot
be subjected to the rules and articles of wal
until he is in actual military service.
4th. That he is not placed in such actual
service when his name has been drawn from
a wheel, and ten days notice thereof has
been served upon him.
For these reasons am for granting the in
junction.