Year: 1863




untary enlistments could reasonably be procured
or when they might not be procured rapidly e.
nough. That this was so is dcmonstrable by
the fact that the Constitution provides for call
} ing out the militia when the army may not be
sufficient. l use this contingent expression be-
cause look on the army as an ordinary power,
ard ordinarily to be used unless insufficient for
the end in view, or the exigencies of the times.
, However, this may be, it is absolutely certain
that the military forces of the government for
all purposes, were to be the army and the militia.


In the article of the Constitution containing
the power to "raise and support armies" and
consecutive to that and other war powers and
as part of them, is the power to be found in
Congress ''to provide for calling forth the mill
tia to execute the laws of the Union, suppress in
surrections and rebel invasionl' srro provide
for organizing, armng and disciplining the mi
litia, and forgoverning such part of them as
may be employed in the serrice of the United
States reserving to the states respectively, the
appointment OF officers, and the authority of
training the militia accardjng to discipline pre-
scibed by Congress.


The army TO be raised and the militia liable
to be employed in the service OF tile United





Government. They co-exst. and must co-exist
if the Constitution be obligatory. We some
times employ volunteers, but they are merely a
form, as they are a par. of the militia and do
not initiate against the idea of the two species
of forces. 1t is conceded that both may not
be required in any given case, but both must
exist. or rather the militia can not be destroyed
or extinguished by an Act of Congress. The
Constitution forbids this by the positive injunc-
ton to provide for organizing arming and dis
ciplining them They are the security of the
States against the Federal Government, and
/ their only security for the States themselves
are not allowed to support armies.
! sit may safely be received as an axiom in
our political system says the FederahSi, No.
2S, .that the State governmen is will in all pos
sible contingencies afford complete security a
gainst invasions of the public liberty by the
national authority" They
can at once adopt regular plan of opposition
in which they can combine all the resources of
the community" !" How can this security be
AFFORDED against the danger of invasion of the
public liberty by the National authority, unless
there be some military force with which to re-
| sist it !! What resources are there in q commu
nifty, il all The sable bodied men may be alb
sorbed in the national forces. 1t will at once
be agreed, think, in view of the constitution
al provisions cited that the militia, the only
power of the States must he maintained in tact
and that no system is constitutional which ex-
tinguishes them. Let US inquire, therefore,
whether or not, the act of Congress of Sd off
March, 1868, known as the Conscription Act, !
does not N fact attempt the complete demolition
of the militia of the States.
The preamble to the act sets forth the exis-
tence of insurrecton and rebeon that mill |
tary force is indispensable TO suppress it; that
to raise and support, which ''al persons ought |
willingly to contribute" II is therefore enact
cd. Sec. /, ''that all able bodied male citizens
Of the United States and persons of foreign
birth who shall have declared on oath, their in
tention to become citizens in pursuance of the
laws therof, between the ages of twenty and
forty-tve years except as excepted, are hereby
declared to constitute the National forces and
shall be liable to perform military duty in the
service of the United States, when called out
by the President for that purpose" Then fol-
low numerous provisions for classifying them,
for the lottery or draft of the required number
in each military district, the closing up of the
wheel until again required, and the order and
term Of service, not as militia men belonging
to and officered by the States, but as parcel of
the army of the u. States raised and supports
ed under the clause of the Constitution which
provides for raising and supporting armies and
to be oicered by federal authority, exclusively.
Every able bodied man in the United States
by these provisions enrolled, and declared to
constitute the national forces. This covers the
entire matertet of the militia in the Union. All
able bodied white men between twenty one and
forty-ive years, and liable as militia men in
this Commonwealth and it is believed that this
is about or near the standard in most. if not
all, the other States. This act is broader, both
as to age and color. The specified age, how
ever amounts to nothing, for Congress by a
very slight extension of power in fixing the
standard could just as well have made it to in
clude all between the ages Of eighteen and six
| ty. Let the power be once established, the
right must follow, and in this way, every man
| in public or private life in State between those
ages, might be included. No one is exempt un- |
der the present law but the Governor. All
other officers, judges, legislators, representatives
in Congress, sheriff, magistrates, county and
township functionaries of every description, if
under forty-fve, are liable now to be forced in
to the army or to commute by the payment of
$500, or to find substitutes. As it is, this
would draw heavily upon the public, and me-
cessary local officers-but if extended to the
ages of eighteen and sixty, as it could as read
lily be made to do, it might include all, not ex-
cepting even the Governor. Can it be that the
machinery of our government is so incongruous
as to admit of this Can it for moment be
believed that the trainers of the Federal Con-
stitution intended to create such q monstrous
power? One that would not only absorb the
military authority of the State but the civil al
So This is exactly the principle of this enact
ment and to great extent will be the practical
workings of it.
| hold that the act plainly and directly des-