Jul , ' ' ... , - - II ' , . , ! I , , - - &t??S&mt' ' . ' ' I WOULD KATHER BE ltIQflT"THANpKESipENT.HMB ClIt HltSSn&JWt VOLUME 5. KEENSBURG, PA., THURSDAY, NOVEMBER 26, 1863. NUMBER 9. ! .a -m. AM M B i I 1 ! 1 J X ? ? 1 1 " i X a! I A ? 1 4 1 1 i IT 11 . 9 I 4. . 1.1 V I . IT" " " plgserttiHo Opinion of Justices Strong and Read, affirming its Constitutionality. Kaeeder vs. Lane, Barret, Wells and Ash Band. Smith vs. Lane, Barret, Wells and Young. Nickells vs. Lehman, Marsdis, Mur hbr and Scanlan. In the Supreme Court of Pennsylvania, in fijuitv. Motion for an injunction. STR05d J. The complainants having been enrolled and drafted, under the pro tisioos of the act of Congress of March 3d, 1863, entitled "An Act for enrolling ind calling out the national forces, and for other purposes," have presented their bills in this court against the persons who constitute the board of enrollment, and against the enrolling officers, praying that they may be enjoined against proceeding undet the act of Congress, with the requi sition, enrolment, and draft of citizens of the Commonwealth, and of persons ot for eign birth who have declared their inten tion to become citiilens unief and in pursuance of the laws to perform compul sory military duty in the service of the United States, and particularly that the defendants may be enjoined from all proceedings against the persons of the ceaplainauts, under pretence of executing the aid laws of the United States. The kills kaviog been filed, motions are now made for preliminary injunctions, until final hearing. These motions hive been argued only on the part of the complain ants. We have, therefore, nothing before us but the bills and the special affidavits of the coinplaiaants. It is to be noticed that neither the bills nor the accompanying affidavits aver that the complainants arc not subject to enrol ment and draft into the military service of the United States, under the act of Con gress, if the act be valid ; nor 13 it asser ted that they have been improperly or fradulently drawn. It is not alleged that the defendants have done anything, or that they proposo to do anything, not warranted and required by the words and ppirit of the enactment. The complain ants rest wholly upon the assertion that the act of Congress is unconstitutional, and, therefore, void. It is denied that there is any power in the Federal Govern ment to compel the military service of a citizen by direct action upon him, and it is insisted that Congress can constitution-: ally raise armies in no other way than by voluntary enlistments. The necessity of vesting in the Federal Government power to raise, support, and employ a military force was plain to the trainers of the Constitution, as well as to th people of the States by whom it was iatified. This is manifested by niaiy provisions of that instrument, as well as by its general purpose, declared to be for "common defence." Indeed, such a pow er is necessary to preserve the existence of any independent government, and none t t- I j :i m. : . t. uaa ever exisieu. wuuuud n vru?, therefore, expressly ordained in the eighth article that the Congress of the United States should have power to '"'provide for calling forth the militia to execute the laws of the Union, suppress insurrections, . and repel invasions." It was abo ordained that they should have power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers and-the authority of training the militia according to the discipline pre scribed 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 purposes for which the Government was formed. It was intended to frame aO0verniucnt that should make a new member in the family of nations. To this end, within a limited sphere, every attribute of sover eignty was given. To it was delegated the absolute and unlimited power of ma ing treaties with other nations a power explicitly denied to the States. This unrestricted power of making treaties involved the possibility of offensive and defensive alliances. Under such treaties, the new government might be required to end armies beyond the limits of its terri torial jurisdiction. And, in fact, at the time when the Constitution was formed, a treaty of alliance, offensive and defensive, as in existence between the old Confed eracy and the Government of France. lt more. Apart from the obligations assumed by treaty, it was well known that tflere are many cases where the rights of nation and its citizens cannot be protec ted or vindicated within its own bounda ries. But tnQ power conterred upon ongress over the militia is insufficient to able the fulfilment of the demands of th otreaties' or t0 Proteck tfte rights of J Uvernment, or iU citi2ens, in those -C8 in which protection must be sought try. The power to call the militia into the service of the Federal Government is limited by express terms; It reaches only three cases. The Call riiay 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 the United States. They cannot be employed, . therefore, to execute treaties of offensive alliance, nor in any case where military power is needed abroad, to enforce lights necessarily fought in foreign lands. This must have been understood by the framers of the Consti tution, and it was for such reasons, doubt less, that other powers to raise and main tain a military force