— ... - - ■ i ■
tt A. T~2 -XT Tg-tr SICIvLEn., Proprietor.]
i\EW SERIES,
ftortlj Branch BnnncniK
A weekly Democratic
paper, devoted to Pol ' pljfef{y
lies, News, the .Arts (jf j
ind Seienccs &e. Tab- *] El - '
ished every Wednes
lay, at Tunkhannock,
Wyoming County Pa. - /'I MHyfj 7
BY HARVfcY SICKLER. .
Terms —1 copy 1 year, (in advance) 51. 50. If
hot pain within six months, $2.00 will he charged
ADVEiTTISIKTCr .
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Business Cards of one square, with paper, S5.
JOB WOBK
ef all kinds neatly executed, and at prices to suit
the titnes.
fht.sines.s
BACON STAND.—Nichols on, Pa. C L
JACKSON, Proprietor. (vin49tf]
HS. COOPER, A k'KDEON
• Newton Centre, Lnzerne County Pa.
ftEO. S. TUTTON, ATTORNEY AT LAW,
'_J Tunkhnnnock, Pa. Oflice m Stark's Ifiick
Ploek, Ti-.>es "'-cc*.
M. PIATT, ATTORNEY AT LAW, Of-
Y\ lice in Stark's Rriok Rluck, Tioga St., Tunk
hannock. Pa.
R" R.&S, W,'UTTI.E ATTORNEY'S AT,
LAW, Oface on Tioga street, Tunkham >ok
Pa.
HARVEY SIC KI.EK. A I IOKNR:\ AT I.AW
and GENERAL INSPRANCE AGENT - Of
fice, Rri'lge street, opposite Wall's Hotel, Tunkhan
nock Pa.
DR. J. v. RORSF.I.ius, HAVING LOCAT
ED AT THE TALES. WILL promptly attend
all calls in tho line of hi? pr< fes.don—may he found
lit Beemer'S Hotel, when not professionally absent.
Palls, Oct. 10, 1361.
UK. .1. c\ UEC K 1 TI A- Co.,
PHYSICIANS & SURGEONS,
Would respectfully nnnonn-e to the citizens of Wy
ming that they have located at Tunkhannock wher
bey will promptly attend to all < all* in the line of
noir prcf'.'s-ion. Maj-Le found at his L.ug Storo
wneu not professionally absent.
T M. CARE*, M. i). — (Graduate of the q
. . M. Institute, Cincinnati) would r vc. ifulfv
announce to the citizens of Wyoming and Luzerne
Counties, that he continues his regular practice in the
various departments of his profession. -May ne found
at his office or residence, when r.ot professionally ab
dit
Tartieulnr attention given to the treatment
Chronic Diseas.
entremorehmd, Vyoming Ci. Fa. — \2u2
WALL S HOTEL,
LATE AMERICAN HOUSE,
TUNKIIAN NOCK, A\ YO.AIING CO, lA
THIS establishment has recently been refitted nrnl
furnished in the latest style Every.attention
will te given to the comfort ana cOTiverih-i ce o" those
tvjo patronize the House.
T. H. WALL, Owner nni Proprietor.
Tnnkhannoek, September 11, iciii.
MA¥JNAR 7 S HOTEL,
T UNKIi A N N O CK,
,WTO MIN G COUNTY, PENN A.
JOHN MAYNARD, Proprietor.
HAVING taken the Hotel, in the Borough of
Tunkhannock, recently occupied by Riley
Warner, the proprietor respectfully solicits a share ot
public patronage. The House has been thoroughly
repaired, and the comforts and accomodations of a
first class Hotel, will be found by a.i who may favor
t with their custom. September 11, 19G1.
NORTH BRANCH HOTEL,
MESUOPPEN, WYOMING COUNTY, PA
YVm. U. CORTRIGIIT, Prop'r
HAVING resumed the proprietorship of the above
Hotel, the undersigned will spare no effort to
render the house an agreeable place ot sojourn for
all who may favor it with their custom.
Win. 11. CCRTRIIIHT.
June, 3rd, 1863
M. OILMAN,
DENTIST.
WGILMAN, has permanently located in Tunk
• hanncvk Borough, and respectfully tenders las
professional services to the citizens of this place and
Rrrounding country.
. ALL WORK WARRANTED, TO GIVE SATIS
FACTION.
