fom
A. Hoy jo
The Democratic Tale
~The Jtluse.
For the Watchman,
MY MOTHER.
Atfectionately dedioated to my earliest and most
faithful friend.
BY JOHN P. MITCHELL.
‘Oh, with that name thoughts ever throng
From mem’ry’s voiceless sea,
Of days, when ’mid the flowers I lived,
And danced in childish glee ;
And little knew the tears you shed
Upon my thoughtless, childish head,
Were only wept for me;
And never dreamed I e’er should be,
By tem ests, tossed on life’s rough sea.
AANARNAAAANAAAANNAA
Like music, swelling low and sweet
Ia harmony sublime,
Comes sweeping back, at mem’ry’s touch,
The far-off heavenly chime ;
Your gentle voice I hear once more,
In soothing cradle-sorgs of yore,
Sound o'er the flood of time;
And oh. ’tis sweeter to my heart
Than all the labored notes of art.
“When voices from eternity,
Their far off whispers bear,
When visions of the future’s realm
Ave pictured in the air,
‘When phantoms grimly ‘round me crowd
And the sad soul to dust is bowed
Ir anguish and despair ;
Those dear old hy: gone hours have power
To brightly painc iife’s darkest hour.
As rivers widen as they flow
Until they reach the sea;
While gazing back the flood of time,
So seems its course to me ;
But still the flowery banks I view,
Where childhood 's path meanders through,
And still your form I see ;
Four gentle face. in kindness, beams
Like angel faces in my dreams.
In lonely hours, mysterious hands
My heart-strings oft have swept,
And waked to life, by some strange power,
Dead hopes which lang have slept ;
And as the past I ponder o'er,
1 see why ycu, in dayscf yore,
Gazed on your child and wept;
Cold hearts have met me, and I know
What you had learned long years ago.
Fou looked with Lind affection’s eye,
And all my faults were few ;
But man’s hard heart will not decide
So partially as you;
The wounds you healed so kindly then,
Are deepened by the touch of men,
And faults that come to view,
Which you forgave for leve of me,
Lhe world’s cold eye is sure to see.
{Upon the stormy sea of life
‘Ihe tides may ebb and flow,
And angel hands their harps muy tune
To cheer my path below ;
But 1 ne’er hope, in life, again,
Amid the stern, cold hearts of men,
Such friend as you to know ;
For me you've labored, wept and prayed
And gently led me when 1 strayed.
adie to heaven I attain
And you have gone betore,
My mother dear, 2 know we’ll meet
Upon the shining shore ;
And though on earth I never find
Another friend so true and kind
Tili lite’s poor dream is o'er,
The lessons you have taught will come
To guide my earth-worn spirit home.
Howarp, PA., Dec. 5th, i863.
eee Al enn
‘For the Watchman.
WHAT IS IT WORTH?
BY JOE W. FUREY.
What is it worth—this human life,
For which men wildly pray,
And catch at straws, in eager strife,
To save their mortal clay ?
What is it worth—to live amid
The world’s remorseless cares,
With virtue’s rarest tr asures hid
Beneath the rankest tares ?
What is it worth? when Goodness tries
In vain to raise her head,
And Purity, affrighted, flies,
To seek the sainted dead !
What is it worth, (I ask ye men
Who live to buy and sell,)
To gain the whole of earth, and then
Sink down to endless hell?
What is it worth—when human hearts
Are lined with sordid gold,
And sympathy no love JEjuis
To natures stern and cold ?
What is it worth—when Truth and Right
Succumb to wrong and fraud,
And Justice, shorn of all her might,
Flies, ehrieking, up to Gon?
What is it worth ? in vain, my soul
The answer, trembling, waits ;
Lock’d is the Future's deathless scroll,
And barred its massive gates.
0! whitened head of hoary age,
0! youth with flowirg hair,
€an ye unfold the mystic page,
And read the secret there ?
And tell me what this life is worth,
This animated clay—
For what, a wretch like me had birth,
To plod my weary way?
