Ctarfttl
D.W.MOORE. U,i:tft
0. B. GOODLANDEIt, f ditori.
PRINCIPLES, not MEN.
TERMS $1 25 per rmnni, if paid in clvonc9
NEWSEHIKS-VOL. IV. iC. ID.
VOL. XXXIV. WHOLE NO. 1703.
CLKAKFIKLI), PA. WEDNESDAY, NOVEMBER 25, 1003.
f 1
'JUSTICE
1
WOODWARD'S
OPINION
ON 1 11 K
UXCOXSTIWriOXALlTr
or THE
CONSCEIPTION ACT.
i
2 J. On the 3d dnv of March.
J 1803.' the, 'Congress of the Hi. iled State
t passed mi act lor "enrolling and culling
f . out, the Natiurul forces, arid for other pur-
'poses," iv i hell is commonly called iLeCon
j crilioj Law. The plui n liU, who me
citizens of .Pennsylvania, havo sot forth
I ,Uw act fully In their hills, and they noiu
. plain thai they have been drafted into the
juilitary service of tho Government in
I i pursuance of said enactment, but that the
ame is unconst ltutional and void, and
that the defendants, who are eng iged in
'executing tho act, huvo violated the rights
and arc ubouL to invade the personal lib
erty ot tho plairiiitl's, nr.d thereupon they
invoke the equitable interposition of this
.'ourt to enjoin the defendants against a
farther execution of the said art.
For the jurisdiction of thin Court to set
"aside an act of Congress as unconstitution
al, and to grant, the relief prayed for, I
refer Myself to the vieTS of the Chief Jus
tice in the opinion he has just delivered
in those cast s, and 1 cuuie at once to the
constitutional question.
- The act legins with a preamble which
"Yee'ites the existing insurrection and re
bellion against the authority of the United
plates, the duty of the Government lo
tuppress insjircction and rebellion, to
guarantee to each Stain a republican form
'of government, and to preset vo the public
tranquility, nd declares that for lh;se
inch purposes a mitnuiy mice is iimispt-n
subl, " It) raise rnd support which all
persons ought willingly l'i coniribute,"
and that no service is more praiseworthy
and honorable than th maintenance id
(tho Constitution and Union ; and then
go !s on to provide for the enrolling of ull
the able-bodied rntUc citizens of the United
Stale?, and persons of foreign birth, w ho
have declaied iheir intention lo become
citizens, between tho ages of tweiily-otio
and Ibny-tive years, and tTiese able-bodied
citizen? and foreigners, with certain excep
tions afterward enumerated, are declared
" tl.f ntit'i.'iiidtir.v.s," ar.d made liable lo
peilonn military duty when called out
by 1 1 1 o I'resideiil. The act divide the
country into military districts, correspon
ding with the congressional districts, pro
vider tor provost marshals ami enrolling
bosids, and regulates the details of such
draHs as the. 1'iesideiil shall order tu be
niaUe from the national forces bo enrolled.
The payment of SillM excuses any dratt
ed perso::, to that it is, in ellecl, a law
providing for a compulsory draft or eun
hiiplioi) of such citizens as ate unwilling
or uiotble to purchase exempt ice t the
nipulau-d price. U is the in ft instance,
in our bitory, of legislation forcing a
great public burthen on the poer. Our ,
.Stale legisl ilioii, which exempts men who
ore not worth more than f.'ld'J I'lOiu (uiying
Iheir -own debts, is in Ml iking contrast
with this I'onsci iption law, which devolves
upou ncfi men the burthen which be
long to Ilia whole " national forces'' and
to which "all persons otifdil willingly to
cin-nlnilc." Ibis, huAevvr, is an object
ion to ihe .- ii ii of the enactiiK rit lathei
tli.in to its constitutionality.
Tho dcsci iptioti of peisons to be en-iolled,ablc-bodieJcilizt;us
between twenty
one and forty-live years of age, is hub-lan-tially
Ihe dei-criplion of the mibtin as de
fined in ocr leiinsylvaiiiu statutes and
probably in the statutes of all the Slates.
The national forces, then, mean the mili
tia of lie States certainly inclu le the
militia of IVi.nsyUaiiia. '1 hi expression,
'national force.," is modern language,
when so applied. It is hut found in our
Constitutions, cither State or l'ed.;tal, and
if used in commentaries on the Constitu
tion, ati'l in hibtoiy, it will generally Lo
found applied to our land and naval
forces, in actual service to what may be
called our Mnlidin.' atniV. It is a total
miMiomer when applied to tho militia, for
.... ' . 'I'! .
the militia is a Slate institution. Ihe
General Government has no mililia. Tho
State militia, always highly esteemed as
one of the bulwark ol our liberties, are
recognized in the Federal Constitution, and
it is not in ihe pow er of Congress to oblit
erate them or to merge them in "national
Unlets lliore is more magic in
a name
lhan hn ever buen sui'posed, this con
script law was intended to act upon the
Rtu rnilitiii. flli-J our qaesliou 15
i i .t r Q bou ivnii'.ti' i( iiii-
AW" d I" ; the S Me"
""""' ...
