I** lUPUIIIIIIIIIiiimiii 
 
THE 
 
 SUPREME COURT OF TEXAS 
 
 V T 1 1 
 
 aNSTITl|riONAL!TY 
 
 
 CONS€EEPT LAWS, 
 
 OPINIONS OF 
 
 ASSOCIATE JUST; I iOORE AND BELL 
 
 
 CHIEF JUSTICE WHEELER. 
 
 HOUSTON, 
 TELEGRAPH BOOK AND JOB ESTABLISHMENT. 
 1863. 
 
RKCOBD OF THE CASE. 
 
 Ezptrte Frank H. Coapland en Habeas Corpus, 
 before the Hon. R. T. Wheeler, Chief Justice 
 of the State of Texas. 
 
 Be it' remembered that the following proceedings 
 were had la the sbjve nann-d case. 
 
 State of lexas, Couidy of Trivia, 
 To Hon. Royal T. Wheeler 
 
 ":} 
 
 Chief Justice of the State of Texas. 
 The petition of Frank H. Coaplaud, a citizen of 
 said county of Travis, respectful y represents, that 
 lie is illegally restrained of his liberty upcaCdn 
 Creek in said county, by R. T. P. Allen, and as he be- 
 ■ lieves without any order or process whatever, or 
 any color oi either ; end certainly i'any exist, a copy 
 cannot be obtained. F. H. COAPLAN D. 
 
 George W. Paschal, John Hancock, \ 
 Attorneys for Applicant. ) 
 And the said Frank II. CoapldQ'J, "being duly sworn, 
 on oath sijs, that the allegations of the above peti- 
 tion are true, accordi: g to the belief of the peiition- 
 er. F. II. LOaPLAND. 
 
 Subscribed and sworn to before me this IGth day of 
 Ju'y.A.B., 18 KferEIi.GP.AY, 
 
 Chief Justice Travis Coi 
 The State of Texas, Travis Ccn 
 
 The State of Texas to 2i. T. P. Allen, greeting'.: 
 You are hereby commanded that the bo t.\'of Fr n\ 
 E. Coapland, v. bich is alleged, in the petition oi the 
 said Coapland to me addressed, 'is illegally restrained 
 liberty upon Onion Creek in said county, by 
 E. T. P. Allen, and as he believes without any 
 or process whatever, or any col r cf elthor," you 
 have before the undersigned, Chief, Justice of the 
 Supreme Court of saidS:ate, at the Supieme 
 room in the capital of "said State, on the morrow of 
 the 19th inst., at 10 o'clock. A. si., to receive md 
 abide what shall be considered concerning htm in 
 ihiibeha'f. Herein f il not, and make due return 
 nereojf.wi'.h .the cause of the taking and d ta 
 
 s id FrankH. Co.plsnd. Given under my' 
 hand this lS.h day of Julv. 
 
 . R. T. WII.KELER, 
 Chief Jusjtic, ourt. 
 
 Return.— Comes R. T. p. Allen in obedience to 
 the command of the writ of habeas corpus served 
 upon him and makes return thereto as follows : 
 
 On the 23th day of Jane, 18G2, 1'received &n or- 
 der from R. JTownes, Provost Marshal of Travis 
 county, a copy of which is hereto attached, marked 
 "A," commanding me to receive the said Frank 
 Coapland, and hare him eocurely imprisoned 
 within (his) my lines. Said copy certified to by the 
 Adjutant of my Regiment, the original having 
 been lost, is asked to be takeB as part of this re- 
 turn. In obedience to said order, I detained the 
 said Frank Coapland as a prisoner within the 
 lines of the Regiment of Confederate States sol- 
 diers, of which I am Colonel at Camp Terry in 
 Travis county, until the 14th or 15th day of July, 
 inst., at which time under authority from Colonel 
 JohnS. Ford, Superintendent of Conscripts of 
 the State of Texas, I enrolled the said Frank 
 Coapland as a conscript under the act of the Con- 
 federate Congress, entitled "an act to further pro- 
 vide for the public defence," and discharged him 
 from imprisonment or custody. 
 
 The discharge of the said Coapland was in obe- 
 dience to iDstructions from R. J.Townea, Protest 
 
 Marshal. The, said Coapland was enrolled as 
 aforesaid by me with his consent, and at his re- 
 quest was attached to company U B" of my regi- 
 ment, commanded by Capt. Joe Z. Miller. Since 
 the date of said enrollment I have h\d and havt 
 now no other control, possession or powers over 
 said Coapland, than such as rests in me as a Colo- 
 nel in the Provisional Army of the Confederate 
 States, over a soldier in said army under my com- 
 mand and attached to my regiment. 
 
 It is proper to say that at the time of receiving 
 the order, a copy of which is hereto attached, I 
 was leaving Camp Terry on special service, and 
 Capt. Joe Z. Miller, ofOom 4 ->auy"B" was in com- 
 mand of the camp, to whom I directe'd the order 
 and the prisoner to be delivered until my return. 
 
 On Friday morning the 18th inst., I gave the 
 said Coapland leave of absence to come to Aus- 
 tin und I have not seen him since, and therefore 
 have him not before the Court. 
 
 R. T. P. ALLEN, 
 Col. Comd'g Reg't Texas Infantry. 
 
 Sworn and subscribed to Were me this % I 
 of Juty 18G2. 
 
 R. T. WHEELER, 
 Chief Justice Supreme Court. 
 
 Office of Provost Marshal, ) 
 Travis County, June 25, 1862.) 
 To Lieut. C. Nash: 
 
 You wi;l detail a sufficient guard from your com- 
 mand, put a proper officer over them, and conduct, 
 the prisoner, Frank Coapland, to Camp Terrv,and 
 deliver him to Col. R. T. P. Allen. 
 
 Col. Allen will reeeive the prisoner and have 
 him securely imprisoned within his lines, not per- 
 mitting him to communicate with any person of 
 doubtful or suspicious character, and retain him 
 until further orders. He has been arrested upon a 
 charge of disloyalty. . 
 Given under my- hand the day above written. 
 R.J.TOWNES. 
 Provost Marshal of Travis County. 
 I certify that the above is a true copy of a letter 
 handed me for record by Capt. J. Z Miller, com- 
 pany " B," then in command of Camp Terry, the 
 original having been lost from my flies. 
 
 THOMAS M, HUNT, Adj't 
 Col. Allen'* Reg't, Texas Vol. Infantry. 
 
 la Chambers before the Hon. R. T. Wheeler, 
 Chief Justice of the State of Texas, Frank Coap- 
 land, Exparte, on application for Habeas drpus. 
 Be it remembered that on the hearing of this ap- 
 plication, the applicant by his counsel, on the 
 coming in of the return of Col. R.T. P. Allen, ob- 
 jected to said return i 
 
 1st. Because said Allen does not bring said ap- 
 plicant before the Court as he is directed to do. 
 
 2d. Because said return does not state for what 
 alleged offence said applicant was arrested and 
 held in custody. 
 
 3d. Because said return fails to show any au- 
 thority for the alleged conscription of said appli- 
 cant by respondent. 
 
 4'h. Because said alleged conscription is null 
 and void ; the law referred to in said return under 
 
and ia virtue of which said conscription it stated 
 to hire been aaade, is in contravention of the Con- 
 stitution of the Confederate States of America, tad 
 also the Constitution of the State of Texas. 
 
 Wherefore they pray a fuller return. 
 
 PASCHAL & HANCOCK, 
 
 Filed, July 21, 186*. For Coapland. 
 
 Erpartr, Frank H Coapland, 
 
 ORPER OF THE CHIF.F JUiWCS. 
 
 Belt remembered, that on this 21st day of Ju y, 
 '862. Col. R. T. P. Al en made bis retu.n to t!ie writ 
 c f Habeas Corpus/issued heretofore on.the 18:h Int. 
 and thereupon the cou <sel fur the complainant ob- 
 jected to the sufficiency of the return, whi' ' 
 ion was sustained in so fir as the ratum did • 
 tufllcient cause for the failure to brln^; the Co 
 
 aiuant before the Court, &'.<! did not show tS 
 mature of the authority st 
 ;unoftue complainant a? a c nscript. Ai 
 by consent the said A len w.-s allow? 
 Monday, the 20th ln*t , to comph te his return 
 the Court direct i 
 
 ■ thed-ite of the h' .> by instrjK 
 
 t ons ol the in r oc- 
 
 - 
 them a parte 
 Court a -Mourned u 
 
 LER, ' 
 
 ■land. 
 
 AMSSDED RJ 
 
 . made on the 
 
 1st. - 
 preset) 
 
 2 1. U 
 ingofi 
 as stated in hi 
 
 tO ObL: 
 
 . to enroll the 
 with the.JLirshal, h 
 ■ l'ord.thetfup 1 
 tions ai.d authori y to make the enroJlme 
 upon the Pxovo#t Marshal d 
 charge the said Coapland from custody. J 
 c imp abo.ul 1 or 2 o'clock, and, after dining, I senBfc 
 Coapland tocorueto my quarter.-. 1 in farmed him SI 
 1 had directions to coi. s . ript h ira . He re 
 well.". I asked him to hold up Lis band, admini- 
 the oath to him, and requested bitn to select the 
 p.my to which he would be attached. He si 
 company "A." which, being found to hive the maxi- 
 mum number, could not receive him. Chi t' e 18th 
 two days after, he sel.cted company "B," and ws at- 
 tached to the company. Since then, Ciapland has 
 been the greater part of the time oa "leave ol a 
 sence." 
 
