I
"""""" j! f ltt YY t.
M
BY S. J. ROW.
CLEARFIELD, PA., WEDNESDAY, NOVEMBER 25, 1863.
VOL. 10.-ATO. 13.
45 UBskV
TERMS OF THE JOURNAL.
The K-iFTSfAs's Journal is published on Wed
rej.iaT at Sl.oO per annum in advance. Al'VER
riiticENTS inserted at SI. 00 per square, for three
f r less insertions Twelve lines (or less) counting a
jjuare. For every additional insertion 2i cents.
, deduction will be made to yearly advertisers.
PROFESSIONAL & BUSINESS CAEDS.
1KVIX BROTHERS, Dealers in Square & Pawed
Lumber, Drj Woods, Groceries, Flour, tlrain,
Ac . Ac, Burnside Pa.f Sept. 23, 1863.'
TiKEBEKICK LEITZINGEIt. Manufacturer of
l t il kinds of Stone-ware, Clearfield, Pa. Or
ders solicited wholesale or retail. Jan. 1,1863
RAS-S t BARRETT, Attornevs at Law. Clear
ly field. Ia. ".May 13. 1S63.
i. j. crass. :::::: Walter Barrett.
TjOBERT J. WALLACE. Attorney at Law. Clear
field. Pa Office in Shaw's new row. Market
wet. opposite Xaugle's jewelry store. May 26.
TT F. XAUOLE, Watch and Clock Maker, and
XI. dealer in Watches, Jewelry, tc. Koora in
jraiiam s row, Mantel street.
Nov. 10.
HBUC1IER SWOOPE, Attorney at Law. Clear
. ficjld, Pa. Offict in Graham's Row, four doo: s
west of Graham & Boynton's store. .Nov. 10.
TP. KUATZER Merchant, and dealer in
. Boards and Shingles, Grain and Produee.
Front St. above the Academy, Clearfield. Pa. Jjl2
"XT 7" ALL ACE & HALL, Attorneys at Law. fclear-
field, Pa. December 1". 13o2.
vii.liam a. Wallace. :::::::: JOHN o. hall.
IT A FLEMMr.VO. Curwensville, Pa., Xursery
4 . man and Dealer in all kiudj of Fruit ami
Ornamental Trees, Plants and .Shrubbery. All or
ders by mail promptly attended to. May 13.
AXTILLIAM F.IRWIX. Market-street. Clearfield,
Pa., Dealer in Foreign and Domestic Mer
chandise. Hardware. Queeusware, Groceries, and
family articles generally. .Nov. 10.
TI.UIN GTELICH. Manufacturer of all kinds of
1 Cabinet-ware, Market street. Clearfield, Pa.
lie also makes to order Coffins, on short notice, and
attends funerals with a hearse. AprlO.'iU.
DR. M.WOODS. Practicing Piivsici w, and
Examining Surgeon for Pensions.
South-west corner of Second and Cherry
J-trett. Clearfield, Pa. January 21. 1803.
? W. SII.WY. M !.. has resumed the prac-
tk-e of Medicine and Surgery in Shawsville,
Prima, where he etill respectluWy solicits a con
tinuance of public patronage. May 27, 1:63.
IB MEN' IXY, Attorney at Law. Clearfield,
. Pa. Pr.T.-tices in Clearfield and adjoining
counties.. Office in new brick building of J. Boya
tou, 2J street, one door south of Lanich's Hotel.
1) ICIIARD MOSSOP, Dealer in Foreign and Do
I. mestic Drv (iooils, Groceries. Flour, Bacon,
Liquors. tc. Room, on Market street, a few doors
west of Journal Ojficr. Clearfield, Pa. Apr27.
miMMP.SOX, k WATSON. Dealers in Timber
X. Saw Logs, Boards and Shingles. MarysvtUe,
t iearfield countv, Penn'a
August II, Jf3.
s. v . Tnovrox
JAS. E. WATSON".
IARRI.MER TEs V, Attorneys at Law.Clear
J field. Pa. Will attend promptly to all legal
aud other business entrusted to their care in Clear
field and adjoining counties. August ft. IS.'itj,
JAS. It. LARRIMKI! ISRAEL TEST.
DR. WM. CAMPBELL, offer.- his professional
sorviees to the citizens of Mosjiannon and vi
cinity. He can be consulted at his residenco at
al! times, unless absent on professional business.
MoshauDnri. Centre co., l'a.. May 13, 1S!S3.