1 rinnot perceive W h:il o1 etiii u tan oo
.i .u ;.,.....,.,,.. 1 r,r il,n oin stion
e omsiiou.
VI It r-11 iu ill 10 nisii uiou w 1 ...w 1 - - f
for surely it will not be argued Ibat calling
Ue militia national forces, makes them i become necessary to nu ine iu-.
something else than the mililia, If ' on-' governmental interference with popular
press did not mean to draft the militia ! elections will bo subversion ol the Lonsii
under this law, wheie did they expect to I tulion, and no constitutional argument
find the national loroet ? " All able-l od- can ansume such a possibility,
iexl white male citizens between the ages I Supposiu? then thnt the people are al-
Of iwenty-one and forty-Sve years, residing
in this State, and not exempted by the
laws of the Unite'' Stales," with certain
exceptions, constitute our Sih'.o militia.
Will it be said that the conscript law was
not intended to petal " thesef I
think 11 will not. Then if it dope touch,
and was framed and designed todrart this
erv c1s of citizens, no possible oljcction
. ., 1 . . . .r
cm be taken to tue sums umituiein vi
the question we hare to decide.
I llurefore repeat the question with
great confidence in ii iccuracy, h Con
gress the coiiKLitutionul power toimptesi
or draft into the military service ot the
United Slates, the militia men of l'euo
nylvaniiif This question hat to be answered by
the, Constitution of the United States, be
canse that instrument, framed by depu
ties of ihe people of tho States aud lati
fied and put into eflect by ihe Sdate
themselves in their rpctie corporate
capacities, delegate to Congrcsa all the
porcn that bod oan exerotse. Thoie
.delegations ore cither express or such im
H n-. .ir essemon in win execution
j licui ioijs us ire essenl
ui we t-A j.i c-f iijr utirgtittu powers.
' -l'i . I . . . . .
i nere are. mil inreo provisons in Hie
Constitution of the United Slates thai can
bo appealed to in support of this legisla
tion. In our ordinary editions ll.ey stand
numbered as clauses 13, 16 and 17 of the
vii section of Art. I. of the Constitution.
" 13. Congress shall havo power to
raise and support armies, hut no appro
priations ol money to that use shall be for
a longer term than t'o years.
10. Congress shall have power to pro
vide for calling forth the iniiiiia to execute
the laws of the Union, to suppress insur
rections Hiid rpel invnsiona.
" 17. Congress shall have power lo pro
vide tor organizing arming and disciplin
ing the militia, and lor governing such
part of tin ni as may bo employed in tho
service of the United Slates, reserving lo
the States respectively, the appointment
of the ollicers, and the authority of train
ing the militia according lo the discipline
prescribed by Congress."
" To raise armies" these are largo
words: what do they mean? There
could be no limi.Hlioii upon the number
or size of the armies to be laised, lor all
possible contingencies could not be fore
seen, but our question has no reference
lo numbers or sire, but to the ninth of
raising armies. The fraraers of the Con
stitut:on, ami the States who adopted it,
deliver) their ideas ot governinemt princi
pally from the example of Ureal Rrtlian
eertainlv not from any of the more impe
rial ant) despotic governments of the
eniilr What' they meant to make was a
morn tree Constitution than that of Great
llritian taking that as a model in soino
tilings- but enlarging tho basis of popular
rights in nil tespecls that would be con
sistent with order and stability. They
kner that the British army had genortilly
been recruited by voluntary enlistments,
stimulated by bounties, and that the few
instances of impressment and forced con
scriptions of land forces, had met with
tho disfavor of the English nation and
bad led to preventive statutes. In 17U4
and ugain in 1707 conscription bills were
uttenipled in Parliament but laid aside as
unconstitutional, liming the Americaii
revolution a s'alute, 10 Geo. Ill, C. 10,
permitted the impressment of " idlr and
disordeily persons not following Mny law
ful trade, or having some substance sutli
cient for subsistence," and lliis was as far
Knglish legislation had gon when our
Federal Constitution was planned. As
suredly the framers of our Constitution
did not intend to subject the people of the
States to a fystem ol conscription, which
was applied in the mother country only
to naurers and vagabonds. On the con
trary. 1 infer that the power conferred on
Congress waj the power to raise armies uy
Ihe ordinary English mode of voluntary
enlistments.