 The said Coapland is now ucdermv command as a 
 Confederate fctates soldier, a membtr of company 
 B" by his own selection, of the regiment of which I 
 am Colonel. I am and have been since the camp 
 was establuhe 1 as a camp of instruction in com- 
 mand of the camp near Austin, known as 'Camp 
 Terry." As I have stated above, n>v instructions 
 from the Provost Marshal to discharge Coaoland and 
 the authority to enroll him as a conscript 'were'ver- 
 bal and not written. li. T. P\ ALLEN 
 
 Col. conid'g Reg't Texas Vol. Infantr'y. 
 Sworn and euoscrlled to before me, this 29 h July 
 1862. JAMES JOHNSON, ' 
 
 Clerk Supreme Court. 
 
 Exparte, Frank Coapland on application for Habeas 
 
 Corpus. 
 
 Beit remembered that en the coming in of the 
 amended return of the respondent, the Hon. Chkf 
 
 J istlce on his ow a motion, al egtug that there t« »« 
 apparent discrepancy b etween trie j etUfon, as to the 
 ignorance of th? applicant as to the cause or ground* 
 of his detention, end the stateuie tsof the retur» 
 that said app'lcint was de'ained under an order from 
 R J.Townes. PiovostMarxhal.canedeniaidapolcant 
 to explain sail discrepancy, by statement not undf' 
 oat i, and »o say if said application was mad* hv htm 
 vo'untari'y of his ow o accord, and un lerstandiur tha 
 contents of said petition, and if said i; p iealio-i w« 
 made by his authority, to whi. h proceeding the at 
 torneys for api i * • " 
 
 l>t. Because the app rent discrepancy, ff m.ntera! 
 fothewantsoftneapplicatio , is an l^ue of fa ■'• 
 to be determined by testimony of other C h ai 
 t'lnn statements of .other applicant or r • 
 
 2 1, Because this 
 applicant to cii 
 
 3.1, Because 
 plicant 
 
 : ty and to a 
 
 4th, Because said p 
 
 1 lotions, 
 
 -- 1 we? 
 
 i g the authority, 
 n rt compel! d ti 
 
 
 Frank M. Cvaplmd, Erpartc. 
 
 The applicant here excepts to the retura and 
 amended return oT the said R. T. P. Allen, and 
 as matter of law, he says : 
 
 1st. That t 
 is and-; -said 
 
 R J Townes,asi'r no legal or 
 
 24. That, the 
 face shows no 
 
 3d, That I 
 
 4th. That the return shows U a p dii- 
 
 cbarged from said u rehe ■ ' 
 
 is entitled ton's discharge. 
 
 5:h. And that, as for the conscription, the retura 
 ehovysupon its face that il while he was 
 
 under said illegal imprisonment. 
 
 Gih. That said preten "ed In, under whic 
 conscript proce*. ding was had, is unconstitutional 
 and void, and therefore the applicant jr'ay Mis dis- 
 charge upon the face of lh>? retura. 
 
 JOHN HANCC 
 G. W. PASCHAL. 
 
 And as to the return upon i;s merits, the appli- 
 cant takes issue with the etatement.thit this appli- 
 cant voluntarily took the oath as a conscript, and 
 he proposes to prove that wi.hfn half an hour af- 
 ter he made affidavit to a petition for a Habeas 
 Corpus, he was carried before the said Col. RT. 
 P.Allen, oy the officer .of the day, under guard, 
 and that the Baid Allen thousand there informed 
 him, that ho (the said Allen) was instructed to 
 conscript. the applicant. And the applicant was 
 not informed that he had any choice as to whether 
 he might decline taking the cath or not. And he 
 proposes to prove that the verbal order from Col. 
 Ford (which order he insists was contrary to law 
 and void,) was accompanied by the condition that 
 the applicant should be left to his voluntary choice. 
 Aod he further proposes to p-o.ve that the author!- 
 tiss who held him In corfinemeut and caused his Il- 
 legal detention, had often effered hi<n the altetbi- 
 
n ihe army or being sent to San < 
 A-.l nio. fey triil bvoresome military tribunal, for 
 seme pretended offence, the character of •which was 
 r,6t stated 10 h-.m, and that he hud already dealined, 
 and the ei ne c>uid not voluntarily n-ovoe a con- 
 -.<:•■!. i. dd return. He fui tin r proposes 
 
 erenoe to the proposition to 
 I e i' trported to speak 
 
 rol the 
 
 A nd I . 
 
 led. 
 PASCHALj 
 
 ' For applicant, 
 
 Frsnk II. CaipUtid, Ecpartt. 
 
 B? H 
 
 d d return of 
 
 Col. U. •> of the written issue of 
 
 lid app» :ant pr >posed to 
 
 tour before the oath 
 was d : 
 
 lister the conscript oath 
 that Col. Ford instructed Alien 
 
 Licant that he wis at liberty to 
 h fact was not comrnuui- 
 
 . t, but he wi<s brought beinre 
 
 ' olJiers and told th.it he. 
 
 Alien, w conscript him— : bus leaving 
 
 hlmn> forcing him under duress of irri- 
 
 prl on i posed to prove the oth j r 
 
 I 
 Mir.-h.il. R J ': iwnes, had SMI tlkat. there was 
 no ev ; . . -e against toe 
 
 The applicant also proposed to prove' that he was 
 originally arrested without any lawful warrant or 
 antherity, a»i wltnoutany clurge er s eciiimtionr, . 
 ©fa.v.' e. and without an? charge au- 
 
 thorized by t i I n and laws of the coun- 
 
 try. 
 
 The applicant aho.by counsel. proposed tbat kis 
 counsel should argue against the sufficiency of the 
 return an I proofs to detain him longer in custody, 
 and against the constitutionality of the declara- 
 tion of martial law, a? applied to citizens not ia 
 camp or connected with the service, and against 
 the exercise of authority by R. J. Townes, the 
 Provost Marshal in this cas"e ; also, to arguo 
 against the constitutionality of the so-called con- 
 script law. But the Court declined to hear the- 
 evide) . -lying that in his opinion, upon 
 
 the facts already shown, the evidence wottld be 
 wholly immaterial, and that as to martial i I 
 mind was already made up as to its constitution- 
 ality, and in at he would not hear proof of irregu- 
 larities , and that the same was his opinion in regard 
 to the conscript law, and thut,he did not think it 
 would be profitable to hear argument under the 
 circumstances. To all of which rulings, as well 
 as the first ruling refusing to require Col. Allen to 
 set forth, if he knew, the original cause of caption, 
 the applicant, by attorney, excepted— and now to 
 save the several exceptions, the Court seals this 
 bill, and orders it to bo made & part of the record. 
 R.T.WIIEELBS, IL. S.] 
 
 Chief Justice, Supreme Court. 
 
 Order ?f discharge Exparte—Frtnh II. Coapland, 
 
 on Habeas Corput. 
 
 Be It remembered that on this, 29th day of Jaly, 
 18G2,on the hearing of the above entitled cause 
 before the undersigned, R. T. Wheeler, Chief Jus- 
 tice, it was considered and adjudged that the pro- 
 ceedings be dismissed, at the cost of the applicant, 
 and that the prisoner be remanded into the ensto 
 dy of the respondent, Col. R. T.P.Allen; from 
 
 which jadgrnentihe *ai»I applicant apoeals: 
 R. T. WHK1LER, 
 Chief Jestice, SHpreeee Coart 
 
 Frank H. Coapla>i£,Kcparle. 
 The applicant prop )ses the folio* in^ stat-itneat o.f 
 ■ 
 bafore the Court were l?t, Tae 
 md amended return of Colonel 
 ■ lenient of the apnJcant, 
 •t, that he, Co upland, had twice 
 lltoa, to hare 
 iade for his discharge, tint he read the 
 id heli -vod It. to be 
 - 
 
 >r the applicant, by 
 
 the affidavit 
 
 i -before he was oall- 
 
 : a? a conscript. And in an- 
 
 satd Co .plane! stated 
 
 as iwenty-t years oW on the twentyrfifth 
 
 s of Co -inland 
 should Ufe consiiered as evidence T tils was all the 
 uvklencelr- the;case.-~ 29th July, 
 
 [N HANCOCK, n * -, 
 I W. PASCHAL, lL ' 
 For applicant. 
 N. G. SHELLY, 
 Attorney General. 
 I iiAve examined the above statement of fact , and 
 certify that it is correct. It 1 ; acorlimgiy approved. 
 K.T. WHBBLBR, [L. «.] 
 Chi .'f .lustiee Suprem* Court. 
 I certify ih-it the foregoing Ha correct trar.g~:crlpt 
 .:ece*«ing8 had before me la the within em ti- 
 ring c&ffte. B.T. WHBBLBR, 
 Ghlaf Jastlce leprem* Coart 
 
 Opinion of Associate Justice Moore. 
 