were conferred upon Congress, in addition to those which were given over the militia. By the same section of the eighth article of the Con stitution, it was ordained, in words of the largest meaning, that Congress should have power to "raise and support armies" a power not to be oonfottnded with that given over the militia of 'the country. Unlike that, it was Unrestricted, unless it be considered a restriction that appropria ations of money to the use of raising and supporting armies were forbidden tor a longer term than two years. In one sense this was a practical restriction. Without appropriations no army can be maintained, and the limited period for which appro priations can be made enables the people to pass judgment upon the maintenance and even existence of the army every two years, and in every new Congress. But in the clause conferring authority to raise armie3, no limitation is imposed other than this indirect one, either upon the magnitude ot the force which Congress is empowered to raise, or upon the uses for which it may be employed, or upon the mode in which the army may be raised. If there be any restriction upon the mode of exercising the power, it must be found elsewhere than in the clause of the Con stitution that conferred it. And if a restricted mode of exercise was intended, it is remarkable that it was- not expressed, wheu limitations were so carefully imposed upon the power given to call forth the militia and, more especially, when, as it appears from the prohibition of appropri ations for the army for a longer time than two years, the subject of limiting the power was directly before the miuds of the authors of the Constitution. This part of the Constitution, like evCry other, must be held to, mean what its framers, and the people who adopted it, intended is should mean. We are not at liberty to read it in any other sense. We cannot, insert restrictions upon powers given in unlimited terms, any, more than we can strike out restrictions imposed. There is sometimes great confusion of ideas in the consideration of questions arising under the Constitution of the Ltnited States, caused by a misapprehen sion 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 such as (in the language of the Constitution itself) "are necessary and propef for carrying into execution" the powers expressly given. By the tenth articFe of the amendments, it is ordained that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are received 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 exercised 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 expressly given. 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 gould be if possessed by any other legislature, none the less because held by the Federal Government. It is not enlarged or dimin ished by the character of its possessor. Congress has power to borrow money. Is it any less than the power of a State to borrow money ? Because the Federal Government has not all tho powers which a State Government has, will it be con tended that it cannot borrow money, or regulate commerce, or fix a standard, of weights and measures, in the same way, by the same means, and to tha same ex tent as any State might have donetiad no Federal Constitution ever been formed ? If not, and surely this will not be conten ded, why 13 not the Federal power to raise armies as large and as unfettered in the mode in which it may be exercised as was the power to raise armies possessed by the States before 1787, and possessed by them now, in time of war? If they were not curing a military force, upon what princi ple can Congress be " In Gibbons vs. Ogdn (9 Wheaton, 196,) the Supreme Court ot the United States laid dovn 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 no lim itations upon them, other than such as are prescribed in the Constitution. It is not difficult to ascertain what must have been intended by the founders of the Government when they conferred upon Congress the power to "raise armies." At the time When the Constitution was formed and when it was submitted to the people for -adoption, the mode of raising armies by coercion, by enrollment, classification and draft, as well as by voluntary enlist ment, was well known, practised iti other countries, and familiar to the people of the different States. In 1756, but a short period before the Revolutionary War, a British statute had enacted that all persons without employment might be seized and coerced into the military service of the kingdom. The act may be found at length in ltuffhead's British Statutes at Large, vol. 7, page 268. . Another act of similar character was passed in 1757, British Statutes at Large, vol. 8, page 11. Both were enacted under the administration of William Pitt, afterwards Lord Chatham, reputed to have been one of the staunchest friends of English liberties. They were fouiJcd upon a principle always recognized in the lloinan empire, and asserted by all modern" civilized governments, that every able-bodied man capable of bearing arms, owes personal military service to the gov ernment which protects him. Lord Chat ham's acts were harsh and unequal in their operations, much more so than the act of Congress now assailed. They reached onJy a select portion of the able-bodied men in the community, and they opened wide a door for