A broken wreck upon the shore,
A waif upon the tide,
I mock the surges’ sullen roar,
And wish that Thad died!
For oh, my soul is deathly sick
Of human hopes and fears,
Of joys that vanish 2ll 0 quick
And leave a trace of tears.
'Mid all the chambers of the dead,
In life, or up Above,
No human soul hath ever plead,
For more of human love!
And now, I long to lay my head
Upon some faithful breast,
And there, ere yet the spark had fled,
My soul might find its rest!
BELLEFONTE, PA., Dec. 6th, 1863.
Wliscellaneous.
pes. The last news from Warsaw announ-
ces an increase of tke arbitrary rule of
Russia. Thousands of men and women
have been seized, stripped naked to their
skin, and whipped, Does this account for
the Muscovite sailors now in our harbor ?
ga A great fallacy that thisisa world
of change.
At what time of the day was Adam
created !—A little before Eve.
gay The largest room in the would is
THE CONSCRIPTION ACT.
THE SUPREME COURT OF PENN-
SYLVANIA DECIDES THE CON-
SCRIPTION ACT TO BE UNCON-
STITUTIONAL.
Henry S, KNEEDLER, ye bills equity
VS. and each ona
David M. Laue vs. same p motion in each
W. F. Nickels vs. same | case for special
| injunction.
OPINION OF JUSTICE THOMPSON:
The act of Congress under which the
~omplainant in this caseis required to enter
the army of the United Statesas a sol-
dier, for a period of three years or during
the war, provides for the enrollment, by
officers of the United States, of all persons
liable to do military duty, between the ages
of 20 and 45 years and classifies them, —
The names of ‘all persons thus enrolled.
were required to be put into a wheel. and
the requisite number for the districts with
a surplus of 50 per cent, for contingercies
were to be drawn thence, under the super-
vision of certain federal officers. Those
thus drawn from the wheel, if not exempted
from disability or otherwise. w Il be ccmpell-
ed to serve for the period mentioned,
or find acceptable substitutes, or commute
the service by the payment of three
hundred dollars.
Beyond all controversy this isa draft, or
involuntary conscription from the militia of
the State, without any requisition upon
State Executives, or upon officers in com-
mand of the mil tia in the State, and with-
out any reference to state authorities. Is
this enactment In accordance with the feder-
al constitution ¥ The answer to this ques:
tion determines the case, for itis not de-
nied that the complainant is within the pro-
visions of the act, and was drawn as and for
a soldier under its provisions. He must,
therefore, serve, 1f the act be constitutional
or seek exemption under some of 1ts provi-
sions,
Our jurisdiction of the case, T think is
plain. We have authority to restrain acts9
contrary to law,and prejudicial to the rights
of individuals, act of 16th June 1863. If
the act of Congress of 3d March, '63, under
ard by virtue of which the complainant is
holden as a soldier, and sought to be coerc-
ed info the service, be not ccnstitutional,
the custody of his person under pretence of
it, is con trary to law, and prejudicial to his
interests. The injury too, it the proceed-
ing be illegal, is undoubtedly within what
is denominated irreparable injury or mis-
chief,and hence the propriety of the specific
remedy An action for damages would per-
haps not be sustainable under a recent act
| of Congress, but if it should be, it would be
against parties who intended no injury, and
from whom on account of cbeying wha!
they supposed to be law, in conducting the
proceedings against him, bat little could
be recovered, although the soldier may have
been carried to distant places, from his
home, and may have naderg-ug great haed-
ship and vicissitudes. I dismiss this branch
of the case, with this short view ot it, and
with the additional remark, that if our
judgment 1s against the constitutionality of
the law, the case can be removed to the fed-
eral judiciary at Washington. if the author
ities there see proper, and be reviewed by
the Court in the last resort in such cages,
a thing which the President of the
United States has, on a recent occasion, ex-
pressed a wish for, and determination to
facilitate.
I now preceed to the main question. The
constitution of the United States defines and
enumerates the power of the General
Government, and limits them by the solemn
decfaration that ‘the powers not delegated
to the United States by the constitution,
nor prohibited by it to the States are reser-
ved to the States respectively, or to the
people.”
