' ! UB- Jl id 'Hi art. nVSv IBS IBB IBB THE BLESSINGS OF GOVERNMENT, LIKE THE DEWS OF HEAVEN, SHOULD BE DISTRIBUTED ALIKE, UPON THE HIGH AND THE LOW, THE RICH AND THE POOR. f III EW SERIES. EBENSBURG, PA. WEDNESDAY, NOVEMBER 25, 1863. VOL. 10 NO. 51. i . . - - rjOCRAT & SENTINEL" tional forces, then, mean the militia of the ,. published every vv eunesuay states certainly include the militia ot it One i'olua m. ir a i rennsjlvania. I his expression, " nation al mvable iu advance : Ons Dol vestt Fivk Cents, if not paid . SUtb. ; and Two Dollar if Wie ' , -vil the termination of the year. Jlons ei ii i . : 1 r -wriptUMl will oe rcuciYcu ior than t months, ana no beat hbertv' to discontinue ' nntiUU arrearages are paid, ex- x ----- . , . . .),, option ot the editor. Any per- . - .-. ilia mnnni? 1- .1.1 nnAQ id'ernis OneinserVn. Two do. Three do .., fi2 lines ou it i,uvi ij24lir.es 1 00 1 00 2 00 " hifilinesi 1 60 2 00 8 00 S U1UUIU9, $1 50 12 line 12 60 24 lines 4 00 36 lines! 0 10 00 15 00 4 OT if ?9, IT. it. ire. i column . 6 do. $3 00 4 50 7 00 9 00 12 00 22 00 12 do $5 00 9 00 12 00 14 00 20 00 35 00 Uie Court of Pennsylvania. r fnNtjKESS OK 3d MARCH, 180J, .,m,,mt CALLED THE "Coxsckif- ;yiV"- n Law,' Declaked Usconstitu S. Kncedler, TS. d M. Lane, ct aL wi B. Smith v same. . Nickel? vs eutne. Three bills in equity. And on a motion i n each case for special injunction. . i - W(k)iWAKD, J- Un the d day oi rh. 1863. the Congress of the Lnited n pa-scd an act for "enrolling and militia, - ... y r I 1 i out the National torces, ana tor p .!.. 11. .J t purpose, wtnen is cmnuionij vuu Cun-mption law. I he piaintins, i i i) are cuiuns oi l ennyi aiua, fonh the act fully in their bills, and v oumiAain that thev have been d. af- 1'vbsa !m mifi to"? eer 'tce of the Gqv- yvment m pursuance ot said enactment, jt thai the Mine is unconstitutional and aiL and that the detendants. who are iMred in executing the act, have viola- i3 the rights and are about to invade the wnal liberty of the plaintiffs, and there- Mi they invoke the eouitable interixsi- nof this Court to enjoin the defendants binsi a further execution of the said For the jurisdiction of this Court to set le an act of Congress as unconstitu iui!, and to grant the relief prayed fr, t:rmyclf to the views of the Chief xi in the opinion he has just dehver- in th cases, and I come at once to oonstitutional ouestion. le Act begins with a preamble which i ... .i .- .i i the existing insurrection and relel tgniust the authority of the United w. the dutv of the (lovernment to r?ws insurrection and rebellion, to -n,e to ach State a republican form pjTernment, and to preserve the public quility, and declare that for these high fpoik-s a n.ilitary force is indispensable, 0 rai and support which all persons cht iillinclv to contribute." and that KTvice It mom praiseworthy and honor i than the maintenance of the Consti- konand IVum : and then cues on to w:de for the enrolling of all the able- "M male citizens of the United States, pTVins of foreign birth who have de- vi-i their intention to become citizens. the agts of twenty-one and forty- years, and these able-bodied citizens LjJ foreigners, with certain exceptions 'Tward enumerated, are declared " Vie wnaZ forr,s and ,uade Viable to per fn military duty when called out by .Preent jue act divides the coun- 7 Mto military illctrte rirrosnnndinT . j .w. " " - I B lUn I ' . ...... . .uC ongri'iMonal districts, provides f provost marshals and enrolling boards, d regulates the details of such drafts as President shall order to bo made from ational forces so enrolled. The oay- of $300 excuses any drafted person, !'t it i, in ffcCt a yyf providing for a 'apulsorj draft or conscription of such Kai as are unwilling or unable to pur exemption at the simulated Drico. i' ti ' lS Uie tirst instance- in our historv. of , - j f k ,orcillg a great public burthen " loor. Our State legislation, which "lu men who are not worth more r" 530) from uavintr their own debts. uinwnt; "... . -..B cumrasi witn this consenp- iK v, i uuu buv;u uicii e DUrthtn whfh Kalonrr .l, ST011 ought willingly . to contribute." tf k 0,vever- an objection to the spirit , . imuci luau m na con- ""uuonahty. S" e,,criPtlon of persons to be a t atleb3iod citizens, between tw ony-nfe years of age, is substantially oesenption of the militia as definwl in r,Dn,7lvnia statuten and probably in M fcu tt btli Tli aa al lorces," is modern 'language, when so It is not found in our Const i tu- either State or Federal, and if used in commentaries on the Constitution, and in history, it will generally be found ap plied to our land and naval forces