i
VOL. 8.
BELLEFONTE, FRIDAY MORNING, NOVEMBER 27, 1863,
tee
pt
NO 46
The Bluse.
For the Watchman.
THE CONSCRTPTION.
THE CONSCRIPTION ACT.
It may be that some of our readers have | THE SUPREME COURT OF PENN-
not been able tounderstand the reports whieh
have been published in reference to the con-
SYLVANIA DECIDES THE CON-
SCRIPTION ACT TO BE UNCON-
STITUTIONAL.
Tt is, therefore, a question of the mode of
exercising the power of raising armies. Is
it admissable to call forced recruiting a ‘“‘ne-
cessary and proper” mode of exercirising
this power?
teachers, and leave the State entiroly dis-
organized ; it may admit no binding rule
of equality or proportion for the protection
of individuals, States and sections. In all
other matters of allowed contribution to the
This force shall continue, says the Consti- | States, ag well ds individiials, sre careful in
tution, and the Federal Government shall | putting themselves under the power of oth-
make laws to organise and train it, asit|ers. Thau Was the power ‘0 be feared in its
thinks best, and shall have the use of when | relations with the States, and I know not
needed; this seems reasonable and sufficient, | how it is possible to suppose that under the
Lacie ill
ws
WE SHALL MEET AGAIN.
scription, and will therefore be glad to hear,| On Monday, the Supreme Court, sitting
BY JOHN P. MITCHELL.
We parted just six months ago
In sadness and in tears,
from Secretary Stanton’s own lips on account
of 1ts working.
at Pittsburg, rendered a decision in the
matter of the application of three drafted
men belonging to Philadelphia, »ho filed
- The fact of rebellion would not seem to
make it so, because the inadequacy or in-
sufficiency of the permanent and active for-
Union, duties, imposts, excises and direct
taxes, and organizing and training the wil-
tia, the rule of uniformity, equality or pro-
sistent with it ?
is the force provided for by this act incon-| power to raise drifiies they wete feally give
ing up their whole militia system at the timé
It seems %o me it is. By it all men be-| when it is most needed,to be the instrument
That valuable correspondent, McArone | Bijjs in Equity to test the constitutionality | ces of the Government for such a case is yortion is fixed in the Constitution. It} tween the ages of twenty and forty-five are| of a suspected power, always prone, what-
now of the New York Leader,thus relates |of the Conscription Act. The applications | oon ecoly provided for by the power to call Id not b li t th ilitia | declared to constitute the national forzes,’ | ever be its name, to place its respect for the
an interview he had with the Secretary of | wer tor injunctions to restrain the Govarn- press gb Fhe) o-call conld not beso 1m calling out the Millia: ds ; te zest el 8 e; to place its respect for
Ang Wat 274 yours but figures, traced War ment officers from sending the complainants | forth the usually dormant force, the militia, | because the emergency of rebellion or 1ava- | and made liable to military duty, and this | tifie-honoted doctiines of constitutional libs
y Time's relentless pon, : : : into the military service. The Court decides | and that, therefore is the only remedy al-|sion does not always allow of thi is 80 nearly the class which is usually un-|erty in subordination to the intemperate.