The people were justly jealous of stand-
inr. armies Mencd they look away tho
uu power from the executive, where, on-
der monorch'tcal forms, it generally re-
sides and vested it in the legislative do-
l uiltiient, in one branch ol which the
States have equal representation, and iu
Ihe oilier blanch ol which the people of
i. si,,i,. me directlv reptesenitd acoor-
flilllT 111 iheir numbers. 1 o theserepresen
latives of the States and the people, this
power of originating war was lommitled,
(,ut even in their bands it was restrained
by tl-e limitation of biennial appropria
tions for iho support of the armies they
niii'ht taise. Ol course, no army could be
raised or supported which did not com
mand popuhr approbation, and it was
ri -htly considered that voluntaty eniist
inenls would never be wanting to reciuil
Ihe laiiki of such an army. The war pow
er, existing only for the protection of tho
people, and letl as far as it was possible
lo leave it i" their own hands, was inca
pable of being u-ed without their consent,
and, therefore, could never languish for
enlistments. They would be ready enough
lo recruit the ranks of any army
.1 -....I ....... llw.ir unfAll.
they
deemed necessary to ineir suieij
Thus
the theory of ihe Constitution placed this ; tion, is not adapted io the exigoncie, ol
J ... .. ... ...i:.. .-, i . .. -.. ..
great power,
il-a n fiiinr ffiiveriKiiflniai
poweis, (lireilty upon me voiisriu ui mo
governed.
The theory ilrelf was founded n fne
and fair elections which are the funda -
....... r,i...
hiental postulates of the Constitution. It
ihe pationage auu ponei wi w,v b......
i .r ii.. .. ..
I ... i . i .... ... i l .-. ni.itirn
' popular elections, ihe nominal wprewn-
.111.1,. . ,
k iu i .inr oe emniieu iv, .iri4,t.
WHIM l v 'ij'-v .v
raul t fn-pn tfl I IV P9-
and then the armies
: wb ch may bo raised uny not so command
1 cot
the
u!...n: ;.fi.l.,s .. 10 Mtmet l ie neces-
ouoou rvmi-n...vv ... . - -
1 aa.iv reciuits. and then conscript law ami
1 hiv reciuits. ana men cousi.iii
j . . . . ,
other extra-constitutional cxj.ed cuts ruaj
I ays to be lairly represented in the halls
ol Congress, I maintain tuav i i-. novus
', injustice to them to legislate on tho a-
I sumption that any war honestly waged 101
constitutional objects will not always have
such sympathy and support irom me
people as will secure all necessary enlist
ments. Equally uriust to their iutelli
gence it is lo suppose that they meant to
f . .
confer on their servants the power to im
press ttieiu into a war which they oould
not approve.
When to these considerations we add
the ability of a great country, like ours, to
stimulate and reward enlistments, both
at home and abroad, by bounties, pensions
ana homesteads, as wen as tj political
patronepo in counties forms, we tee how
little necessity cr warrant there is for
implying a grant of the imperial power ol
conscription.
There is nothing in the history of the
Constitution nor in those excellent con
temporaneous papers, called the federal
iet, to justify the opinion that tbii test
power lies wrapped un in t he few plain
words 01 Ihe Mill clause, whilst tho Mi';
sequent clauses, concerning the militia,
absolutely foil id it.
II' the very improbable cute b mppo
sable, that enlistment into the Fedetal
armies might beoomo so numerous in a
particular Stale at sensibly to impair its
own proper military power, it is not much
more improbable that the States meant to
confer upon tho General Govet nment the
power to deprive them, at its own pleas
ure, altogether of t lie uulilaa, by forced
levies? Vel this might easily happen if
the power of ewiisci ipiion be conceded to
Congress. There are no iiitnUkioiis ex
pressed nothing to compel Congress lo
observe quotas ai:d proportions a uniting
the several States nothing to prevent
their raising armies: wholly from one
Stule, inking every able-bodied cili.-'n out
of it to the endangering, it not utter un
Uoing, of ull its uouieslic intcrcMls.
And besides, if wu conoede this danger
ous power to the language of the Mill
clause, wc destroy the foi c and tied ol
the lO'.h and I7lh clauses. We make the
ii tlrumcnt self-destructive, w hich is vio
lative of all canons ol coiintrucimn. Con
cress shall havo power lo provido for cal
ling lorth the uuliuu in the manner ami
subject lo the limitations prescribed in
clauses 10 & 17, and tin I'.fore 1 aigue Con
giess has not the power to draft ll.eur
Is an expressed rule of tho Constitution
logive way loan implied one ? ll'thel.'Uh
clause confers power to draft the militia,
the words of the 10th and 17lh are tliu id
les', that were ever written. But it'lho
loth conveyed only power to enlist volun
teers, then the subsequent clauses become
intelligible stand well with the K!ih, and
add essentially to the martial faculties ul
the Federal Government. Look at thoje '
clauses. Ihe militia are called lor in to
execute the laws of tho Union, suppress
insurrection and repel invasions, to be or
ganized, armed and disciplined bv the
Slate, but aeeniiliiig to the laws ol Con
gress, such part of them as may hi em
ployed in the service of the United Stales
ure to be governed by Uio President, ball
otlicered by the respective Stati . Now
this conscription law recites an "existing
insurrection aud rebellion " not lor culling
forth Ihe militia under the above .piovis
ions, but for dralting into tho seivtce of
the United Stales. The very case has oc
curred in which Ihe Constitution says Ihe
mililia shall be called out under Slate of
ficers, but Congress says they shall be
drafted in contempt of Slate authority.