favoritism and other abu ses. For these reasons they must have been the more promiuently before the eyes of the framers of the Federal Constitution, when they were providing safeguards to liberty, and checks to arbitrary power. Yet, in full view ot such enactments, they conferred upon Congress an unqualified power to raise armies. And, still more than this, coercion into military service, by classification and draft, from the able bodied men of .the country, was to them a well-known mode of raising armies in the different- States which confederated to carry on the Revolutionary war. It was equally well known to the people who ordained and established the Constitution, expressly "in order to form a more perfect Union, establish justice, ensure domestic tranquility, provide for the common de fence, and secure the blessings of liberty for themselves and their posterity." It is an historical fact that during the later stages of the war the armies of the country were raised, not alone by voluntary enlist ment, but also by coercion," and that the liberties and independence sought to be secured by the Constitution were-gained by soldiers made such, not by their own voluntary choice, but by compulsory draft. Chief Justice Marshall, , himself a soldier of the Revolution, than whom no one was better acquainted with Revolutionary his tory, in hi8 life of Washington (vol. 4, page 241), .when describing the mode in which the armies of the government were raised, makes the following statement: "In general the assemblies (of the States) followed the example of . Congress, and apportioned on the several counties within the States the quota to be furnished by each. This division of the State was again to be .subdivided into classes, and each class was to furnish a man by contributions or taxes imposed on itself In some instances a draft was to be used in the last resort." This mode of recruiting the army by draft, in Revolutionary times, is also mentioned in Ramsey's Life of Wash ington (vol. 2, page 246), where it is said, "When voluntary cnlistmeuts fell short of the proposed numbers, the deficiencies were, by the laws of the several States, to be made up hy drafts, or lota "from the militia." Thus it is manifest that when the mem bers of the Convention proposed to confer upon Congress the power to raise armies, in unqualified terms, and when the people of the United States adopted the Consti tution, they had in full view compulsory drafts fro ui the population' of the country, as a known and authorized mode of raising them. The memory of the Revolution was then recent. It was. universally known that it had been found impossible to raise - sufficient armies by - voluntary enlistment, and that compulsory draft had been resorted to. If, then, in 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 iot'ended, it must have been express- gathered from doubtful conjecture. ; It is incredible that when the power was given in words 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 bad been tried and found ineffective and that coer cion had been necessary. The members of the Convention were citizens of the several States, each a sovereign, and each having power to raise a military force by draft, a power which mere than one of them had exercised By the Constitution, the authority to raise such a force Was to be taken from the States partially, and delegated to the new government about to be formed. : No State was to be allowed to keep troops in time of peace. The whole power of raising and supporting armies, except in time of war. was to be conferred upon Congress Necessarily, with it was given the means of carrying it into full effect. '; 1 agree thjit Congress is not at liberty to employ means for the execution of any powers delegated to it that are prohibited by the spirit of the Constitution, or that areincensistent with the reserved rights of the States, or the inalienable rights of a citizen. The means used must be lawful means. But I have not beeu shown, and I am unable to perceive, that compelling military service in the armies of the United States,' not by arbitrary conscrip tion, but, as this act of Congress directs, enrollment of all the able bodied male citizens of the United States, and persons of foreign birth who have declared their intention tc become citizen?, between the ages of twenty and forty-five, (with some few exceptions,) acd by draft by lot from those enrolled, icfringes npon any reserved rights of the States, or interferes with any constitutional right of a private citizen. If personal-service may be compelled if it is common duty this is certainly the fairest and most equal mode of distributing the public burdens. It was urged in the argnmcut that coercion of personal service in the ; armies is an invasion of the right of civil liberty. The argument was urged in strange . for gctfulness of what civil liberty is. In every tree government the citizen or sub ject 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 retains unrestrained liberty to act as he pleases, and is under no obligation to the State. That is undoubtedly the best government which imposes the fewest restraints, while it secures ample protec tion to all under it. But no government has ever existed,, none can exist, without a right to the personal military service of all its