To taark his ing fight? wit 2 i y . ecides . y y sion n ways ig. y ] Se pe! A
2 og dae ip gi Bal yd ny A va i the act of Congress UNCONSTITUTIONAL, and | lowed, at least until it has been fairly tried| But for the recruiting of the army ro derstood to constitute the militia force of |and therefore often disingenuous zeal for par-
Damn . ’ grants preliminary injunctions in each case. | nq failed, according to the maxims, ezpres-| such reason exist, and yet contrary to the | the States that we may say that this act|ty success, In great political commotions;
rin 17 iuadlred of the Secreiary, ‘4s Kneedler vs Lane and others. Smith vs | sjo unius exclusio aiterius, and expressium/| rule of other cases. if it may be recruited | covers the whole ground of the militia and | liberty is in its greatest peril ; because neis
the net Tost ji its operation, so Fh what Lane a Sd otter Nichols vs Leliean 20 Jacit cessare tacitum. No other mode can | by force, we find no regulation or limita- | exhausts st entirely. It is in fact, in all its| ther party knowing how to give or receive
have you not read per official Tenort 2 OPINION OF CHIEF JUSTICE LOWRIE. be necessary and proper so long as a provi- | tion of the exercise of power, 80 a3 to pre- features, a militia for national, instead of | those fensonable concessions or thab gener-
h ¥ ¢ D Mo. & : . | ded mode remains untried ; and the force of | vent it from being arbitrary and partial, and | Stace purposes, though claiming justifica- | oiis respect that is necessary to restore peace,
e asked, ‘they are here—twelve volums, These are three bills in equity wherein v + % 1 : ; :
Let me read them to yon.’ the plaintifts claim relief against the defend these maxims 18 increased by the express |hence we infer that such a model of raising | tion only under the fact of the rebellion.— | the occasion demands force, and alarm of
: 7 isi tut i i be done, because, the i ives i 4 i ich
«J hastened to decline, and asked him |ants who, acting under the act of Congress PIOVIsion ofithie Column that i armies wasnot thought of and was not In Bogleng tis s a . . Be 0 gxcilomen gives if sundue ihosury, which
How vain to measure out by days, to give me a condensed statment of the |of the 3d of March last, well known as the tok eraniiSd re Faseryed and none’ 8 inse granted. Ifany such mode had been the | State being a unit ero; STGGIoRN > 10; ineréases the resistance, and, Consequently,
Or seek to bind by laws, facts Conscription Act, a 16 coeds the.plain implied from the enumeration of those jntentention of the fathers of the Constitu- | place for the distinction between State | the excitement or alarm ahd the force. until
Emotions which immortal are , » 1 : : . + th d 1 PATE + :
As Time's Eternal Cause. “Well,” said he, ‘the call, you know, was | tiffs to enter the army of the United States EE SEI a in ? ey Dou coral ee Ag oe yun. a is Sa en isrty
a e it to the same rule of equality propor- = e vir ;
A foul may live a score of years he Bund) Dene hw Leh 5 i S Sratisy Soifers, The Tam of Ye pan. therefore seem to excludeall ungranted ones. | tion, and to some restriction in favor of | ded, If Congress may institute the plan now
And eu by him, first nh rh > 390 i] ne Very ach » oe vl OR Jian : 2 2% Or, to say the least, the militia not having | State rights, as they have done in other cas- It seems to me this isan unauthorized | under consideration, as a necessary and pro
Long lives may slip away. ood a Thor entire ak pulation 748 hn lraisediD iy i oh + ay 18 | been called forth, it does not and cannot ap- | es of compulsory contributions to Federal substitute for the militia of the States. 1f|per mode of exercising its power “to
good. 9 An Pop y i : y 2 1m0 AON 08,8 Di HIDATY. Ipjuno: pear that another mode is necessary for sup- | necessities valid, it completely annuls, for the time | raise and support armies.”’ then it seems
rolled, amounting to 5,000,220,91, with fif- | tion, and might have been heard by a single i : > ag AY 2 : : : i
te Bordent ektr fof. exemptions, making{jnd But at th +" of brother | Pressing the rebellion. We are forbidden by the Constitution | being, the remedy for insurrection provid-| to follow with more force that it may take
yp ptions, judge. But at the request of our brother), 5% oom very obvious that a depar. | from inferring the grant of this power from |ed by the Csnstitution, and substitutes a | a similar mode in the exercise of other pow-
pi 110.12. The rest was left for nex Naat; ne Ran ie ture from the constitutional mode cannot be | jtg not being enumerated as reserved ; and | new unprovided one. Or ratherit takes that | ers and may compel people tg lend their
And though, by time, six months are “traced,
It seems as many years.
Hearts have their records written, too,
By powers within the soul,
Which but begin their fadeless life
‘When time has ceased to roil' .
What cares the heart of man for all
The paltry marks of time,
When, o’er Eternity’s wide world,
Istraced its path sublime!