Gen. Washington and the men of his day,
did not so read the Constitution, when in
suppressing tho whisky iusu miction in
this State, they paid the most scrupulous
regard to tho right! and powers of the
State. I nder l lie pressure ol a ieieign
W8Pt cons.tnpt hill was reported in i-on-
gress in LMd, but it did not pass, and if it
had, it would have been no precedent for
Ibis law. because we are dealing with the
insurrection, Mid insurrections are fpeo
ia'dy provided. When a Slate is called on
for iu quota of militia, it may determine,
by lot, ho of the w hole number of its cn-
i oiled militia shall answer the call, ami
thus Stale drafts are quite regular ; but n
Congressional llialt U supynu iaturrceUn
is an innovation thai has no waiunliti
the history or text of the Constitution.
Lilhcr such a law or the Constitution must
be nt aside. They cannot stand to
gether. And, happily, n i ill consequences can
flow from adhering to thftConstittition ;
lor the standing army of the Federal Gov- ally prescnocj uiereior, ue .im-.
eminent, recruited by enlistments in the ! articles of war. 1 believe the penalty ol
ordinary way, with Ihe Slate militia called j desertion t'.v U military code is any cor
f.,,.,1. i . ,1... (V.nuitniion are n1 nureal l.unislimenl court maillal ma;
force ouite t-ullicieiit to
r. . . . , i
subdue anv renei-,
lion that is capable of being subdued by
lotce of arms. Such a formidable toi ce,
wisely wielded, in connection with a pater
nal and patriotic administration 'f all "t it
er oor.stitot innal power, will ver fail I )
put down leiracloiy malc.intents, and pi e-
Berve peace anil good order Httiongikc
American people. T his conscript law,
Ihercforc. nol mnctioned by the Cvislau-
i lie i mM.u nor mteiv io navu Min.i aa usn
, war me.isuio.
j In its political bearing even, more than
, in its military aspects, it i vubvetsive id
1 tho Constitution and of tho rights of ciu-
H-ns Ihsl rlepend upon Statu authority.
A lew thomdils will tmike mm plain. It
is impossible to Biudy. our StaU and Fed-
eral Constitutions without soeiiu bow
:i. i. .3 ,n,.;.,0.l iX ei-..od
IIJMIIIIUSII IU." ''IHl 1 ,hrt ,i, .-.j,.,,-. -
and maintain the personal and rociai nguis
of the citizen the other to late care oi
his external relations.
Nature, education, property, honie.wife.
and children, servants, administration ol
goods and chattels after death, and a
grave-yard :n which Uicotata provides
civil authorities, and hack of them the
poisc'cvmittitui and ihe military, to make
the civil adimniidratioii cllectual. .o.v,
if Ihe principle be admitled that Congress
may lake away the State mililia, whodqej
not see that tiie ultimate and final securi
ty of every nun's domestic and personal
rights is endangero.1. To the extent dele
gated in the Constitution nobody ques
tions tha right of Congies. lo control the
State militia, but if lo the extent to which
this enactment goes, the 'states will tie re-
duced to the condition of mere counticof
agrem Commonwealth, and the citizen
of the State must look to the Federal
Government for Ihe enforcement of all hi
domestic rights, a well a for the regula
tion ot hia external telationi.
The citizens of Ihe Staler, need protec
tion from foreign foes and Indian tribes
peaceful intercourse and commerce with
all the world a standard of values and of
weights and measures that shall be com-
mrtn tn as 1 I lb Cl n I as anil A nnal
that shall be co-ext-nsive with interitaie
tmilA tA rnm mnrrA Tn ndiust anu
maintain these external relaticns of the
citireo, are high dutiei which the Consti-
tution hit committed to the Federal Oot -
eminent, and has furnished it with all
necessary civil funotionaites. and with
power to levy and collect taxes from the
people of the States, t-j raise and support
annies, to provide! a navy, ami to call
forth the mililin to execute the laws.
Thus is the Atnerietn citiz.'ii amply
provioed by means of constitutions that
are written with protection for all his
l ights. iMt'iral and hi I ilieial, domestic and
foreign, but, as the war power of the Gen
eral Government is his iltiiuate secur ty
for bis externa!, so is tho milnia hi- ulii
"uiHie security foi his iuLern.i! or dn.mes'.ie
lights.