 Frank H.C>apj, and, exparte, \ 
 (»n apoi'catlon for Habeas Co-pus. J 
 Appeal fyom judgmentof Chief Justice Wheeler in 
 
 and) applied to the Chief Justice 
 on tin 62, in vacation"; for writ of Ha- 
 
 beas', e th'it he was illegally restrained 
 
 v K.T. P. Alien, In Travis county, as he 
 hout any orderor process whatever, or 
 Tiie writ issued and Allen made 
 glnally in his 
 it. J. Townes, Provost Marshal 
 the service of th« 
 i the reUtor had been enrolled as asol 
 rate States, asa conscript, under 
 he Confe !erate States, e:i- 
 •ther provide for the public de 
 '! ; s company, been attach- 
 Larged from his original de- 
 jerviee oftliewritwasduly.de- 
 1 iier of the Confederate Stites, belong- 
 ing to a regiment of which respondent was Colonel. 
 On the hearing the relator was remanded into the 
 custody of the respondent. From this. Judgment the 
 • pixjsecur.es this appeal. 
 The first question for our decision arises upon a 
 motion by tue Attorney General, who appears on be- 
 half of the respondent Alien, that the application 
 should f>r the present bo continued, because, as he 
 alleges, the relator since he was remanded by the 
 judgment of the Chief Justice, into the custody of 
 the respondent as a soldier in the regiment of which 
 he was in command, has deserted and is no longer in 
 the custody or under thecontrolof the respondent. 
 This motion is founded on an affidavit of a Lieuten- 
 ant belonging to said regiment, from which It ap- 
 pears that the relator, together with other members 
 ofsald regiment, were. after his return to It, furlough- 
 ed until the 15th of September last, at the expiration 
 of which time he was ordered to report for duty at 
 Tyler, Smith county. Texas, where thereglm«nt w»» 
 
acdered torendesveu-; but thit up to the 85th cf 
 September, when affiant left came, he had notloteed 
 the regiment, or been heard of by him. 
 ■ This motion is urged upon two dl^t r>f t ?ronn>\-: 
 trst, that the Court has uo Jurisdiction on the appli- 
 cation, it I be relator h*s escaped from the custody to 
 • "which he was remanded by the Judgment from 
 which he appeals: secondly, if the Court has lurii- 
 dicllon, it wi:l not act upon his application v. Idle he 
 Isatlarge. There 1s no doubt that in anfw er to the 
 writ, the respondent must produce U. 
 prisoner, alleged to be Illegally detained, if In his en, - 
 tody, or under his control, at the service of the writ 
 anless excuse 1 from so doing by the ciivumnaccss 
 to Art. Ik), Code Crim, Proc'd.. and thul a i 
 the wilt not accompanied ly the bodv, wlil le scai.- 
 ned with great caution (Ilurd en Habeas 
 244,) and although this Is to prevent evasion-, of the 
 writ, an 1 to secure the liteity cf tie clMcn, 
 ret If the parly has letn released from cust 
 Tlous to theseivlce of the writ, its object MiMnr. 
 pos3ha3 been accomplished, and the C.urt wUfiake 
 no order on the snbjec'. (Conimonwca'th vs. OBnd- 
 l«lBll.Mo Ss g3-U. P. Davis 5, Or. C. C. Repo-ti 
 W2.) '1 he only object of the writ Is to re i. ve'the 
 party defamed irom the Hle.'al restraint. If tLMJic- ' 
 oompllshed, before the Jurisdiction or the CoiMat-' 
 laches by the service of the writ, there is nattlne • 
 ppon which it can attach. It is not the olject or h.- 
 tantionof the Court to punish the r. 
 afford the party redress for Sis illegrl detention bu 
 the quest ion occui les a- different attitude rftlNhe , 
 jurisdiction of the Court has oi ce attached i 
 notthen he defeated by the wrongful act of either of 
 the parties. It is expresfly nrovided forty the Cone 
 of Criminal prucedure( Art. 76?) that upon thMear- > 
 tas of an appeal in cases of Hahe; a Corpus, tJT de 
 fendant, (who undoubtedly must be understood** be 
 the prisoner or party detained,) need not hi person- 
 ally present. ^ 
 
 The second ground of the motion, we think, as- 
 a question of practice, is well taken, if the Da of 
 thla caso called for its application ; and were it 
 cot, also, that from the character of the case, we 
 taink the public interest will be better a ubierved 
 by hearirjg the appeal than by its continXpce. v 
 The rulo of the Court not to hear appeals in crim • 
 toal causes when the defendant has escaped, to 
 which this case is claimed to be analogous, being 
 Merely a matter of practice, depending in Us a;, 
 plication to particular cases, upon t ho discretion 
 of the Court; and as the affidavit relied upon does 
 not show, conclusively, that the relator has cs- 
 oaped from the custody to which he was remitted, 
 and may not, after but a temporary delay, have 
 joined his regiment, the motion for a continuance 
 will be overruled. 
 
 The questions arising upou the merits in thin 
 application, hare been argued with great interest 
 and zeal. Several of the points, however, made 
 by the counsel for the relator, and most elabor- 
 ately discussed, can have no influence in the de- 
 cision of the case, as presented by the apj eal, an d 
 doubtless had none in its determination by the 
 Chief Justice ; though out of abundant c ution, he 
 permitted relator's counsel to save by bills of ex- 
 emption every question suggested by them as hav- 
 ing any possible bearing upon the 'rights of their 
 client. As we have already said, a patty's right 
 to the writ does not depend upon the legality or 
 ^legality of his original caption, but upon the 
 legality or illegality of his present detention 
 (Daws' case, 18 Penn., 37 ; Rex. vs. Gordon, J 
 Earn & Aid. 572; Hurdon Habeas Corpu.«, 855-6.5 
 the relator was not, when the writ was served, 
 detains by virtue of the order of the Provost 
 Marshal, by whose order he seems Mist to hare 
 been arrested. >Ve will not, therefore, coi same 
 
 time by a diECUseicn of the questions ibat have 
 been ra.std as to the right or authority of a mili- 
 tary officer, in time of war. to declare raanial law, 
 or the effect of such declaration wben made, or 
 upon whom martial law, when declared, cftn op- 
 erate, or the n.ture and character of such law 
 nor will it beat all necessary that we should en- 
 quire into the regularity of the proceedings of the 
 enrolling officer, by whom relator was enrolled as 
 a soldier, for if tie is subject to conscription, this 
 Court is hot the appropriate tribunal for correct- 
 ing the errors, if any, into which those officers may 
 have fallen in discharge of their appropriate mili- 
 tary duties, but his application for redress must be 
 made lo their super! r officers or other proper 
 military authorities.- (Art. 756 code criminal pro- 
 cedure.) 
 
 The only question in the case for our consid ra- 
 tion, ar.d upon which the determination of the cass 
 must turn, is, as to the legality of ihe relator's de- 
 tention as a soldier in the army of the Confede- 
 rate States, and this depends entirely upon the 
 question whether the "Act to further piovide for 
 the public defences," commonly Known as the 
 ''Conscript Laws," is constitutional. We add rets 
 ourselves to the consideration of this question, 
 with a full appreciation of ite magnitude and im- 
 portance in respect "both to public interest and 
 private rights, the liberty of the citizen and the 
 power of the Government. 
 
 Tbe objections that have beer, made to ihe con 
 stit'jtionality of the law, are frequently wgue.and 
 at times rather contradictory, but whi n analysed 
 resolve themselves into one or the other oi the fol- 
 lowing general objections : 1st. That it violates 
 the liberty of the citizen. 2d. That it is in dero- 
 gation of the assumed rights of the States; Eoth 
 objections, however, are to be considered in sub- 
 ordination tothe general proposition, that it is fa- 
 cumbenl upon those who maintain its constitution- 
 ality, as is the c use with every other act of the 
 Confederate Gc n rnment, to show that the author- 
 i^ assumed by the Confederate States is sanction- 
 Pbyan expressly delegated power, or that the 
 act itself is necessary and proper for the carrying 
 into effect an expressly delegated power. 
 
 In determining, however, the constitutionality 
 of a law passed by the Confederate Government, 
 it is always important to consider whether the act 
 in question is done in the exercise of a power ex- 
 pressly granted, or under the impiied powers gran- 
 ted by the 18th paragraph of the Sth section of the 
 1st Article of the Comtitutior. If it la the first, 
 then th'j Confederate Government may use their 
 discretion, In the mode ami manner of Us exer- 
 cise, unless it is limited or restrained in so doing 
 by some other express provision, or clear and 
 necessary implication ; ar_d the burthen of show- 
 ing this is upon those who assert the limitation.— 
 J he authority given to make all laws which shall 
 be necessary and proper for carrying into execu- 
 tion, the expressly granted powers, were not in- 
 tended merely to authorise Congress to exerciss 
 by legislation, the powers previously granted, and 
 its right to do so depends in no manner upon this 
 clause, but it is itself a direct grantof all such sub- 
 sidiary and incidental powers as shall be " neces- 
 sary and proper" to carry into effect the previous- 
 ly granted powers. And, it is adrahted, that when 
 authority, to do an act is claimed under it, it is in - 
 cumbeut upon those who maintain it, to show, not 
 merely that it is " a necesiary*' law, but that it i« 
 "a necessary and proper" one for carrying into 
 
effect the expreasly gremtrd power. 
 
 It cannot for a moment be questioned, If there 
 are no express grants of power to do bo, that the 
 right of the Government of the Confederate States 
 to raise and support armies could be susained 
 under the general granting clause of the Consti- 
 tution to which we have referred. And we think 
 it equally clear that the law. in question is in direct 
 accordance with it even when tested by thelstrin- 
 gent rule of construction that we have just recog- 
 nized. The power, however, to raise and support 
 armies, it expressly granted by the Constitution, 
 to the Congress of the Confederate States. Is there, 
 then, any limitation by other express powers, or 
 necessary implications restraining its acts to the 
 manner of doing this? It has never been con- 
 tended that there is any express provision to this 
 effect : and if there is any such necessary implica- 
 tion, it mustbs as we have said, by reason of the 
 effect of the laws upon the freedom and liberty of 
 the citizen or the political rights of the States. 
 
