COLUMB
DEMOCRAT,
AND BLOOMSBUKG GENERAL ADVERTISER
LEVI L, TATE, EDITOR.
VOL. 17. NO, 38.
"TO HOLD AND TRIM TUB TOItOII OP TRUTH AND WAVE IT O'ER TIIU DARKENED EARTH."
TERMS : $2 00 PER ANNUM-
BLOOMS BURG, COLUMBIA COUNTY, PENN'A,, SATURDAY, NOVEMBER 21, 1863,
VOLUME 27.
A
POETRY.
Ago and Youth.
Pprltig was busy tu tha woo.llanJi,
Climbing up from peak to peak,
Ai an old mini sit ami brooded,
Willi ft flush upon till check.
Many yearn pressed hard upon him,
And Ills living t r iiMi (1 uere ft it,
And from out tho .ombro foaturo
Troubles drifted into view.
There I. something moves us strangely.
In old rutin gray with years ;
Yet thcru'a something far moro touching
In an old faco ml with icarj.
Ani ho at there, sadly sighing
O'er his feebleness and wrongs,
Though tho birds outside his window
Tnlkwilof summer In their songs.
Hut, behold t a rhango enmcs o'er 111 in '
Whcro ore nil his sorrows now 1
Could they leVvo his heart ns quickly
As th a gloom clouds left his brow I
Up the green slnpo of liis garden,
I'.nt I lie dial, he has run
Tliri'o young girls, with brlcht eyes thinlng,
I.Ike thclrbrown beads, in the sun I
There was fanny, f.uncd for wis loin :
And fair Alice, famed for pride ;
And une that could say ".My uncle," f
And said lltt.o else beside.
And that vision startled memories.
Tint soon bid nil scenes of strlfi",
Pending lluo.ls of hallowed siinshina
Through the rugged rents of life.
Thonthey took him from his study.
Through long lanes nhd tauglod bowers.
Out into the shaded valleys,
ilichly tinted o'er with iluwcn.
And ho blessed their merry voices,
Hinging run ml him as he went,
I'or the sight of their wild gladness
filled his own heart with content.
And that night tlrc came about him
far-olf mentions pictured fair, '
And old woods in which he wandered
Kre he knew the name of care;
And ho said ; "Tiienu ngul faces
Take the u hlmocss from one's hair."
THE CONSCRIPTION ACT.
The Supremo Court of Peuiisylyania
Decides Hio Cuuscripliou Act Uncoii
Miluliojial. Oq Monday, November 9th, 1S0U, the
Supremo Court, sitting nt Pittsburgh, Pa.,
rendered a decision in tho iunttur of tho
application of threo drafted men belonging I .
to Philadelphia, who hied Hills in Equity
to tost tho Constitutionality of tho Con
scription Aft, The applications were for
iujuuctiotis to restrain tho Government
officers from sending tho complainants
into the military service. The Court de
cides tho Act of Congress uuoonstitulionnl,
ami grants preliminary injunctions in each
case.
Kncedler vs. L'tne, ami others. Smith
vs. Lane and others. Nichols vs. Leh
man and others.
01'IXIOX OF CHIEF JUSTICE 1,0 Wit III.
These aro three bills in equity wherein
tho plaintiffs claim relief again.-t tho de
fendants who, acting under the Act of
Congress of the 3d of March last, well
is suro to bo driven into inaasurcs which,
in tho courso of a few years, aro condem
ned and pass away. With a sort of moral
polarity, thu extremes of social cxcitemoiit
breed each other, aud moderation falls,
for a while, powerless bctwoon them, aud
usually it is only by severe social trials
that this condition of society is remedied,
antl then it is discovered what were tho
purposes and ideas to which tinduo prom
iuence had been given, to tho disturbance
ot tiio ortlor unit harmony of the State.
have subjected it to somo mlo of equality
or proportion, and to somo restriction in
favor of Stato rights, as thoy havo done in
other oases of compulsory contributions to
Federal nccossitios. Wa are forbidden by
the Constitution from inferring tho grant
of this power from its not being ounumor
ated as reserved j and tho rule that what
is not granted is reserved operates in tho
satno way, aud is equivalent to tho largest
bill of rights.