Offico over Tutton < L&tv Ofaoa, near tU e Pos
Tffiee.
Dee. 11, IS6I.
TO NERVOUS SUFFERERS OF B( TF
SEXES,
A REVEREND GENTLEMAN HAVING BEEN
restored to health in a few days, after undergoing all
the usual routine and irregular expensive modes of
treatment without success, considers it his sacred du
ty to communicate to his afflicted fellow creatures
the means of cure. Hence, on the receipt of an ad
dressed envelope, ho will send (free) a copy of the
prescription used. Direct to Dr John M. Daonacl,
168 Fulton Street, Brooklyn, New York. v2n'24!y
THE CONFESSIONS AND~ EXPERIENCE ~
OF A NERVOUS INVALID.
Published for the benefit and as a caution to young
rnen, and others, who suffer ironi Nervous Debility,
Karly Decay, and their kindred ailments—*supplying
?' sclf-cuie. By ono who has cured him
self after being a >ictim of misplaced confidence in
medical humbug and quackery. By enclosing apost
paid directed envelope, einglo copies may be had of
the author, Nathanikl Mayfair, Em.. Bedford.
Kings County New York —v3-Dls-]y.
Unconstitutionality of the Conscrip
tion Act.
JUSTICE WOODWARD'S OPINION,
WoomvAßD, J.- -On the 3d day of March,
18 3. flie C' tigress of the United Slates pass
ed an act f. r u enrolling an i calling out the
National (■ rees, and for other purposes,"
which is ci innimly called the Conscription
Law. The pla'ntifF<, wiu ?re Citizens of
Pennsylvania, have set forth the act fully 'in
their bills, and they coitiohiin tliat they iiave
been drafted into li e military service of the
Government in pursuance of said enactment,
but that the same is unconstitutional and
void, and that the defendants, who are en
gaged in executing the act, have violated the
lights and are about to invade the per.-utial
liberty ol the plaintiffs, and thereupon they
invoke the equi'ab'e interposition of ibis
Court to enjoin the defendants against a far
ther execution of the said act.
For the jurisdiction of this Court to >et
aside an act of Congress as unconstitutional,
and to grant the relief prayed for, I refe. my
self to the views of the Chief Justice in the
opinion he his just delivered in these cases,
and I cotne at oi.ee to the constitutional
question.
The act begins with a preamble which re
cites the existing insurrection and rehcl"<ui
against the authority of the United Sia es,
the duty of the Government to suppress in
surrecti'.n and rebellion to guarantee to each
S'ute a republican f< rm of government, and
to preserve the public tranquility, ami <le
dares that for these high purposes a uiiiitarv
force is indispensable, 'to raise and support
winch ail persons ought willingly to contri
bute,' and thai no service is more prji-cwur
thy an i honorable than itie maintenance of the
Constitution and the Union j and Ineu g e
on i. piovute tor the enrolling ..I ui! able b ■ 1
led mate citizens ol Hie United Slates, and
citizens of foreign birth, who have declared
• heir intention to become citizens, be'ween
ihe ages of twenty one and f ..riy live Vears,
and these able-bodied citizens and foreigner*,
with certain exceptions afterward euutneta:
l 'd, are declared 'TIIL NATIONAL rotten-,' ami
made liable to perform military duty when
called out by the Piesident. The act divides
the country into military districts, corres
ponding with the congressional districts, pro
vides for provost inarsha'ls and enrolling
boards, and regulates the details of such
drafts as the President shall order to be
made from the national forces -<> enrolled
The payment ol §>3oo excus s any dr.i oj
person, so that i'. is, in tllfO', law provi-:
ing for a compulsory drali or con-crpii n . :
such citizens as ate unwiliii g <>t unable r (
purchase * xeinpiimi at the stipulated price.—
It is the first instance, in his:oiy, ( >f hgi-|, t
tion forcing a great public burthen on the
poor. Our State legislation, which exempts
men who are not worth more than S3OO from
paying their own debts, is in striking cm
trast with this Conscription law, which de
volves upon such men the burthen which be
longs to the whole 'national f irces,' and to
which, all persons ought willingly to contri
buto.' This, however ' s an objection to the
spirit of the enactment rather than to its con
stitutionality.