Could the Stale Government strike at
Ihe wsr pow er of the l edei.il Government
without endangering every man's rights '!
In view of the existing icbdlioti, ho ni in
would hesitite ho-.v t i answer tins ques
tion, and yet is it. not equally upparciit
I that when too Federal Government us
Inrps a power over the Male militia which
I was never delegated, every (nan's doun-?-!
tic rights (ami thev tire those which touch
him most eli-elv) are eo i. illy endangered ''.
The great vice of tlm consciipt law is,1
i thai it is founded on an assumption that j
' Congress may take away, not the State,
i rights o Ihe citizen, bin ihe security an. I
I lound ilion of his State l ights. And how
long is civ. I lihoriy e. eetett 10 nii tun r
the securities of civil liberty Me destroy
ed. The Constitution of ihe United Slates
committed the liberties of tho citizen in
part to the Federal Government, but ex
pressly reset ved to the Mutes, mid the
people of the States, all it did not delegate
It gave the General Government a stand-
ing army, bu. lott 10 the .-slates ineir i.aiii
t in. Its purpose in nil this balancing of
powers were wise and good, but this legis
lation disregards these distiinitiotn, and
upturns t lie whole Fyric m of government
i when it converts the
"national lot cos" and
tale militia into
urns to use and
govern them as such.
I Times of rebellion, above all
! I lie times a lien we tdiouhl stick
others, arc
to our fu n-
id,iment.il law, lest we unit into iinareny
i.m ona lit ml. or into desi..tim on the
other
The "real fin of the present ic-
hellion consists in viomling t lie um. - litu -
lion, whereby every man's civil rights arc
exposed to sacrifice. Lldess the govcrt -
nteiil be kept on the ioiindrilnni ol the (.:un(s n sold er why did it not occur to
Constitution, tie imitate the sin ol the if:- fertile mind that Congiess could ren
bels. and thereby i neourago I hem, '.vln'tsl : ,i..r m;s ;5tinetion valueie-s and unniean-
we weaken and dishearten tho Iriet
1,1
constitutional order ami
The phiintills in these bills
government
nn eg jod i iglit,
l think, a; ciliztns ol l'enrj.-.) Ivanni, to
compl.iiii i.f tb act in question, nol only
on the giouuds l have indicated, but on
another, to which I will briefly allude.
The l-lh section provide? tnat the draf
ted person shall receive ten days' nonce
of the rendezvous at which bo is to report
for duty, and the l'Hh section enacts ' that
if he fails to report htnisfif in purstiatico
of such notice, without turni hing a sub
stitute or paying the required turn there
tor he shall be deemed a deserter, and
n 1 1 a 1 1 be arrested by the provost marshal,
and sent to the nearest miliuay post lor
trial by couri-marlial." The only qualifi
cation to which Ihn provision is subject,
is that upon pi oj cr show ir.g that ho is not
able to Uo military duly, Ihe boaid of en
rollment may telievc bun from the draft.
One of the coinpla.iiiur.s, Kne-cder, has
set forth the notice thai was teivod on
him in pursuance of ibis tecti on, nod by
which he was informed that unless he ap
peared on a certain dav lie would lie deciu-
d " a desert ei
uuJ oe suojeci io me pen-
...II,,., I r. III., 11 1. .!!.,
cinmw u nunv.., v,.. . - 3
put to death.
Can a cituen be mud? a descttcr before
he has b"t'tmu u tut diet '! lias Congress
the cops-iiutioiia. I'oaer l ) luthoiizo pro
vost niaisliins, alter dr iv. ing inu u.nm of
a Iiih mail troui a whee. ana sci ving linn
witli a ten days' notice, to seize and drag
iinu neioi c a cuu. i ........... -
uiihlaiy law T i hn que-lion leucnes the
hund..i ion ot pel s .nal lioerty .
1. I,,,,., l!., the. bari.ns ol r.P.iaiwt
m imm , ...