in actual service to what may be called our standing army. It is a total misnomer when applied to the militia, for the mili tia is a State institution. The General Government has no militia. The State militia, always highly esteemed as one of the bulwarks of our liberties, are recogni zed in the Federal Constitution, and it is not in the power of Congress to obliterate them or to merge them in " national for ces " Unless there is more magic in a name than has ever been supposed, this con script law was intended to act upon the State militia, and our question is, there fore, whether Congress has power to im press or draft the militia of the State. I cannot perceive what objection can bo taken to this statement of the question, for surely it will not be arcued that calling the militia national forces makes them something else than the niilitia. If Con gress did not mean to draft the militia un- tlns law, where did thev expect to hnd the national forces? "All able-bodied white male citizens between the ages of twenty-one and forty-five years, residing in this State, and not exempted by the laws of the United States," with certain specified exceptions, constitute our State Will it be said that the conscript law was not intended to operate on these? I think it will not. Then if it does touch and was framed and designed to draft thits very class of citizens, no possible objec tion can Iks taken to the above statement of the question we have to decide. I, therefore, repent the question with great confidence in its accuracy, has Con gress the constitutional power to impress or draft into the military service of the United States the militiamen of. Pennsyl vania ? This Question has to be answered by the Constitution of the United States, be cause that instrument, framed by deputies of the people of the States and ratified and put into effect by the States themselves in their respective cororate capacities, dele gates to Congress all the powers that body ran exercise. These delegations are either express or such implications as are essential to the execution of expressly dele gated powers. There are but three provisions in uie Constitution of the United States that can be anrealed to in support of this legisla- tion. In ordinary edition they stand numbered as clauses 13, 1G and 17 of the VIII section of Act 1, of the Constitution " 13. Congress shall have power to . . 1a. raise and support armies, oui no appro- cient for their subsistance," and this was as far as English legislation had gone when our Federal Constitution was planned. Assuredly the framers of our Constitution did not intend to subject the pso pie of the States to a system of con scription which was applied in the mother country only to paupers and vagabonds. On the contrary, I infer that the power conferred on Congress was the power to raise armies by the ordinary English mode of voluntary-enlistments. The people were justly jealous of stan ding armies. Hence, they took away most of the war power from the Execu tive, where, under monarchial forms, it generally resides, and vested it in the legislative department, in one branch of which the States have equal representa tion, and in the other branch of which the people of the States are directly represen ted according to their numbers. To these a i representatives of the States and the peo ple this power of originating war was committed, but even in their hands it was restrained by the limitation of biennial ap propriations for the stipjKjrt of the armies they might raise. Of course, no army could be raised or supported which did not command popular approbation, and it was rightly considered that voluntary en listments would never be wanting to re cruit the ranks of such an army. The war power, existing only for the protec tion of the people, and left, as far as it was possible to leave it, in their own hands, was incapable of Wing used with out their consent, and, therefore, could never languish for enlistments. They would be ready enough to recruit the ranks of any army they deemed necessary to their safet'. Thus the theory of the Constitution placed thii great power, like other govermental powers, directly upon the consent of the governed. The theory itself was founded on free and fair elections which are the funda mental postulate of the Constitution. If the patronage and power of the Govern ment shall ever be employed to control popular elections, the nominal representa tives of the people may cease to bj their real representatives, and the armies which may be raised may not so command pub lic ctftitidence as to attract the necessary recruits, and then conscript laws