 Does this law violate any of the abstract or guar- 
 fcntied rights of the. citizen, or assume over him a 
 control not delegated by the Constitution ? It has 
 notof course been questioned, that the power to 
 raise an army may be exercised by Congress. But 
 ills said it can only do this by voluntary enlist- 
 ment, and that the citizens can only be compelled 
 to do compulsory military duty as' militia under 
 the 15th and l«th clauses of the same section of the 
 Constitution which gives to Congress the power 
 to raise armies. 
 
 It said by VatteJ (p. 294) that the public authori- 
 ty raises soldiers, distributes them into different 
 bodies, under the command of Generals and other 
 officers, and keeps them on foot as long as it 
 thinks necessary, and ag every citizen or subject 
 is bound to serve the State, the sovereign has the 
 right to enlist whom he pleases. But he ought to 
 choose such only as are fit for war, and it is highly 
 proper that he should, as far as possible, confine 
 his choice to volunteers who enlist without im- 
 pulsion. No person is naturally exempt Worn 
 taking up arms in the defence of the State ; the 
 obligation of every member of society is the 
 same.'' it is insisted, however, that while it can* 
 not be denied, that this power exists under mo- 
 narchial government?, it is not applicable to a re- 
 public. Its language imports its applicability 
 alike to citizens or subjects, and this.must heap- 
 parent, when we consider that the abstract rights 
 of every nationality oVer the inhabitants of which 
 it is composed are the same, whatever may be 
 its social compact or the constitutional functions 
 through which it exercises its powers.and each in- 
 dividual can, In a republic, with the same pro- 
 priety as under a monarchy, be required toper- 
 form military duty without his consent, if the de- 
 mand is made by a proper exercise of the nation- 
 al will. Has, then, the nationality of Texas (we 
 speak of it as an independent sovereign communi- 
 ty 6r State) conferred the power of doing this 
 upon the Confederate States? Kefering again to 
 V attel [p. 293] we find it sai 1 : M As war cannot be 
 carried on without soldiers, it is evident that' who- 
 ever has the right of soaking war has also natur- 
 ally ti-at of raising troops." The latter there- 
 fore belongs likewise to the sovereign, and is one 
 g>i the prerogatives of 'majesty. Every citizen is 
 bound to serve and defend the State as far as he is 
 capable. Society cahnototherwise be maintained, 
 and this concurrence for the common defence is 
 one of the principal objects of every political 
 
 association. Every man capable of carrying 
 arms should take them up at the first order of him 
 who has the power of making war. Again He 
 says ; [p. 14] *' The prince derives his authority 
 from the nation ; he possesses just so much of it 
 as they have thought proper to entrust him witk* 
 If the nation has plainly and simply invented him 
 with the sovereignty, without limitation or dlvi u 
 sion, he Is supposed to be invested with all the 
 prerogatives, without which the. sovereign com- 
 mand or authority could not be exercised in the 
 manner most conducive to the puolic welfare. 
 These are called real prerogatives, or the preroga- 
 tives of majesty." 
 
 The extracts show, that the grant of the power 
 to make war, carries with it by necessary impli- 
 cation, unless expressly withheld, the rigbt to de- 
 mand compulsory military services from the citi- 
 zens. If this right is an incident of the preroga- 
 tive of making war in a monarchy where the peo 
 Ele can exercise no control over the sovereign, 
 ow much more readily should we conclude that 
 it. was a "necessary and proper" implied power 
 with us where the war making power tt 
 given directly to the agents of the people, who 
 can only be supposed to act under their directions,, 
 and to speak their sentiments even if there had 
 been no express grant of power given to Congress 
 to raise and support armies. 
 
 This power of the general government to do so, 
 has been long and frequently admitted in the U. 
 States, tooth by standard elementary authors and 
 judicial decisions. [Hurd on habeas corpus 8.] 
 la the case of the United States vs. Bainbridge, l 
 Mas. 71, it is recognised as authorizing the prac- 
 tice established by the government, and sanction- 
 ed by numerous legislative enactments of en- 
 listing minors in the navy without the consent of 
 their parents, and also in the army in the sama 
 manner when the wants of the government re- 
 quired it. It was discussed and recognized while 
 the Constitution of the United States was before 
 the people of the States for ratification, at which 
 time we find Mr. Madison saying in the Federal- 
 is!, p. 187 . "Is the power f declaring war neces- 
 sary ? No man will answer the question in the 
 negative. It would be superfluous, therefore to 
 enter into a proof of the affirmative. Is the 
 power of raising armies' and equipping fleets ne - 
 . cecsa'ry 1 This is involved in the foregoing pow;er. 
 It is involved in the power of self defence. But 
 was it necessary to give an indefinite power of 
 raising troops as well as providing fleets, and 
 maintaining both in peace as well as in war?— ■ 
 With What color of propriety could the force no 
 cessary for defence be limited by those who cannot 
 limit the force of offence.Tfa Federal Constitution 
 would chain the ambition or set bounds to the ex- 
 ertions of other nations, then indeed might it 
 prudently chain the discretion of its own govern- 
 ment, atid set bounds to the exertions for its own 
 eafety." 
 
 Upon the same general principle also rests tha 
 right to call out.the militia ; for this is also a com • 
 pulsory service, and ihe grant of power to do this 
 is no stronger than that to raise armies. But it is 
 Said that the power to call out the militia has been 
 given, and as this is compulsory in its character, 
 we are to presume that no other character of com- 
 pulsory eer? ice was authorized or intended to bo 
 granted. How the mere grant of one power, coin 
 pulsory in its character, can limit or destroy an- 
 other, which had been previously given, in equal 
 
Jy •xpress terms, we do not perceive. But in con- 
 neetion with this e abject, it is also insisted that the 
 right to raise armies must be taken in subordina- 
 tion to the power conferred over the militia, as 
 otherwise the rights of the State iit this particular 
 would be destroyed : and hence the power con- 
 ferred upon the Confederate Government to raise 
 armlet, it Is said by those who urge this objection , 
 must be construed as only authorizing, when an 
 trn; it to be raised from the arms bearing citizens 
 of the States, that this shall be done, either by 
 their voluntas enlistments or by calling forth the 
 militia. 
 
 To maintain this position with some degree of 
 plausibility, Us supporters are forced to assume 
 (bit the militia— which the Constltutioa says i» 
 neeesaary to the security of a free State, and 
 which Congress may provide for calling forth, 
 rubjeet to the right of the State to appoint the offi- 
 oori—isjsynoDy mous with the arm -bearing ciUien* 
 cf the State ; and they therefore say if an army I* 
 raised from these citizens, except by their volun- 
 tary enlistment, that in fact, whether it is so in 
 name or not, the militia have been called forth, 
 and the right of the State to appoint the officers to 
 command them cannot be disregarded, 
 ik The fallacy of the position seems to be manifest 
 from the qualification which they are forced to give 
 it : for. as we have ehown, the citizen has no right 
 to exercise volition with regard to the perform- 
 ance of military duty, so as to impair or qualify 
 the power of Congress to raise armies; and if the 
 nuauflcation exists by means of the rights of tho 
 States over the arm-bearing citizens as its militia, 
 and to appoint their officers, when in the servics 
 cf the Confederate States, these rights could not 
 rarely be affected by the voluntary action of the 
 citizen ; nor can the difficulty be gotten over by 
 saying that it is further to be assumed that tho 
 State m«Btbe presumed to have consented to this 
 voluntary enlistment ; for it is as important-aa the 
 tltlzen to destroy in this manner a constitution^ 
 light conferred upon Congress, or thus to confer 
 one not othorwise given. The question goes to 
 the right of the State to appoint officers to 
 mand its arm-bearing citizens when in the service 
 of the Confederate States, because they are mil it » 
 men. But the individual is equally an arms bearing 
 citizen, whether he has gone into the service vol- 
 nntarily or otherwise. For surely the doctrine is 
 not to be advanced that individuals, companies, or 
 regiments of the "well regulated" arms-bearing 
 citizens " necessary to the security of a free State" 
 which have been organised, armed and disciplined 
 as provided lor by Congress, and for whom a call 
 is made by tha Confederate States in pursuance 
 with the constitution, coaaetobe Integral parte of 
 the arms-bearing citizens of the State, becauso 
 they prefer to volunteer their services directly to 
 the Confederate Government, and it is willing thns 
 to accept them. Can they in this manner evade 
 or annul Unconstitutional right of the State, if it 
 ie such, to appoint the officers to command its 
 arms-bearing citizens when in the service of tha 
 Confederate States ? It is said, however, that un- 
 less this qualification is placed upon the power of 
 Congress to raise armies, the control cf the Stata 
 Over its militia may be entirely destroyed ; but 
 would not the result be the same, if an equal num • 
 her of its militia were to volunteer into the ser- 
 vice of the Confederate States t The truth of the 
 matter is, that when the citizen goes into the army 
 raised by Congress, either voluntarily or in obe- 
 
 dience to the law requiring htm to do*o,hed«ee 
 this as a citizen, and not as a militia man. Con- 
 gress has not the right to raise armies in either 
 mode beyond the necessities of the Confederate- 
 Government, for carrying Into effect its granted- 
 powers. But, in either case, the citizen whe* 
 placed in its service, is temporarily withdraw* 
 from the control of the State as a militia man. 
 For the time being, the right of the State, or more 
 properly speaking, the right of the State Gcrrern- 
 raent over him must yield to the more pressing 
 and imperative demand for his servicer bytb* 
 Confederate Government, to enable it to discharge- 
 the duties for which it has been authorized to raise 
 and support armies. 
 
