Year: 1863

u requlsltlOn made by the President upon the


Governors of the States. 1t is true that in


1914, the question was much agitated in Con-


gress whether or not, under the power to ''raise


armies" the militia might not be conscripted


by the Federal authority. The bill which pro-
posed this had the sanction of high names-bus
1t differed much from this Act and was never
finally acted on, because of the termination of
the war by the peace of Client. The discus
sion on this bill was able, but partizan, and
furnishes little aid to a judicial examination,
and hence have not recurred to it much in
taking the view herein expressed That Gov
| ernment like that of Great Britain may resort
to conscription to fill the ranks of her armies
| and has done so on many occasions, is no ar
gument or precedent for that practice under the
Federal Constitution. Even in England, this
is far from the ordinary mode of recruiting the
army, and it will hardly be contended that the
exception to the rule will establish custom, by
which to define the meaning of the words ''to
raise and support armies" used in our federal
constitution, so that &c VI ternan,, conscription
or draft, both involuntary modes, were thereby
meant.


But the prececent would 60 for nothing in
this inquiry, even if the practice had been COM
mon in England. The difference between the
construction of the British and Federal Consti-
tutions is radical. In the former, all govern.
mental powers not expressly prohibited to the
government, may be lawfully exercised. In the
latter whatever power is not expressly granted
is withheld. There is no grant Of such pow
er to the latter, as have endeavored to show,
and no restraint upon it in the former, as the
exercise of it proves.


This remark is equally applicable to the diff
ference between the State and Federal Constr
tuition. Between them that same difference in
construction exists. The governmental powers
of the States extend to all rghtful subjects, not
prohbited-and the national only to sach as
are granted 1t therefore does not advance the
argument step in favor of those who contend
for the consttutionality of the Conscription Act,
to point to instances in which drafts have been
made by State authorities. Militia duty is COM
pulsory In all the Safes. They are not prohib-
tied from compelling itany more than from COM
pelling the payment of the taxes. 1t is in this
way, and in this way only, in my opinion, that
the national forces can be compulsorily raised;
that is to say, by requsition on the State au-
thorities for militia men in a just proportion to
population.


Why have not the militia been called out in
the present emergency? They are composed Of
the men the draft proposes to furnish. They
are to be governed while in the SERVICE as Con-
gress shall prescribe They may be reclaimed
for one two or three years or while the insur-
rection lasts, and will become just as good SOL
diers in the one character as the other. They
are the constitutional power for that purpose, if
the army be not sufficient to effect the object
without them. Why not employ them ''Thers
is but one of two alternatives" says Judge Sto-
ry, (which can be resorted to in cases of insur-
rection, invasion, or violent opposition to the
laws: either TO employ regular troops or to
employ the militia 10 suppress them" Story
on Con. sec. l20l.1 If it be said that the mill
tia will be sufficient, which deny with equal
training, insist that the imperfection of the
system is no justification for the overthrow in
part or in whole, of the Constitution.


There is nothing on earth that So much de-
sire as to witness the suppression of this un-
justfable and monstrous rebellion. 1t must
be put down to save the Constitution, and tho
constitutional means for the purpose, believe
it to be ample, but we gain but little, if in our
efforts to preserve it when assailed in one quar-
ter, we voluntarily impair other portions of it.
Its entirety is vital, it must all stand or it will
all fall, it can never be apportioned


Believing that have shown that the power
''to raise and support armies is limited to vol
untary enlistments, and necessarily so limited
that the militia Of the States may remain in full
force, am impelled by no choice of alterna-
tives to the conclusion that as the Act of Con-
gress transcends these limits, and by force Of
law attempts to abolish the militia, instead Of
calling on them to suppress the insurrection now
so wide spread, am of opinion that the act of
Congress is violative of the Constitution Of
the United States, and void


most sincerely confess that it would have
been a much more agreeable duty to me to have
been able at this time and at all times, to have
given my full accord to the measures resorted to
to restore the peace and order of our once hap
py country, but looking to the Constitution, as
the reasons for its provisions, and then to the
solemn obligation which have voluntarily come
under to support the constitution, cannot even
at the risk of misrepresentation of motives, hes
ltate where the question is a.judical one, to ex-
press my unmixed convictions as haye done.
of the enactment in question. DG8


Standing recently ON the gentle slopes at Run



nymede, memory sent a thrill to my heart in
admiration of those old Barons who stood up
there and dem anded from tyrannical sovereign
that the lines between power and right should
be then and there distinctly marked, and all my
feelings at the same moment paid an involunta-
~ tribute of regard to the fidelity with which
their descendants have maintained what they
hen demanded and obtained, although, of
,had h,,, md
forefathers marked these lines in the Federal
Constitution. must adhere TO them. / can
not help it, and while live trust to Heaven
hat may have the strength to say that will
,ver do SO.


There is no legal authority, in my opinion In
he officers of the Government to hold the com.
claimant against his consent am therefore in
avoy of enjoining them as prayed for until fur