and other extra constitutional expedients may be come necessary to fill the ranks. Hut sovermental interference with popular elections will be subversion of the Consti tution, and no constitutional argument can assume such a possibility. Supposing that the people are always to be fairly represented in the hall of Con gress, 1 maintain that it is grievous injus tice to them to legislate on the assumption that any war honestly waged for constitu tional objects will not always have such sympathy and support from the people as will secure all necessary enlist mcnis. Equally unjust to their intelligence is it to limitations prescribed-in clauses sixteen nnd seventeen, and therefore, I argue Con gress has not the power to draft them. Is an express rule of the Constitution to give way to an implied one ?. If the thirteenth clause confers power to draft the militia, the words of the sixteenth and seventeenth clauses are the idlest that were ever writ ten. Hut if the eighteenth conferred only the power to enlist volunteers, then the subsequent clauses become very intelligi- all the world a standard of values and of weights and measures that shall be com mon to all the States, and a postal system that shall be co-extensive with interest at tiadc ami commerce. To adjust and maintain these external relations of the citizen, are high duties which the Consti tution has committed to the Federal Gov ernment, and has furnished it with all ne cessary civil functionaries, and with power to levy and collect taxeS Irom the people ble stand well with the thirteenth, and J of the States, to raise and support armies, priations of money to that use shall be for suppose that they meant to confer on their en- servants the power to impress them into a war which they could not approve. When to these considerations we add the ability of a great country, like ours, to stimulate and reward enlistments, both at home and abroad, by bounties, pen sions and homesteads, as well as by polit ical patrocage in countless forms, we see how little necessity or warrant there is for inplying a grant of the imperial power ot a longer term than two years. " 1G. Conuress shall have power to provide for calling forth the militia to exe cute the laws of the Union, to suppress insurrection and repel invasions " 17. Connrcss shall have power to provide for organizing, arming and discip lining the mihtia, and tor governing sum part of them as may be employed in the service of the United States, reserving to snitoa 1-Pfir.ertivelv the appointment of Conscription ,i. . r, .., t tha nniWitv of training There is nothing in lli"C uuklicj i'a .-' "j - - the militia according to the discipline pre scribed by Congress. "To raise armies" these are large words! what do they mean ? There could be limitation upon the number or size ot the armies to be raised, for all possible frmtinrfniei mold lie foreseen : but our question has not reference to numbers or size, but to the nuxU ot raising" armies. rm ! ft AA.-- liA lhctramersoi me vxwisuiuuon, i . oa Jijv m imn:r its own proper military power, is it not much more improbable that the State3 meant to confer upon the General Government the the history of the Constitution nor in those excellent con temporaneous papers called the Federal ists, to justify the opinion that tins vasi power lies wrapped up m the tew plain words of the loth clause, whilst the suo- sequent clauses, concerning me miiuia, absolutely forbid it. If the very improbable case be suppo- sable, that enlistments into the Jrederai armies might become so numerous in a States who adopted it, derived their ideas of covernment principally from the exam - . - ... r pie of Great liritam certainly noi irom any of the more imperial and despotic governments of the earth. What they meant to make was a more tree ionsmu- tion than that of Great Hritain taking that as a model in some things but en larging the basis of popular rights in all respects that would be consistent with order and stability. They knew that the British array had generally been recruited by voluntary enlistments, stimulated by wages and bounties, and that the lew in stances of impressments and forced con scriptions of land forces had met with the disfavor of the English nation and had led to preventive statutes. In 1704, and again in 1707, conscription bills were at tempted in Parliament but laid aside as unconstitutional. During the American Revolution a statute, 19, Geo. Ill C. 10, permitted the impressment of " idle and disorderly persons not following any law ful trade or liavlng'sotne substance aufli- power to deprive them, at its own pleasure altogether of the