 The construction contended for would destroy 
 one of the grants of power conferred upon Con- 
 gress by the constitution , and would reduce iti au- 
 thority merely to that of raising and supporting 
 armies, by calling forth the militia, instead of au- 
 thorizing it as it does, to raise and support armies* 
 and under certain circumstances to cell for the 
 militia. For if you limit Congress to the volunta- 
 ry consent of the individual citizen to enable itto 
 raise an army, you have destroyed its power, an J- 
 conferred upon it simply the privilege of doing so. 
 But the strong language of the constitution is that 
 " Congress shall have the power," &c, <&c. The 
 Imperative duties imposed upon Congress would 
 alone have been sufficient to authorize it to have 
 exercised this power as the necessary and proper 
 means for their performance; and, it would not 
 probably have been thought important to have 
 conferred it by an express grant, but that from it* 
 absolute necessity for the discharge of those du- 
 ties, it was deemed essential to place it beyond 
 question that it had been conferred. And this lead* 
 us to the enquiry, whether the construction con- 
 tended for, will clothe the Confederate Govern- 
 ment with the ability and resources necessary for 
 the discharge of the duties imposed upon it. If 
 Congress has only the power of raising an army, 
 by a call for tho militia, it follows as a ncqessary 
 consequence, that it can do so on ly for the purpose* 
 for which it is authorised to c»ll forth the militia 
 by the Constitution. It cannot, therefore, raise ant 
 army except to enforce the execution of the lawc, 
 to suppress insurrections or repel invasions. It 
 is, consequently, powerless to protect the country 
 from sudden assault from without, or unexpected 
 commotions from within. It is important either 
 to enforce private right:-', or maintain a national 
 honor against foreign powers. But it is said, that 
 it is contrary to the spirit and genius of our insti- 
 tutions, that we should engage in foreign or ag- 
 gressive wars, uness absolutely necessary; that it 
 is against tho theory of our government that we 
 should make war merely for conquest or dominion . 
 and as Congress has the privilege of raising ar- 
 mies by voluntary enlistments, we may safely rely 
 upon the patriotism* and maitial spirit of the peo- 
 ple to raise armies, amply sufficient to prosecute- 
 all necessary and proper foreign wars; that the 
 fact that the Government is forced thus to rely up 
 on voluntary enlistments for its soldiers to main- 
 tain foreign wars, operates, and was doubtless so 
 intended, as a salutary check in restraining it fronv 
 engaging in them unnecessarily. And, as was satcb 
 by counscTat the bar, "When war is made, it Is the* 
 people's war, and if they aro not willing to fight 
 to carry it on, the government ought to stop iU" 
 
 But if the individual citizen may determine of 
 himself whe'her he will aid the country in taa 
 
Hetd way may he net also elect whether he will 
 withhold his quota of the revenue that is collected 
 to prosecute it ? It is not to be questioned that 
 the spirit of our Government, as is said, does not 
 encourage wars for conquest, or dominion, and 
 for this reason, among others, the war-making 
 power was conferred upon the representatives of 
 the people. It is therefore unquestionably true, 
 that war, when declared by their representatives, 
 is their-war, and they can,'at any time they desire 
 to do so, withdraw from the Government all means 
 of prosecutingor maintaining it, or can limit and 
 control it in the manner of its prosecution, or in 
 the mode of raising armies to carry it on, as to 
 them mayeeemfit. It may be truo, also, that the 
 patriotism of our people may at all times be relied 
 upon to furnish by voluntary enlistments sufficient 
 forces to prosecute any war in which the nation 
 ahould engage. 
 
 But still this does not go to the merits 01 the 
 question, which is, whether the people, through 
 their representatives, have not the power, if they 
 MeflUo exert it, of niakiDg tUe burthens of the 
 war fall equally upon the willing and unwilling. 
 It is not denied, however, that the Confederate 
 States may be required to engage in a foreign war. 
 If this is so, it is the duty of its citizens to sustain 
 it in its prosecution ; bulwhy should the Govern- 
 ment be forced to rely upon the individual assent 
 or voluntary aid of the citizens in this more than 
 in the discharge of any other duty, or the exercise 
 of any other power with which it is clothed 1 Why 
 should not the citizen, if in this case he is left to 
 individual volition^ have tho eamo privilege if 
 ealled upon as a militia man to aid in a defensive 
 war? If patriotism is a sufficient guarantee fir 
 the ability of the Government in carrying on the 
 war in one cate, why is it not so in the other 1 
 Will the citizen' be less ready to respond to the 
 call of the Government for the defence pro oris 
 ttfocis than he would bo when prosecuting a for- 
 eign war ? Certainly, the very reverse is the fact , 
 and, therefore, when tho militia are needed, the 
 tame stringent force over them is notgiven by the 
 Constitution as ki given over them as citizens by 
 Ihe power to faise armies, in the latter case, 
 Congress acts immediately upon them as individu- 
 als; while in the former it must raise thorn by a 
 call upon the State Executive, and if this is disre- 
 garded it has no power to enforo obedience, 
 i The origin of tlm grant of power to raise ar- 
 mies, shows most conclusively that it was not in- 
 tended to have the Government dependent upon 
 the will either of the citizen, or the State, to car- 
 ry it into effect. It is given in our Constitution as 
 it was originally in the Constitution of theTJ. S., 
 and was placed in that for the purpose of cor- 
 recting one of tho leading defects iu the articles 
 of Confederation. Experience having proved it 
 absolutely essential, not only to the safety but to 
 tho very existence of tho Confederacy. The fol- 
 lowing striking jfarigu&ge tx^s used at that timo in 
 reference to the want of this power in the articles 
 of Confederation, and the necessity of its grant to 
 tfce general government in the then new Union 
 about being formed. "They may make war and 
 determine what number of troops aro necessary, 
 but cannot raise a single soldier.' 1 Again, "A 
 government authorised to declare war, but relying 
 on independent States for tho means of prose- 
 eating it, capable of contracting debts and pledg- 
 ing the pubiic faith for their payment— but depen- 
 ding en tiirtceu distinct sovereignties for the pro- 
 
 tervatlon of that faith, could only be rescued from 
 ignominy and contempt by flndlDg those sover- 
 elgutlee administered by men exempt from the 
 passions incident to human nature."— 1st, Story 
 Const. 158 $ 9. Andlnthe Federalist, (p. 98,)writ- 
 ten as is well known to secure the adoption of tho 
 Constitution of the U. S., we find the necessity for 
 this grant of power boldly expressed, and the ruin- 
 ous effects of attempting to rely upon calls upon 
 the States for troops to prosecute a defensive war 
 clearly and strikingly portrayed. "The power," 
 saysthe author, '*of ralsingjarmies,by the obvious 
 construction of the articles of the Confederation 
 is merely a power of making requisitions upon 
 the States for quotas of men. This practice in the 
 course of the last war, was found replete with ob- 
 structions to a vigorous and to an economical sys- 
 tem of defence. It gave birth to a competition 
 i'Otween the States which created a kind of auction 
 for men. In order to furnish the quotas required 
 of them they out bid eacll other, till bounties grew 
 t) an enormous and unsupportable size; Thehope 
 of still further increase offered an inducement to 
 tiiose who were disposed to serve to procrastinate 
 their enlistment and disinclined, them from en- 
 gaging for any considerable periods. Hence slow 
 and scanty levies of men, in- the most critical 
 emergencies of our affairs, short enlistments ata» 
 unparalleled expense; continued fluctuating in the 
 troops, ruinous to their discipline and subjecting 
 the- public safety frequently to tkeperiloun crisis 
 of a disbanded army." Hew far like evils may 
 have threatened us and induced a change of policy 
 by the enactment of the present law, it is unneces- 
 sary to enquire. Nor need we comment upon the 
 unavoidable and disastrous effects that must have 
 resulted from conflicts and jealousies among the 
 officers of militia, the right to whose appointment 
 is so zealously, insisted upon. If the State must 
 appoint, it must also fill vacancies and give pro- 
 motions leadiDg to inevitable and unending dis- 
 putes about rank, that sacred and never to be in- 
 fringed right of the officer, producing jarring and 
 discordant elements in command more disastrous 
 in allmilitary enterprises than even a want of dis- 
 cipline in troops. 
 
 But suppose the theory of those who oppose the 
 constitutionality of this, law is correct, and the 
 new levies have been called Into the field, not as 
 Iroopi of the Confederate States under tho power 
 to raise armies, but as militia, what might be the 
 consequences. The theatre of the war, if at pro- 
 sent confined to our own, territory, may before its 
 close be necessarily shifted to that of the enemy. 
 If the proper occasion should present itself for 
 carrying the war into the enemy's country, shall 
 ouv commanders be impotent to avail themselves 
 of it, because of the character of the forces under 
 their command ? If they are militia, they have 
 no constitutional authority to march them beyond 
 our own frontier, because the Constitution has 
 limited the right of tho government to demand 
 their services for the purpose of repelling inva- 
 sion. This doctrine was expressly recognised and 
 maintained in Congress in 1812 by all the strict 
 constructionists and State Rights politicians. It 
 mny. De saiJ there w © u id uudcr such cir- 
 cumstances, be no fear that the States would 
 not sanction this use of its militia, and the pa- 
 triotism of the citizen soldiers could be relied upoa 
 with equal confidence to sustain their country ia 
 thu as in every other emergency. It was said l»y 
 « r . CheTe*»than whom we could desire no higher 
 
authority, in response to this character of reason- 
 ing : "Though the gentleman from New York 
 says the service of the militia it not to be boun- 
 ded by geographical limits, I cannot discover 
 the premises by which he. comas to this con- 
 dlnsion, if the general government has no other 
 power over the militia than is given to it in 
 this clause of tho Constitution. If they may cross 
 the. line, why not go to the walls of Quebee ? Tho 
 principle is trampled upon the instant they pass 
 ' beyond the territorial limits of the United State; ; 
 ■ow if this be a correct construction, can the con- 
 tent of the individual add anything to the powers 
 or rights of the general government while he re- 
 mains a member of tho militia of the State?" 4 I 
 vol. Elliot's debates 459. And, however patriotic I 
 the soldiery may be, it takes but little knowledge ? 
 of armies or of men to teach us that war cannot 
 be conducted under a system by which the right 
 of the general to command depeeds from day to I 
 day upon the consentof his soldiers. But if this j 
 were not the case, can we assent to such a limita- 
 tion of a power of Congress by mere construction 
 as leaves tho government Impotent to discharge • 
 Xs constitutional dut'es, unless the State or its 
 militia shall consent to the violation of the Con- 
 stitution ? If so it may truly be said of the Con- 
 federate States,as it was of the old Confederation, 
 it may declare war but it is impotent to prosc- 
 eute it. 
 