1TM. A I.IJEKT A BRO S, Dealers in Dry Good,
Groeeriei. Hardware. Qaeensware. Flour,
l'-ncon. etc.. Woodland. Clearfield county, Penn'a.
.Al.-o. extensive dealers in all kinds of sawed lum
ber, hiuies. and souare timber, Orders soliei
t"l. V oodland, Aug. liHh, iHu-i.
rpil'MAS.r. M CULLOUGH, Attorney at Law.
L Civarfie'd. Pa. Office, est of the "Clearfield
0". Lar.k. Deeds and other legal instruments pre
I arcd with promptness and accuracy. Jnly 3.
o iicsH. :::::::: T.j.MccLLOt:ttn
BUSH k M'CUr.LOUGH S
Cot.tr.CTW.v CffiCK. Clearfield. Pesn'a.
C'lfkKIjU'AKD. The above reward will be
' 1" Pid lor information that will lead to Hp
;ie:,en-iun and Coin iction of the persons r pcr
fn. who set tire to and burned -Iowa a portion of
tlie feiiees on the premises of the subscriber, re
si.liiu in Brady township, on Saturday niirht. So
n,l),.r Hth. ANDREW PEMZ, Sr.
iirady township Nov. li 1803.
A CIlANtiE The electors of the several
-i i. tt,v,inl,iju of this County will take notice that
'4 Ac: of Assembly was passed last winter chang
it: t i.he time of holding the Spring elections in
'several townships of this County from the third
rn.Jay .f February to the last Friday of Deeeni
7' annually, ibeing Christmas day f.ir this year)
titables and other township otfleerswill please
'iKc notice. The Commissioners of the county
"ill be in session on the Tuesday following thq
election tor the purpose of paying off the return
jn t-n.,. Uy order of the Board.
Ji.r. H. lsC3.-3t. W. S. BRADLEY, Clerk.
fPHE EST.VTK OF FREDERICK FJSII
A KK, DECEASED :
if',"rirll Comity. s. .- In the matter of
J the appraisement of the Real Estate of
u Frederick Fisher. deceased, setting out
tuihe widow ?:;o, her dlaim was on the 30th of
yptember 18ti3 read and confirmed Xi Si and or
lerel by the Court that publication be made in
'e newspaper published in said County notify
"g !1 persop3 interested that unless exceptions
til? c,n or before the 1st day of next term will
w connnaed absolutely. By the Court
oy. is. is63 I. G. BARGER, Clerk of O C.
rPHE ESTATE OF JOHN BURGUN
A DER, DECEASED:
I SF iiCt''arf'et( County, s.t : In the matter of
N7yNy aPPra'sen,enttf the Real Estate of
,5 John Burgunder,deceased, setting out
f 'ae widow 5300, her claim was on the 30th of
k ,i read aild c,jnfirmed Xi Si and ordered
- Uie Court that publication be made in one
MTspaper published in said County notifying all
'rv,ns interested that unless exceptions are filed
a 0, beiure the first day of next term will becou-
""ued absolutly. By the Court.
IS JS63. I. (J. BAR JER. Clerk of O. C.
T'w J:'STATE of BENJAMIN Y1NU
DECEASED: (sEALvt:'a''-' County, ts: In the matter of
Xy-sJ appraisement of Real Estate of
mi$.L ?eDjitmi, Yingling.deoeaged, setting
df - wldow 300' her oUim was on the 2ith
nd P,eiber 1S63 read and confirmed Xi Si
ordered that publication be made in one
inn. -er PQbli8hetl al County notifying all
w ort 'ute,etl-''l bt unless exceptions are filed
finJJ u the0wdy of next term will be con
absolutely . By the Court.
Is 1863. I. a. BARGER. Clerk of 0. C.
BEAUTY.
The loveliest eye is that of Faith,
Which upward looks to God;
The neatest foot is that which has
The path of Virtue trod.
The sweetest lips are those that ne'er
A word of guile have spoken :
The richest voice is that of Prayer.
One ne'er a vow has broken.
The prettiest hair is that which Time
Has silverd oer with gray,
Or cover o'er an honest head
Its beauties no'er decay.
The fairest hand is one that's oft
In deeds of kindness given ;
The purest heart is one that Christ
Has sanctified for Heaven.
THE CONSCRIPTION ACT.
Abstract of the Decision of C- Justice Lowrie
The Constitutionality of the Act Af
firmed by Justice Strong.