militia, by forced levies ? YeUhis might easily happen if the power of conscription be conceded to Congress. There are no limitations expressed noth inT to compel Congress to observe quotas and proportions as among the several ctQtPB nothinor to prevent their raising armies wholly from one State, taking every able-bodied citizen out of it to the endangering, if not utter undoing of all its domestic interists. And besides, if we concede this danger ous power to the language of the thirteenth clause, we destroy the force and effect of the words of the sixteenth and seventeenth clauses. We make the instrument self destructive, which is violative of all can ons of construction. Congress shall have power to provide for calling forth the mi litia in the manner and subject to th add essentially to the martial faculties of the r ederal Government Ixxk at those clauses. The militia are to be called forth to execute the laws of the Union, suppress insurrections and repel invasions, to be organized, armed and disciplined by the State, but according to the laws of Congress, and such part of them as may be employed in the service of the United States are to be governed by the Presi dent but officered by the respective States. Now this CoiJscription law recites an " existing insurrection and rebellion " as the ground and reason, not for calling forth the militia under the above provisions, but for draftiufj them into the military service of the United States. The very case has occurred in which the Constitution says the militia shall be called out under State officers, but Congress says they shall be drafted, in contempt of State authority. General Washington and the men of his day, did not so read the Constitution, when in suppressing the whisky insurrec tion in this State they paid the most scru pulous regard to the rights and powers of the State. Under pressure of a foreign war, a Conscript Hill was reported in Congress in 1814, but it did not pass, and if it had, it would have been no prece dent . for this law, because we are dealing with an insurrection, and insurrections are specially provided for in the Constitution. If to support a foreign war Congress may draft the mihtia, which I do not admit, the power of draft to suppress insurrec tions is not to be implied, since another mode of suppressing insurrections is ex pressly provided. When a State is called on for its quota of militia, it may deter mine, by lot, who of the whole number of its enrolled militia shall answer the call, and thus State drafts are quite regular, but a Congressional draft to suppress insur rection is an innovation that has no war rant in the history or text of the Constitu tion. Either such a law, or the Constitu tion, must be set aside. They cannot stand together. And, happily, no ill consequences can flow from adhering to the Constitution, for the standing army of the Federal Gov ernment, recruited by enlistments in the ordinary way, with the State militia, called forth according to the Constitution, are a force quite sufficient to subdue any rebellion that is capable of being subdui'd by force of arms. Such- a formidable force, wisely wielded, in connection with a paternal'and patriotic administration of all other constitutional powers, will never fail to put down refractory malcontents, and preserve peace and good order among the American people. This Conscript law, therefore, not sanctioned by the Con stitution, is not adapted to the exigencies of the times, nor likely to have success, as a war measure. In its political bearings, even more than in its military aspects, it is subversive of the Constitution and of the rights of citi zens that depend upon State authority. A few thoughts will make this plain. It is impossible to study our State and Federal Constitutions, without seeing how mani festly the one was designed to guard and maintain the personal and social rights of the citizen the other to take care of his external relations. Nurture, education, property, home, wife, and children, servants, administra tion of goods and chatties after death, and a graveyard in which to sleep the sleep of death, these are among the objects of State solicitude, for the protection of which the State provides civil authorities and bnek of them the ;ews? comifatus and the military J to make the civil administration effectual. Now, if the principle be admitted that Congress may take away the State mili tia, who does not see that the ultimate and final security of every man's domes . . i. j i tic and personal ngtits is enuangereu. To the extent delegated in the Constitu tion nobody questions the right of Con rrress to control