 The theory of our government, when properly 
 understood, does not militate against the constt- 
 tutionality of the laws. On the contrary, it clear- 
 ly tends to sustain. The difficulty In the minds o f 
 many scorns to grow out of a failure to discrim- 
 inate in tho use of the word " State.'* Whether 
 H imports merely the local or State Government, 
 , or the politicaljcommunity ; the nationality ,the peo- 
 ' pie of tho State in the aggregate, as a nation or 
 political community, or as it is frequently express- 
 ed the ''sovereign State;" and in this way they 
 eometo think of the local (or so to call it domes- 
 tie) government, asthe government of the sover- 
 eign State, having some undefined imaginary grant 
 of power, possessing itself, as the repretentative of 
 the sovereign State, some degree of sovereignty. 
 ^Especially so with reference to the Confederal* 
 Government, which they seem to think should be 
 regarded as a creature of its creation and -subor- 
 dinato to it; and, hence, that its powers should 
 be construed in subordination to those of ihis im- 
 mediate representative of the sovereign State. In 
 fae.t, however, nothing is better established than 
 that neither of these governments is inferior or 
 superior to the other, While both possess some 
 of the powers which are called by law-writers in 
 distinguishiug different forms of government 
 *' sovereign powers," neither of them are them- 
 selves sovereign, but each of them represents the 
 sovereign, and both have within their mutual 
 spheres of action, just such powers and functions 
 ashavebeon conferred upon them by tho consti. 
 tution creating them.' 
 
 When we enquire then what disposition the 
 sovereign State has made of its rights to military 
 service from its citizens, between these two Gov- 
 ernments, by whom it proposes to administer its 
 government, we find it has given to its Confeder- 
 ate asency, ho to call it, the sole power to deter- 
 mito upon, the questions of war and peace, and 
 that it has consequently made it the duty of that 
 agent to protect the State itaelf, and its local agency 
 from attack, from both domestic and foreign foe* , 
 
 and that it had clothed it with the power to do thi* 
 by authorising it to raise and support armies and 
 to provide and maintain a navy, to the extent that 
 in its judgment it should deem necessary, and lest 
 it should cot have prorided amply for these pur- 
 poses, or should be overtaken by a sudden emer- 
 gency, it is further authorised to call upon the 
 other agency to bring to its aid, if necessary, all 
 of the arms-bearing po3ulation it had left still un- 
 der the control of the bcal agency, for whose or- 
 ganization it was required to provide, that tho 
 local agency might bethua prepared to meet the 
 call that these sudden emergencies might occa- 
 sion. But as these calls would bt rare, and the 
 armies, which the Cojfederate agent would re- 
 quire to prosecute andcarry on the wars, in which 
 it would become in volted, except under extraor- 
 dinary circumstancee.lwhich whould hardly hap- 
 pen mo e than once is the life time of a nation ; 
 would compose but a sfnall part of the population 
 of the State, and the ,ocal agency might also b<j 
 called upon , by suddeit emergencies to defend it- 
 self and tho State befej-e a call could be made up- 
 on the other agent, an! as that was intended more 
 especially to represent the foreign, and this the 
 domestic affairs of tho (state, the militia or citizens 
 not required In the annles raised by the Confed- 
 erate agency, were leflunderthe control of the lo- 
 cal agency, with the rght of appointing their offi- 
 cers, when it should barequired to furnish them in 
 these casea of emerglnce for the service of the 
 Confederacy. 
 
 These agencies, tholgh possessing distinct pow- 
 ers, have to look for tlfcir performance to the cit- 
 izens, and consequent^ as in many other grants 
 of power to theni, their aetion is con- 
 current over the sane subject matter, and at 
 times may thus pre|ont seemingly conflicting 
 grants of power. Wlat then is to be their con- 
 struction? Theanswtf is plain. The limited and 
 subordinate must yiekto the general and superi- 
 or, consequently suchfes usually pertain to or are 
 Indices of sovereign ]ower, mutt control and bo 
 regarded as superior o those of a local and do* 
 mestic character. Oldinarily, there would be no 
 appreciable conflict brtween these grants of power, 
 as the number of citicens .the Confederate Gov- 
 ernment would reqaiie for it* armies, would be so 
 inconsiderable with reference to the bulk of mi- 
 litia left under the control of the local govern- 
 ment as to >o for practicable purposes, uuimpor- 
 tantto tho latter, iut great emergencies like 
 that which now exie/s, will sometimes arise when 
 the Confederate Government is forced to exer- 
 cise tho entire milit/ry power that has been grant- 
 ed it; and there Is 1 consequently a ball of th-s 
 great bulk of the Irnjs-bearing citizens into its 
 armies, and a corresponding diuiinuition of thos* 
 under the immediate control of the State Govern- 
 ment, under the law| governing the militia, tho 
 natural result of which is to arouse fearful appre- 
 hensions of coming danger, in the over zealous 
 advocates of State rights, or those who have b-en 
 accustomed to louk'with apprehensions upou 
 any expansion of the piilitary power of the gen- 
 eral government. It mst be borne in mind, how- 
 ever, that the denial f the power to raise such an 
 army as the necessili s of the Government may 
 required, is a denial f the right to raise a single 
 man; while if the po er xists, it does so only to 
 the extent of authoriang the Confederate Govern* 
 ment to raise and support such armieraa are Ab- 
 solutely essential tcWiuble it to cany into effect 
 the powers grunted 14 it, and though a necessity 
 
\o: 
 
 exists to-day, and the law it therefore ecnstita- 
 
 tional, if to-morrow that necessity should cease, 
 itseontinuanca would be as clearly unconstitu- 
 tional. 
 
 It is alio urged that this law introduces a novel 
 practice in this country, for raising armies. 
 If, however. It is within congressional discre- 
 tion in the exercise of the power graated, this 
 does not affect its eomtitutionality. And If the 
 practice of conscription is novel with us, so are the 
 circumstances which n«w surround the country. 
 Ingaged in a contest tint involves onr existence 
 as a nation, out libertiet as a people, our lives 
 and the honor of our homes, all that we can desire 
 in life er hops for in ou* posterity, with enemies 
 who boast tbat they will soon have in the field an 
 army far exceeding in numbers our entire arms- 
 bearing population; wh>, baffled in an unholy lust 
 for gain, and maddened by revenge^ have buried 
 at home the once cherisied principles of Republi- 
 can liberty, in a concentrated military despot* 
 ism, that tbf y might thebetter hope, if not to con- 
 quer, then to destroy us; who have shown them. 
 selves as treacherous aid false in the Cabinet as 
 cruel and wanton in th< camp; who have waged 
 a war of almost externination upon all classes 
 and sexes of unoffendiig citizens who have fal- 
 len In their power, regarding neither the help- 
 lessness of infancy nor he feebleness of age, save 
 as furnishing them a core certain victim ; who, 
 though even accustomec to boast of their morality 
 and rirtue with the ielf-righteouflnest of the 
 Pharisee, have shown hemselves as dovoid of 
 either, as they have bein wanting iu every en- 
 nobling principle of chialrous and civil warfare ; 
 who, in two short campai.us, have paralleled every 
 atrocity of war for the last two hundred years, — 
 engaged in such a wai, if our Government had 
 failed to avail itself of erery resource at its com- 
 mand, for its most iffective prosecution, it 
 would have shown itsaf derelict in duty, aD<I 
 unworthy of the* high onfidence with which the 
 country has so generousy trusted it. 
 
 Though this is the flrstoccasion in this country 
 that an army has been aised by conscription, it 
 does not come before the*ountry without the sanc- 
 tion of high authority. One principle upon which 
 it is based was sanctionel and approved by Gen. 
 Washington in 1790; an it was maintained in 
 1812 by Mr. Monroe, thei Secretary of War, in 
 am argument of convincing clearness and cogen- 
 cy, Tol. 7, Niles* Register,p. 137— 294 ; vol. 8, p. 
 281. Mr. Troupe and othe- strict construe tionigtt 
 of that day gave it their sanction. 
 
 The judgment is affirmed. 
 
 (Signed,) GIORGE I. MOORB. 
 
 Opinion of Associate Justice Bell. 
 