and tlieir retainers, "a nuinci ous 1
'""i
camped uprn ihe grassy phun of Uunny
mede," wrung fioin King John lhal great
Charter which declined, among other
riguls and liberties of Englishmen, thai
l "no Ireeimin mall oe ariesieu, or .uipns-
' oned, or deprived of bis fieeiiuld, or his
liberties, or free customs, or be outlawed
' or exiled, or in anv manner harmed, nor
L I
sill we (Ihe King) pi oeeed against htm,
lior 4'"l 7 any one ajatnst him Ijjjrec oj ur ns,
unless aecoruini: to Ihe sentence of Iiii
peers (winch includes trial by jury J or lliui
common law of England." Here was laid
theslrong foundation of the libei lies ol'j
the tace lo which we t-eoin-'. Ami l not
here, tor Maoa Charter f .led ti riguts,
but only leasserletl tnosc w hich exi ted
long befi.re at common law. Jt was I n
the most part, says bold Coke, merulv de
claratory of the principal ground ot the
rundaniciiliil laws ol Knuland. Fal back
ot Magna Chin n r. i.T me customs and
niaxims of our Saxon ancestry, those prin
ciples of liberty lay scattered, which were
galheied logcUel "in lhal immortal docu
ment, ahich four huiubcd years alier
wsrds were aiiam reasseiled mlwoottier
great declaratory statues, 1 he I etitit
Utght. ana "Ihe bill ol Kitlus
which were tramp anted into our IH
1 he Fetiuon ol
and
Declar
ation tif Independence, the bill or rights
to our Slate Constitution and tno Amend
nienia lo our Federal Consiitutiou, and
which have thus beca n the beiltageol
these plaintiffs. Says the 5lh Aaicie ol
the A roendiijeiil :
' 'j person shall be held lo answer for
a cspitui or otherwise infamous crime un
less i n a prereiilaltoti or indicl ment of a
grand jury, except in cases arising in the
laml or naval forces or in the militia wheH
in actual service in time of warorpublw
danger-'
' What is the cope of Ihit exception?
The land or naval forces mi-an the regular
military organization of the Governtneii I
tho standing nrmy and navy into which
citizens me introduced by military educa
tion, from boyhood or by enlistment?, and
become, by their own consent, mbject lo
the
ntlltarv r
xle mid liable to be liiod and
puni.-hed without an p the forms or sale-
guards of the common law. In like milli
ner tho militia, when duly culled out and
placed in "actual service," are subject lo
i he rules and i t icles ot war, all their com
mon law rights of personal free lorn being
lor tbf lime suspended Rjt when are
militiamen in netinil eeivii e VV Ken they
have been not i lied of a draft 't .fudge Sto
ry, in spi (i k ing of ihe aiiihoi ity o! '.'on
f'ess over the militia, s:(vv :
"The qursison when the authority of ; tend my opinion lurtber, I rebt nv objec
C'ongress over the mi'iiia becomes exel u-' ions lo its constitutionality upon tUt.vi
sive, min t cs.otitially depend upon the ! groiimlt :
fact when they me lo be deemed ii: the1 1st; Thai the power of ''ongress lo rat 'ft
actual service of the United Slates. There and suppo:t armies, does not include the
is a clear distinction between calling forth power to draft tho militia of tho e-L.P'
the militia and their being in actual set-1 2d : That the power of Congress tu ti'l
vice, flies? tu e not coiiteinpotaiK'OUsacls forth the militia cannot be exerc.sed it)
nor necessarily identical in their eonstitu-1 the te'tns of this enactment,
tionid leaning-. The Fresidei t is not! 3J : That a citicn of I'ennsylvania can
cnmmnii(bM-in chief of lb" militia, except j not be subjected to the rules and nn "''l
when in actual service; and not merely f of war, uniil be is in actual military service,
when ordered into servico. T.'it'v are 1th: That he is not placed in such sc. jal
iw'yiC'or' Id thurtiol live onl'i when in actual
Avi cici ji,1 nut ii'trrhi whet called forth, b'ore
liny .'? ub-ye.l the 'cull. The nets of 1795
and other nets on the subject manifestly
contemplate ami recognize this distinc
tion, j'u briny Ihe militia ivithw ike nmiuy
nf In'iiiii in thr act i. a! t.rcife there inu:,t Lean
' i.beilienee to the full, ami s me acts ' vryanizu
tinn, muftCitxi , rfiitlfzwius.
or tnarrnin'i dor.t in
eji''iricr t the Collin the pu'j'ic .vri;."--Story's
Con. Law, v'ol. Sec. lUOS.
1! it be suggested thai this plain luleof
common senso and constuuiional law is
not viobi'e 1 by the conscription an b -
I ciiu-e it bes to the. " nii'ionat lorees,
j i re lv lis beloii, that this is only a new
i panic for tlie tnilitiii. and that the con-ti-
twiiona: v
t
bts ot a cui.en aru nol to be
sac,-;! end to rn unconstitutional name.
