Democrat and sentinel. [volume] (Ebensburg, Pa.) 1853-1866, 1863-08-05
The Supreme Court Of MaSSa-
Chuseits upon the Proposed
COnsCriptiOn Act by Congress
In lSl4.s5.

1t will be remembered that III lSl4-l5,
it was proposed in both Houses Of Con-
gless to pass a sort of Conscription Law,
in some respects dependent upon the
States. The opinion of the Supreme
Court of Massachusetts was asked upon
the principle involved in that proposed act,
and the following is the reply of the Su-
preme Court of Massachusetts to the
Governor:
TO his ErcelIency tie Gorernor, and the
honorable Council Of tie Commonwealth
OF Massachusetts:
The Undersigned Justices of the Su-
preme Judicial Court have considered the
several quettions proposed by your Excel
| lency and Honors for their opinion.
By the Constitution of this State the
authority of commanding the militia OF
the Commonwealth is vested exclusively
in the Governor, who has all the
powers incident to the Office of Comman-
der-in-C Chief, and Is to exercise them per
sonally, or by subordinate officers under
his command, agrecably to the rules and
regulations Of the Constitution and laws
/ of the land.
While the Governor Of the Common
wealth. remained in exercise OF. these
powers, the Federal Constitution was rati
! fled, by which was vested in the Congress
a power for calling forth the militia. 10 ec-
ec"te tie ht.rs o. tie CHion, suppress nSu7'-
1'ect,OH c,',d Tepet uIctsio'S; and 10 provide
! t,,,. 4,
be employed i'll the service Of the United
States, reserving to the States respectively
| the appointment of the officers. The
| Federal Constitution further provides that
the President shall be Commander-in-
Chief of the army of the United States,
and of the militia of the several States
| when called into the actual service of the
United States. On the construction OF
the Federal and State Constitutions must
! depend the answers to the several oues-
tionS proposed. AS the militia of the
several States may be employed in the
service of the United States for the three
specific purposes of executing the laws OF
the Union, of suppressing instructions
and repelling invasions, the opinion of the
Judges is requested, whether the comman-
ders in-chief of the militia of the several
States have a right to determine whether
any Of the exigencies aforesaid exist. 50
as TO require them to place the militia, OF
| any part of it, in the service of the Uni
ted States, at the request of the President,
to be commanded by him pursuant to acts
of Congress.
1t Is the opinion of the undersigned
that when either of these exigencies exist,
the militia may be employed, pursuant tc
some act OF Congress, in the service OF
the United States but no power is given
either to the President or CONGRESS to de-
termlne that either of the said exigencies
does IN fact exist As this power is not
delegated to the United States by the Fed.
eral Constitution, nor prohibited by it tc
the States, 1t is reserved to the States re.
spectfully and from the nature of the
power, 1t must be exercised by those will
whom the States have respectfully en-
trusted the chief command of the militia
1t is the duty of these commanders tc
execute the important trust agreeable tc
the laws of their several States resnec.
lively, without reference to the laws OF
officers of the United States, in all
cases except those specially provided for
IN the Federal Constitution. They must
therefore, determine when either of the
special causes exists obliging them TO re-
hnqulsh the execution of this trust, and
TO render themselves and the militia sub
Ject to the command of the President.
A different construction, giving to Con
gress the right to determine when those
special cases exist, authorizing them to