No doubt it would bo unreasonable to
On this nucation woou"ht to be able toi sunnoaa that (J
avoid this vice, which is so common in all I natural rights as to tako such an advan
moral and political reasoning; for our ap-j tage of tliis want of regulation of their
poal is to tho Constitution, a written stan- power, as that above iiulioatedj but tho
dard, adopted by us all, sworn to by many lathers of tho Constitution did prcsumo
of us, and obligatory on all who exercise
tho rights of citizouship under it, until
they can sccuro its alteration in a regular
and peaceablo way. By that standard
alono nan wc try this act, Is it author
ized by tho Federal Constitution ?
That Constitution, adopting our histor
ical experience, recognizes two sorts of
military land forces the militia and tho
army, sometimes called tho regular, and
sometimes the standing army and dole
gated to Congress power ,lto raise and
support armies'' and "to provido for call
ing forth tho militia to execute tho laws
of the Union, suppress insurrections aud
repel invasions." But though this act of
Congress is intended to provide means for
suppressing the rebellion, yet it is appar
ent that it is uot lounded on the power of
''calling forth tha militia'' for thoio who
are drafted under it ha-vo not boen armed,
organized and disciplined under tho militia
law, and aro not called forth as militia
under Stato officers as tho Constitution re
quires. Art. 1, 8, 10.
It is, therefore, only upon the power to
raise armies that this" act can bo founded,
and as this power is uudisputed, tho ques
tion is made to turn on the ancillary pow
er to pus "an laws which shall bo neces
sary and proper" for that purpose. Art.
1, 8, 18, It is therefore a question of tho
mo'lc of exercising tho power of raising
armies. Is it admissible to call forced re
cruiting a "necessary and proper" tuodo
of exercising this power ?
The fact of rebellion would not seem
to make it so, because lbs inadequacy or
iusufficiincy of tho permanent and active
torccs ot l tits Government lor such a caso
is exprvs.ily provided for by the power to
call forth the usually dormant forco, the
militia; and that, therefore, is tha only
remedy allowed, at least until it has boen
fully tried and failed, according to the
1 maxims, rxpressio unius est ezditsio alter
! ius, and expressum fucil cessare taciturn.
' No other mode can be necessary and pro
per so long as a provided mode remains
! untried ; and tho force of theso maxims is
, increased by tho express provision of the
Constitution, that powers uot granted aro
reserved, and nono shall bo implied from
tho enumeration of those which are reser
ved. Amendments 9, 10. A granted rem
edy for a given cause would therefore seem
to exclude all ungranted ones. Ur, to say
the least, tho militia not having hcen cal-
kuown as tho Lonscnption Act, claim to led forth, it does not aud cannot appear
coerce utc pimuuus vu uuiur mo army oi that another mode is necessary tor sup
tho Uuited States as drafted soldiers Tho pressing tho rebellion.
claim ot the plaintiffs is founded on tho
objection that that act is unconstitutional.
Tho question is raised by a motion for a
preliminary injunction, and might havo
boen heard by a singlo judge. But at the
rcquost of our brother Woodward, who
allowed the motion, aud on account of the
ireat importance of the question, wo all
agreed to sit together at tho argument.
But wo arc very sorry that wo aro left to
consider tho subject without thu aid of an
i And it seems very obvious that a do
pnrturo from tho constitutional modo can
not bo considered necessary because of
any defect in tho orgmizatiou of the mil
ilia, for Congress has always had author
ity to correct this, anil it canuot possibly
that somo such things aro possible, and,
therefore, they would havo regulated tho
modo, if such a mode has been intended.
It needed no regulation, if all recruits were
to bo obtained in the ordinary way, by vol
untary enlistments.
Our jealousy of the usurpations of dotn
jncntpartios is quite natural, and has been
inherited through many generations of ex
perience of cavalier and roundhead, court
and country, whig and tory, partios, oach
using unconstitutional moans of enforcing
tho measures which thoy deemed cssontial
or important for tho public wclfaro, or of
securing their own powor ; and the lath
ers of tho Constitution had experienced
such usurpations from the very beginning
ottho reign ot ucorgo 111, and wore not
at ail inclined to grant powor which, for
want of regulation, might possibly become
merely arbitrary. They had had no ex
perience ot forced levies for tho regular
army, except by tho States themielvcs.'.ind
it seems to mo they did not intend to
grant s'ueh a power to tho Gcnoral Gov
ernment.
Besides this, tho Constitution docs an
thorizo forced levies of tha militia forco of
tho State in its organized form, in onso of
rebellion and invasion, and, on the prin
ciplo that a remedy expressly provided for
a given caso excludes all implied ones, it
is lair to infer that it docs not authorize
lorccd levies in any other case or mode.
Tho modo of increasing tho military force
or the suppression of rebellion being given
in tho Couhtitution, every other mode
would seem to bo excluded.
