Year: 1863

eXigencles OF tile time Justify the Substltu-
ton of martial law? Blackstone and Sir ,
Mathew Hale tell us cit is built upon no |
settled principles, but it is entirely arbitrary |
in its decisions. is in truth and reality no
law, but something INDUCED rather than
allowed as law The unrestrained will !
of one or number of men, then, is the
rule which the argument substitutes for the
Constitution. 1t is of no consequence that
the will thus set up for supreme law is
that of men whom majority Of the poo-
pie have chosen, because according to our
system the majority can only choose men
to administer to the constitution as it is
written. MaJorities, as a power recog-
nized by law, have no more right to sstab-
lioh despotism than a minority would
have. Rut may majorities or minorities
set aside the Constitution under pressure
OF rebellion and insurrection!


AS the Constitution anticipates and pro-
vides for such calamities, it is reproach
to its wisdom, to say that it is inadequate
to such emergencies No man has any
historical right to cast this reproach upon
it, No current experience proves it. 1t
never can be proved except by an unsac-
cessful use of the legitimate powers OF the
Constitution agoinst rebellion, and then
the thing proved, will be that the instru-
ment needs amendment, which its machinery
is flexible enough to allow. Even such a
melancholy demonstration would do no
more than point out necessary amendments
it would not surrender the people to the
arbitrary will of anybody. Presidents or
Congressman are only servants of the peo.
Pile to do their will, not as that will, may
be expressed under passion or excitement,
but as it stands recorded in The Constitu-
ton. 1t is the Constitution indeed which
makes them President or Congressmen.-
They have no power to set up their will
against the Constitution. than So many
private citizens would have. Outside of
that they are only private citizens.


II do not therefore, feel the force of the
argument drawn from the distressing cir
cumstances of the time Bad as they are
We make them worse by substituting abb
tary power for constitutional rule, but if
we made them better and not worse the
judicial mind ought Lot to be expected to
approve the substitution, for it can recog-
nize no violation of the Constitution as a
legitimate vndication Of the Constitution.
TO place ourselves under despotic sway in
order to bring back Rebels to the Constitu-
ton we have given up is a procedure that
perplexes the student of the political sci.
cncc, and will quite confcund the historian
oil our times.


/, There are other features of the Con-
! ;ipt law that deserve criticism, but, not to
rxtend my opinion farther, | rest my OBJ
jections to its constitutionality on these
grounds


"lst. That the power of Congress to
raise and support armies, does not include
the power to draft the militia Of the State.


sgd. That the power Of Congress to call
forth the militia cannot bo exercised in the
forms OF this enactment.


"3d. That a citizen of Pennsylvania
cannot be subjected to the rules and arti,
cles of war until he he is in actual mill.
tary service.


18th. That he is not placed in such ac-
tuai service when his Damo has been drawn
from wheel and ten days notice thereof
has been served upon him.


"For these reason am for granting the
{ injunction


Ordr.-Nov. 0, 1s63.-Preliminary
injunction lin each ! granted for the pro
lection of the plaintiff on his giving bond
with surety, to be approved by the pro.
thonotary, in the sum of $500, according
to law, and refused for any other purpose