A single night of anguish deep
A day of darkest woe,
Has changed the glossy, raven tress,
And bleached it w/ate as snow.
So life is measured by the soul,
Not by the distant sun,
And lengthens out to three-score years
‘While Time records but one.
Months by the sun, years by the heart,
Have, since we parted, fled
And hopes that then so brightly burned,
Now dwell among the dead.
In parting clasp I held your hand
is day day six months ago,
And little dreamed that ere we met
Such changes we should know.
Since then, how many sorrows
The hand of Time has made;
How many hopes have budded,
To blossom, cheat and fade.
How many hearts that then beat high,
Nor held a thought of gloom,
By Death’s cold hand forever stilled,
ow slumber in the tomb.
How many souls have wandered through
The dimly lighted hall,
Where the days of life are ended,
And shadows darkly fall ;
To the land of the ¢ ‘Hereafter’
Where happy spirits stray,
And Time is lost forever
In an eternal day.
Many changes I have witnessed,
And some have touched us too,
Bince I felt so sad at parting,
Six months ago, with you.
But the heart has many feelings
Unknown to mortal eye,
Which survive the earthly passions
And time and change defy;
Which are borrewed from the regions
Of happiness and light,
And reveal their hidden lustre
When darkest is the night,
“Very good.”
“Very good.
“Very Good.”
asked.’
thought of that.’
“Why, said Halleck, we’l take a good
boy.”
“Or three tailors,” suggested I.
“In Massachusetts,” continued Stanton,
¢‘the result was less favorable, The quota
was put at 3,000,220,000,2 but after we
had made a deduction of three thirds, we
couldn’t find that there were still another
third to deduct. Governor Andrew and I
are still trying to make it come out all right
but we don’t seem to get at the nub of the
question. I think a good deal of the con-
question, we all agreed to sit together at
Of this number one half paid the commu- | the argument, But we are very sorry that
tation fees, realizing $750,110,012 remains- | we are left to consider the subject without
the aid of an argument on behalf of the
Now deduct a third of this, and, |Government, by the proper legal officers; of
1,750,340, are left. Then take away an-|the Government having deemed it their duty
other third, exempted for physical causes | not to appear.
such as absence from home, general debilily
social position, domestic difficulties, and {such an entire conviction of the truth of
such, and yon have a remainder of 412,23. | my conclusions as I would otherwise have,
For want of this assistance I cannot feel
for I cannot be sure that I have not over-
By the action of local authorities we fail | looked some grounds of argument that are
to procure two-thirds more, which leaves |of lecisive importance. But the decision
but 139,2-3. A final third must now be |now to be made i enly preliminary to the
deducted tor false enrollments, desertions |final hearing, and it is to be hoped that the
ete, and the army is replenished by forty | views of the law officers of the Government
three men and one third from the State ef | will not then be withheld.
New York. Do you follow my figuers ¥
«How will you get the third of a man, he | culty in the decision of this question, and
We have, however, a much greater diffi-
one that is quite inevitable, It 1s founded
Stanton scratched his head. ¢I hadn't | on the fact that the question has become a
question cf politics, and the great parties of
the country have divided upon it.
have not awaited the decision of the courts
on the subject, and could nst be expected
to do so; but have studied and decided it
for themselves, or have rallied, in opposing
ranks, in support of leaders who profess to
have studied it or have done so. Our own
history shows that our courts have no mor-
al authority adequate to bring such divis
That sort of authority re-
quires a much larger degree of matual con-
fidence between the courts and the people
considered necessary because of any defect
in the organization of the militia, for Con
gress has always had authority to correct
this, and it cannot possibly found new pow-
ers in its own neglect of duty. Most of the
Presidents have repeatedly called the etten-
tion of Congress to this subject, and yet it
has never been adequately attended to. I
do not know why it might not have been
performed since this rebellion commenced,
and yet I do not know that it could.