The government established by the Con-
titution, 1s, therefore, a limited Government
beyond the limitations of which, including
necessary incidents of expressly granted
powers, all excrcise of authority by Con-
gress is mere usurpation.
We should remember this in constructing
the Constitution. and we should remember
also, that the entire machinery of Govern-
ment, provided by it, was poised between
checks and balances designed not only to
prevent it from transcending its own orbit.
al limits, but to guard against aggressions
from other soarces. The objects to be at-
tained, as declared in the preamble must
also be kept 1n view, when we are called to
expound its provisions ; and we are bound
to construct it so as to preserve and advance
them all. The purpose as declared in the
preamble was to form a more perfect Un-
ion, establish justice, ensure domestic tran-
quility, provide for the common defence.
promote the general welfare and secure the
blessings of liberty to curselves and our
posterity.”
Each of these ohjects are supposed to be
secured by the Constitution, and no one
of them must be overlooked in a too eager
desire to lend a supposed efficiency to some
other. To do so would endanger the
whole. To ‘provide for the common de
fence 18 one purpose avowed {or establish.
ing the Constitu ions and the duty devolves
upon Congress to execute it ; but 1t must
not be executed in such a manner as to en-
croach on the paramount purpose of secur-
ing “the blessings of hberty ta ourselves
and our posterity,” also declared. This is
the room for improvement.
one instance to show that no legislation,
nor no construction can be valid or sound
which is not in harmoney with every provi-
sion of the Constitution.
In the light of these general and funda
mental principles, we must investigate the
grave questions presented by the bill of the
complainant now before us. And ‘here I
may express my regrets, that it did not
meet the views of the governwet official,
having in charge the law department for
this United S ates district, to appear at the
argument of this case, of which they had
notice, and give us the benefit of their
views and researches on the momentous
questions volved. It can hardly, I pre-
sume, be fairly attributable to a disregard
of what might be the ulumate judicial ac-
tion of the State on the question, or in con-
tempt of State authority altogether. What-
ever may have been the reason for the
course adopted, the magnitude of the ques-
tion involved is not at all diminished there-
by, nor is our duty most carefully to exam-
ine the whole case in all its aspects, the less
imperative.
Is the act of Congress approved march
3d, 1863, entitled **An Act of enrolling and
calling out the national forces, and for oth-
er purposes,” now familiarly known
as the Conscription Aci unconstitu-
tional ?
In order to provide for the common de:
fence and thereby promote the general wel-
fare, Congress has by the constitution pow-
er to ‘raise and support armies” and ‘‘to
provide and maintain a navy.” It was un-
der no extraordinary pressure of circumstan
ces or emergent necessity that this power
was granted. It was deemed to» be, aud
thereupon introduced as, a part of the or-
dinery machinery of government, the con-
vention acting on an aXiom as old as gov-
ernment itself, ‘“that the surest means of
avoiding war is to prepare for it in time of
peace.” Wiihout such a power, ‘it would’
says Story in his commentaries on the Con-
stitution, 1185, *‘present the extraordinary
spectacle to the world of a nation incapac-
itated by a constitution of its ewn choice
from preparing for defence before actual in-
vasion.”
1t was an crdinary power not superinduc-
ed by impending war. *<In the mild season
of peace,” says the Federalist No. 2, *‘with
minds unoccupied by other subjects they
(the cunvention) 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 countey,they presented and recom-
mended to the people the plan produced
by their joint and unanimous councils.” Is
there room for a doubt that under such cir-
cumstances, the mode in which to “raise ar-
mies” was to to be executed was the ac-
customed one, namely by voluntary enlist-
ment !
At the time this was the usoal mode of
raising and recruiting armies in Great Brit-
ain, and the people of this® country were
better acquinted with the laws, customs and
even habits of the people of England than
of those of any other people in the world.