But even if it bo admitted that the reg
lar army may be roeruitod by forced lev
ies, it docs not seem to mo that thu consti
tutionality of this act is decided. The
question would then tako the narrower
form. Is this mode of coercion consti
tutional J
It seems to mo that it is so essentially
incompatible with tho provisions of tho
Constitution relative to the militia that it
cannot bo. On this subject, as on all oth
ers, all powers not delegated are reserved.
This power is not expressly delegated, aud
cannot be. impliedly so, if incompatible
with any reserved or granted powers.
This is not only the express rule of the
Constitution, but it i3 necessarily so ; for
wc can know the extent to which State
function wore abated by tho Federal
Constitution only by tho express or neces
sarily implied terms of the law or compact
in which tho abatement i3 provided for.
And this is tho rule in regard to tho com
mon law ; itisehonged by statute only so
far as tho expression of tho stauito re
quires it to be.
Now, tho militia was a Stato institution
before tho adoption of thoFedcral Consti
tution, and it must continue so, except so
. I J I I
fouud new powers in its own neglect of far as that Constitution changes it, that
duty. Most ot the Presidents havo repeat
edly eilltfd tho attention, of Congress to
this subject, and yet it lias never been
adequately attended to. I do uot know
vided by tho Constitution, and substitutes)
a now and unprovided one. Or rathor it
takes that very Slato force, strips it of its
officers, despoils it of its organization, aud
reconstructs its elements under a different
authority, though under somewhat similar
forms. If this act is law, it is supremo
law, and tho States can havo no militia
out of the class usually called to militia
duty ; for tho whole class is appropriated
as a national forco under this law ; and no
Stato can raako any law that is inconsis
tcntwith it. The Stato militia is wiped
out if this act is valid, except so fat as it
may bo permitted by tho Federal Govern
ment. If Congress may thus, under its
power to raiso armies, constituto all tho
Stato militia men into ''national forces"
as part of tho regular army, and mako
them "liable to porform duty in tho scr
vico of tho United States when called out
by the President," I cannot seothatitmay
uot require from thorn all a constant mili
itary training under Federal officers as a
preparation for tho greatest officicnt when
they shall be so called out, and then all
tho State militia and civil officers may bo
put into tho ranks and subjected to tho
command of swob officors as tho President
may appoint and every one would then soc
that tho constitutional State militia be
comes a moro name. Tho Constitution
makes it and tho men in it a national force
in a given contingency and in a proscrib
ed form but this act makes so irrespective
oi the constitutional lorm and contingen
cy. This is the substantial fuel, and 1
am no', able to rcjinc it uioay.
And itscoms to mo that this act is un
constitutional, becauso it plainly violates
tho Stato systems in this, that it incorpor
ates into this now national forco every State
civil officer, except the Governor, and this
exception might havobcen omitted, and ev
ery officer of all our social Institutions,
clergymen, professors, teachers, superin
tendents of hospitals, &c, into common
soldiers, and thus subjects all the social,
civil and military of the States to tho Fed
eral power to raiso armies, potentially
wipes them out altogether, and loaves the
States as defenceless as an ancient city
with its walls broken down. Nothing is
loft that has any conslilional right to stand
beforo tho will of tho Federal Government.
If this be so, tho party in power at any
time holds all State rights in its hands.
It is subject to no restraints except that ot
the common morality of tho time and of
tho party, and every one kuows how woak
and changeable this is in times of popular
excitomont, when the party in power, con
vinced of the Tightness and greatness of
its own ends, thinks lightly of tha modes
and forms that in any way obstruct or
retard their attainment. There aro no
constitutional restraint of this power, if it
exists, and therefore, if the unsteady mor
ality of party excitements will bear it, the
party in power may require all tho troops
to the drafted from tho opposite party or
from States and sections where it prevails.
Our fathers saw these dangers, and in
tended tho Constitution to stand ns a re
straint upon party power. They know
that a party in power naturally encroaches
upon every institution that obstructs its
will, and is inclined, when its power tot
tors, to adopt cxtromo, unususl and un
constitutional measures to maintain it ;
and they intended to guard against this.