And it seems to me that this act is uncon-
stitutional, because it plainly violates the
State systems in this, that it incorporates
into this new national force every State civ-
il officer, except the Governor, and this ex-
ception might have been omitted, and every
officer of our social institutions, clergymen,
professors, teachers, superintendents of hos-
pitals, &e;; and degrades all our State gen-
erals, colonels, majors, &c., into common
soldiers, and subjects all the social, civil
and military of the States to the Federal
power to raise armies, potentially wipes
them out altogether, and leaves the State
as defenceless as an ancient city with its
walls broken down. Nothing is left that
has any CONSTITUTIONAL RIGHT to stand be-
fore the will of tho Federal Government.
If this beso, the party in power at any
time holds all State rights in its hands. It
is subject to no restriints except that of
the common morality of the time 2nd of the
party, and every one knows how weak and
the rule that what is not granted 1s reser
ved operates in the same way, and is equi-
vilant to the largest bill of rights.
No doubt it would be unreasonable to sup
pose that Congress would so disregard nat-
ural rights as to take such an advantage of
this want of regulation of their power, as
that above ndicated, but the fathers of the
Constitution did presume that some
such things are possible, and, they would
have regulated the mode, if such a mode
had been intended. It needed no regula-
tion, if all recruits were to be obtained
in the ordinary way, by voluntary enlist-
ments.
Qur jealously of the usurpation of domin-
ant parties is quite natural, and has been
inherited through many generations of ex-
perience of cavalier and roundhead, court
and couniry, whig and tory parties, each
using unconstitutional means of enforcing
the measures which they deemed essential
or important for the public welfare, or of
securing their own power ; and the fathers
of the Constitution had experienced such
usurpations from the very beginning of the
reign of George III, and were not at all in-
clined to grant powers, which, for want of
regulation, might possibly become merely
arbitrary. They had no experience of for-
ced levies for the regular army, except by
the States themselves, and it seems
to me that they did not intend to
grant such a power to the Federal Gevern-
States can have no militia out of the class
very State force, strips it of its officers; |it their money ; take their Hotses for offi-
despoils it of its organization, and recon- | ces and courts, their ships and steamboats
structs its elements under a different au- | for the navy ; their land for its fortresses ;
thority, though somewhat similar forms, 1f | their machines and workshops for the differ-
this act is law, it is, supreme law, and the | ent branches of business that are needed for
army supplies ; their physicians; minis:
usually called to militia duty, for the] ters and women for army surgeons, chap=
whole class is appropriated as a national | laing, nurses and cooks, their horses and
force under this law, and no State can | waggons for their cavilry and for army
make any law that is inconsistent with it. | trains, and their provisions and crops for
The State militia is wiped out if this act|the support of the army: If we give the
is valid, except 8o far as it may be permit- | latitudinarian interptetation, ds $0 mode;
ted by the Peaeral Government, If Con- which tliis act requires; I know not how to
gress may thus, under its power to raise ar- | stop short of this. 1 am sure there is no
mies, constitute all the State miltia men | present danger of Such an extreme interpre:
into ‘national forces’ as part of the regu-| tation, and that even partizan morality
lar amy, and make them ¢ liable to perform | would forbid it ; bit if the power be ad-
duty in the service of the United States | mitted; we have no security against the re-
when called out by the President ” I can-| laxation of the morality that genders it,—
not see that 1t may not require from them |I am quite Unable row to suppose that
all a constant military training under the |as great a power could have been intended
Federal officers as a preparation for the] to be granted, and yet to be left so loosely
called out, and then all the State militia
and civil officers may be put into the ranks
and subjected to the command of such offi-
cers as the President may appoint, and
every one would then see that the constitu.
tional Sttae militia becomes a mere name:
The Constitution makes it and the men in
it a national force in a given contingency
and in a prescribed form, but thie act maks
them so irrepspective of .the constitution-
al form and contingency. This is the sub-
stantial fact, and I am not able to refine it
greatest efficiency when they shall be so |guarded.