Notwithstanding we had been at war with
them, and an angry spirit had been gener-
ated between the two countries yet itis a
notorious fact that their customs and laws
were generally adopted in this country, and
to this day continue to a great extent,—
Voluntary enlistments as by contract, was
the general method of raising armies there
and with us prior to and at the time the
Constitution was framed,
As this was the customafy mode, every
presumption supports the idea that this was
‘he only mode in the minds of the framers
of the Constitution. Indeed, it is a com-
mon law rule, that wien anything is direc-
ted fo be done without special instructions
as to how the act is to be performed. the
customary mode of doing it is supposed to
be included in the direction, We cannot
suppose that at the moment 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 be
incorporated into the Constitution as would
authorize Congress to fill the armies to be
raised by conscription, as though by the
agency of the press gang. This was no
more in the contemplation of the convention
than that the civil department of the Gov-
ernment 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 coercive, especial
ly as there were no limits fixed as to its
magnitude, that the Constitution would have
been ratified by the States This would.it
seems to me be preposterous. Without
such a thought once having been suggested
by the oponents of the Constitution, a stan-
ding army to be raised in the usual way,
was a source of many 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 di-
directly and openly destructive of the indi-
vidual liberties of those who were t> com-
pose it, and thatit might be extended to
embrace all the able-bodied citizens in the
States ! It required many numbers of the
ablest paper ever written on the Constitu-
tion, I mean the Federahst, to remove (ho-e
fears See Fed. from No. 22 to 28 inclusive
on this subject.
The constitutien was adopted 1n ignorance
certainly. of any such power 1f it does ex-
ist, and it has required the lapse of thre
tuarters of a century to develope its laten
evils, Tre iisual evidences dre all against
the idea, and I think something wore de-
monstrative will show that these evidences
stand not alone against it.
The power to raise an army by conscrip-
tion or coercion, (he words are nearly sy-
nonymous). A conscript is one taken by
lot from a conscription (or enrollment) list,
“and compelled to serve as a soldier or
sailor,” (Web. Dic. verb, conscript,” and
rests alone on the idea that the power is un-
limited, as to the means to be used, as well
as to the numbers of which it may be com-
posed. If there was no other power or
principle 1n the instrament to be affected iv
its operation by such a view, there would
be force in the idea. But the constitution
must be administered so that the whole
may stand in full force, unimpaired by any
particular portion. i
The limitation of a power may appear
otherwise than by express terms. Its scope
may be curtailed by the necessity to pre-
serve some other function necessary to co-
exist for preservation of the whole. One
object in framing the Constitution, as al-
ready 1cmarked, was to ‘perpetuate the
blessings of liberty.” It can hardly be
contended for by any one, that the execu-
tion of a power which would e!'ectually de”
stroy this object would be constitutional.—
Again, a power so exceuted as to destroy
the reserved rights of the States, could
hardly be claimed to be consti-utional.—
There are, therefore, limitations as effectual
as if expressed, ‘ul res magis valeat quam
pereat” is a maxim out of which this grows.
A limitation of this power was undoubt-
ly supposed to exist in the discretion of
Congress ; but that cannot be relied on in
this argument. To give it any force would
bz to allow the acts of Congress to be evi-
dence to establish the proper discretion of
Congress. This would be to argue in a
circle, and would prove nothing—we are
testing the acts of Congress, not by Con-
gress, but by the Const'tatioh. So, too, 1t
was supposed to exist in a time when no
more voluntary enlistments could reasonably
be procured, or wnen they might not be
procured rapidly enough. That this was
50 is demonstrable by the fact that the Con-
stitution provides for calling out the militia
when the army may not be sufficient, I use
this contingent expression because I look on
the army as an ordinary powcr, and ordina-
rily to be used, unless insufficiect for the
end in view, or the exigencies of the times.
llowever this may be, 1t is absolutely cer-
tain that the military forces of the govern-
went for all purposes, were to be the army
and the militia.
