Bedford inquirer. [volume] (Bedford, Pa.) 1857-1884, 1866-08-10
miscellaneous.
HURER rs. REIhLY.

Dissenting opinion by Agnew J.
/ 1t is admitted that Henry Reilly was
citizen of the United States, owed military
service, and was duly enrolled, drafted and
notified, and refused to report himself and
failing to appear was duly registered IN the
provost marshal S office as deserter, hav
ing neither furnished substitute, nor paid
communication.
The Ilth section OF the act of Congress of
the Sd of March, 1863, entitled An Act
for enrolling and calling out the national
forces, makes all persons enrolled subject
| to be called into military service. The 18th
sections provides for the call by the Presi-
dent, and its execution by draft, and that
those drafted shall appear within fixed
time after notice The 18th section
/ provides for continuation for service, or
substitution, and then declares And any
! person failing 10 report gfte, due seTrice Of
! notice, as herein prescribed, without
| furnishing substitute OF paying the requi-
| red sum therefor, shall be deemed dese7-
ter, and shall be arrested by the provost
marshal and sent 10 the nearest military
post for trial by court martial, &c. The
7th section of the law makes it the duty of
the provost marshals ito arrest all deser-
| tiers, whether regulars. volunteers, or mill
| tiamen, or persons called into The service
under this or any other act of Congress,
wherever they may be found, and to send
\ them TO the nearest military post
It is clear, therefore, that under this act,
Reilly was called into the military service,
and became deserter, subject to summary
| arrest and to trial by the express terms OF
the law. In this condition he was found by
the act of Congress, approved the Sd of
March, 1865, which provides That in
addition to the other lawful penalties of the
crime of desertion from the military or
naval service, all persons who have deserted
the military or naval service of the United
States, who shall not return to said service,
| or report themselves to prOUost marshal
| within sixty days after the proclamation
hereafter mentioned, shall be deemed and
taken 10 have UOluatarlly reliaqutsted and
forfeited their rights ofcitizenship and their
| rights to become citizens and such deser-
ters shall be forever incapable OF holding
any Office of trust or profit under the United
States, or of exercising any rights of
citizens thereof and all persons who shall
hereafter desert the military or naval
service, and all persons who being duly
| enrolled shall depart the jurisdiction of the
| district in which he is enrolled, orgo beyond
the limits Of the United States, with intent
| to avoid any draft into the military or
naval service, duly ordered, shall De liable
to the penalties of this section. Then
| follows the provision for the proclamation.
| The act is entitled "An Act to amend the
several acts passed to pro7lde Tor the
enrolling and calling out of the national
forces. &C.. and being pa1i mdteTid, ap-
4 rlies to those who fail TO report according to
| the act Of 1868, and are declared by il to be
! deserters. On the l1th of March, 1865.
| President Lincoln issued his proclamation,
reciting the law, and notifying all deserters
| TO return to service or to report to provost
marshal on or before the 10th of May,
1868, extending pardon to those who did.
and notifying those who did not OF the
penalty. This exposes TO view the true
| operation of the act Of Congress OF 1860. 1t
came to the deserter with an offer OF pardon
for past offence, if he would return to duty,
but imposed the penalty OF distranehlse-
ment for his second act of disobedlenee, II
| he fail to obey The supposed ex post
| faetD character of the law. has, therefore,
no place In the argument. 1T was not for
his former desertion 1t inflicted the new
penalty, but placing him under new call
To duty, il disfFanchised him for his new act
of insubordination Just at this point is
seen the high necessity of power to
/ enforce the draft The law would be brlstgm
| fltl,neR, and the draft but voluntary service,
lif the penalty for refusal be Inadequate.
| Military service is an impeTlous necessity,
dangerous to life, and requires even the
death penalty to enforce i bjsfrauchise-
ment is far less, life being the git OF God
| alone, while citizenship Is derived from
| government. Unable TO deny the power TO
enforce conscription by the highest penalty,
those who impugn the operation of these
acts of Congress, fall back upon an alleged
want of power to eonscTpt, resting their
argument against the plain and express
| words of the constitution, not on prohlbi-
ton found elsewhere in the instrument, but
upon strained inferences. and the feeble
position that individual interest stands high
er than national lie,
will now discuss at large the power to
draft, this having been done in 9th Wright.
23S, 306. Kneedler v. Lane But as the
authority Of the second decision in that case
was relied upon in the argument and denied
by one of the bench, am bound, IN defence
ef that decision, to say, that no great
national question has been so completely
settled as this not alone By the judgement
of this court, but by the united voice of
the people, the general government and all
the States. In no State that | remember,
was any attempt made through It's public
functienaries to condemn the power or
obstrnet its exercise. And even here, if
this State be considered an exception, the
final judgement Of this court, placed upon
its acknowledged basis of constitutional
right. The States In rebellion, under
/ constitution copied from our own in all those
respects, exercised the power to its fullest
extent The example of an Legitimate
government is entitled to no respect, but as
denoting the opinions Of class of men
notorious for their strict construction of
Federal powers, II has weight. Owing to
4 this universal conviction of the nation s
rightful powers. it stands at thisday living
and happy illustration of their authority,
and the necessity of their exercise. A gov
ernment without power TO enforce obedi-
enee of feebleness only parallel to Its sup
4 posed inabilisS to eoerce a State into per-
formanee of its Federal duties.
/ The Federal constitution was formed by
men who had gone through the stormy
period of war, and had lived to see the
utter inefficiency to raise troops under the
articles of confederation, who, having been
familiar with the draft in the States, united
to frame a government designed 10 form q
more perfect union, to insure domestic
tranquility, and to provide for the common
defence. They therefore conferred upon
Congress ample powers TO declare war
-tsto raise and support armies -3 TO make
rules for the government and regulation of
the land and naval forces - TO provide for
calling forth the militia '+--' TO. provide for
! organizing armies aud disciphng them r