 I concur in. what is sad in the opinion of the 
 Court, respecting the notion which has been 
 made by the Attorney-General, for the continu- 
 ance of this cause. 1 concur also in the correct- 
 ness of the proposition, hat the right of a party 
 to the writ of Habeas Cirpua, does not depend 
 opon the legality orillegdity of his original cap- 
 tion and detention, but moa the legality or Ille- 
 gality of the restraint at the time the writ is is- 
 sued ard. the return math. I do not, therefore, 
 feel at liberty to discuss tie legality of the origi- 
 nal arrest of the appellant, or the right of military 
 commanders to place the citizens of these Confe- 
 derate Statfg under martial law. As it appears, 
 
 however, from the record, that the Chief Juaties, 
 upon the original hearing, declared tbat "bi» 
 mind was made up as to the constitutionality ef 
 martial law,'* from which expression I under- 
 stand that he meant to express the opinion thai 
 martial law, as it existed in the eounty of Travic, 
 at the time of the return of the writ in this case, 
 might be declared and enforced in conformity 
 with the Constitution of the Confederate States; 
 that it may not bo supposed that 1 entertain a si- 
 milar opinion, I take leave to say, that nothing, 4b 
 my judgment, con' d be a more palpable violation 
 of the Constitution, and of th e rights of citiaen* 
 I be'ieve that "the Constitution," in the language 
 of Vice-President Stephens, "was made fos war 
 as well as for peace," and that there exists no 
 power, in any department of the Government of 
 the Confederate States, to transcend it, or to sus- 
 pend it, upon any notion of public n-eessity. I 
 believe that no power exists anywhere in tbe-Con- 
 federate Government to subject citizens, not be- 
 longing to the Army or Navy, and not actually 
 serving in the militia, to any military code, or t» 
 the will of any military officer, Provost Marsha) 
 or other-, or to the jurisdiction of any other tribu- 
 nal than the ordinary Courts of Justice established 
 by law. 
 
 1 oelieve that under the Constitution of th* 
 Confederate States, "no person can be held to an- 
 swer for a capital, or otherwise infamous 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 ;" and that "in all 
 criminal prosecutions, the accused has the right to 
 a speedy and public trial, by an impartial jury 
 of the State and district wherein the crime shalfc 
 have been committed." 1 know that some hav» 
 supposed that Congress has the power to declare- 
 martial law, as an incident of the power to mak* 
 war. It is true that Congress has the war power j 
 but that power and all its other powers, must be 
 exercised in subordination to those provisions of 
 the Constitution which I have just quoted. Bat 
 I said that I do not feel at liberty to discuss the 
 subject. I therefore, take leave of it, havingsaid! 
 thus much only from a desire that my humble tes- 
 timony, worthless as it may be, shall ever bein 
 support of the laws and of the rights of the peo- 
 ple, rather than in support of arbitrary power 
 which is destructive alike of public liberty and 
 private right. 
 
 I am notable to eon cur in the judgment which 
 has been rendered in this case, nor in the reason- 
 ing of the majority of the Court, in support of the 
 constitutionality of Jtheacts of the Congress of the 
 Confederate States, commonly called the Con- 
 script Laws. I believe those acts to be unconsti- 
 tutional. The question is one of the greatest mag - 
 nitude ; it is directly presented for decision ; and 
 believing it to be fraught With the most vital con- 
 cern to the principles of civil liberty and free gov- 
 ernment, I cannot forbear to express my opinion. 
 
 It is said in support of the constitutionality of 
 these acts of Conscription, that the war making 
 power is committed to Congress, by the Constitu- 
 tion, and that it is also declared by the Constitu- 
 tion that Congress shall have power "to raise and 
 support armies ;" and it. is contended that this 
 power to raise and support armies, is without any 
 limitation, and that Congress may exercise an un- 
 limited discretion in the choice of the means by 
 which to carry it into effeet. In the opinion of 
 
II 
 
 tf« Court, the arguments employed by the authors 
 nf the Federalist, when the Constitution of the 
 TJaited States was before the people for their con- 
 sideration, to show that it was necessary to confide 
 to the General Government about to be instituted, 
 the power to raise and support armies, are quoted 
 The arguments employed by the same writers, to 
 show that there ought to be ao limitation upon the 
 power of the Qeneral Goverumen t to rarse and sup* 
 port armies, are also quoted. Vattel is quoted as 
 authority for the propositloa that, "no person ts 
 naturally exempt from taking up arms In defence 
 of the State," and that, "every man capable of 
 bearing arms, should tike them up at the first or- 
 der of him who has the power of making war," 
 that is, at the first order of the Sovereign. It is 
 further argued, in the opinion, that if the power 
 of the Government to compel citizens to enter the 
 military service be denied, this it equivalent to a 
 denial of the power to raise armies ; that if the 
 Government can only raise armies by the volun- 
 tary enlistment of citizen?, the power is wanting, 
 arid only a privilege remains. It is also assumed 
 that, for the General Government to compel all 
 citizens between the ages of eighteen and forty- 
 five years, to enlist in the regular army, under of- 
 ficers appointed by the President, is no interfe- 
 rence with the constitutional tights of the State?, 
 over their militia, because it is said, the General 
 Government takes the individual in his capacity 
 of citizen, and not in his capacity of militia- 
 man. I shall notice these positions and argu- 
 ments only so far as may be necessary to the pre- 
 eentationof my own views. 
 
 In an enquiry into the form, the spirit and the 
 powers of Government, and the examination of 
 questions which are in themselves fundamental, 
 while the proper weight is to be given to former 
 usage, to contemporaneous expositions, and to 
 the opinions of eminent men, the impartial and 
 philosophic enquirer after truth will not fail to 
 note carefully all the circumstances under which 
 any particular usage obtained, the sources from 
 which contemporaneous expositions emanated, a»d 
 the generai character, the cast of mind, the poli- 
 tical predilections, the party connections, and 
 the like, of any eminent or distinguished person 
 whose opinion may happen to be in question. 
 
 In any question concerning the Constitution of 
 the United States, (and equally in any question 
 concerning our own Constitution, so far as it is a 
 copy of that celebrated original) the writings of 
 Madison, Hamilton and Jay, known as "the Fede- 
 ralist," are entitled to very high consideration, 
 as a contemporaneous exposition of the powers 
 intended to be conferred by the Constitution, 
 npon the Government which it proposed to es- 
 tablish. 
 
 It is known to all persons who are possessed of 
 even a slight knowledge of the .p* iitical history of 
 the United States, that Mr. Hamilton was the 
 exponent of the opinions of the Federal party of 
 that day, and that he was In favor of a much 
 stronger government than that established by the 
 Constitution af 17S7. It is also known that Mr. Jay, 
 the first Chief Justice of the United States, was 
 also a member of the Federal party, and enter- 
 tained, In themain, the same views as Mr. Hamil 
 ton, on the subject of government. 'But it is not 
 bo generally known that Mr. Madison, who, soon 
 ftfter the adoption of tho Consti u ion, Joined tho 
 Republican party, and became the ablet suppor- 
 ter of Mr. J'ffersoo in his great itrugg'e with the 
 
 elder Adam*, was, until the adjournment of ft* 
 Convention which formed the Constitution, m 
 much In favor of a strong government as Mr. H*» 
 milton himself, or nearly so. Such however, wa» 
 the fact, and all his propositions in the Fedenst 
 Convention bear testimony to the fact. 
 
 la his Discourse on the Constitution and Gov- 
 ernment of the United States, Mr. Calhoun, com- 
 menting upon tho opinions of the authors of th« 
 Federalist, and arguing to show that they had 
 fallen into a radical and dangerous error, concer 
 oing the very form of the Government, as Federal 
 or National, uses the following language : "How 
 the distinguished and patriotic authors of this 
 celebrated work fell, against their own clear an* 
 exp lcit adinssslons. into an error so radical and 
 dangerous, one, which has contributed. more than an 
 others combined, to cast a mist over our system of 
 Government, and to coufjund and lead attray th* 
 minds of the comrourdty, as to the true conceptloa 
 of Its real character, cannot he accounted for, with- 
 out adverting to their history and opinions, as con- 
 nected with the; form ition of the Constitution. Th* 
 two principal writers, (meanlnt Mr. Hamilton and 
 Mr. Madison) were prominent members of the Con- 
 vention, and leaders in that body of the party whlcA 
 supported the plan for a National Government. Th«< 
 otner (meaning Mr. Jay) although not a member, is 
 known to have belonged to the same party. T&ey aB 
 acquiesced in the decision which overruled their fa- 
 vorite plan, and determined natriot'cally. to give that 
 adopted by the Convention afatrtrlal. without, how 
 ever, surrendering their preference for their own. 
 scheme of a National Government. It was In thta 
 state of mind, which could not fail to exercise a strong 
 Influence over their Judgment*, that they wrote the 
 Federalist; and on ail questions connected with th» 
 cbaract'.-r of the Government, due a'lowancs should 
 be made for the f ..rce of the bla», under which their 
 opinions were formed." Thh lugnage Is used, I 
 think, in the spirit of lastaud enlightened criticism, 
 differing somewhat irom the spirit of tne Senate and 
 House of Representatives of South Carolina, as ex- 
 hibited in their "Protest against the system of pro- 
 tecting duties," in which they thought proper to of- 
 fer an apolcgy for cltli g the Federalist as an authorl- 
 tvupon apolitical queitlon. If then, 1t can he shown 
 that the writers of the Federalist , ha"e not only not 
 claimed for the Government of the United States an 
 unlimited power over the citizens, for the pwposea of 
 war, but have constancy tased their arguments, con- 
 : the war power of the Government, upon a»- 
 bumpiions wholly at variance with any idea of unli- 
 mited control over the citltf-n<!, th's would seem to 
 go a great way toward establishing the portion, that 
 , eminent has no t.uch unlimited control. The 
 authors of the Federalist painted in strong colors th* 
 imbecility of the States, under the Artie' ea of Con- 
 federation, and showed that Congress under that, 
 -vstem, lacked the powers essential to efficient ana 
 stable Government. It devolved upon them to an- 
 swer, or they rather assumed the task of an** 
 the arguments which were rife throughout the ceus- 
 try, against stanling armies in time of peaee. They 
 asserted the evident proposition, that if the Govern- 
 ment about to be e tablisr.ed wks charged with the 
 common defence of the States, it bhould be entrust- 
 ed with the means essential to such defence. 
 