In the article of the Constitution contain-
ing the power to ‘‘raise and snpport ar-
mies,” and consecutive to that and other
war powers and as part of thew, is the
power to be found in Congress ‘lo pr. vide
for calling forth the militia to execute the
laws of the Union, suppress insurrections
and repel invasion #7’ “To provide for or-
ganizing, eriming and disciplining the mih-
tia, and for governing such part of them as
may be employed in the service of the Uni.
ted States, reserving to the States respect
ly, the appointment of officers, and the
authority of training the militia according to
the discipline prescribed by Congress,
The army to be raised and the militia li.
able to be employed in the service of the
United States, are the constituted military
force of the Government. They co-exist,
and must co-exist if the Constitution be ob-
ligatory. We sometimes employ volunteers
but they are merely a form, as they are a
part of the militia, and do not militate
against the idea of two species of forces. —
It is conceded that both may not be requir-
ed in any given case, but both must exist,
or rather the militia cannot be destroyed or
extinguished by an Act of Congress. The
Constitution forbids this by the positive in-
junction to provide for organizing, arming
and disciplining them. They are the security
of the States against the Federal Govern-
ment, and rheir only security ; for the States
themselves are not allowed to support ar
mies.
«It may safely be received as an axiom in
our political system,” says the Federalist
No. 8, “that the State governments will in
all possible contingencies, afford complete
security against invasions of the public lib-
erty by the national authority.” * LA
« I'hey can at once adopt a 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 Na-
tional authority, unless there be some mili-
tary force with which to resist it? What
resources ara there in a community, if all
the **abie-bodied men" may be absorbed in
the national forces? It will at once be
agreed, I think, in view of the constitutional
provisions cited, that the militia, the only
power of the States, must be maintained
intact, and that no system is constitutional
which extingnishes them. Let us inquire,
therefore, whether or not, the Act of Con.
gress of the 31 of March, 1863, known as
the Conscription Act, docs not in fact at-
tempt the complete demolition of the militia
of the States.
The preamble to the act sets forth the ex-
istence of insurrection and rebellion ; that
a military force is indispensable to suppress
it; that to raise and support which, ‘all
persons ought willingly to contribute.” It
18 therefore enacted, Sec. I, “that all able-
bodied male citizens of the United States
and persons of for:ign birth who shall have
declared on oath their intention to become
citizens in pursuance of the lars thereof’
between the ages of twenty and forty-five
years, except as excepted, are hereby de-
clared to constitute the National forces and
shall be hable to perform military duty in
the service of the United States, when call-
ed out by the President for that purpose.”
Then follow numerous provisions for classi=
fring them, for the lottery or draft of the
required number in each military district
the closing up of the wheel until again re-
quired, and the order and term of service,
not as militia men belonging to and officer-
ed hy the States, but as a part of the army
of the United States, raised and supported
under the clause of the Constitation which
provides for raising and supporting afmies
and to be officered by federal authority ex-
clusively.
Every able-bodied man in the United St’s
is by these provisions enrollod, ani declar-
ed to constitute the national forces. Th:s
covers the entire materiel of the militia in
tae Union. All able=bodied white men be-
tween the ages of twenty and forty-five
years, are liable as militia men in this Com-
monwealth, and it is believed that this is
about or near the standard m most {f not
all the other States. This act is broader,
both as to age and color, The specified age,
however amounts to nothing, for Corgress
by a very slight extension of power mn fix-
ing the standard could just as well have
made it to include all between the ages of
eighten and sixty, Let th power be once
established the right must follow, and in
this way every man in public or private life
in a State. between those ages, might be in-
cluded. No one is exempt ander the pres:
ent law but the Governor. All other offi-
cers, judges, legislators, representatives in
Congress, sheriff. magistrates, county and
township functionaries of every description,
if unter forty-five, are liable now to be
forced into the army or to commute by the
payment of three hundred dollars, or to fiod
substitutes. As it is, this would draw hea-
vily upon the public and necessary local of-
ficers—but if extended to the ages of eigh-
teen and sixty, as it could as readily be
made to do, it might include all, not except-
ing eyen the Governor. Can it be that the
machicery of our government is so incon:
gruous as to admit of this? Can ‘t for a
moment be believed that the frawers of the
Federal Constitution intended to create such
a monstrous power? One that would not
only absorb the military authority of the
State, but the civil also. This is exactly
the priveiple of this enactment and to a
great extent will be the practical workings
of it.