Thoy knew how Episcopalians, indepen
dents and Presbyterians, cavalier and
roundhead, court and country, whig and
ly disposed of in opposition to public liber
ty and tho control of tho militia so at
tempted to bo usurped as to produce a
revolution that resulted in the execution,
of Charles I. But it seems to me that all
this experience was lost, in rotation to a
most important power, if tho wholo Stato
militia system can bo set asido by tho Fed
eral Government at thu very timo when it
ought to net with with most vigor, as is
done by this Act, All this clearly shows
how little rclianco can bo placed upon
moro partisan morality in political affairs
and how necessary it is to havo an ac
knowledged standard, such as the compact
ol the Constitution, by which it is to be
moderated and tried.
In England tho popular jealousy of
powor was usually directed against the
party which was ordinarily represented
by tho lung, becauso ho was a permanent
authority ; but in this country, in tho act
of framing the Federal Constitution, it
could bo directed against no other power
but that which tho pooplo were then erea
ting, or tho paties that woro suro to con
tend for it, and history tells us that tbi
joalousy was intense aud watchful, and it
was perfectly natural and inevitable that
it should bo so. Status as well as individ
uals, arc careful in putting themselves un
dor tho power of others. That was tho
power to be feared in its relations with tho
States, and I know not how it is po3siblo
to suppose that under tho power to raiso
armies thoy were really giving up their
wholo militia system at tho time when it is
most needed, to bo the instrument of a sus
pectcd power, a federal party in powor
always prone, whatever bo its name, to
place its respect-for tho tinio-honorcd doc
trine3 of constitutional liberty in subordi
nation to tho intemperate, and therefore
nfluonco, but it has no real valuo in ascor- i legisluto has never been regarded as pro
tainiuc truth, forcvon bad men may have venting actual Stnto legislation. And tho
many correct principles. It was not danger of conflicts between Federal and
for opposition to Mr. Monroes plan that
nrgumcnt on behall ol tho Government, by why it might not havo been performed j
the proper icgai ouicers oi. tuo uovcrn- sjuo this rebellion cc
nicnt having deemed tueir duty not to ap
pear
For want of this assistance I cannot feel
such on entire conviction of tho truth of
my conclusions as I would othorwiso have,
for I cannot be sure that I havo not over
looked some grounds of argument that aro
of decisive importance. Hut tho decision
aow to bo made is only preliminary to tho
final heariug, and it is to bo hoped the
liews of thu law officers of tho Govern
ment will not then be withheld
Wc havo, however, a inuoh greater dif
ficulty in the decision of this question, and
one that is quite inevitable. It is founded
on the fact that tho question has brcomo
a question of politics, and tho great par
ties of tho country have divided upon it.
People havo not awaited tho decision of
tho courts on tho subject, and could not bo
expected to do so ; but havo studied and
decided it for themselves, or havo rallied,
Id opposing ranks, in support ot leaders
commenced, aud vet
do uot know that it could.
Though, therefore, this act was passed
to provido means for suppressing tho re
bellion, vet tho authority to pass it does
not depend on tho fact of rebellion. That
fact authorizes forced levies of the milita f
under their own Slate officers, but not fori
tho regular army. j
But it is not important that Congress
may have assigned an insufficient icason j
for thu law. If it may pass such a law for ,
any reason, we must sustain it for that
reason. The question, then is may Con-.
' gross, independent of tho fact of rebellion
! - i. r i 1--! : 1 -
or invasion, uiaiiu iuiccu iuvius in muci iu
recruit tho regular army I
If it may, it may do so even when no
war exists or threatens, aud mako this tho
regular mode of recruiting ; it may disre
gard all considerations of age, occupation,
profession and official station ; it may tako
our Governors, legislators, head of Stato
Departments, judges, shonlis and all m-
ofton disingenuous zeal for party success
In great political commotions, liberty is in
its greatest peril ; becauso, neither party
knowinrr how to cive or to receivo those
reasonable concessions or that generous re-.
spect that is necessary to restore peace, tho
occasion demands force & alarm or excite
ment gives it an undue measure, which in
creases tho resistance, aud consequent
ly tho excitement or alarm aud tho force,
until all tho bulwarks of constitutional lib
erty are passed or swept away.
If Congress may institute the plan now
under consideration, as a necessary and
proper modo of exercising its power "to
raise and support armies,'' then it soems
to me to follow with moro forco that it may
tako a similar modo in the exercise of other
powers, and may compel people to lend it
their money ; tako their houses for offices
aud courts ; their ships and steamboats
that Convention bcoamo notorious.
Even their denunciation of it soems in
tended as a prefatory apology for their
other schemes ; for it was not prepared
until two months after tho plan had been
virtually abandoned by tho report of Mr.