Kneeder vs. Lane, Barrett, WelN and Ash
roan. Smith vs- Lane, Barrett, Wells and
Young. Nickells vs. Lehman, Mardsis, Mur
phy and ScatiUn.
Id the Supretne Court of Pennsylvania, in
equity, on motion for an injunction, Chief
Justice Lowrie, (sustained by Justice Wood
ward and Thompson) decided the Act of Con
gress, styled the "Conscription Act," uncon
stitutional. Preparatory to his argument the learned
Judge admits that the Constitution
Recognizes two sorts of military land f?r
ces the militia and tho army ; sometimes
called the regular, and sometimes the stand
ing army, and delegates to Congress power
ti raise and support armies' and 'to provide
for calling forth the militia to execute the
laws of the Union? suppress insurrections and
repel invasions.'" He then asserts that the
act in question depends for authority not up
on the latter of tiiese grants, but "upon the
power to raise armies" and 'the ancillary
power" given to Congress "to pass 'all laws
which shall be necessary and proper' for that
purpose." And then lie argues
First, That since Congress, in cases where
the permanent forces of Government are in
adequate to repel invasion or crush rebellion,
has the power giveir it to cajl out the militia,
it must adopt that method until it is manifest
whether it is an inadequate one; and to exer
cise the power to raise armies before the mi
litia is tried would therefore be unconstitu
tional. The militia, it is intimated, have not
been properly tried, therefore the act of Con
gress is unconstitutional. In this view of
the subject the act would be unconstitutional
only because the necessity lor it is not shown
to be sufficient.
Second, The Chief Justice, taking higher
ground, aflirrus that in all other grants ol lorc
ed contributions to the Government, us du
ties, imposts, etc., some rule of uniformity or
equality is fixed in the Constitution ; but in
respect to this grant no such limitations are
found in that .instrument. If any such meth
od, as is contemplated by this act, ot raising
armies had ieen intended by the Cramers "(
the Constitution they would certainly have
made some limitations to it ; but they did not
do ihis, hence Ihe inlerence arises that they
did not grant such a power.and the act conse
quently is unconstitutional. Of course, if
this deduction were correct, then the act
would be unconstitutional on the broad ground
that all such forced levied are unconstitu
tional Third, The Judge, descending from this high
position, then makes tli3 inquiry in the nar
row form of "Whether the particular modo of
coercion adopted in this act is Constitution
al ?" He atfirti.s it to be incompatible with
the provisions of the Constitution in regard to
the militia, in that it constitutes them Na
tional forces instead of militia, and violates
State systems by reducing all their officers,
and the ollicers of ll social institutions, to the"
some ranli" that of a "common soldier."
The danger of this be attempts to shor 'from
history, quite t length.
Fourth, He dwells upon the (alleged) con
fusion which this act "provides for" between
the army and the militia, in that by its pro
visions the President can send anv drafted
man ta any department of the service even
into the navy. 1I then touches upon the
fact, which he acknowledges, that General
Washington alter the adoption of the Consti
tution intimated his approval of a similar plan
of recruiting the army to the one in question,
and that Mr. Monroe recommended another(al
so similar) in 1814, but still the Judge differs
with them in opinion. He then closes with a
declaration that no argument can be drawn,
from tho opposition of the Hartford Conven
tion to a similar act, in favor ot the present
one, since their condemnation was founded
on sectional considerations.
The rest of the paper concerns tho juris
diction of the Court, of which there appears
to be much doubt.
Thus, we have given briefly and impartially
the principal, if not all tho arguments of the
majority of the Court on this subject, and
now refer the reader to the
OPINION OF JUSTICE STB0NO.
Strong J. The complainants having been
enrolled aud drafted, under the provisions of
the Act of Congress of March 3d, 1863, enti
tled "An Act for enrolling and calling out the
National forces and for other purposes," have
presented their bills in this Court against the
persons who constitute the Board of Enroll
ment, and against the enrolling officers, pray
ing that they may be injoined against pro
ceeding under the Act of Congress, with the
requisition, enrollment and draft of citizens
of the Commonwealth, and of persons of for
eign birth, who have declared their intention
to'become citizens onder and in pursuance of
the laws, to perform compulsory military duty
in the service of tho United States, and par
ticularly that the defendants may be enjoined
from all proceedings against the persons of
the complainants, under pretence of executing
the wa id law of the United States. The bills
having been filed, motions are now made for
preliminary injunctions, until final bearing.