I hold that the act plainly and directly
destroys the militia system of the States, as
recognized in the Constitution, and the acts
of Congress ot 1792 and 1795. By its pro-
visions the militia are to be enrolled, as part
of the NATIONAL FORCES, another term, as
will be seen, for National armies, ard it re-
quires each individual so enrolled, to answer
and report himself, when drawn, to the mil_
itary officers of the Federal Government,un.
der the pains and penalties prescribed for
desertion. If this is not a taking possession
of the entire materie! of the militia, and
consequently the militia itself bodily, I can-
not comprehend the meaning or effect of
language.
The direct object of the act is to consti-
tute the National forces of the same mate-
rial as that which constitutes the militia of
the State, and for that purpose a federal en
rolment is made and portion so enrolled, and
drawn from the wheel and separately and
individually transferred to the army of the
United States to be commanded not by state
but by United States officers. They are
henceforth not militia men but regulars.—
They are to be carried into the army under
the power grantel to Congress “to raise and
support armies ;”’ not under that other
power which autliorizes Congress «to pro-
vide for calling out the militia to execute
the laws, snppress insurrection and repel in-
vasion.”” If called out in this capacity, it
would be done by requisition of the Presi-
dent upon State authorities, at least upon
State militery officers, aad then the militia
would come forth in organized bodies, not
as individuals, and be officered by State au-
thority. This is widely different from di-
recting the Federal authority to each indi-
vidual—to conscript him in his individual
‘character, and to compel him to serve not
with State contingents and under State offi-
cers, but under Federal cr army offizers.
In short, the provisions of the Act incor-
porates into the Federal armies, the entire
material constituting the militia, by direct-
ing their authority to them individuaily,
without a requisition on the States, and with-
out any power in any State to appoint a sin-
gle officer to command them, although the
entire force was, by the Constitution, to be,
when called into the service of the. United
States, under the military officers of the
State. Such an Act, disregarding such plain
provisions of the Constitution, is certainly
unconstitutional, if such a thing be possible
at all of any act of Congress, and this view
if correct, establishes conclusively the hmit-
ation of the power to raise and.su,port ar
mies.
Those enrolled and not drawn out of the
wheel at the first draft, remain subject to
be called out afterward. They are the un-
employed national forces, and are declared
| to be subject to be called into service un-
der the plan of the act for two years aite
the Tst of July succeeding the enrollment.
to serve for three years or during the war.
It is true when called into service, the act
says they shall be ‘‘placed on the same foot-
ing in all respects as volunteers including
advance pay and bounty, as is now provid-
ed by law.” I presume it is not meant
by this. that the conscripts are to elect
their own officers. But even if this were
50, it would be no less a deprivation of the
right of the States to appoint the officers of
their militia, and unconstitutional for that
reason,
As the enrollment or conscription into
the natienal forces for two years, although
unemployed, is nevertheless an iucorpora-
tion of them with the national forces, it isa
withdrawal of them for that poriud (rom the
control of the States. The act would fie
worth nothing if the States might resolve
that this should not be. The act of Con-
gress is supreme or it is nothing, If it be
sapreme then the enrolled men can be and
are directly under the federal authority all
the time, and thus every eitizen or enrolled
person, 1n or out of service, may be liable
to be controlled by military law all the
time, if Congress chooses.
One portion of the militia conscripted and
actually in the field, the balance conscript-
ed and not yet mn the ficld, but subject to
the military authority of the United States
where are the military and where is the Se-
curity of the States against being entirely
absorbed, and against invasions of the pab-
lic liberty by the national authority, which
the writers of the Federalist thought existed
in the militia 2 It 1s neitherin the field,
nor at home, it is abolished,
Apprehensions doubtless, or just such an
enactment as this now under consideration
superinduced the introduction of the Bill of
Rights by amendment and consent of two
thirds of the States, in which 1s the declara
tion that ¢:a well regulated militia being
necessary to the security ofa free State the
rights of the people to keep and bear arms
shall not be infringed.”