Gilo's plau to tho Sonato. Tho condom
nation of tho Hartford Convention was
founded mainly on tho undue and selfish
prominence which it gavo to, and tho agi
tations it raised in favor of its own sec
tional interests, when tho country was on
gaged in a dangerous war its oppsition to
tho admission of new States, for foar of
losing tho balance of power its demand
that negroes should bo considered part of
the militia its opposition to person of
foreign birth being allowed to hold office
and to its real or supposed intcntiqn to
produce a secession of tho Eastern States,
if it should not succeed in its measures.
Their views, therefore oven by inversion,
or ad invidiam amount to nothing in favor
of this law,
On tho subject of our authority to hoar
suoh a case, 1 must infer, from tho refusal
of tho Federal counsel to appoar, that it
is denied ; and I express my views as woll
as well as I am ablo without that assist
ance which I think they ought to havo
rendered
No one denies that a Fcdoral, as well as
a State officer, acting without constitutional
authority, to tho injury of any one, is lia
ble to bo sued for his acts in tho State
courts, and I am quito unablo to discover
that there is any distinction in such cases
between preventive and redressivc rorae
dies. As at present advised, i cannot
doubt that the Stato courts, having author
ity to determine the right in such cases in
the first instance, thoy may cxcrciso it ao
cordiug to any known remedy that suits
thu case, lcdal or equitable
No ordinarily well educated man can
doubt that, independent of tho Federal
Constitution, such universal lundicial pow
er is inherent in tho States, and might by
them bo assigned to their judiciary, as it
is in our btatc in tho authority to enjoin
against all acts contrary to law and pre
judicial to tho rights of individuals: and
therefore, this power romains to tho States
unless it is taken away by direct prohibi
Hon with the 1'cderal system.
No one that I know of protonds that it
has been directly taken away. Indeed
so far as tho Constitution itself goes, it is
expressly left to tho States and therefore
to tho Stato courts ; for the Constitution
for the navv : thoir laud for its fortresses : ! actually institutes no court but tho Su-
their mechanics and workshop for the dif-1 preme Court ; aud it gives to it no original
fereut branohes of business that arc needed jurisdiction oxocpt iu cases where a foreign
for army supplies ; their physicians, min-i ministor or consul, or a State is a party,
isters and women for army surgeons, ' For all other case3 within the Federal
chaplains, nurses and cooks : their horses power, it gives only arJpellato jurisdiction
and wagons tor their cavalry and lor army And, as thero may ue no other man stato
State authorities is not different in it
character from that which may arise be
tween different departments of tha same
Government, and leud to results that aro
quito insoluble. Mutual trust and rospeot
and a oarcful adherence to tho Constitu
tion, can' alono savo us from such difficul
ties. It is with very real distress that I find
my mind forced into this conflict with, ad
act ol Congress of such very great impor
tance in tho juueturo of Fcdoral affairs ;
but L cannot help it. Possibly, and tha
question is bo presented that I cannot
vauo it, an arrangomcnt from the counsel
of tho Government might havo aavod mo
from this, it it is an error; and it may yok
produco a different result on the final hear
ing, which i trust will take nlaco so soon
that no public or privata injury may arise
from any uiisjudgmcnt now and heroj
Certainly, in this great struggle, wo owJ
nothing to the rebels but war, until thoy
submit, unless it bo that we do not let tho
war so depart from its proper purposes as
to forco them to submit to a constitution
and system different from that against
which they havo rebelled. But wa do owo
it to each other, to minorities and individ
uals, that no part of that sacred compact
of Union shall becomo the sport of parti
san struggles, or bo subjected to tho an
archy of conflicting moralities, urged on
by ambitious hopes veiled in tho back
ground. Our solemn oaths and plighted,
faith havo made that compact the shield of
state constitutions, institutions and pecu
liarities, and of their right to their own
tree development, against all arbitrary and
intermeddling action of tho central Gov
ernment (which in all lrce countries ropro
sents a party), and I venture to hopo that
mac smeiu win continuo to auoru hi inten
ded protection.
What I havo written, I havo written un
der a very deep sense of the responsibility
imposed upo n mo by my position, and
with an earnest desiro to bo guided only
by the Constitution. Very many will bo
dissatisfied with my conclusions, but I
submit to tho judgment of God, and also'
to that ot my fellow-citizens when tho
present troubles shall havo passed away
and are folt no more.
I am in favor of granting the injunction
in favor of each of the defendants for hii
own protection, but not for tho staying ot
all proceedings under tho act.
ORDER.