These motions have been argued only on the
part of the complainants. We have therefore,
before us nothing but the bills and the special
affidavits of the complainants.
It is to be noticed that neither the bills, nor
the accompanying affidavits aver that the
complainants are not subject to Enrollment
ami draft, into the military service of the
"United States, under the act of Congress, if
the act be valid, nor is it asserted that they
have been improperly or fraudulently drawn.
It is not alleged that the defendants have done
anything, or that they propose to do anything
not warranted or required by the words and
spirit of the enactment. Tho complainants
rest wholly upon tho assertion that the act ot
Congress is unconstitutional, and, therefore,
void. It is denied that there is any power in
the Federal Government to compel the milita
ry service of a citizen by direct action upon
him, and it is insisted that Congress can con
stitutionally raise armies in no other way than
by voluntary enlistments.
The necessity of vesting in the Federal Gov
ernment power to raise, support ana employ
a military force was plain to the framers of
the Constitution, as well as to tho people of
the States by whom it was ratified. This is
manifested by many provisions ot that instru
ment, as well as by its general purpose, de
clared to be for -'common defence." Indeed
such a power is necessary to pseserve the ex
istence of any independent government, and
none has ever existed without it. It was,
therefore, expressly ordained in the eighth
article, that the Cougress of the United States
Should Lave power to "provide for oalling
forth the militia to execute the laws of the
Union, suppress insurrections, and repel in
vasions." It was also ordained that they
should have power to provide for organizing,
arming and disciplining the miiitia, and for
governing such part of them as may be em
ployed in the service of the United States,
reserving to the States respectively, the ap
pointment of the officers and the authority of
training the militia according to the discipline
prescribed by Congress. Nor is this all. It
is obvious that if the grant of power to have
a military force had stopped here, it would
not have answered all the purpoaes for which
the Government was formed. It was inten
ded to frame a government that should make
a new member in tho family of nations. To
this end, within a limited sphere, every at
tribute of sovereignty was given. To it was
delegated the absolute and unlimited power
of making treaties with other nation?, a pow
er explicitly denied to the States. This un
restricted power of making treaties involved
the possibility of offensive and defensive al
liances. Under such treaties the new gov
ernmeht might be required to send armies be
yond the limits of its territorial jurisdiction.
And, in fact, at the time when the constitu
tion was formed, a treaty of alliance offensive
and defensive was in existence between the
old confederacy and the Government of
France. Yet more. Apart from the obliga
tions assumed by treaty, it was well known
that there are many cases, where the rights of
a nation, and its citizens, cannot be protected,
or vindicated within its own boundaries. But
the power conierred upon Congress over the
militia is insufficient to enable tho fulfillment
of the demands of sucli treaties, or to protect
the rights of the government, or its citizens,
in those cases in which protection roust be
sought beyond the territorial limits of the
country. The power'to call the militia into
the service of the Federal Government is limi
ted by express terms. It reaches only three
cases. The call may be made "to execute the
laws of the Union, to suppress insurrections,
and to repel invasions," and for no other
uses. The militia cannot be summoned for
the invasion of a country without the limits
of Ihe United States. They cannot be em
ployed, therefore, to execute treaties of offen
sive alliance, nor in any case where military
power is needed abroad, to enforce rights
necessarily sought in foreign lands. This
must have been understood by tho framers ol
the constitution, and it was for such reasons,
doubtless, that other powers to raise and
maintain a military force were conferred up
on Congress, in addition to those which were
given over tho militia. By constitution, it
was ordained, iu words of the largest meaning,
that Congress should have power to "raise
and support armies," a power not to be con
founded with that given over the militi.i of
the country. Unlike that, it was unrestricted,
unless it could be considered a restriction
that appropriations of money to the use of
raising and supporting armies were forbidden
for a longer term than two years. In one
sense this was a practical restriction. With
out appropriations uo army can be maintained,
and the limited period Cor which appropria
tions can be made, enables the people to pass
judgement upon the maintainanco and even
the existence of the army every two years,
and in every new Congress. But in tire clause
conferring authority to raise armies, uo limi
tation is imposed other than this indirect one,
either upon the magnitude of the force which
Congress is empowered to raise, or upon the
uses tor which it may be employed, or upon
the mode in which the army may be raised.
II there be any restriction upon the mo1e of
exercising the power, it must be found else
where than in tho clause of the Constitution
that conferred it. And, if a restricted mode
ot exercise was intended, it Is remarkable
that it was not expressed, when limitations
were so carefully imposed upon the power
given to call for the militia, and more especi
ally, when, as it appears from the prohibition
ot appropriations for the army tor a longer
term than two years, the subject of limiting
the power was directly before the minds of
the authors of. the Constitution.