The description of persons to he enrolled,
able bodied citizens between fwen y-onr an i
forty five years of age, i" substantially thede
scription of the militia as define 1 mi our Penn
sylvania statutes and pmbabh in the stat
utes of all States. The national free", then,
meaning the militia of the Suites, ctrtamh
include the militia of Pennsylvania. Thi
expression, 'national f< res' is modern lan
guage when so applied. It is not f.njn I in
onr Constitution, eii fier Stare or Federal, and
if used in commentaries on the Constitution,
and in history, it wdl 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 misnotner when applied
tc the militia, for the militia is a State insti
tution. The General Government has no mi
litia. The State militia, always highly es
teemed as one of the bulwarks of our liber
ties, are recognized in the Federal Constitu
tion, and it is not in the power of Congress
to obliterate them or to merge them in 'na
tional forces.'
T n'ess there is more magic in a name than
has erer ben supposed, this conscript law
was intended to act upon tfie State mahth.
and our question is. therefore, whether Con
press has power to impress or draft the inili
tia of the State. T cannot perceive wh.it ob
jection can be taken to this statement of the
question, for surely it will not be argued that
calling the militia national forces, makes them
something else than the militia. Tf Congress
did not mean to draft the militia under this
law, where did they expect to find the ra
tional forces ! 'All able bodied white maie
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, con
stitute our State militia. Will if be said
that the conscript law was not intended to
operate on these ? T think it will not. Then
if it does touch, and was framed and designed
to draft this very class of citizens, no pos.-ible
objection can lie taken to the above statement
of the question we have to decide.
I therefore repeat the question with great
confidence in its accuracy, has Congress tho
"TO SPEAK HIS THOUGHTS IS EVERY FREEMAN'S RIGHT. "—Thomas Jefferson.
TUNKHANNOCK, PA., WEDNESDAY, DEC. 2, 1863.
constnuitonal power to impress or dralt into
the military service of the United States, the
militia men of Pennsylvania ?
This question has to he answered by the
Con-titwioii of the United States, because
that instrument, trained by deputies of the
people ot the Stales and ratified a >d put into
effect b> the Smtes themselves in their re
spective corporate capacities, delegates to
Congress all the power that b<>dv can exer
cise. These delegations are either express or
such implications as are essential to the exe
cutimi of the expressly delegated powers.
There are but three provisions in the C-n
-ti it'ioil ..I the United S'ates that can tie
appealed t> in snppnt of (his legislation. In
onr ordinary editions ihey stand numbered
as clauses 13, 16 and 17 of the viit sect.on of
Ar I. >.f the Constitution.
" 13. Congress shall have power to raise
and support armies, but no appropriations of
money to that use shall be for a lunger term
than two years.
" 15 Congress shall have p over to provide
for calling birth the militia to execute the
lavssof the Union, to suppress insurrections,
to repel invasion.
'• 17. Congress eh?II have power to provide
for organizing, arming and disciplining the
militia, and for governing such part ot them
as may be employe! m the service of the
I nil. d £>'a ; es, ie*tivnig to the State- ie
sprciivi ly. ti.e appointmeiit ol officer- and t e
ailtb ruv ol (Mining tile niili'ia according to
itie di-ciphne piescnbrd by Goiigfess."
'• To armies"—these are large word-}
what do they mean ? There c-utld he 'n* Inn
nation upon the number or size ot armies io
be raised, lor ail pos*ible coutmgmcies C'.uld
not 1.-- fore-ci-n, hoi our tuesiioii has not rel
> tvnee- to number .>r -7. hut- to tit. MOI>E "I
raising armies. The fr.imel-of the COICI
u.lon, and 1 tie S ate* <'o.a iopted it iler v
ed then* idea- ot government principally fr tn
ihe example of Great Rriiiiii—c< 1 t nnly n t
from any of the inure imperial and despotic
governments of the cart!i. What they meant
in 111:1k was amor.- free Constitution than
thai of Great Criti it taking that a* a nmde'i
in some tilings—but enlarging the basis of
popular rights in all respects thai would be
coiisistaut with older and stability. They
knew that the Briiti-h army had generally
been recruited by volunt ry enlistments,
stimulated by wages and bounties, and that
the few int>ihc s of impressment and forced
conscriptions ol land forces, ha I met wttii the
d stv r <>' .In Eoclish oanoii and had led to
I .rev t.t.ve -:. i -lie-. I i 17u4 and 17u7 eon
-'•i j,'i ti s t r i t iiioi' dn. |*i oameiit
lull .no t si in eon*. 'ui|i.;ia . |>o|'it:g
lite AIIHO ■ . ( v n' on a ;.i IU Geo.