able-bodied men. The right to civil liberty in this country never included a light to exemption from such service. Before the Federal Constitution was form ed, the citizens of the different State3 owed it to the governments under which they lived, and it was exacted. . The mi litia systems of the States then asserted it, and they have continued to assert it ever since. They assert it now. No one doubts the power of a State to compel its militia into personal service, and no one has ever contended that such compulsion invades any rfght of civil liberty. On the coutrary,' it is conceded that the right to civil liberty is subject to such power in the State governments, and the history cf the period immediately antecedent to the adoption of the Federal Constitution shows that it was then admitted. Is civil liberty now a different. thiug from jvhat it was when the Constitution was formed ? Is it better protected by the provisions of the Constitution, but are the obligations of a citizen to . the Government any less now than they were then ?' This cannot be maintained. If, then, coercion into mili tary 6ervice was no invasion of the rights of civil liberty enjoyed by the people of the 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 com pulsion of citizens into military service, it must with equal teason be held to author ize arbitrary seizures of property for the support of the army. The force of the objection is; not. apparent. Confessedly the army must be raised by legal means. By such means it must also be supported. It has already been shown that enrollment and draft are not illegal j. that to make them illegal a prohibition must be found in the letter or in the spirit of the Con stitution. 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 which provisions shall bo made for the support of the armyrbut in numerous provisions it protects the people against deprivation of property without compensation and due course of law. Exemption from such erally an admitted right, while exemption from liability to being compelled to the performance of military service was, a9 has been seen, never claimed. There are, therefore, limitations upon the means which may be used for the support of the army, while none are imposed Upon the means of raising it. Again, it is said this act of Congress is a violation of the Constitution, because it makes a drafted man punishable a a de serter before he is mustered into service. The contrary was declared by Chief Jus tice Marshall, when delivering the judg ment of the Supreme Court of the United States in Houston vs. Moore, 5 Wheaton Under the act of 1795 the drafted men were not declared to be subject to military law until mustered into service. Thi3 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, precisely what this act of Con gress does. "Judge Marshall's opinion, of course, explodes this objection. The argument must pressed in support of the alleged unconstitutionality of the act of Congress is that it interferes with the reserved rights of the States over their own militia. It is said the draft takes a portion of those who owe militia service to the State.", and thus diminishes the power of the States to protect themselves. The States, it is claimed, retain the prin cipal power over the militia, and therefore the power given to Congress to raise armies must be so construed as not to destroy or impair that power of the State. If, say the complainants, Congress may draft into their armies, and compel the service of a portion of the State militia, 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 argu ment quite as strongly as it was presented. It is more plausible than sound. It assumes the very matter which is the question in debate. It ignores the fact that Congress has also power over those who constitute the militia. The militia 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 of calling it forth, for certain defined uses, Congress may provide for its organization, arming aud discipline, as well as for governing such portion as may be employed in its service. It is the material, and the only material, contemplated by the Consti tution, out of which the armies of the Federal Government are to be raised. Whether gathered by coercion or enlist ment, they are equally taken out of those who form a part of the militia 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 of men in pursuance of their own contract. No citizen can deprive a State of her rights without her consent. None could,, therefore, voluntarily enlist, if taking a militiaman into military service in the army of the United States is in conflict with any State rights over the militia. Those rights, whatever they may be, it is obvious, cannot be affected by theJ mode of taking. It is clear that the States hold their power over the militia, subordinate to the power of Congress to raise armies out of the population that constitutes it. Were it not eo, the delegation of the power to Congress would have been an empty gift. Armies can be raised from no other source. Enlistments in other lands are generally prohibited oy foreign, enlistment acts, and even where they are not, they may, under the law of nations, involve a breach of neutrality. ' Justly, therefore, may it be said the objection now under consideration begs the question in