This part of the Constitution, like every
other, must be held to mean what its framers,
and the people who adopted it, intended it
should mean. We are not at liberty to read
it in any other sense. We cannot insert re
strictions upon powers given in unlimited
terras, any more than we can strike out re
strictions imposed.
There is sometimes great confusion of ideas
in the consideration ot questions arising un
der the Constitution ot the United States,
caused by misapprehension of a well-recognized
and oft-repeated principle. It is said,
and truly said, that the Federal Government
is one of limited powers. It has no other
than such as are expressly given to it, and
Eucb as (in the language of the Constitution
itself,) "are necessary and proper for carying
into execution" the powers expressly given.
By the tenth article of the amendments it is
ordained that the powers not delegated to the
United States by the Constitution, nor pro
hibited by it to the States, are reserved to the
States respectively, or to the people. Of
course there can be no presumption in favor
of the existence of a power sought to be exer
cised by Congress. It must be found in the
Constitution. But this principle is misapplied
when it is used, as Is sometimes the case, to
restrict the right to exercise a power express
ly givr n. It is of value when the inquiry is
whether a power has been conferred, but of
no avail to strip a power given in general
terms, of any of its attributes. The powers
of the Federal Government are limited in
number, not in their nature. A power vested
in Congress is as ample as it would be if pos
sessed by any other Legislature.-none the less
because held by the Federal Government. It
is not enlarged or diminished by the character
of its possessor. Congress has power to bor
row money. Is it any less than the power of
a State to borrow money ? Because the Fed
eral Government has not all the powers which
a State Government has, will it be contended
that it cannot borrow money, or regulate com
merce, or fix a standard of weights and
measures, in the same way, by the same
means, and to the same extent, as any State
might have done, had no Federal Constitution
ever been formed t If not, and surely this
will not be contended, why is not the Federal
power to raise armies as large, and as unfet
tered in the mode in which it may be exer-
cisea, as was tne power to raise armies pos
sessed by Ihe States before 1787, and pos
sessed by them now, in time of war? If they
were not restricted to voluntary enlistments
in piocuring a military force, upon what prin
ciple can Congress be? In Gibbons vs. Og
den, 9 Wheaton", 196, the Supreme Court of
the United States laid down the principle
that all the powers vested by the Constitution
in Congress are complete in themselves, and
may be exercised to their utmost extent, and
that there are uo lim itat ions upon them, other
than such as are prescribed in the Consti
tution. It is not difficult to ascertain what must
have been introduced by the founders of the
government when they conferred upon Con
gress the power to "raise armies." At the
time when the Constitution was formed, and
when it was submitted to the people for adop
tion, the mode of raising armies by coercion,
by enrollment, classification and draft, as well
as by voluntary enlistment, was well known,
practised in other countries, and familiar to
the people of the different States. In 1756,
but a short time before the revolutionary war,
a British statute had enacted that all persons
without employment might be seized and co
erced into the military service ot the kingdom.