Nov. 9, 18G3. Preliminary injunotion
(in oaeh case) granted for the protection
of tho plaintiff, on his giving bond with
urity to bo approved by tho Prothonotaryf
in tho sum of S500, according to law, and
refused for any further purpose.
who profess to have studied it or havo done , ferior officers, and all our clergy and pub
so. Our own history shows that our courts ' lie teachers, and leavo the Stato entirely
havo no moral authority adequate to disorganized ; it may admit no binding
being such divisions into unity, That I rule of equality or proportion for tho pro-
tort oi autnoriiy requires a mucu larger iccuuii ot iiiuivmuuis, oiuius uuu sucnuiu,
degree of mutual confidence between the
courts and tho people than is usual in our
experience, cspeoially iu times of popular
excitement.
All men believo themselves impartial in
tho decision even of party questions, and,
therefore, it is impossible for them to
abandon their decisions on the rocro au
thority of any ono, unless whon thoy fcol
that authority to bo final. Partiality in
suoh matters seldom proceeds from any
dishonest purpose, and generally arises
from giving unduo prominenco to somo
purposo or idea that is, in itself, quite
proper, and, of courso, this is usually dono
quite uuconseiously. In times ot excite
ment it is quito impossible to avoid this,
acd henco in such limes moderato views
sro very furo to bo condemned, and cvon
GJyorumut itself, in all its Depuitmcuts,
In all other nutters of allowed contribu
lion to the Union, duties, imposts, excises,
and direct taxes, and organizing and train
ing the militia, tho rulo ol umtormity,
eauality or proportion is fixed in tho Con
stitution. It could uot bo so in calling out
tho militia, becauso tho emergency ol re
hellion or invasion does not always allow
of this.
But for tho recruiting of tho army no
such reason exists, and yet, contrary to
the rule of other cases, if it may bo re
cruited by force, wo find no regulation or
limitatiou of tho exercise of tho power, so
as to prevent it from bums arbitrary and
partial, and honco wo infer that suoh u
modo of raising artnios was not thought
of and was uot Granted. If any such mode
had been tho intotition of the fathers of
tho Constitution, they would certainly
is, by subjecting it, under Stale officors, to
organization and training according to ono
uuilbrut Federal law, aud to bo called
forth to suppress insurrection and repel in
vasion, when the aid of the Federal Gov
ernment is ncolcd, and it needs this force.
For this purpose it is a Federal force ; for
all others it is a Stato forco, and it is call
ed iu the Conititutiou "the militia of tho
several States!" 2,2,1. It is, therefore,
the standing forco of the States, as well as,
iu certain specified reapscts, the 6tandiug
forco of the Union. And the right of the
States to have it is not only not granted
away, but is expressly reserved, and its
whole-history shows its purposo to ba to
secure domestio tranquillity, suppicss in
surrections and repel invasions. Neither
tho States nor the Union has any other
militia than this.
Now. it seems to mo plain that tho Fed
eral Government has no express and can
havo no impliod power to instituto any na
tional force that is inconsistent with this.
This forco shall continue, says the Consti
tution, aud the Federal uoverument shall
raako laws to organizo aud train it, as it
thinks best, and shall have the use of it
when needed ; this seems reasonable and
sufficient ; is tho forco provided for by this
act inconsistent with it ?
It scorns to mo it is. By it all men be
tweon the ages of twenty and forty-five aro
"declared to constituto tho national for
ces," aud mado liable to military duty,
and this is so nearly tho class which is
usually understood to constituto the mili
tia force of tho States that wo may say
that this act covers thowholo ground of
the milita and exhausts it entirely. It is
tory parties, had each in turn, when in
power, tyrauuized over their opponents and
sacrificed or endangered public liberty.
They had felt how great was this evil in
all tho partisan struggles that preceded
our Revolution, and thoy desired posterity
to proDt by their experience. The very
restrictions upon appropriation for tho
support ol tho army exceeding two years,
n copied from our English ancestors, aud
waa ileemod by them a constitutional lim
itation of the party in powor. Nono of
our constitutions, State or Federal, havo
any purposo or function moro important
than that of restraining and regulating the
party that may chanco to be in power, and
that is oneol tho most important purposes
of tho separation of governmental functions
into different departments.
