New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1864-01-21
TIE ENROLMENT ACT.


of Pennsylvana-which is tho court of last
resort in that State--had delivered an opinion
affirming the Consiitutionalty Of the Enroll
ment act. Three Judges were in favor and two
against it, one of the latter being the late Peace
Democratic candidate for Governor. The opn-
ions have since been received Judge Wood
wards does not differ materially from the one
he gave on the same subject last Fall. Judge
Strong, who speaks for the majority, confines
himself to the technical questions arising on the
order for an Injunction. Judge Agnew. the
recently elected member of the Court in place
of Chief Justice Lowrie, signalizes his appear
ance by an opinion of great vigor and sound
learning in favor OF the law. a. we lack space
for the whole argument, nc will try to state
its main points.
The principal objection to The law in that al
though Congress has by the Constitution the
power " to raise and support armies" it cannot
raise them by Draft, but only by voluntary en-
listment.
Now, first, file United States is nation, and
q nation cannot exist without tho power TO
carry on war. The Constitution vests in Con-
gress the power to deciare war, recognizing the
sovereign right to make war IA preexisting and
inherent. But the power TO declare in
wolves the power to carry on--othorwise it is a
grant Of no virtue-and this implies the grant of
the means. Then the right TO the means carries
an the means in possession Of the Nation, among
which Is the power To compel the military SER
vice of the citizens; for, without the power 10
compel, there Is no power, because voluntary
enlistment, the only other means Of raising
armies, is founded on contract, OF which the
essential element j. freedom 10 assent or dissent,
and which is wholly inconsistent with the exer-
else Of the sovereign power admittedly possessed
BY the Nation and delegated TO Congress. In
dcpendently, then, OF the express grant =" TO
raise and support arise=," the right 10 carry on
war and to call armies into the field ia deduct.
bic from the national existence Of the United
States, and is solidly placed as IL ought 20 be,
among the attributes of national sovereignty:
and on that doctrine, in these days, We cannot
too strongly nor 700 often INSIST.
Secondly, the onsttutional power "to raise
and support armies" implies also the power to
draft. That power coplessedly resides some-
where; il it was not delegated TO Congress. it
remains with the Statos. But il l. absurd 10
suppose it among tho rights reserved by the
States for they clearly have reserved no power
10 do any act requiring such forces. They can
not make war; cannot "gant letters of marque
or reprisal;" "kccp troops or ships of war IN
time Of peace; enter into any agreement or
compact with another State or With .h'rcign
power. or engage in war, unless when actually
invaded, or ia such imminent danger as will not
admit of delay" Those powers belong to the
United 5 ates, and are forbidden to the States;
and il cannot DC supposed that tho latter re-
served the power 10 raise armies by dram, while
they delegated to the Union the sole power of
performing the duties in discharge VI which tho
power to raise armies is Necessary. But il must
reside somewhere. If it wa not reserved, it
was surrendered, and inheres now In The Union.
Thirdly, ond in great measure included IN the
foregoing deductions, the terms of the grant Of
power "to raise and support armies" Imply the
grant of the powers necessary TO raise them, and
among those powers is that to draft. The doe
trine HAT an express grant carries with il the
implied powers noce sary to IT, complete aud
beneficial execution is too familiar 10 need
resentment.
II is objected, however, that the calling out
of the National forces by dral il an unauthor-
lied substitute for the Militia--an argument
which proceeds on the a .umption that
in direction can be suppresscd only b.
tho use Of the State Militia. Tic OBJ
lection, If sound, il equally fatal 70 the
employment OF National forces raised by yolun-
tary enlistment, and has no special relation 10
the draft. But in either case it is not sound.
The power TO call forth The Militia is no. in ez-
cluaon of any OF the grants which preeede IL.
Among them is the grant 10 maintain
navy; and it might equally well be urged that
the exclusive use OF naval force on sea y ~ in
derogaton OF the right OF the militia. Instead
Of beng exclusive, this grant i in continuation
and enlargement oil the former powers, and SUBJ
sidiary to them.
We find nothingin judo cWoolward's opinion
10 controyert these views. lis dffcrcrces are
not arglmcniatige; and hs denial
OF the power to compel military service ha1od
on his denial Of the sovereignty OF tie nation
we had almost said, Of the e2i tence OF The
United States as a nation. His views Of constr
tutional Law are preci ely those which, before
the Rebellion, were reiterated in Congress by tlie