It may be thought that even voluntary
enlistments 1n the regular army have the
same sort of inconsistency with the militia
aystem as forced recruiting has, but more
of a military force.
show that
Enlistment in the army takes
away part of the militia ; but every militia
system allows for this, and the general pur-
pose of both isthe same—the constitution
And, besides this, it
is of the very nature of the system that it
leaves every inan free id the pursuit of his
changeable this is in times of popular ex-| ment.
citement, when the party in power, con-| Besides this, the Constitution does au-|away. ! ordinary calling, and bindg no man to any
vinced of the rightness and greatness of its | thorige forced levies of the militia force of Let any one read a few of the instances | part of the militia, except by reason of res:
And, though Time the heart may wither,
And Death its beating still,
Though the brain bow to the changes
scription act, as a means of raising armies | than is usual in our experience, especially
yet I mustallow that it has some practical |in times of popular excitement.
Which come to blight and kill ; i jes) ; : ies uy or :
8 1S Se Pier ST wih i All men believe themselves impartial in|, oe, ends, thinks lightly of the modes and | the States in in its organized form, in cases | 0 English history alone, without reference |jdence, which he may abandon or change as
True affction mosks their eft ot overnor Parker,’said I gets over them | the decision even of party questions, and, | gig (hat in auy way obstruct or retard | of rebellion and invasion, and, on the prin- to our own or Roman or Grecian history; | he pleases.
3 Jue Jaais sie bi 5 453, nee §. therefore, it is impossible for them to aban-| 4 oo Phere are no constitutioal | cipal that a remedy expressly provided for | Wherein liberty has been sacrificed to the in-| This act scems tome fo be further un’
“Parker, of New Jersey ¥’ don their decisions on the mere authority of
When time and change decay.
Perhaps we ne’er may meet until
Eternity has swept
Its wide waters o’er the record
The hand of Time has kept.
But, if on earth we never meet,
My love will guide me through
The darkest shade the world can cast,
And lead me—uUPp to you.
For love, although ’twas born in Heav'n,
May feel the woes of earth ;
But only find, when time decays,
The Eden of its birth.
A bird there is that man may bear.
O’er mountain, vale and sea,
Which seeks its home on tireless wing,
The moment it is free.
With cruel hand they oft have maimed
The gentle carrier-dove ;
And man’s cold heart has often sougit
To clip the wings of love.
But, maimed and bound, love waits until
1ts earthly jailers die,
To spread its tireless pinions for
1ts endless home on high.
And, always when I think of you,
It ismy fervent prayer
“That we, tho’ rudely severed here.
May be united THERE.
Howard Pa. Nov. 1863.
ee AA ee
0= Which is the largest jewel in the
world ?
The Emerald Isle.
I~ When is a window like a star?
When its a sky-light.
I7= The lady who was transported with
bliss, bas just get a ticket cf leave.
p&™ The sun stood still a few hours for
Joshua. The very years stand still for
maidens of thirty.
>= An old skipper says that it is a cu-
rious fact that reckless captains are mos-
likely to be wrecks,
BE Lecar,—What is a settlement of
“snveyance ?
: _ When an omnibus smashes a carriage.
ER
05 Kissing a pretty girl without her con-
gent is a rash thing, but a slice of bacon is
rasher.
on you ever saw a crow with a king bird
after him, you will get the imageof a dull
speaker and a lively listener.
Never own that your wife is right, do it
once and on the conceit of it she will be
wrong the rest of her life.
An architect proposes to build a bach-
elors’ hall, which wll differ from most
houses in having no Eaves.
Mp, Lincoln seems bent onaccomplishing
two thinga—to make all our money green
and everything else blue,
“Yes,” said I,
“Ah !” said he.
“Good day,” said I.
“And I left.”
«Ever thine,
MCcARORE,”
Stl A A,
a dashing new silk gown, and a new bon
at last said to him :
the car window ?”’
half of bis body, from the car window.
woman,
«Yaw !” was the reply.
“Then why don’t you keep your head ou
of the window ¢”’
long wooden bridge.
back and once more exclaimed ;
«Do you understand English?”