Lot any ono road a few of tho instances
in English history alone, without refer
ence to our own or Roman or Grcoian his
tory, wherein liberty has boon sacrificed
to the interests of a party in power, and
ho will sco how important aro our consti
tutional restrictions, and how little proba
ble it is that so great a power as this
should havo been left by our fathers with
out restriction courts of hish commission
ecclesiastical commission and star chamber
and high courts of justico, and special
commission of oyer and terminer, under
such Judges as Scroggs and Jeffries, cre
ated for tho purposo of trying and condem.
ing acts which no law forbade liberty of
speech and of tho press most eruolly pun
ished by such courts when it ventured on
too freo a dissent from tho policy of tho
dominant party informations by the At
torney General substituted in such oases
for iudictment by tho crand jury mem-
in fact, in all its features, a militia, for na- bers of Parliament expelled becauso thoir
tional, instead of Stato purposes, though i opposition was offensive or dangerous to
claiming justification only uudor the powor I tho ruling power military officors dig-
to raise armies, and accidentally undortuo ) missed becauso of their political opinions,
tact of the rebellion. In England this can 1 as were Lord Shelbourno, General Con
can bo dono. becauso, tho Stato being a , way and Colonel Barre, uudor the Gran
unit thero, there can bo no place for the , villo ministry, for their opinions in favor
distinction between Stato and Federal ' of America rumors of plots, real aud
powers, and tho army and militia forces , fiotitious, such as the Oates conspiracy,
becomes naturally contouniico, tuo Meal rut) and Ujo House plots, raised
It seems to mo this is an unauthorized i and magnified in order to alarm tho poo-
onlutihiln fnr tlin militia of tho States. If nln noninstrill nnnnaitinn. and fuciliatn thn
valid, it completely annuls, for the timo j downfall of rjangorous rivals patronogo
UCllig, tliu ruiucuy ivr luauwuuuuu jiiu- peuBiuus, auu cmj iu j: uuiauicui wunujn
trains and their provisions and corps for
the support of tho army. If wo give tho
latitudiuarian interpretation, as to mode,
which thij act requires, I know not how
to stop short of this. I am suro there is
no present danger of such an extreme in
terpretation, and that even partisau mor
ality would forbid it; but if the power bo
admitted, we have no security asrainst the
relaxation of the morality that genders it.
I am quito unable now to suppose that ao
crcat a powor could havo boon intended to
bo granted, aud yet to be left so loosely
guarded.
It may bo thought that even voluntary
enlistments in the regular army havo the
same sort of inconsistency with the militia
system as forced recruiting has ; but moro
careful reflection will show that it is not
eo. Enlistments in tho army takes away
a part of tho militia ; but every militia
system allows for this, and tho gcnoral
purpose of both is the same tho constitu
tion of a military forco. And, besides this
it is of tho very nature of tho system that
it leaves every man free in pursuit of his
ordinary calling, and binds no man to any
part of tho militia, except by reason of
residence, which no may aoanuon or
change as ho pleases.
1 his act seems to mo uo lurthor uncon
stitutional in that it provides for a thorough
confusion betweon the army and tho mili
tia, by allowing that tho regular soldiers
obtained by draft may be assigned, by the
President.to any corps, regiment or branoh
of service he pleases ; whereas tho Consti
tutiou keeps the two forces distinct. Un
der this law, tha l'resident may oven send
them to tho navy. Undor tho militia sys
tem overy man goes out with his neighbors
anil frietids, and under officers with whom
he is acquainted. It is very properly
suggested that, in 1700, Gen, Knox, tho
Secretary of War under President Wash
ington, and with his approval, and in
ISM, Mr. Monroe, President Madison s
Secretary of War recommended plans of
recruiting tho army, whiqli wero similar
to this ono, and no doubt this is somo ar
gument in favor of its constitutionality. But
notuwithstandiug our great reverence tor
those illustrious names, it is impossiblo to
admit them as very influential on this
question, when wo consider that neither of
those plans was adopted by congress, anu
the subject never received such a discuss-
sion as to settle tho question. Instead of
Mr. Monroo e plan a puio militia bill was
rcportodby Mr. Giles, from tho Senate's
Goiuittco on Military affairs.
I havo noticed an argument that, be-
oause tho notorious Hartford Convention
opposed tho war of 1812, and with it Mr,
Monroes plan ot recruiting tho army,
therefore, opposition to a similar plan now
ought to be suspected as unpatriotic No
doubt tuch an argument may hve eom
courts to try, theso cases, tho appellate ju
lisdiction of the Federal Supreme Court
necessarily loaves an original jurisdiction
in them.
such
may
Truo, tho Constitution authorizes
inferior Federal courts as Congress
think proper to establish ; but the author
ity to establish such inferior courts cannot
divest this original Stato jurisdiction ; Jo
Congress might never cxcrciso its author
ity, or it might not assign it to them ex
clusively of tho Stato courts, Tho ver
frame of tho Constitution, therefore, ad
mits that the States may havo tho original
jurisdiction of such cases, subject to tho
appellate mnsutctton ot tho federal Su
promo Court, and no Federal law has yet
forbidden it to tuem, cvon it this may bo
done.