I contend that the act of Congress under
discussion, violates this declared right, by
absorbing the militia into the army, as con-
tra-dis-tinguished from the milit a; by tak-
ing all the material which constitutes the
wilitia and calling them out individually
without 1cquisition on the States. and
placing them under officers not chosen by
the States.
It disregards the organization of the muli-
tia altogether, not ouly in providing others
than militia officers, butin its total disre-
gird of State rezulations and exewptions.—
Heads of departments of the States, Judges
of the several courts, ministers of the gospej
vrofessors in co'leges, school directors are
exempt by our militia law. But the mode
adopted for calling out the forces of the coun-
try. disregarding the militia system, disre
gards all these. These were within the
militia i*self is overthrown by the Act in
qney tion, they fail with it. It is possible
that this power may be exercised, and the
States live through it, but although they
may not fall, their foundations wiil be fata-
ly sapped, and if the precedent remain, it
will in time become he authority for their
extinction.
The Cosstitntion authorizes Congress to
provide for calling out the militia to sup-
press insurrections and repel invasions.” —
During the whisky insurrection in this State
President Washington called upon the mi-
litia for this purpose, by a requisition on the
Governor, and in person comi.anded them
So the militia were called out from many
of the States during the war with Great
Britain, and in every instance a requisition
was made by the President upon the Gov-
ernors of the States. It is true that in 1814
the question was much agitated in Congress
whether or not, under the power to raise
armies, the militia might not be conscriptad
by the Federal authority. The bill whieh
proposed this had the sanction of high
names—but 1t differed much from thig Act
and was never finally acted on, beeause of
the termination of the war by the peace of
Ghent. The discussion on this bill was able
but partizan, and furnishes little aid to a
judicial examination, and hence I have not
recurred to it much in taking the view here-
in expressed, That a Government like that
of Great Britain may resort to conseription
to fill the ranks of her armies, and has done
s0 on many occasions, is no argument or
precedent for that practice under the Feder-
al Constitution, Even in England this is
far from the ordinary mode of recruiting
the army, and it will hardly be contend-d
that the exception to the rule will establish
a custom, by which to define the meaning
of the words ‘to raise and support armies,”
used in our federal constitution, so that ex
vi termani, conscription or draft, both invol-
untary modes, were thereby meant.
But the precedent would go for nothing in
this inquiry, even if the practice had been
cowmon in England, The difference be
tween the construction of the British and
Federal Constitutions is radical. In the
former, all governmental powers not ex-
pressly probibited to the government, may
be lawfully exercised. In the latter what-
ever power is not expressly granted is with.
held, There is no grant of such a power to
the latter, as [ have endeavored to show:
and no restraint upon it m the former, as
han,
Constirnticns, Between them (nat same
diftorence in construction exists. The gov-
ernmental powers of the States extend fo
all rightful subjects not prohibited —and
the national only to-such as are granted.—
It therefore does nst advance the argument
a step in favor of those who contend for the
constitutionality of the Conseription Act, to
point to instances in wh ch drafts have been
wade by State authorities. Militia duty is
compulsory in all the States. They are not
prohibited {rom compelling it any more than
from compelling the payment of the taxes,
It is in this way, and in thus way only, in
my opiniun, that the national forces can’ be
compulsorily raised ; that is to say hy a re-
quisition on the State authorities for militin
men in a just proportion to population.
Why have not the militia been called out
in the present emergency 7 They are com-
posed of the men the Araft proposes to furne
ish. They are to bs governed while in the
service, as Congress shall prescribe. They
may be reclaimed for ene, two or three
years, or while the insurreciion lasts; and
will become just as good soldiers in the one
character as the other. They are the con-
stitutional power for that purpose, if the ar-
my be not sufficient to effect thie object with-
out them. Why not employ them? “There
is but one of two alternatives,” says Judge
Story, «which can be resorted to in oases of
insurrection, invasion, or violent oppositioi
to the laws: cither to employ regular troops
or to employ the mnlitia to suppress them.”