111,0 1(>. }M lat i ■ 1 .on. s- .neot .. '1 Mi
ami disi.r lerl i p r* m* not 1.n0.u u .nv law
fill trade, or having - one subs a iv sufficient
for ttieir übsistanee," and Ibis was as lat a*
English legislation tiad g me when -.or feder
al Const it I!' b>n was planned. A-sttredly the
fr.amers ofmr Constitution <lul nor unum) to
subject the people of the Status to a system
of conscription, which was applied in the
inottier country only to paupers and vaga
bonds. On the c-.niiary, I infer that ihe
power conferred on Co givss, was the power
to raise armies by the ordinary English mode
•>f voluntary enlistments.
The people were justly jealous of standing
armies. Hence they to-'k away most of the
war power from tne executive, where, under
monarchical forms, it generally resides, and
veiled it in ilie legislative department, in one
branch <>l which the Stales have equal re pre
>eniati •'(, and in the other branch of which
i in* people of ilie Stales ale dmctlv repre
sented according t . the.r number-. T tiie-i
repiv seiiialives <>t the Slates ami i!,e p "p! ,
tins power of origin it ing w.r was committed,
but even in their liainls it was restrained by
the limitation ,l biennial appropriations f"i
the support of the armies they might raise.
Of course, no army could be raised or sup
ported which did not command popular ap
propr.ation, and it was rightly considered
that voluntary enlistments would never he
wanting to recruit the ranksof such an army.
The war power, existing only for the protec
tion of the people, and left a s far as it was
possible to leave it in their own hands, was
incapable of being used without their consent,
and, therefore, could never languish for en
listments. Tiiey would be ready enough to
recruit the ranks of anv army they deemed
necessary to their sateiy. Thus the theorj
of the Constitution placed this great power,
like all othei governmental powers, directly
upon the consent of the governed.
The theory itself was founded on free and
fair elections—which are the fundaniental
postulate of the Constitution. Tt the patron
age and power of the government shall ever
'e employed to control popular elections, the
nominal representatives of the people tnav
cease to be their real representatives, and
then the armies which may be raised may
not so command public confilenco as to at
tract the necessarj recruits, and then con
script laws and other extra-constitutional
expedients may become necessary to fill the
ranks. lint governmental interference with
popular elections will be subversion of the
Constitution, and no constitutional argument
can assume such a possibility.
Supposing then that the people arc always
to be fairly represented in the halls of Con
gress, I maintain that it it grievous injnstie?
to them to legislate on the assumption that
any war honestly waged for constitutional ob
jects will not always hare such sympathy and
support from the people as will secure all
necessary enlistments. Equally unjust to
their intelligence it is to suppose that they
meant to confer on their servants the power
to impress them into a war which they could
not approve
When to thee considerations we add the
1 ability of a great country, like ours, to stimu
-1 late and reward enlistments, both at home
and abroad, by bounties, pensions and home
j steads, as well as by political patronage in
countless forms, we see how little necessity
or warrant there is for implying a grant A
the 1117 penal power of conscription.
There is nothing in the history of the Con
stitution nor in those excellent coiitempoia
neous paper-, called the Federalist, to justify
the opinion that this vast power bes wrapped
up in (he few plain words of the 13th clause,
whilst the subsequent clauses, concerning tlu
inilnia, absolutely forbid it.
If the very improbable case be euppoaable,
that enlistments into the Federal armies
might become so numerous in a particular
Slate as sensibly to impair its own proper
military power, is it not much more improb
able that the Stales meant to confer upon the
General Government the power to deprive
tliein, at its own pleasure, altogether of the
militia, by forced levies? Yet this might
easily happen il the power of conscription be
conceded to Congress. There are no limita
tions expressed—nothing to compel Congress
to observe quotas and proportions as among
tiie several Slates—nothing to prevent their
rni-iiig armies wholly from one State, taking
even able b<>du d citizen out of '<t to the eh
•iaiigering, if not utter undoing, of all its do
me-! ic interests.
