Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1863-07-27
From the New York Herald.
The ConscrIptIon Law Unconstttu-
tional-lmportant Case before Judge
ncCnnn

McCunu.
In the matter of the complaint against VIM.
L. Stephens, an enrolling officer, who arrested
Henry Biesel for alleged resistance to the
draft in refusing to give his name TO the said en-
rolling officer, and which has been before Judge
McCunn for the past week, was decided by the
Judge yesterday afternoon. The facts of the
case were found to be as follows: That Stephens
together with one Dodge. entered into the shop
kept by the father of the complainant, on Seventh
avenue, where they were at work; that Stephens
demanded his name. which he did not refuse to
give; and that while he was endeavoring to get
him card npon which his name was written,
Stephens seized him, handcutfed him, and acted
in n violent manner drawing pistol and threat
ehing to shoot his father He then locked Biesel
up all night in the Park Barracks
Judge McCunn held on this state of facts: First
that the arrest was a violation of the Second Re
vised Statutes. page S74, sec. l, fourth edition,
which makes it misdemeanor for any officer, or
person pretending to be an officer. to arrest any
person, or detain any person against his will
without legal process or other lawful authority
therefor. And. secondly, that the provisions OF
the conscription law, passed March 2, 1863, did
not protect him, for, under the 25th section OF
the act, it was offense to refuse to give name
to the enrolling officers But, apart from this
Judge McCunn is OF the opinion that the entire
olates the rights of the people and creates dis
tinction amons the citizens, but it is in direct
contravention of the 18th and 18th ub-dvsions
of section 8, of article /, of the Constitution
of the United Sta;es The Constitution
in authorizing Congress Ito raise and
support armies, provides only for the stand
ing armies of the country, and not for the volun-
teer and temporary forces which any emergency
may demand, because the fourteenth subdivision
-,
gress 10 provide for calling forth The militia tc
execute the luws of the Union, suppress insurrec
tions and repel invasions." And article III oil
the amendments provides: "a well regulated
militia being necessary to the security Of free
State, the right of the people to keep and bear
arms shall not be infringed.' And for the pur
pose of using this militia force, the President j:
not only made the commander in chief of the
army and navy of the United States, but also o
the militia Of the several States when called into
the actual service of the United States. And
therefore, as this conscription law does not make
the force it creates a militia force of the States
nor is it part of the standing armies of the United
States, it is clearly not authorized by the Const
tuition.
The standing army OF the country could be in
creased by an act of Congress, and the sub
division referred 10 authorizes Congress to pro-
vide the means for raising it: but Congress, neg
lecting to do this. the only force the President i
authorized to use, exclusive of the regular army
and navy, is the militia and volunteer forces con
tributed by the several States when called upon
The Judge deeply regretted that the people hac
not had patience and patriotism enough, under
the operation of the conscription law. to wait un
til the courts had fully determined this question
That the courts were able and equal to the duty
of sustaining the rights of the citizens; and il
through the courts alone that their rights and
safety in the end were fully and properly pro
tectcd.
Stephens was held to bail in the sum of five
thousand dollars.
John Sedgwick, Esq, Ex xAssstant District
Attorney, appeared for Stephens, and Mr.. G. G
Leeds for the prosecution.