When .luilgo Story win ndeavoring to
maik with so much distinctness tho tune
1 r; ahie'u the common law n. hls ot the
eiliAti censed and liability to military rule
, br.-nn the linv, in a word, when he be-
irni by. a new notnenclat ur? by calling
I t1(. niililia " national forces 7"' It U not
' , ill'ienlt i i roneeive bow such a siul'CS-
tion would have fared had it occurred or'
bein made to him. lint it isdilliculi, in
Ihe presence of the crave k-ues ot the
present day, to In at so I't ivolntis a sugges
tion with the dignity find forbearance the
oecasi 'ii demand. I have shown what
lights of personal liberty these plaintiffs
inherited Irom a remi.te aucFstry, and
how thev aie guaranteed io them by our
constitutions, and at what time they are
to give plao.' to tn irlial law, and mtcly il
a n heel set in motion by Congress can
eru.-h and grind those light' out ef c.'.iH
ence, w ill. out regard to the li:i)il;.t ions of
Iho Constitution, some wrightier reason
ahoii'd io found foi it tlMin the misnomer
which the act so studiously applies to ihe
militia ionin reason that deserve to
t'.atij instead of Magna Chart ri, out Con
stiluti..n and all cur iraditional fieed"m.
The only one that I have over beatd
snggisted, and which is applicable against
ad Ihe views advanced in thn opii.i on, i
called military necessity. The countiy is
involved iu agte.it civil v.nr which can be
brought to a close by an cnergelin it"' of
till out ro'ioitrces, t;nd no rcstiaiiit should
be tolerated, in such i ircum-t.auces, save
only those which christian civilization has
imposed on ail warfare. Whatever i.-according
lo the Constitution, the argument
fl.li.'iis, may be d r.e, of course whatever
is over and beyond the Constitution is jus
tified as military necessity, ami ot that the
l'i e.-i.len i and Com i e.-s are exclusive iiid
final judg' s.
l'tie aiiioiinl of thn atginneut is tlit the
exijoneies of the limes justify tho suln'ti
lulicn ol marital law foi the Cotit iuil ion.
lint what is maittal law ? llbickstone iiod
Sir Matthew Hale tel! us "it i built upon
no settle I principles, but is cut ii e!y ai bt-
Irary in its decisions, is in truth and real
ity no law, but something indulged rattier
than allowed as law." The unrestrained
will of one or a number of men, then, is
the rub which the argument substitutes
lor the Constitution. It is o
no con.-e-
quonce that ll ine win mus sci up r-r u
prerii bpv is thai of men whom a majority 1
of ihe people have chosen, beciuso aeoor-1
di.ig lo our i-js'.em the nv.j nty can only
choo.e men to a Lnmister io ihe C ui-titu-
ut-u as it is written. M i,;oi alt 's,j?
n-coc'iisad by la, hive u m ue
powef
igut to;
eslabli.-h a di-spitism lhati
mi. i n ity
s or ir.l-
, 1Vl)-: i 1 li av e. bunny m ij 1 1
inn ii 'e set a
prcsstiie rit re
e the onstiiut ion under
eliion unit in-'iirrecti'in?
As 1 1, ii t uiisiuuuoii a ul ic i pates and pro-
l ides tor such calamiiieo, il is it reproajh
to its wis loin, lo say lout it is inadequate
to such emetgMjele. No man .has any
j Intone d right to c.a-l this reproach upon
it. ,n cunt'ill expel lence proves n. it
never cm be proved except by an unsuc-ce-s.'ul
u-o of ihe legiinmue pi weis ot the
'Jontitiition agatnsi rebellion, and illeu
the thing proved will be ilmt tho ii-iru-liient
needs a liend oieiit, whifi its :ua
chinery is flexible enongli to a. low. i ieii
susti i iiieiaiiciioly deuxmslt it Mil w-o.j. l
d'J tit) tuoi e lhan point out neeesssioy
ameMdiuenta it ouid not tu reinler lht
people io Hie aibitrii'y will of anvb-ely-
Presidents or Congressmen ure mil.i
varus of Ihe people, lodo their w.ll, mi as
lhal Will llinv be expressed under pi-si .tj
or exclienieiit, bill at ll aiamU recrd-d
in the Con-ntution. It i " Constitu
tion indeed whK-h makstLem President
aud Congies.miui. Ti'-.v 've " nior
i.o.ver In Bel up Iheir will ug.tlit Ihnt.or
stituuon, than so many private cilizens
would bare. Outside ol that Ihef are
only private oitinen.
I do not, Iheieforn. feel li e I'm" f
argument drawn from lb ;.r.:
cumstances of the lime. Rid us tin
we make thorn worse, by ...lie itip.m;!
bitrarv power for ("itist itiuioi'.ii1 in. ,
if we made them I etter, or rot wor e,
judicial mind ou.'lit not lo bn ox-peoio -
approve the substitution, lor it can rec
nize no violation of the Cons' it u'.ioo r a.
legitimate vindication of the Constitution
To place rmtnelvfls under despotic swu"
outer to I rina, back rebels to the Constitu
tion we have given up, is a prvxieoure
that perplexes tie stiolenl of polnii-...
sc once, and will quite confound tbo uuio
rian (.f our times.