£Yaw—yaw.”
of the window? Want to get killed ¥’
ing object.
head will be smashed into a jelly, and you
much believe you have !"
for the safety of her passenger; but whe
fairly drowned the roaring of the wheels,
ar
on the election;
Tue True Morive Lrakep Our.—In a
train on the New York and Erie Railway, a
few days since, a smart yankee woman, with
window, and every now and then thrusting 2
out his head, sat a man of a somewhat for- condemned and pass away. With a sort of
eign air and manner. The woman watched moral polarity, the extremes of social ex.
him with every appearance of interest, and | citement breed each other, and moderation
pés~ Eleven thousand dollars was the g
amount of one bet, just paid iu Philadelphia, | t Fass “all laws which shall be necessary
any one, unless when they feel that author-
ity to be final. Partiality in such matters
seldom proceeds from any dishonest purpese,
and generally arises from giving undue
prominence to some purpose or idea that is,
in itself, quite proper, and, of course, this
is usually done quite unconsciously. In
times of excitement it is quite impossible
to avoid this, and hence in such times mod-
erate views are very sure to bz condemned,
net set jauntily upon her head, was travel- and even Government itself. in all its de-
ing ; and beside her, looking out of the partments. is sure to be driven into meas-
ures which, in the course of a few years,are
falls, for a while, powerless between them;
«Do you see that handbill up there telling and usually itis only by severe trials that
you not to put your arms and head out of this condition of society is remedied, and
then it is discovered what were the purposes
The man made no 1eply, save to fix on and ideas to which undue prominence had
the speaker a pair of pale watery blue eyes, been given, to the disturbance of the order
and presently out went his head again, and and harmony of the State.
On this question we ought to be able to
«Do you understand English 2 asked the avoid this vice, which is so common in all
moral and political reasoning; for our ap-
peal is to the Constitution, a written stand-
t |ard, adopted by us all, sworn to by many
of us, and obligatory on all who exercise
There was no reply of any kind to this the rights of citizenship under it, until
appeal. At length he put out his head a they can secure its alteration in a regular
third time, just as the cars were passing a and peaceable way. By that standard alone
The lady started [can we try this act. Is it authorized by
the Federal Constitution ?
That Constitution, adopting our historical
experience, recognizes two sorts of military
«Then why don’t you keep your head out | land forces—the militia and the army,some-
times called the regular, and sometimes the
No response. And a fourth time he nar- | standing army—and delegated to Congress
rowly escaped “collusion” with some pass- | pcwer “to raise and support armies” and
«to provide for calling forth the militia to
The woman could ‘stand it” no longer. | execute the laws of the Union, suppress in-
“Why don’t you keep your head out of the | surrections and repel invasions.” Bat tho’
window ? The next thing you know your | this act of Congress is intended to provide
r| means for suppressing the rebzllion, yet it
brains will be all over my new silk dress— | is apparent that it is not founded on the
that is, if you've got any—and I don’t| power of ‘‘calling forth the militia,” for
those who are drafted under it have not
We had all mistaken the woman’s solici- | been armed, organized and disciplined under
tude, which at first seemed a tender regard | the militia law, and are not called forth as
n | miiitia under State officers as the Constitu-
the true motive ‘<leaked out,” coupled with | ticn requires— AR. 1,8. 10
so equiyocal a compliment to his intelli-
gence, a laugh was heard in the car that | raise armies that this act can be founded,
It is, therefore, only upon tke power to
and as this power is undisputed, the ques-
tion is made to turn on the ancillary power
and proper” for that purpose; — Arr. 1,8,18.
restraints of this power, if it exists, and
therefore, if the unsteady morality of party
excitements will bear it, the party in power
may require all the troops to be drafted
from the opposite party or from States and
sections where it prevails.