the State militia, but if to the extent to which this enactment goes, the States will be reduced to the condition of mere counties of a great Common wealth, and the citizen of the State must look to the Federal Government for the enforcement of all his domestic rights as well as for the regulation of his external relations. The citizens of the States need protec tion from foreign foes and Indian tribe: to provide a navy, and to call forth the militia to execute the laws. Thus the American citizen amply pro vided, by means of Constitutions that are written, with protection for all his rights natural and artificial, domestic and for eign ; but as the war power of the Gene ral Government is his ultimate security for his external, so is the militia his ulti mate security for his internal or domestic rights. Could the State Government strike at the war iwwer of the Federal Govern ment without endangering every man's rights? In view of the existing rebellion, no man would hesitate how to answer this question, and yet is it not equally apparent that when the Federal Govern ment usurps a power over the State mi litia which waa never delegated, every man's domestic rights (and they are those which touch him most closely) are equally endangered. The' great vice of the conscript law is ; that it is founded on an assumption that Congress may take away, not the State rights of the citizen, but the security and foundation of his State rights. And how long is civil liberty expected to last after the securities of civil liberty are destroyed ? The Constitution of the United States committed the liberties of the citizen in part to the Federal Govern ment, but expressly reserved to the States and the people of the States all it did not delegate. It gave the General Govern ment u standing army, but left to the States their militia. Its purjoses in all this balancing of powers were wise and rood, but this legislation disregards these distinctions, and upturns the whole system of government when it converts the rotate militia into " national forces "ind claims to use and claims to and govern them as such. Times of relel!ion, alxve all others, are the times when we should stick to our fundamental law, lest we drift into anar- ehy on one hand or into desjotisiii on the other. The great sin of the present re bellion consists of violating the Constitu- i tion whereby every man's civil rights ate exposed to sacrifice. Tnlcss the Govern ment be kept on the foundation of the foundation of the Constitution, we imitate the sin of the rebels, and thereby tncour age them, whilst we weaken aiid dis hearted the friends of constitutional order and government- The plaintiffs in these bills have good right, I think, as citizens of Pennsylvania, to complain of the act in question, not only on the grounds I have indicated, but on another to which I will briefly allude. The 12th section provides that the drafted person shall receive ten days no tice of the rendezvous at which he is to report for duty, and the 13th section enacts " that if he fails to report himself Government the in purvuunce of such notice, without fur nishing a substitute or paying the required sum therefor, he shad be deemed a de serter, and idiall be arrestee! by the prt vost marshal, and sent to the nearest mili tary post for trial by court martial." The only qualification to which this provision is subject is, that upon proper showing that he is not able to do military duty the board uf enrollment nn;y relieve him from the rlraft. One of the complainants, Ivneedler, has set forth the notice that was served on him in pursuance of this section, and by which he was informed that unless he ap peared on a certain day, he would be : " deemed a deserter, and would be sub ject to the penalty prescribed therefor, by the rules and articles ot war. I believe the penalty of desertion, by the militaiy code is any corporeal punishment a court martial may choose to inflict, even to that of being put to death. ' Can a e-itizen be made a deserter before he has become a soldier? Has Congress the constitntional power to authorize pro vost marshals, after drawing the name of a freeman from a wheel and serving him with a ten days' notice, to seize and drag him before a court-martial for trial under military law ? This question touches the foundations of personal liberty. In June 1215, the Barons of England and their retainers, " a "numerous host en camped upon the srassy plain of Itunny meade, wrung from King John that Great Chfrt-T which declared, among of Englishmen, that "that no freeman shall be arrested, or imprisoned, or de prived of his freehold, or his