The act may be found at length in Rutihead's
British Statutes at large, vol. 7, page 625,
Another act of a similar character was passed
in 1757, British Statut"S at large, vol. 8, page
11. Both were enacted under the administra
tion of William Pitt, afterwards Lord Chat
ham, reputed to have bben one of the staunch
est friends of English liberties. Thev were
founded upon a principle always recognized in
the Roman Empire, and asserted by all mod
ern civilized governments, that every able
bodied man capable of bearing arms, owes per
sonal military service to the government
which protects him. Lord Chatham's acts
were harsh and unequal in their operations,
much more so than the act of Congress now
assailed. They reached only a select portion
of the able-bodied men in the community, and
they opened wide a door for favoritism and
other abuses. For these reasons, they must
have been" the more prominently before the
eyes of the framers of tho federable constitu
tion, when they were providing safeguards to
libertv, and checks to aibitrary power. Yet
in full view of such enactments they confer
red upon Congress an unqualified power to
raise armies. And, still more than thi, co
ercion into military service hy classification
and draft from the able-bodied men ot the
country was to them a well known mode of
raising armies in the different States which
confederated to carry on the Revolutionary
wr. It was equally well known to the peo
ple who ordained and established the Constitu
tion, expressly "in order to form a more per
fect union, provide for the common defeuee,
and secure the bessings of liberty for them
selves and their posterity." It is an histori
cal fact that during the later stages of the war,
the armies of the country were raised not a
lone by voluntary enlistment, .but also by co
ercion, and that the liberties and indepen
dence sought to le secured by the Constitu
tion, were gained by soldiers made snch, not
by their owu voluntary cboice, but by com
pulsory draft. Chief Justice Marshall, him
self a soldier of the Revolution, than whom
no one was better acquainted with revolution
ary history, in his lite of Washington (vol. 4
page 241) when describing the mode in which
the armies of the Government were raised,
makes tht) following statement: "In general
the assemblies (of the States) followed the ex
ample of Congress, and apportioned on tl.e
several counties within the States the quota
to be furnished by each. This division of the
State was again to be eub-divided into classes,
and each class was to furnish a man by contri
butions or taxes imposed on itself. In some
instances a draft was to be used in the last re
sort." This mode of recruiting the army by
draft, in revolutionary times, is also mention
ed in Ramsey's Life of Washington, (vol, 2,
page 246,) where it is said, "When voluntary
enlistments fell short of the proposed num
bers, the deficiencies were, by the laws of the
several States, to be made up by drafts, or
lots from the militia." Thus it is manifest
that when the members of the Convention
proposed to confer upon Congress the power
to raise armies, in unqualified terms, and
when the people of the United States a
dopted the Constitution, they had in full view
compulsory drafts from the population ot the
country as a known and authorized mode ot
raising them. The memory ot the Revolution
was then recent. It was universally known
that it had been found impossible to raise suf
ficient arrries by voluntary enlistment, and
that compulsory draft had been resorted to. If,
then, iu construing the Constitution we are
to seek for, and be guided by the intentions
of its authors, there is no room for doubt.
Had any limitation upon the mode of raising
armies been intended, it must have been ex
pressed. It could not have been left to be
gathered from doubtful conjecture. It is in
credible that when the power was given in
word i of the largest signification, it was
meant to restrict its exercise to a solitary
mode that of voluntary enlistment, when it
was known that enlistments had been tried
and found ineffective, and that coercion bad
been found necessary. The members of the
Convention were citizens of the several States,
eacb a sovereign, and each having power to
raise a military force by draft, a power which
more than one of them had exercised. By
the Constitution, the authority to raise such a
force was to be taken from the States partial
ly, and delegated to the new government a
bout to be formed. Xo State was to be allow
ed to keep troops in time of peace. The
whole power of raising and supporting armies,
except in time of war, was to be conferred upr
on Congress. Necessarily with it was given
the means of carrying it into f ull effect.
I agree that Congress is not at liberty to
employ means for the execution ot auy powers
delegated to it, that are prohibited by the
spirit of the Constitution, or that are inconsis
tent with the reserved rights ot the States, or
the inalienable rights of a citizen. Th
means used must be lawlul means. But I
have not been shown, and I am unable to per
ceive that compelling militaiy service in the
armies of the United States, not by arbitra
ry conscription, but as this act of Congress
directs, by enrollment of all the able-bodied
male citizens of the United States, and per
sons of foreign birth who have declared their
intention to become citizens, between the ages
of twenty and forty-five, (with some few ex
ceptions,) and by draft by lot from those en
rolled, infringes upon any reserved rights of
the States, or interferes with any constitu
tional rights of a private citizen. If personal
service may be compelled if it is common
duty, this is cerainly the fairest and most e
qual mode of distributing the public burden.
It was uged in the argument that coercion of
personal service in the armies is an invasion
of the right of civil liberty. The argument
was urged in strange forgetfulness ot what civil
liberty is. In every free government the cit
izen, or subject, surrenders a portion of his
absolute rights in order that the remainder
may be protected and preserved. There can
be no government at all, where the subject re
tains unrestrained liberty to apt as he pleases,
and is under no obligation to the State. That
is undoubtedly the best government, which
imposes tho fewest retraints, while it secures
ample protection to all under t. . But "no gov
ernment has ever existed, none effn exist with
out a right tothe personal military services
of all its able-bodied men. The right to civil
liberty in this country never included a right
to exemption from such service. Before the
Federal Constitution was formed, the citizens
of the different States owed ir to the govern
ment under which they lived, and it was exact
ed. The militia systems of the States then as
serted it, and they have continued to assert it
ever since. They assert it now. No one
doubts the power of a Stato to compel its mi
litia into personal service, and no one has ever
contended that such compulsion invades any
right of civil liberty. On the contrary , it is
conceded that the right to civil liberty is sub
ject to such power in tho State governments,
and the- history of the period immediately
antecedent to the adoption of the Federal
Constituion shows that it was then admitted.