And such a judiciary system was not at
all strange to tho lathers of tho Uonttitu
tiou, and is well known in history. It
was the very system of the colonies be
foro our independence. Our colouiol
courts had authority to try all kinds of
oases whether arising under colonial
under imperial law, and the only remedy
for misiudement was by appeal or writ of
error to tho proper imperial courts in Eng
laud ; and so it was in Ireland uetoro th
Union. And so it is everywhere with
courts and othar authorities that are merely
local in their constitution and jurisdiction;
thoy administer even tho general law of
Stato, but always subject to tho appellate
authority of more general jurisdiction.
And this appellato jurisdiction was in gen
eral considered suiEoicnt to preserve tho
Anglo Saxon courts iu duo subordination
to tho royal courts after the Norman con
quest ; though certiorari to transtcr causes
beforo trial was also in use, and no Nor
man was bound to abide tho judgment of
Saxon oourt to whoso jurisdiction ho
choso to object. No doubt a similar prac
tice can bo traced in every oountry, not
purely despotic whero differcut Stato or
ganizations or different people havo beou
united under ono general government, in
many cases tho paramount law is interna-
tional law, and yet sectional or State
courts may decide what it is, subject to
the appellato jurisdiction ot treaties oi ot
urmios.
With all this present to tho minds of tho
fathers of tho Constitution, it seems to mo
that thoy could not havo intended a depar
ture without giving expression to thoir in
tention, and thia thoy have not dono.
They seem even to express tho contrary
when thoy doclaro the Constitution and tho
laws mado under it to bo not mofely Fed
eral law, but ''tho supremo law of tho laud,"
and require all Stato officers to bo sworn
to support it. iliat mere federal autiior
After tho retreat of tho army of Gen;
Rosccrans to Chattanooga ho issued a con
gratulatory orders to his soldiers, in whioh
ho said ; "You hold in your hands tho
substantial fruits ot a victory, and deserve,
and will receive, tho honors and plaudits
of a grateful nation, whioh asks nothing of
oven those who havo beon figlfting us but
obedience to tho Constitution and laws es
tablished for our own common benefit.'
Gen. Rosoorans did not profit by tho ex
perience of tho past. Gen. McClellan waa
set asido for prating of the Constitution,
and doubtless the same caused his removal.
We like fine writing when it is properly
applied, so wc appreciate tho following'
burst of eloquence in one of our exchang
es :
As tho ostrich uses both legs" and wing3
when the Arabian courser bounds in her
roar, as tho winged lightning leaps Jroin'
tho heavens when tho thunderbolts aro
loosed, so does a little negro run when a
big dog is after him."
Very Knowino. An clegently dressed
young lady entered a railway carriage
whero there wore coveral gents, one of
whom was lighting a cigar. Ono of the'
gents asked if smoking would iucomruodg.
her. Sho replied : l'I do not know sir j
no gentleman has oversmoked in my presence,"
An old Dutchman undertook to wallop'1
his sou, but Jako turned upon him and
walloped him. Tho old man consoled
himself for his defeat by rejoicing at hi
son's manhood. Ho said, Veil, Jako ish a
sohmart fellow ; he can whip his own
taddy.'
An Irishman was employed to trim soma
fruit trees. He went in tho morning, and
on returning at noon, was asked if ho had
completed tho work. No, was the reply,'
but ho had cut them down, and was going
to trim them in tho afternoon.
A friend of a soldier who wa3 suffering
from a painful wound, said to him tho
other day," Well, Tom, do you feci like
going baok to the army when your wound
is well i'
"No, unless I could go back as a nigger
or a brigadier-general."
A negro dssorter, who was dragged
through tho strocts of Boston tho other
day, held up his manacled hands, exclaim
ing, "Bis am massa Lincum's praclama
shun dis am do liberty of tho colored'
pusson."
''Why, dont your father toko a news
paper!" said a gentleman to a little ur-
it does not exoludo Stato action is very chin, whom ho oaught in tho act of pil
woll illustrated by this very subject of tho faring ono from his door slop. ''Cauea
mUitu, where the rcdcrl authority to j he sonus me to tako it," was ths roply.
1