Our fathers saw these dangers, and inten-
ded the Constitution to stand as a restraint
upon party power. They knew that a par-
ty in power naturally encroaches upon ev-
ery institution that obstructs iis will, and
is inclined when its power totters, to adopt
extreme, unusual and unconstitutional mea-
sures to maintain it ; and they intended to
guard against this. They knew how Epis-
copalians, Independents and Presbyterians,
cavalier and rounhead, court acd country,
whig and tory parties, had each in turn,
when in power, tyrannized over their oppo-
nents and sacrificed or endangered public
liberty. They had felt how great was the
evil in all the paruizan struggles that prece-
ded the Revolution, and they desired poster”
ity to profit by their experience. The very
restriction upon appropriations for the sup-
port of the army exceeding two years, is
copied from our English ancestors and was
deemed by them a constitutional limitation
of the party in power. None of our consti-
tutions, State or Federal, have any purpose
or function more important than that of re-
straining and regulating the party that may
chance to be in power, and that is one of
the most important purposes of the separa”
tion of governmental functions info differ.
ent departments.
Though therefore, this act was passed to
provide means for supyressing the, rebel-
lion, yet the authority to pass it- does not
depend on the fact of rebellion. That fact
authorizes forced levies of the militia under
their own State officers, but not for the re-
gular army.
But it is not important that Congress
have assigned an insufficient reason for the
law. Ifit may passsuch a law for any
reason, we must sustain 1t for that reason.
The question, then, is—may Congress inde-
pendent of the fact of rebellion or invasion,
make Forced levies in order to recruit the
regular army ?
If it may, it may do so even when no war
exists or threatens, and make this the re-
gular mode of recruiting, it may disregard
all considerations of age, occupation, pro-
fessions and offical station ; it may take
our Governors, legislators heads of State
Departments, Judges, sheriffs, and all 1nfer-
ior officers, and all our clergy and public
fair to enter that it does not authcrise forced
levies in any other case or mode. The
mode of increasing the military force for the
suppression of rebellion being given "in the
Constitution, every other mode would seem
to be excluded,
But even if it be admitted that the regu-
lar army may be recruited by forced le-
vies,it does not scem to me that the consti
tutionality of this act is decided. The
question would then take the narrower
form. Is this mode of coercion constitu-
tional.
It seems to me that it is so essentially
incompatible with the provisions of the Con
stitution relative to the militia that it can
not be, On this subject, as on all others,
all powers not delegated are reserved. This
power is not expressly delegated, and can-
not be impliedly so, if incompatible with
any reserved or granted powers. This is
not only an express rule of the Constitution
but it is necessarily so, for we know the ex-
tent to which State functions were abated
by the Federal Constitution only by the ex-
press or necessarially implied terms of the
law or compact in which the abatement is
provided for. And this is the rule in regard
to the common law. it is changed by the
statute only so far as the expression of the
statute requires it to be.
Now, the militia was a State institution
before the adoption of the Federal Constitu-
tion, and it must continue so, except so far
as that Constitution changes it, by subjec-
ting it, under State officers, to organization
and training accordizg to the uniform Fed-
eral law. and to be called forth to” suppress
insurrection and repel invasion, when the
aid of the Federal government is needed,
and it needs this force. For this purpose
1t 1s a Federal force ; for all others itis a
State force, and it is called in the Constitu-
tion “the militia of the several States!”
2,2, 1. Itis therefore, the standing forco
of the States, as well as, 10 certain specified
respects, the standing force of the Union. —
And the right of the States to have it is not
only not granted away, but is expressly re.
served and its who le history shows its pur-
pose to be to secure domestic tranquility,
suppress insurrectiors and repel invasioas.
Neither the States nor the Union have any
other militia than this.
Now, 1t seems to me plain that the Fed-
eral Government has no express aad can
have no implied power to itstitute any na-
tional force that 1 inconsistent with this.
jury—members of Parliament expelled be
cause their opposition was offensive or dan
opinions, as were Lord Shelbourne, Genera
gerous rivals—patronage,
and tried.
which the people were then creating, or th
a given case excludes all implied ones, it 1s | terests of a patty in power, and he will see | constitutions! in that it provides for
how impertant are our constitutional re-|thorough confusion between the army and
strictions, and how little probable it is that | militia, by allowing that the regular sol-
50 great a power as this should have been |diers obtained by draft may be assigned, by
left by our fathers without restriction-— | the President, to any corps, regiment of
courts of high commission, ecclesiastical | branch of seivite he pleases ; wherells thg
commi-sion, and star chamber, and high | Constitution keeps the two forces distinct.