Is civil liberty now a different thing from
what it was when the Constitution was formed
It is better protected by the provisions of
the Constitution, but are the obligations of a
citizens to the government any less now than
they were then ? This cannot be maintained.
If the, coercion into military service was no
invasion of tho rights ot civil liberty enjoyed
by'the people of ihe States, before the Federal
Constitution had any existence, it cannot be
now. .
Again, it is insisted that if the power given
to Congress to raise and support armies be
construed to warrant the compulsion of citi
zens into military service, it must with'equal
reason he held to authorize arbitrary seizures
of property for the support ot the annv. The
force of the objection is not apparent. Con
fessedly the army must be raised by legal
means. By such means it must also he-supported.
It has already been shown that en
rollment and draft are not illegal ; that to
make them illegal a prohibition must be found
iu the letter or in the spirit of the Constitu
tion. Arbitrary seizures of private property
for the support of the army are illegal and
prohibited. Not only does the Constitution
point out the mode in whch provision shall
be made for the support of the army, but in
numerous provisions, it protects the people
against deprivation of property without com
pensation aud due course of law. Exemption
from such seizures was always an isseited and
generally an admitted right, while exemption
trom liability to being compelled to the per
formance of military service was, as has been
seen, never claimed. There are, therefore,
limitations upon tho means which may be used
lor the support ol the army, while none are
imposed upon the means of raising it.
Agaiu, it is said this act of Congress is a
violation of the Constitution, because it makes
a dratted man punishable as a deserter before
be is mustered into the service. The contrary
was declared by Chief Justice Marshall, when
delivering the judgment ot the Supreme Court
of the United States in Houston vs. Moore, o
Wheaton. Under the act ot 1795, the dratted
men were not declared to be subject to mili
tary law until mustered into service. This is
the act of which Judge Story speaks in his
commentaries. But in the opinion of Judge
Marshall, Congress might have declared them
In service from the time of the draft, precise
ly what this act of Congress does. Judge
Marshall's opinion, of course, explodes this
objection.
The argument most presspd, in support of
the alleged unconstitutionality ot the act of
Congress is that it interferes with the reserved
rights of the States over their own malitia. It
is said the draft takes a portion of those who
owe malitia service to the States, and thus
diminishes the power of the States to protect
themselves. The States, it is claimed, retain
the principal power over the malitia, and there
fore the power given to Congress to raise ar
mies must be construed, as not to destroy or
impair that power of the States. If, say the
complainants, Congress may draft into their
armies, and compel the service of a portfen of
the State malitia, they may take the whole,
and thus the entire power of the States over
them may be annulled, for want of any subject
upon which it can act. I have stated the ar
gument quite as strongly as it was presented.
It is more plausible than sound. It assumes
the very matter which is the question in de
bate. It ignores the fact that Congress has
also power over those who constitute tho ma
litia. The malitia of the States is also that of
the general government. It is the whole able
bodied population capable of bearing arms,
whether organized or not. Over it certain
powers are given to Congress, and others are
reserved to the States, Besides the power ot
calling k forth, for cettain defined uses, Con
gress may provide for its organization, arm
ing and discipline, as well as tor governing
such portion as may be employed in its ser
vice. It is the material and the only ma
terial contemplated by the Constitution, out
of which the armies of the Federal Govern
ment are to be raised. Whether gathered by
coercion, or enlistment, they are equally ta
ken out ot those who foiin a part of the mi
litia of the States. Taking a given number
by draft no more conflicts with the reserved
power of the States, than does taking the same
number cf men in pursuance of their own con
tract. No citizen can deprive a State ot her
rights without her consent. Nne could,
therefore, voluntarily enlist, if taking a mili
tia man into military service in the army of
the United States is in conflict with any SUte
rights over the militia. Those rights, what
ever Ihey may be, it is obvious caunot be af
fected by the mode of taking. It is clear that
.the States hold tUeir power over their militia,
subordin.ite to the power of Congress to raise
armies out of the populatiou that Constitutes
it. Were it not so, the delegation ot the pow
er to Ccngress would have been an empty
gift. Armies can be raised from no other
source. Enlistments in other lands are gen
erally prohibited by foreign enlistment acts,
and even where they are not, they may, under
the law of nations, involve a breach or neutral
ity. Justly, therefore, may it be said the ob
jection now under consideration begs the ques
tion in debate. It assumes a right in tho
State which has no existeuce, to wit : A right
to hold all the population that constitutes ita
militia men exempt from beinp taken, in any
way, iuto the armies ot the United States.
