Year: 1863




1868, entitled San Act for enrolling and call
ing out the national forces, and for other pur
poses," now faniliarly known as the Conscrip
tion Act, unconstitutional!


In order to provide for the common defenc,
and thereby promote the general welfare, Con
gress has, by the constitution, power to ''raise
and support armies" and 'to provide and main
tain navy" 1t was under no extraordinary
pressure of circumstances or emergent necessity
/ that this power was granted. 1t was deemed
to be, and thereupon introduced as, part o
the ordinary machinery Il government, the con
! vention acting on an axiom as old as govern
ment ITSELF THAT the surest means of avoiding
war is to prepare for it in time OF peace
Without such a power, ''it would" says Story
in his commentaries on the constitution, section
| II 1855, 'present the extraordinary spectacle to
the world of u nation incapactated by con
stitution of its own choice from preparing fol
defence before actual INVASION"


| 1t was an ordinary power, not superinducet
| by impending war. I'm the mild season oi
| peace,'' says the Federalist No. :, ''with minds
unoccupied by other subjects they uhe conven-
tion) passed many months in cool, uninterrupted
and daily consultation; and, finally, without
having been awed by power or influenced by
any passion, except love for their country, they
presented and recommended to the people the
| plan produced by their joint and unanimous
councils" Is there room for doubt that un-
der such circumstances, the mode in which the
power to ''raise armies was to be executed was
the accustomed one; namely, by voluntary en-
listments At the tl.nc, this was the usual mode
of raising and recruiting armies in Great Brit
ain, and the people Of this country were better
acquainted with the laws, customs, and even
habits of the people Of England than of those
of any other people in the world. Notwith-
standing we had been at war with them, and an
angry spirit had been generated between the two
countries, yet it is a notorious fact that their
customs and laws were generally adopted in this
country, and TO this day continue to great ex-
tent. Voluntary enlistments as by contract,
was the general method of raising armies there
and with us prior to and at the time the Cousti-
tuition was framed. AS this was the customary
mode, every presumption supports the idea that
this was the only mode in the minds of the fra
mers of the Constitution. Indeed, it is a COM
mon law rule, that when anything is directed to
be done without special instructions us to how
the act is to be performed, the customary mode
OF doing it is supposed TO be included III the d-
rection. We cannot suppose that at the mo-
ment the country had achieved its liberty, at so
much cost of blood and treasure, that such a
despotism over the lives and liberties of men
would he incorporated into the Constitution as
would authorize Congress to fill the armies to
be raised by conscription, as though by the agen-
cy Of the press gang. This was no more in the
contemplation Of the convention than that the
civil department of the Government should also
be filled by coercive measures. Can any one
now be credulous enough to believe that if a
power had been supposed to exist, TO raise an
army not by voluntary means but by cocrcive,
especially AS there were no limits fixed as to its
magnitude, that the Constitution would have
been ratified by the States! The idea would, it
seems to me BIZ preposterous. Without such a
thought once having been suggested by the op-
ponents of the Constitution, u standing army to
be raised in the usual way, was source of ma
ny fears in the public mind. 1t was thought to
be dangerous to liberty in its very nature, but
what would have been thought, if it had been
discovered or avowed that in its creation it might
be directly and openly destructive of the indi-
vidual liberties of those who were 10 compose
it, and that it might be EXTENDED to embrace all
the able-boded citizens in the States! 1t requir-
ed many numbers of the ablest paper ever writ
ten on The Constitution, / mean the Federalist,
to remove these fears. See Fed. from No. "a
to 2S inclusive on this suject.


The constitution was adopted in ignorance,
certainly, of any such power if it does exist,
and it has required the lapse of three quarters
! of a century to develope its latent evils. The
usual evidences are all against the idea, and
think something more demonstrative will show
that these evidences stand not alone against it.
| The power to raise an army by conscription
| or coercion, (the words are nearly synonymous
A conscript is one taken by lou from the con-
scription, (or enrollmenD list, ''and compelled
to serve as soldier or sailor" (Web. Die. verb.
! 'conscrpt,") rests alone on the idea that the
| power is unlm,ted, us to the means to be used,
as we'll as to the numbers Of which it may be
composed. Ii there was no other power or
principle in the instrument to be affected in its
operation by such a view, there would be force
in the idea. But the constitution must be adj
Dinstered so that the whole may stand in full
force, unimpaired by any particular portion.


The limitation of power may appear other
wise than by express terms Its scope may be
curtailed by the necessity to preserve some other
function necessary to co-exist for preservation
of the whole. One object in framing the Con-
stitution, as already remarked was to 'perpet-
uate the blessings Of liberty 1t can hardly
he contended for by any one, that the execution
of power which would etfectually destroy this
object would be constitutional. Again, apow-
er SO executed as to destroy the reserved rights
of the States could hardly be claimed to be con-
stitutiona There are, therefore, limitations as
effectual as if expressed, "m res mogis culeat
guam pereat" is a maxim out of which this grows.
| A limitation of this power was undoubtedly
supposed to exist in the discretion of Congress !;
but that cannot be relied on in this argument.
To give it any force would be to allow the acts
| of Congress to be evidence to establish the pro-
per discretion of Congress. This would be to