courts of justice, and special commission of | Under this law, the President may ever
oyer and terminer, under such Judges as| send them to the navy: Urder militia sys-
Scroggs and Jeffries, created for the purpose | tem every man goes out with his neighbots
of trying and condemning acts which 10 and friends, and under officers with whom
law forbade—liberty of speech and of the | phe 1s acquainted. It is very properly sug-
press most cruelly punished by such courts | gested that, 1790, Gen. Knox, the Secreta-
when 1t ventured on too free a dissent from | ry of War under President Washington and
the policy of the dominant party—informa- | and with his approval, and in 1814, Me.
tions by the; Attorney General substituted | Monroe, President Madison’s ’ Secretary of
in such cases for indictments by the grand | War, recommended plans of recruiting the
-| army, which were very similar to this one
-1and no doubt this 1s some argument in
gerous to the ruling power—military offi-| favor of its constitutionality. But, notwith-
cers dismissed because of their political | standing our great reverence for - those
1| iliustrous names, it is impossible to admit
Conway and Col. Barre, under the Granville | them as very influential on this question
ministry, for their opinions in favor of|when we consider that ,
America—rumors of plots, real and fictitious, | plans was adopted by Congress, and the
such as the Oates conspiracy, the Meal Tub | Subject never received: such a discussion as
and Rye House plots, raised and magnified | to gettle the question,
in order to alarm the people against all 6p-| Monroe's plan, a pure militia bill was re-
position, and facilitate the downfall of dan-| ported by Mr. Giles, from the Senate's Com-
pensions, and | mittee on Military a fairs.
seats in Parliament corruptly disposed of in
opposition to public liberty—and the con- the notorious Hartford Convention opposed
trol of the militia so attempted to be usurp-
ed as to produce a revolution that resulted position to a similar plan now ought to be
in the execution of CharlesT. But it seems | guspected as unpatriotic. No doubt such
to me that all this experience was lost, injan argument may haye some infltence, but
relation to a most important power, if the
whole State militia system can be set aside
by the Federal Government at the very time | Monroe's plan that that Convention became
when it ought to act with most vigor, as is | notorious. Even their denunciation of it
done by this Act. All this clearly shows | Seems intended as a prefatory apology for
how little reliance can be placed upon mere
partizan morality in political affairs, and|yjrtually abandoned by the report of Mr.
how necessary it is to have an acknowledg- Giles’s plan to the Senate. The condemna-
ed standard, euch as is the eompact of the tion of the Hartford Convention was found-
Constitution by which it is to be moderated
neither of these
Instead of Mr.
I have noticed an argument that, because
the war of 1812, and with it Mr. Monroe’s
plan of recruiting the army, therefore, op-
it has no real value in ascertaiftihg truth,
for even bad men may have many correct
principles. 1t was nat for oppesition to Mr.
their other schemes; for it was not prepar-
ed until two months afer the plan had been
ed mainly or the undue and selfish promi-
nence which it gave to, and the agitations it
raised in favor of its own sectional interests,
In England the popular jealousy of pow- when the country was engaged in a danger-
ers was usually directed agrinst the party
which was ordinarily represented by the| af power —its demand that negroes should
King, because he was a permanent author- | be considered part of the militia—its oppo-
ity ; but in this country in the act of fram" | sition to persons of foreign birth being al
ing the Federal Constitution, it could be di-
rected against no other power but that
ous war—its opposition to the admission of
new States, for fear of losing the balance
lowed to hold office, and to its real or sup-
sed intention to produce a secession of the
astern States, if it should not succeed in
e | its measures. Their views, therefore, even
parties that were sure to contend for it, and by inversion, or Ap INVIDIAM, amount: to
history tells us that this jealousy was in-
tonse and watchful and it was perfectly | guch a case, I must infer, from the refusal
nothing in favor of this law.
On the subject of our authority to hear
natural and inevitable that it should be so. lof the Federal counsel to appear, that it is