When it is said, if any portion of the miiitia
may be coerced into such military service,
the whole may, it is but a repetition of the
common, but very weak argument against the
existence of a power because it may possibly
be abused. It might, With equal force, be ur
ged against the existence of any power in ei
ther the State or general government. It ap
plies as well to a denial of power to raise ar
mies by voluntary enlistment. It is as con
ceivable that high motives of patriotism, or
inducements held out by the Federal Govern
ment might draw into its military service the
entire able-bodied populations cf a State,
as that the whole might be drafted. We are
not to deny the existence of a power because
it may possibly be unwisely exercised, nor are)
we to presume that abuses will take place.
Especially are we not at liberty to do so in
this case, in view of the fact that the general
government is under Constitutional obligations
to provide lor the common defence of the
country, and to guarantee to eacb State a re-w
publican form of government. That would be
to impose a duty, and deny the power to per-
lorm it.
These areal! the objections.deservlng of no
tice, that have been used against the power
of Congress to compel tbe complainants Jnto
military service iu tbe army. I know of no
others of any .importance. They utterly fail
to show that there is anything in either the
letter or the spirit ot the constitution to re
strict the power to "raise armies," given gen
erally, to any particular mode of exercise.
For tho reasons given, then, 1 think the pro
visions of the act of Congress, under which
these complainant have been enrolled and
drafted, must be held to be such as it is with
in the constitutional power of Congress to en
act. It follows that nothing has been done or
is proposed to be done by the defendants that
is contrary to law, or prejudicial to tbe rights
of the complainants.
An attempt was made on the argument to
maintain that those provisions ot the act of
Congress which allow a drafted man to onm,
mute by the payment of 300 are in violation
of the Constitution. By these provisions the
complainants are not injuriously affected, and
the bil's do not comjtbiin of anything done, or
proposed to be done under them. It is the
compulsory scrvico which the plaintiffs resist ;
they do not complain that there is a mode pro
vided of ridding themselves of It. If it be
conceded Congress canuot providefor commu
tation of military service, by the payment of
a stipulated sum of money, or cannot do it m
the way adopted In this enactment, the con
cession in no manner affects tbe directions
given lor compulsion into service. Let it be
that the provision for commutation is unauthor
ized, those for enrollment and draft are such
as Congress hatf power to enact. It is well
settled that part of a statute may be unconsti
tutional, and the remainder in force. 1 by no
means, however, mean to be understood as
conceding that any part of this act is uncon
stitutional. I think it might easily be shown
that every part of it is a legitimate exercise
ot the power vested in Congress, tjut 1 decline
to discuss the question, because it is not rais
ed by the cases before us.
Nor while holding the opinions expressed, '
that no rights of the complainant are unlaw
fully invaded or threatened, is it necessary to.
consider the power or propriety of interfer
ence by this court, on motion to enjoin Fede
ral officers against the performance of a duty
imposed upon them in plain terms by an act
of Congress. Upon that subject I express no
opinion. I have said enough to show that the
complainants are not entitled to the injunc
tions for which they ask, and I think they
should be denied.
Riles tor Letters Going Socth. First.
No letter must exceed one page of a letter
sheet, or relate to other than purely domestic
matters. 2. Every letter must be signed by
the writer's name in full. 3. All letters must
be sent with five cents postage enclosed, if to
go to Richmond, and ten ce.nts if beyond. 4.
All letters must be enclosed to tbe command
ing General of the Department of Virginia,
and North Carolina, at Fortress Monroe,
marked on the outside "f or flag of truce."
No letter sent to nny other address will be
forwarded.
The Cecil Democrat says that several farm
ers in Queen Anne county, Maryland, having
lost their slaves, have sent to Germany for a
ship load of emigrants. The number of free
negroes in the neighborhood is too small to
make good the loss in slaves.
Jumbles. One pound flour, half lb. butter,
three-quarters pound ot sugar, five eggs j
any spice you like.
The Richmond Enquirer mildly suggests
that Vallandigbam's true place is in tbe sooth?
ern armv.
Row we printers lie; as our devil ssid wbso
he got np too late for breakfast.
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