Year: 1863

gress may provide for its organization, arm
ing and discipline, well as for governing
such portion as may be employed in its ser
vice. Ii is the material and the only ma
terial contemplated by the Constitution, out
of which the armies of the Federal Govern


nieut are to be raised. Whether gathered bv
coercion, enlistment, they are equally ta-
ken out OF those who form part of the mi
litia of the States Taking given number
10y draft no more conflicts with the reserved
power of the States, than does taking the same
number Cf men in pursuance OF their own con-


tract. \ o citizen can deprive State OF her


rights without her consent. None could,
therefore. voluntarily enlist if taking a mill
tia man into military service in the army OF
the United States is in conflict with any State
rights over the militia Those rights, what
ever they may be, it is obvious cannot be af-
fected by the mode of taking. 1t is clear that
the States hold their power over their militia,
subordinate to the power uf Congress to raise
armies ont of the populai that Constitutes
II. Were 1t not so, the d delegation OF the pow
er to Congress would have been empty
gift. Armies can he raised from no other
source. Enlistments in other lands are gen
orally prohibited by foreign enlistment acts,
and even where they not, they may under
the law of nations, involve a breach of neutral
ity. Justly, therefore, may it be said the OBJ
lection now under consideration begS the ques-
tion in debate. 1t assumes a right in the
State which has no existence, to wit A right
to hold all the population that constitutes its
militia men exempt from being taken, in auv
way, into the armies of the United States.


When it is said, if any portion of the militia
may be coerced into such military service


the whole may, it is but repetition of the
common, but very weak argument against the
existence of power because il may possibly
be abused. 1t might, with equal force be uT-
ged against the existence OF any power in Ell
ther the State or general government. 1t ap-
plies as well to a denial of power to raise ar
inies by voluntary enlistment. II is as con-
ceivable that high motives of patriotism, or
inducements held out by the Federal Govern
ment might draw into its military service the
entire able bodied populations Of State.
as that the whole might be drafted. We are
not to deny the existence of a power because
il may possibly be unwisely exercised, nor are
TO presume that abuses will take place
Especially are we not at liberty to do so In
this case, in view of the fact that the general
government is under Constitutional obligations
TO provide tor the common defence of the
country, and to guarantee to each State re-
publican form of government. That would he
TO impose duty, and deny the power TO per-
form it.


These are all the objections deserving of mo-
tce, that have been used against the power
OF Congress 10 compel the complainant Is into
military service in the army. / know of no





to show that there is anything in either the
letter or the spirit OF the constitution to re-
strict the power to "raise armies" !" Civ en- gen
orally, to any particular mode of exercise.
For the reasons given, then, | think the pro-
visions of the act of Congress, under which
these complainants have been enrolled and
drafted, must be held TO be such as it is with
in the constitutional power of Congress to en-
act. 1. follows that nothing has been done or
is proposed 10 be done by the defendants that
is contrary to law, or prejudicial TO the rights
of the complainants.


An attempt made on the argument to
MAINTAIN that those provisions of the act of
Congress which allow a drafted man to oom-
mute by the payment of $500 are in violation
of the Constitution. By these provisions the
complainants are not iDjuriouSly affected, and
the bills do not complain of anything done or
proposed to be done under them. IL is the
compulsory service which the plaintiffs resi-
they do not complain that there is a mode pro
vided of ridding themselves of it. II il bs
conceded Congress cannot providsfor commu-
tation of Military service, by the payment of
stipulated sum of money, cannot do ii In
the way adopted in this enactment, the con-
ceSsion in no manner affects the directions
given for compulsion into service. Let it be
that the provision tor Communication is unauthor-
ized, those for enrolment and draft are such
as Congress had power TO enact. 1t is we'll
settled that part of statute may be unconsti-
tutional, and the remainder in force. by no
means. however, mean 10 be understood as
conceding that any part Of this act is uncon-
stitutional. think it might easily be shown
that every part of it is legitimate exercise
OF the power vested in Congress, but decline
TO discuss the question, because it is not rails
ed by the cases before US.


Nor while holding the opinions expressed,
that no rights of the complainants are unlaw-
fully invaded or threatened, is it necessary to
consider the power or propriety of interfer-
ence by this court, on motion to enjoin Fede-
raj officers against the performance of a duty
imposed upon them in plain terms by an act
of Congress. Upon that subject | express no
opinion. / have said enough to show that the
complainants not entitled to the niunc-
tions for which they ask, and ] think they
should be denied.