And beside-, it we conclude this danger, t;-
p WOT to the language of the 13th clati-e, we
; de-troy the f rre and effect of the words of
the J6ih and 17th clauses. W© make the in
strument self destructive, which is violative
|of all canons of con-11 uction. Congress shall
have power to provide for calling forth the
militia in the manner and subject to the lim
uatioiis prescribed in clauses 16 and 17, and
therefore I argue Congress lias not the power
to draft them. Is an express ruio of the
Constitution t<> give way to an implied one ?
If the loth clause confers power to draft the
militia, the words of the 16th and 17th claus
es are the idlest that were ever written. But
if the 13th conferred only the power to en
li-i volunteers, then the subsequent clauses
hi come very intelhgibl • —stand we 1 with the
13th, and add e-etn.ialhr to the martial facnl
t.eg "I th Federal Government. Look at
thoe clauses. The militia am to be called
fo th . ex c\t e tin- law- of the Union, sup
pre-* insurrection and repel invasions, to be
organized, armed and disciplined by the
Stale, bm according to the laws of Congress,
such part of them a* may be employed in the
service of the United States are to b • govern
ed by the President, but officered by the re
spective St ales. Now tins consctiption law
recites an ''existing insurrection and rebel
lion' - as the gtound and reason, not fir calling
forth the militia under the above provisions,
but for "drafting" them into the military
service of the United States. The very case
has occurred in which the Constitution says
the malitia shall be called out under State
officer*, but Congress says they shall le
drafted in contempt of State authority. Gen.
Washington, and the men of bis day, did not
so read the Constitution, when in suppressing
the whiskey insurrection in this State, they
paid Ihe uiii-t scrupulous regard to the
ami powers of the State, t nder the pres
sure of a foreign war, a conscrpt bill was re
p >rted in Congress in 1814, but it <!i) not
pas-, and if it had, it would have been no
pr cedent for this law. because we are dealing
with an insurrection, and insurrections are
especial y provided for in the Constitution.—
If to support a foreign war, Congress may
draft the militia, which I do not admit, the
power of draft to suppress insurrections is
not to be implied since another mode of sup
pressing insurrection* is expressly provided.
When aStaG'is called on tor i;a quota of
militia, it may determine, by lot, who of the
wh le number ol i's enrolled militia shall an
swer the call, and thus State drafts are quite
regular ; but a Congressional draft "to sup
press insurrection" is an innovation that has
no warrant in the history or text of the Con
stitution. En! er such a law or the Consti
tution must besot aside. They cannot stand
together.
And, happily, no ill consequences can flow
from adhering to the oor.6tilution ; for the
standing army of the Federal Government,
recruited bv enlistments in tho ordinary way,
with the State niiiitia called forth according
to the Constitution, area force quite sufficient
to subdue any rebellion that is callable of bo
inir subdued by force of arm-. Such a formi
dable force wisely wedded, in connection with
a paternal and patriotic administration of all
other constitutional powers, will never fail to
put down refractory malcoptents, and pre
serre peace and good order among the Ameri
can people. This conscript law, therefore
sanctioned by the Constitution, is not adapt
ed to the exigencies of the Times, nor likely
to have success as a war measure.
In its political bearings even, more tl.an in
ita military r.spct, it i* soLs'trsi-c of 'h<-
Constitution and of the rights of citirent that
depend upon State authority. A few thoughts
1 will make this plain. It is impossible to
i RttidV our State and Federal Constitutions
j without seeing how manifestly the one was
| designed to guard and maintain the personal
I and social rights of the citizens—the other
I to take care of his external relations.
Nature, education, property, home, wife
! and children, servants, administra'ton of
goods and chattel- after death, and a grave,
j yard in which to sleep the sleep of death,
! these are among the objects of State eolici-
I tudc, for the protection of which the State
I provides civil authorities and back of them
the " posse comiiatus" and the military, to
make the civil administration effectual.—
Now, if the principle be admitted that Con
' gr.-s may take away the State militia, who
' does not See that the ultimate and final se
j curity of every man's domestic and personal
i rights ace endangered. To the extent dele*
I gated in the constitution nobody questions
1 tl ? right of Congress to control the State
1 militia, but if to the extent to which this
; enactment goe, the States will be reduced
1 to the condition of more counties of a great
' Commonwealth, and the citizen of the State
' iuut look to the Federal Government for the
! enforcement of all his domestic rights, as well
! a- for the regulation of his external relations*
The citizens of the state need protection
front foreign foes and Indian tribes—peaceful
! intercourse and commerce with all the world
i—a standard of values and of weights and
'measures that shall be ommyn to ail she
States and a postal system that shall be co
| etxerisivp with interstate trade and commerce.