[Story on Con. sec 1201.] Lf it be said that
the militia will be suflicient, which I deny,
with eqnal traning, I insist t iat the imper-
fection of the system is no justification for
the overthrow in part or mx whele; of the
Const tution.
There is 10 hivg on earth that f so much
desire as ‘o witness the suppression of this
enjustitiable and monstrous rebellion. Tt
mast be put down to save the Constitution,
and the constitutional means for the purpose
I believe to be ample, but we gain but little
if in cur (forts to preserve it when a: sailed
in one quarter, we voluntan!v rmpair other
portions Uf it. Its en irety is vital; it must
all stand, er 1t will ull fall ; it can nevir La
apportioned.
Believing that I have shown that the pow-
er ‘‘to raise and support armies” is limited
to voluntary enlistsments, and necessarily
so limited that the miliiia of the States may
remain in full force, I am impellel by no
choice of alternatives, to the conclusien that
as the Act of Congress transcends these
limits, and by force of law attempts to abol-
sh the militia, instead of calling on them
o suppress the insurrection now so wide
spread, T am of the opinien that the act of
Congress is violative of the Constitution of
the United States, and void.
1 most sincerely confess that it would
have becn a much more agreesble duty to
me to have been able at this time and at ail
times, to Inve given my full accord to che
the measures resorted to to restore the peace
ard ordor of our once happy country, but
looking to the Constitution, as the reasons
for its provisons, and then to the solemn
obligation which I have voluntarily come
under to support the constitution, I cannot
even at the risk of misrepresentation of mo-
tives, hesitate where the question 1s a judi-
cial one, t» express my unmixed convictions
as I have done, of the enactment in ques-
tion.
Standing recently on the gentic slopes at
Runnymede. memory sent a thrill to my
heart in admiration ot those old Barons who
stood up there and demanded from a tyr-
annical sovereign that the lines between
power and right should be then and there
di tinctly marked, and all my fee ling at
the same moment pail an involuntary tri-
bate of regard to the fidelity with which
their decendants have maintained what
they then demanded and obtained although,
often overshadowed by insurrection and
war. Our forefathers marked thess lines
in the Federal Constitution. I must
adhere to them. T cannot help it, and
while IT live I trust to Heaven that I may
have the strength to sy that I will ever
do so.
There is no legal authority, in my
opini nin the offizers of the Government
to hold the complainant against his cor=
sent, I am therefore in favor of enjoining
them as praved for until further hearing
and I agree to the same order in the other
cases.
ee rr elt eee tet.
PoLAND AND THE Sout. —Wha ever tho't
it possible that the descendants of a race
which Kosciusko fought tc take free would
vie in atfentions to the enslavers of hig
countrymeé®? Who ever dreamed that a
people, whom the calam ties of Greece could
arouse to an enthusiastic s' mpathy, could
wine and dine and fete the .opresentatives
of aland whose whole power is exerted to
grind aspiring Poland to the dust? Poland
asks only to be free and for the temerity 18
hewn asunder by collossal Russia; our
“leading men toast her sovereign, our wo-
men dance w.th her offi ters and soldiers—
for what? Because th express sympathy
with Poland would be seif-condemnation.—
To wish freedom fo the deserving Poles
would be treading on dangerous ground.—
That is why we wine russian officers and de:
tain her frizates in our ports. in order, that
each may have an ovation. Not we. not tha
people but the commant party. They who
seck to crush hberty at home, smile on the
succes: which attends such efforts ‘aoroad.
In praising them we roagnify ourselves; or,
if net, itis a fellow feeling which make us
this wondrous kind. An imperial despot-
the exercise of it proves.
Ths re vatk is equally applicable to the
difference between the State and Federal
ism and a republic wedded to the same
purpose : the crushing out of liberty with-
in their domint.ns! Think of it, you who
ever think, ~ Drsrere Mera.