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

Can citizen lie made deserter before 10
has become soldier2 Has Congress The
constitutional power to authorize provost
marshais, after drawing tne name Of q free
man from wheel and serving him with ten
days notice, to seize and drag him before O
court martial for trial under military law 7
This question touches the foundations Of pep
sonal liberty. @.3-
In June, 1915, the Barons Of England ard
their retainers, =" g numerous host, encamped
upon the grassy plain Of Runnymede," wrung
from Kiug John that great charter which de-
clared, among other securities of the rights
and liberties Of Englishmen, that "no free
man shall be arrested, or imprisoned, or de.
prived of his freehold, Or his liberties, or fee
customs, or be outlawcd or cxilcd. Or in sny
manner harmed, nor will we (the kiny) pro-
ceed against him. nor send any one neoinsr
him by force Of arms unless according to the
sentence Of his peers (Which includes trial by
jury) or the common law Of England"-
Here vas laid the strong founda ton Of tho
liberties of the race to which we belong.
And yet net here, for Magma Charta cre4ted
no rights, but only reasscrted those which ex.
isted long before at common Law. I. was for
the most part says Lord Coke, merely declara-
tory Of the principal grounds of the funda-
mental laws Of England. Far back of Magma
lay Charta in the customs ard maxins of our
in Saxon ancestry, those principles Of liberty
scattered which were gathered together that
immortal document which, four hundred years
afterwards were again rcasserted in two ether
great decaratory statutes. The Petition of
Right and 6 The Bill of E-hts,n and which
were transpanted into our Declaration OF In.
dependence, the Bill of rights to our State
Constitution and the Amendments to our
Federal Constitution, and which have thus
become the heritage of these plaintiffs. Says
the 5th Article Of the Amendments: ... g
" No person shall be held to answer for O
capital or otherwise infamous crime unless on
| presentiment or ind cI,nent Of grand jury.
except in cases arising in the land or nav al
forces or in the militia when in actual servics
IN time Of war or public danger" -r a....
W hat is the sc0pc Of this exception 2 Tue
land or naval forces mean the regular militia
~ organization oc the Go-erumsn;-the
standing army ard nsyy-iato which citizens
are introduced by military education, f.o,r
boyhood, or by cnlistmcnts, and become, By
their own consent, subject TO the military
code and Liable to be tried aud punished with
out any forms or safeguards Of the common
law. To ike manner the militia, when duly
called cut and placed in actual service,' ars
subject to the rules and articles Of war. Of!
their common law rights of personal freedom
being for tho time suspended. But when are
militia men in actual service When theY
have been notified Of a draft2 Judge Story
in speaking of the authority Of congress over
the militia says: -.
The question when the authority OF Cor.
gTess over the militia becomes exclusive, must
essentially depend upon the fact when thew
are to be deemed in the actual service OF the
United States. There is clear distinction
between calling forth the militia and their
being in actual service. These are no. con-
temporaneous acts nor necessarily indentical
in their constitutional leanings The Pres;.
dent is not commander chief OF the miitis
except when in actual service and not mersls
when they are ordered into service. They
are subjected TO martial lo,c o,lv arhsn in
actual serrice, ana not merely ,chen cQllea
Tort, before they hare obeyed the cali The
acts of 1895 and other acts On the subject
manifestly contemplate and recognize this
distinction. To bring the militia withir the
meaning Of being IN the actual serrice there
must be an obedience to the call and some
acts Of organization, mastering rendezvous.
or marching done IN obedience TO the cal in
the public serrice' e'--S.ory's Con. Law. Vol.
3, Sec. 1908 7
If it be suggested tina; this plain rule Of
common tense and constitutional Law is no.
violated by the corscrip;ion act because it
applies 10 the national forces,n reply ss
before, that this is only new name for the
militia, and that the constitutional rights Of
a citizen are not to be sacrificed to an uncon-
stitutional name. When Judge Story was
enjeavoring to mark with SO much distinct.
ness the time at which The common law rights
Of the citizen ceased and his liability TO mill
tary rule began-the time, in word when
he became sodier-why did it not occur to
his fertile mind that Congress could render
This distinction vaiueless and unmeaning By q
new nomcncIature-hy calling the militia
national forces 2" 1t is no. difficult to con.
ceive how such a suggestion would have faref
had it occurred or been made to him. Rut i,
is difficult, in the presence Of the grave issues
of the present day, to treat so frivolous q sus.
gestion with dignity and forbearancs tbs
occasion demands. I have shown what rights
Of personal liberty these plaintiffs inherited
from remote ancestry, and how they are
guaranteed to them by our Constitutions, and