To adjust and maintain these external rela-
I ticna of the chi7.en, are high duties which the
Constitution lias committed to the Federal
Government, and bns furnished it with all
necesary civil furtc'i manes and with power
to 1 vy and collect taxes from tho people of
the .States, to raise and support armies, to
provide a navy, and to call forth the militia
. to execute the laws.
This is the A-n rican citizen am ply provi
ded by means of constitutions that are writ
ten with protect.in for all his rights, natural
and artificial, domestic and foreign, but as the
war power of the General Government is his
ultimate security for his external, so is the
militia Ins ultimate security for his internal
or domestic rights.
Could the Siato Government strike at the
war power of the Federal G vernment with
out endangering every man's rights ? In
view of the existing rebellion, 110 tnan would
hesitate how to answer this question, and yet
is it not equally apparent that when the Fed-
1 *>ia! Government usurps a power ever the
• Slate tnih'ia which was never delegated,
every man's domestic tights (and there are
tl. <>se which touch htm tnost clo6ely) arc
• qualiy endangered ?
The great vice ot the conscript law is, that
j it is i >unded on an assumption tiiat congress
may lake away, not the State rights of the
i citizen, hut the security and foundation of his
ftate rights. And how long is civil liberty ex
pectcd to last, after the securities of civil lib -
| erty are destroyed. The Constitution of the
j United States committed the liberties of the
t citizen in part to the Federal Government,
| but expressly reserved to the States, and the
j people i f the States, all it did cot dele
| gate. It gave the General Government a
i standing army, but left to the States their
taiiitia. Its purposes in a!! this balancing of
j powers were wise and good, bat this legtsla
| tion disregards these distinctions, and up
turns tha whole system of government when
it converts the State militia into national for
i ces. and claims to use and govern them as
isuch.
I Touts of rebellion above all others, are the
, tines when we should stick to our funda
| mental iaw, lest we drift into anarchy on one
I hand, or into despotism on the other. The
j great sin of the present rebellion c insists in
iTI dating the Constitution, whereby every
j man's civil rights are exposed to sacrifice
j Unless the Government be kept on the fouu
dlion of the Constitution, we imitate the
sin of the rebels, and thereby encourage them
I whilst we weaken and dishearten the friends
of constitutional order and government. The
plaintiffs in these bills bave good right, 1
think, as citizens of Pennsylvania, to com
plain of the act in question, not only on the
, grounds 1 have indicated, but on another to
which I will briefly allude.
[ The 12th section provides that the drafted
' persons shall receive ten day's notice of the
| rendezvous at which he i* to report for duty
I and the J3ih section enacts " that if lie fails
j to report himself in pursuance of such uotice,
i without furnishing a substitute or paying
the required sum therefor, be shall be deem
| ed a deserter, and shall be arrested by the
provost marshal, and sent to the nearest mili
tary post for ttial by court-martial," The
only qualification to which this provision ie
subject, is tint upon proper showing that he
, is not able to do military duty, the board of
; cuti Anient tiny relievo him from the draft.
One of the complaints, Kneeder, has set
| forth too notice that was served on him in
pursuance of this section and by which he
: was informed that unless ho appeared on a
certain day ho would be " deemed a deserter,
and be subject to the penalty prescribed,
j therefor, by the rules and articles of war." I
behove the penalty of desertion by the mili
t tsr- r-ris if pit <--rprrr! * r-vy-'
ITEIIMB. Sl.rSO PEH ANNUM
martial may choose to inflict, even to that
of being put to death.
Can a citizen be made a deserter before bo
has become a soldier? rias Congress the
constitutional power to authorize provost
marshals, after drawing tno natr.o of a free
man from a wheel and serving him with tea
days' notice, to seize and drag him before a
court martial for trial under military law ?
This question touches the foundations of per
sonal liberty.