liberties, or free customs, or be outlawed or exiled, or in any manner harmed ; nor will we (the King) proceed against him, nor send ant one against hwi by force o f arms, unless ac cording to the sentence of his peers (which includes trial by jury) or the common law of England." Here was laid the strong foundation of the liberties to which we belong. And yet not here for Magna Charta created no rights, but only reas serted those which existed long before at common law. It was for the most part, says Lord Coke, merely declaratory of the principal grounds of the fundamental law of England. Far back of Magna Char ta, in the customs and maxims of our Saxon ancestry, those principles of liberty lay scattered which were gathered to gether in that immortal document, which four hundred years afterwards were again reasserted in two other great declaratory statutes, " The Petition of Rights" and "The Hill of Rights," and which were transplanted into our Declaration of In depenence, the Bill of righhts to our State Constitution and the Amendments to our Federal Constitution, and which have thus become the heritage of these plaintiffs. Sa-s the 5th article of these Amendments: ' No person shall be held to answer for a capital or otherwise in famous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger." What is the scope of this exception ? The land or naval forces mem the regular organization of the standing army and navy into which citi zcus are introduced by military education from boyhood or by enlistments, and be come, by their own consent, subject to the military code and liable to be tried and punished without any of the forms or safeguards of the common law. In like manner the militia when duly called out and placed in actual service " are subject to the rules and articles of war, all their common law rights of personal freedom being for the lime suspended. But when are militiamen in actual ser vice ? When they have been notified of a. draft ? Judge Story, in speaking of the authority ot Congress over the mili tia, 6ays : " The quest'on when the au therity of Congress over the militia be comes exclusive, must especially depend upon the fact when they are to be deemed in the actual service of the United States. There i3 a clear distinction between cal ling forth the militia and their being in actual service. These are not contempor aneous acts nor necessarily identical in their constitutional leaning. The Presi dent is not Commander-in-Chief of the militia, except w hen in actual wrvice, and not merely when they are ordered into service. They are subjected to martial law only when in actual si nice, and not t.urty when called forth be fore they lutve- vbcytd tlie cu'l The acts of 1795 and other acts on the subject manifestly contemplate and and recognise this distinction. To Irlnj Vie. militia within Vie meaning of being in t'te uctiud service there mnt be an obcdi-. t.cc to the call, and some acts of orymi:tt:onf mu$ tcrifig, rendeerous, or marching dune in ofc dience to the ctill in the nbl;c &7Tt'cc." (Story's Con. Law, vol. 3, sec. 120S.) It it be suggested thut this plain ruU of common sense and constitutional law is not violated by the Conscription act be cause it applies to the " national forces," I reply as leforc, that this is only a new name for the militia, and that the constitutional rights of a citizen are ne t to be sacrificed to an unconstitutional name. When Judge Strorg was endeav oring to mark with so much distinctness the time at which the common law right of the citizen ceased and his liability to military rule began the time, in a woid, when he liecame a soldier why did it not peaceful intercourse and couiropice ith j other . c ui-i -s of th rights and ' U rties j occur to his fertile mind that Conrrress o could render this distinction valueless and. unmeaning by a new nomenclature by calling the militia 44 national forces ?" It is not difficult to conceive now such a sug gestion would have fared had it occurred or been maile to him. But it is difficult in the presence of the grave issues of the the present day, to treat so frivolous a suggestion with the dignity and forbear ance the occasion demands. I have shown what riglits of personal liberty these plaintiffs inherited from a remote ancestry, and how they are guarranteed to them by our constitutions, and at what time they are to give place to martial law; and surely if a wheel, set in motion by Congress, can crush and grind thewe rights out of existence, without regard to th limitations of the Constitution, some weightier reason should be found fvr It
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