There are other fcaturei of the eonscrip'
law that deseive criticism, but not to ez-
(Servicowhen be, name has been U'ii""n
from a wheel, aud ten days notice thticoi
has been served upon him.
For I Iiceo reasons I am fnr grantiug tli
injunct ion.
A ltiETCRtND Woman Whipf"- T-.c
liuilingtoii (Vt.) Free Tress contain; tne
following :
"Considerable feeling has been ext! . 1
in tho town of Gcorpi i, by some devi l. ;
merits in Ihe cse ol a kv. LIr. Hv.nid,
who has been supplying the pulpil of
CongregatioDal Church thre fo' a y -r
last, who proves, it is nKedjed, to 1 ne
lieen in the practice of u'y kiokin
ar.d whipping hi young wifo. As r'i oi
led lo us, some t ighteen di-'tinct wbipp
ings were charged ag dnat him, w itbii thf
year, coupled with stopping his wile's '.
ters to her friends, locking up her c!ol! t
so thai she could nol lesyo the huusn, and
oil er unniarital and unmanly trealrttfttt.
This became a matter of tuch nctor'iety
ilmt the reverend woman iMaippcr vi -given
by some of tho young men of tb
town, tiie alternative of leaving; the place,
or of having a conveyance furnished hnu
from the neatest rail fonco. Iliscase wai
recently brought before tho Aspect"! ion
of Franklin county, bef-ire which, as wo
understand, ha asserted his rights, as tho
palriaehical head of bij family, to whip
iiis wife, but expressed penitence for the
extent to which ho bad exercised it. Wft
urn informed that the association found
him guilty of the utlenees charged, and
recommend him lo abato ths scandal on
the cause of religion by abandoning not
only his ' p;ui iarci.ical' practices, but also
the pulpit which ho disgraced."
IIaz L-t.Yl'.u W oiftv M.'j. Gen. Xoall,
aid, a hazel eve inspires ai nisi gi-nioe, a
Platonic Gibraltar. A woman with a hazel
eye never elopes from her husband, never
chats scandal, never saci dices her bus
band's comfort to her own, r.cvef talks too
little, is an h.telligent lovely and agreea
ble creature. We never knew, sav a bro
ther editor, of but ono hatrd eyed woman
w ho was uninteresting and unamiable, eu'i
she had a nose, as the Yankees sa , ti.-n
looked like the little end of nothing whit
tled down to a point. The gray is the sign
of greatness and talent. Great thinkers
have it. In women it indicates a hotter
head than heart. The ri nk hazel ii noblo
in its significance, as .Tell as its Lp.vjty.
The blun is amiable, but feeble. Thn
black take carel
lightning there.
iLere is thunder ancj
jtjrTh! government bakery at Alexan
dria is said io brt the birgrtst in thi world
Il can. and has. baked up five hundred
bat n !s of fl mr in twenty tour hours, bat
ordinarily works tip little more than half
that quantity. Its utni'ist capacity in to
tho number 'or loaves par day is one hun
dred thouand,but has never yet exceeded
eL'hlv-two thousand. Three bund.cd
hands are employer), who are divided inti
three forces, who alternately rolieve each
other like seri'inels, so that '.ha work goes
on day and night, without censing.
fey-The I" ran U fort Comn'viw:A:?il
Governor Brarnletle's orpiiiii, sitys;
" Wc may as well toll Mr. Stanton
that ho cannot recruit ncgiocs in Ken
tucky; tlio people and tlio authorities
will not povait it. Tho i nuotrliti jn
ul Union men nnd tho rtutlioritioi will
never submit to Hi" outrngc.
. ... . . . ii
, .
ftvvA friend r,f il soldier, who WS1
butloriipr 4'roru :t painful wowvl, fsid
to lti nt tho other day ' Wull, Tom, dq
j-ou fool liko going; back to tho u"ii. jf
when your wound well t"
'N'o, not utiles.-, I could o a.' a r.i
gjr or a Brigadier (i( nornj."
etjrSnj-s tlio Louisville ,hvmftl
We don't know that the '
.7.
nt
can rniso IJJO.iKiJ ne.v v
ho can iilaco Buell "'
11 I 'I
the field, mi'l t'bit
half tho numb, r-
W i u , I
r-.""fio"
li.jsecnins :r
tin: ndmii"-lf
de 111 lied bt
makes an I u
ai 1 cVe: o !
bi'.iiico in tii
. I-
I"
.v ,i 1
Uiliiiiko u'Iiih ii-sli ut'iiH ' .-I'e.c
tiirlt lia.s been tit-Ml -
n 'It' ;.
nre th eiieraliiu. le c-j
li'.'O UH bili as loo d.ij
: to .'. ... l;l .'. 1
Oi Jsfi I' I-
lah. But nobody can ailord
ItMijj at the cu front prices.
t live