In June, 1215, the Bsrons of England and'
' their retainers, " a numerous host, encamped
upon the gra=sy plain of Ilunnymede," wrung
from Kmg John that great charter which de
clared, among other securities of the rights
and liberties of Englishmen, that " no free
man shall be arrested, or imprisoned, or de
prived of h:s freehold or bis liberties, or free
' customs, or be outlawed or ex.led. or in any
manner harmed, mm will we (the King) pro
ceed against him, nor send any one againet
him by jorce of arm*, unless according to the
sentence of his peers (which includes trial by
jury) or the common law of England."—
Here was laid the strong foundation of tl
liberties of the race to which we belong.
And yet net here, fLr Magna Charfa created
no rights, but only reasserted those which ex
isted long before at common law. It was for
the most part says Lord Coke, merely declara
tory of the principal grounds of the funda
mental laws of England. Far Lack of Magna
lay Charla in the custom.- and maxima of our
in Saxon ancestry, those principles of liberty
scattered which were gathered together that
immortal document which,four hundred years
afterwards were again reasserted in two ether
great declaratory statute*. " The Petition of
Right" and 44 The Bill of Bights," and which
were transplanted into our Declaration of In
dependence, tlie Bill of rights to our State
| Constitution and the Amendments to our
: Federal Constitution, and which have thae
| become the heritage if these plaintiffs. Says
1 the sth Aiticle of the Amendments:
" No person shall le held to answer for
capital or otherwise infamous crime unless on
a presentiment or ind otment of a grand jury,
except JII cases arising in the land or naval
forces or in tlie militia when in actual service
in time of war or public uange"."
What is the se.pc of th ; s txcep'.icn ? Tho
land or naval forces mean the regular milita
ry crganizitiou cf the Gnrerncisr.t—the
standing army and navy—into which citizens
aie introduced by military education, from
boyhood, or by enlif'incuts, and become, by
their own consent, subject to the military
code and liable to be tried and punished with
out any forms or saf.-guardn of the common
law. In like manner the militia, when dulv
called out and placed in " actual service,'' ar
suljtct to the rules and articles of war. at!
their cctntnon law rights of personal freedom
being far tho tituc su;jended. la at when are
militia men in actual service? When ther
have becu n -titled of a draft ? Judge Story
in speaking of the authority of congress over
the militia says :
" The question when the authority of Con
gress over the militia becomes exclusive, must
essentially depend upon the fact when they
are to he deemed in the actual service of the
L nited Nates. There is a clear distinction
between calling forth the militia and their
being in actual service. These are not con
temporaneous acts nor necessarily indentieal
in their constitutional leanings. The Presi
dent is not commander-in-chief of the militia
except when in actual service ; and not uierelv
when they are ordered into service. They
are subjected to martial loir only when in
actual service, and n> t merely when called
forth, before they have obeyed the call. The
acts of 1705 an! other acts on the subject
manifestly contemplate and recognize this
distinction. To briny the militia within the
meaning of being in the actual service there
must be an obedience to the call and some
acts of organisation, mustering rendezvous,
or marching done in obedience to the call in
the public service"Story's Con. Live. To?.
3, See. 1208.
If it be suggested that this plain rule of
common tense and constitutional law is not
violated by the cor.rcription cct, because it
applies to the " national forces," I reply as
before, that this is only a new name for the
militia, and that the constitutional rights of
a citizen are not to be sacrificed to an uncon
stitutional name. When Judgo Storv was
endeavoring to mark with 6o much distinct
ness the time at which the common law rights
of the citizen ceased and his liability to mili
tary rule began—the time, in a word, when
he became a soldier—why did it not occur tc
his fertile mind that Congress could render
'•his distinction valueless and unmeaning by a
new nomenclature—by calling the militia
" national forces V It is not difficult to con
ceive how such a suggestion would hare fared
had it occurred or been made to him. Rut it
is difficult, in the presence of the grave issues
of the present day, to tieat so frivolous a sug
gestion with a dignity and forbearance the
occasion demands. I have shown what rights
of personal libelty these plaintiffs inherited
from a remote ancestry, and how they are
guaranteed to them by our Constitutions, and
at what time they are to give place to mar
tial law. and sorely if a wheel set in motion
by Congress can crush and grind those rights
I out of existence, without regard to the limita
tions of the Cinstitution, some weightier re.
VuM h* found f-f >t t's misno
VOL. 3, NO. 17.