debate. It assumes a right in the State which has no existence, to wit : a right to hold all the population that constitutes its militia men exempt from being taken, in any way, into the armies of the United States. - When it is said, if any portion of the militia may be coerced into such military service, the whole may, it is but a repetition of tho common but very weak argument against the existence of a power because it may possibly be abused. It might with equal force be urged against the existence of any power in either the State or General Governments. It applies as well to a de nial of power to raiso armies by voluntary enlistment. It is as conceivable that high motives of patriotism, or inducements held out by the Federal Government, might draw into its military service the entire able bodied population of a State, as that the whole mient 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 p.ace. do so in this case, in view of the fact that the General Government is under consti tutional obligations to provide for the common defence of the country, and to guaranty to each State a republican form of government. That would be to impose a duty and deny the power to perform it. These are all the objections worthy of notice that hare been used against the power of Congress to compel the complain ants into militarv service in the armv I know of no others of any importance. iney utterly tail to show that there is anything in either the letter or the soirit of the Constitution to restrict the power io -raise armies," given geuerally, to any particular mode of exercise. For the reasons given, then, I think the provisions of the act of Congress, under which these complainants have been enrolled and drafted, must be held to be such as it is within the constitutional power of Con gress to enact. It follows that nothing has been done, or is proposed to be done, by the defendants, that is contrary to law' or prejudicial to the rights of the com plainants. , An attempt was made on the argument to maintain that those provisions of the' act of Congress which allow a drafted man to commute by the payment of 5300 are iu violation of the Constitution. But this is outside of the cases before us. By these provisions the complainants arenotinjuri-' ously affected, and the bills do not 30m plain of anything done, or proposed to be done, under them. It is the compulsory service which the plaintiffs resist j they do not complain that there is a mode pro vided of ridding themselves of it. If it be conceded Congress cannot provide for commutation of military service, by the payment of a stipulated sum of money, or cannot do it in the way adopted in this enactment, the concession in no manner affects the directions given for C0T3 pulsion into service. Let it be that the provision for commutation is unauthorized, those for enrollment and draft are suchas Con." gress had power to enact. It is well settled that part of the statute may be unconstitutional and the remainder iu force. I by no means, however, mean to be understood as conceding that any part of this act is unconstitutional. I think it might easily be shown that every part of it is a legitimate exercise of the power vested in Congres?, but I decline to discuss the question, because it is not raised by the cases before U3. Nor while holding the opinions express ed, that no rights of the complainants are unlawfully invaded or threatened, is it necessary to consider the power or pro priety of interference by this court, on motion, to enjoin Federal 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 arc not eutitled to. the injunctions for which they ask, and I think they should be denied. m Takino the Starch out. -A capital example, writes a reader, of what is ofteu. termed "taking the starch out," happened recently in a country bank in New England. A pompous, well dressed in dividual entered the bank, and, address ing the teller, who is somewhat of a wag, inquired : "Is the cashier in V "No sir," was the reply. . "Well, I am dealing iu pens, supplying the New England banks pretty largely, and I suppose it will be proper for me to deal with the cashier." "I suppose it will," said the teller. . "Very well 1 will wait." . L ; , tfhe pen-peddlcr took a chair, and eat : composedly for an hour, waiting for the cashier. By that time he began to grow, uneasy, but sat twisting in his chair for about twenty minutes, and seeing no pros pect of a change ia his circumstance, a?ked the teller how scon the cashier would be in. "Well, don't know exactly," said the waggish teller, "but I expect him in about six weeks. He has just gone to Lake Superior, and told me that he thought he would come back in that time.' Peddlar thought he should not wait. "Oh, stay if you wish," said the teller, very blandly. "We have no objection to you litting here in the day time, and you can probably find some place iu town ; where they will be glad to- keep -you nights." . The pompous pedller disappeared with out another word. MS? Mrs. Trollope, the novelist, who once abused us Yankees, and was herself well abused in return, recently died at her residence inFlorcncc. She was over eighty years old. ; JB Heaven gives us. enough when it gives us opportunity. 1! a j J.- . ?4 A- 1 ) : 1 1 : inr ir
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