, 1863-11-14


constituttonal-Deci OF Ohiei
Justice LoygEle.
At Pittaburg, on Monday, Chief Justice
Lowrie rendered decision in the matter o1
the application Of three drafted men belong.
irg to Philadelphia, who fled bills in EQUITY
to test the eonstitutionality Of the Conscrip
tion Act. Tho applications were for injuuc.
tions to restrain the Government officers
from sending the compliments into the mill,
tary service. The Chief Justice decides the
act Of Congress unconJ!ifufional, and grants
preliminary injuctions In each case. Concur:
rent opinions were read BY Justice Wood.
Ward and Thompson, and dissenting optn.
ions by Justices Strong and Read.
:, We make synopsis OF the decision Of
Chief Justice Lowtie, aud Of the opinion Of
the dissenting Judges:
After some preliminary remarks about party
politics, prejudices. &c, Judge Lo rrie comes
to the question. He spoke Of two sorts ot
the militia and the army.
The Constitution delegates to Congress
power ito raise and support armies" and ito
provide for calling forth the militia to execute
the laws Of the Union, suppress instructions
and repe1 invasions.
It Is contsnded that the Conscript Act Is not
founded on the power Of "calling forth the
have not been armed, organized aud discip.
lined under the militia law, and are not call.
ed forth as militia under State officers us the
Constitution requires,-Art. I, 8, 10.
The question now turns upon the clause,
Congress shall have power F" to pass all laws
which Ahall be necessary and proper" for that
purpose. It is,, therefore, = question of the
mics. Is 1t admissible to call forced recruit-
irg "necessary and proper" mode Of exer-
The fact Of the rebellion would not seem TO
make 1t SO. because Congress can provide the
necessary force by calling out the militia.
No other mode can be necessary and proper
SO loug rs the prescribed mode remains IN.
was uDorganized, because Congress has Il
ways had the authority to correct this, and It
cannot predicate neH powers on Its onn nc.
g1ect OF duty.
The question then arises, may Congress,
Independent OF the fact Of rebellion OF fnya.
sion, make forced 1evies In order to recruit
the regular army? If 1t may be recruited By
force, ne find no regulation OF Limitation Of
the exercise Of the power so Is to prevent it
from being arbitrary and partial, and hence
ne infer that such mode Of raising armies
was not thought Of and WAS not granted.
But even If it be admitted that ths regular
army may be recruited BY forced leyies, It does
not seem that the constitutionallty Of this
act is decided. The question would then take
the narrower form. Is this mode Of coercion
constitutional?
The judge thinks not, because it is so in
compatible with the provisions Of the Con-
ststution relative to the militia. This power
is not expressly delegated, and 1t cannot bo
implied If Incompatible With any reserved or
granted powers. The militia fs State iuBti-
tution, orgapized according to uniform rule
etablished by Congress, to be called forth
when needed to suppress insur1ection or re-
pei Invasion: For this purpose it ls Federal
force; for a1l other purposes 1t Is State
force, and the Federal Government can make
laws to organize and train 1t.
Is this force provided for By this act, Incop.
e!stent with it? he concludes thasItis. because
1t covers the whole ground Of the militia, and
t1hausts it entirely. 1t Is In fact militia for
National and not for State purposes. It sub +,
stitutes IN constitutional for the constitu-
tlona1 mode Of suppresslng insnrrection.
BE argues that the act annih1lates the Slate
militia.
He argues ogain that 1t Ia unconstitutional,
because 1t includes all State officers, except
the Governor, and deg1ades all our Generals,
Golone1s, 1injors, &c, into common soldiers,
Nothing ia left TINT has constitutional right
to stand before The will Of the General COY
oRi aoa 81 es 1RS siRs Rs { is sns
His Honor agues this at some length, and
concludes:
"cc1tain1y in this great struggle, We owe roth
ing 70 the rebels but war, until they submit, M
ram it, n5nnes un mot as ~ r. 20 aepaft
Nit to Consultation and system ten diffsrens It fron, rom
MT seainst Thish DEF have Isbslled. But We do DO
~ ~ rs.t ~ ana lno1sioaMs,
become spt of stsasses; i % aseea no On
6gr .niernn n,tr sGEd n tne oaekgEouna
hat enn1sct H. an1 pSa,sd !ath hays made
stStptions, nd nd q zhsir TiFhtt
aad tnteIhM'eSdolng neon Of shs Central Govern
nsq31 'nac8 sna II az es coanttlea represents
eon.snue. " aAuso ''s lntenueo psosee''on
The injunction Has accordingly allowed.
DISSENTING OPINION
From the dIesentipg opinion o;Judge Strong
re quote The oloR1ng passage in reply to the
objections Of the Chief Justice:
"The argument mos. pressed. In aupport f.be
ia f6at It infeTf.rrs ifh tIa r-snt.
States over their own mttia' r ia iii ts,t ~ tSe tS
draft ,akes . portion Of those Who @ owe militia
Of he sstes to nrnteet themeeitc. ~
tis and therefore he poTe4 Given 10 coo. aae
1ot to destroy or r. 90 tmnair tbas a.
power of tho States, Il. aaT the com.
piatnants, Congress may draft into their armies,
militia, they 1uay take he whole. and tins the en-
tire power of Tic States over them NAV be An.
nul1td for want Of any subject upon which It can
act. have stated The argument quite as strongly
aouId. It Assumes the very matter which Il tie
question debate It ignores the iact that Congress
tas also powsI over those who constitute tbs Mi.
canaba Or Mnoe
ganized or not Over It certain powers ats gtyef,
ss s1a sssls e s.ae III to f. a ]
defined uses, Coneress1 NAV proyiie for it, ~
ganizatlon, aiming and discipline, as well a. fos
governing srch portion az may be employed in its
By: the Constitution, oot of whieh
raised- Whether gathered By coescloa Of en-
tEose Who fofrn a psIt f of the Aen mtlstfa Of Of
The States. Taking q given numhe. 1,v draft ne
more conflicts vita the reseryeI mower M ~ ths e
q er ewa No et ctI2en nea
can deprive State of her r,ehts without her con.
eent. None could therefore, Toinntattly eniist If
taking 9 militia meq Into military service IN ihs
State rights over the militia Those lights, what.
ever they may be, 1t il obvious cannot fa ofscted
BY the mode of takInc, Il ia c;ear that The States
hold their power over the militia, subordinate
y ere !. noL 60, ne delegataon q the power to
ssn Ee Ta1se fom no n ather a. eonr
IN other lands arc generally prohibited By foreign
ACTS. and even where they are not they
nay, nnder the law q nations, involve breach Of
seaIanty, gnens. tnereio5e, May IT 20 ssid the
on IN abats T. assumss Inbt e r. te ths saes Sast