 It was said that the danger to which the States 
 might, at some future time, be exposed, could not 
 be estimated or foreseen, and therefore the Gov- 
 ernment, charged with the duty of defending 
 against sUfh danger, should not be limited in it* 
 power to defend. Nothing but the utmost Jealousy 
 of their liberties could have made it necessary to 
 nrge upon the people propositions eo plain and 
 fundamental. 
 
 In the 41st number of the Federalist, written by 
 Mr. Madison, taking a general view of the powers 
 proposed to be vested in the Union, he proceeded 
 
12 
 
 to reduce them into classes, as they related to dif- 
 ferent objects. The first object to which ho called 
 attention was " security against foreign danger." 
 He classified the powers necessary to security 
 against foreign danger thus : "Those of decl*r- 
 
 • ing war, and granting letters pf marque ; of pro- 
 riding armies and fleets; of regulating and calling 
 forth the militia ; of levying and borrowing mon- 
 ey." Here, it will be seon, the power of the Gov- 
 ernment over the militia is treated as part of the 
 
 • war power. 
 
 In number S9 it is said by Mr. Hamilton : "The 
 power of regulating the militia, and of command- 
 ing its services in times of insurrection and inva- 
 sion, are' natural incidents to the duty of superin- 
 tending the common defence, and of watching 
 over, the internal peace ofthe Confederacy. " Here 
 again the militia is treated as apart ofthe means 
 to beused by the Government in the exercise of 
 the war power. Again Mr. Hamilton says : " If 
 standing armies are dangerous to liberty, an efii- 
 eacious power over the militia, in the same body, 
 (that is in Congress), ought, as far as possible, to 
 take away the inducement and the pretext to such 
 unfriendly institutions." 
 
 In the 45lh and 46th numbers Mr. Madison enter- 
 ed upon a full discussion of the supposed danger 
 to the Union,and ofthe ability of the State Govern- 
 ments to su&tain themselves againt.encroavchmenlsj 
 
 " npon their reserved powers, by the Government 
 ofthe Union. In one place he says : •' The num- 
 ber of individuals employed under the Constitu 
 tion ofthe United States will be much smaller than 
 the number employed under the particular States. 
 There will conscqnenTy be less of personal influ- 
 ence on the eide ofthe former than ofthe latter.— 
 The members of the Legislative, Executive and 
 Judiciary Departments of thhteen and more 
 States— the Justices ot the Peace, officers of tho 
 
 . militia, ministerial officers of j astice, with all tha 
 county, corporation and town officers, tor three 
 millions and more of people intermixed,and hav- 
 ing particular acquaintance with every class and 
 circle of the people, raust exceed beyond all prop- 
 ortion, both in number and influence, those of 
 every description who will be employed in the ad- 
 ministration ofthe Federal system. 
 
 Compare the members ofthe three great depart- 
 ments of the thirteen States with the members 
 ©f the corresponding departments of tho eingl* 
 government of the Union. Compare the mili i& 
 officers of three minions of people with the mili- 
 tary and marine officers of any establishment, 
 which is within the compass of probability, or 1 
 may add, of possibility; and in this view aloae we 
 may pronounce the advantage of the States to be 
 decisive." 
 
 In summing up the argument rpon this subject, 
 Mr. Madigon said : "The only refuge left for those 
 who prophesy the downfall or the State Govern- 
 ment, is the visionary supposition that the Fede- 
 ral Government may previously accumulate a 
 .military force for the projects of ambition. The 
 reasonings contained. in these papers must have 
 keen employed to little purpose indeed, if it could 
 be necessary now to disprove the reality of this 
 danger. That the people and the States should, 
 for a sufficient period of time, elect an uninter- 
 rupted succession of men ready to betray both; 
 (bat the traitors should, throughout this period, 
 uniformly and systematically pursue some fixed 
 plan for the extension of the military establish- 
 meat; thit the goveraments and the people ofthe 
 
 State should silently and patiently b< held the 
 gathering storm, and continue to supplythe ma- 
 terials, until It should be prepared to burst on 
 their own heads, must appear to every one more 
 like the incoherent dreams of a d< lirious Jealousy, 
 or the misjudged exaggerations of a counterfeit 
 real, than llko the sober apprehensions of genuine 
 patriotism. Extravagant as the supposition is, let 
 it'howevef , be made. Let a regular army fully 
 equal to the resources of the country he formed ; 
 and let it te entirely at the devotion of the Fede- 
 ral Government ; eti)l it would not be going too 
 far to say, that the State Governments, with the 
 people on their. side, would b* able to repel the 
 danger. The highest number to which, according 
 to the best computation, a standing army can be ' 
 carried in any country, does not exceed one hun- 
 drethpartof the whole number of souls; or one 
 twentyflith part of the number at le to bear arms. 
 This proportion would not yield in the United 
 States, an army of more than twenty-five or thirty 
 thousand men. So there would be opposed a 
 militia amounting to near half a million of citi- 
 zens with arms in their hands, officered by men 
 chossn from among themselves, fighting for their 
 common liberties, and united and conducted by 
 governments possessing their affections and confi- 
 dence. It nny well be doubted whether a militia 
 thus circumstonced could ever be conquered by 
 such a proportion of regular troops. Those who 
 are best acquainted with the late successful re- 
 sistance of this country against the British arms 
 will be most inclined to deny the possibility of it. 
 Besides the advantage of being armed, whieh the 
 Americans possess over the people of almost 
 every other nation, the existence of subordinate 
 governments, to which the people are attached 
 and by which the militia officers are ap- 
 pointed, forms a barrier against the enterpri- 
 ses ot ambition, more insurmountable than a 
 simple government of any form can admit of. 
 Notwithstanding the military establishments In 
 the several kingdoms of Europe, which are carried 
 as far as the pubiic resources will bear, the gov- 
 ernments are afraid to trust the people with arms. 
 'And it is not certain, that with this aid alone, they 
 would not be able to shake off their yokes. Bat 
 were the people to possess the additional advant- 
 ages of local government, chosen by themselves, 
 who could collect the national will and direct the 
 national force, and of officers appointed out.of the 
 militia, by these governments, and attached both 
 to them and to the militia, it may bo t funned with 
 the greatest assurance, that the throne of every ty- 
 ranny in Eu;ope would bo speediy overturned ia 
 spite of tho legions whieh surround it." Thai 
 wrote Mr. Madison. Even the injustice of party 
 never denied either to Mr Madison or to Mr. Ham- 
 ilton, great talents, ardent patriotism, Jionetty of 
 purpose, a^d purity of personal character. Can it 
 be possible, I atk. that such men could present the 
 arguments and the views which I have quoted, fc'* 
 their fellow-citiz; ns, to induce them to adopt a 
 form of government which committed to the leg- 
 islative department the power, by a single vote, to 
 compel every man between the ag-s of eighteen 
 and forty fir o years, to bocome a regular soldier, 
 subject to the order* of the President ? It is not 
 possible: and we are therefore driven to the con- 
 clusion that wh«n those Illustrious men contended 
 that the General Government, which was charged 
 by the Constitution with tho common efence, 
 should be elothodwith 'the indefinite power of 
 raisin? troops ;" and when they said, in general 
 
13 
 
 4 «rms, that the power of Congresa " to raise and 
 support armies" should be without any limitation- 
 they only meant to s*y that Congress ought not t6 
 be controlled by any limitation in the COhstitu- 
 tion as to the number of troops they might raise ; 
 and t'mt they ought cottoba limited as to th« 
 time when they might raise armies, but that they 
 should hare the power toraise armies, and t< 
 p-trtthem, in rime of peace as well as after a de- 
 claration of war. 
 
 In the '-"-st quotation which 1 have made Trcrm 
 the 'IfithnutuM'r of,the Federalist, by Mr. M. 
 he assumes that an expensive military os'.. 
 ment could ouly be created by the uniform and 
 systematic pursuit of soaie fixed plan for that pur- 
 pose ; and when he proposes to concede, lor the 
 sake of the argument, all that the Government 
 could do by way of accumulating a military force 
 for the project* of ambition, he li aits its possible 
 efforts to the accumuUtion of n force of twenty- 
 five or thirty thousand men, having reference to 
 the population of that day ; which force, he con- 
 tends, could not cope successfully with the militia 
 of the States. Can it b • possible that a statesman 
 like Mr. M idison would have ventured upon such 
 a position atd such an argument, if it could have 
 been replied to him that the Congress could voU 
 a hundred thousand men Into the ranks of the reg- 
 ular army whenever they pleased, and comnol 
 them to serve orle treated as deserters ; and that 
 the militia men of the States could be compelled, 
 in their character of citizens, to serve in the army 
 as regular soldiers V I say again, it is not possible. 
 
 1 havo no controversy with the quotations which 
 are made, in the opinion of the court, from Vattel . 
 The principles announced in th? passages quoted 
 . are sound. But they have application only where 
 written constitutions have not imposed limitations 
 upon sovereign power, at variance with them, or 
 in restraint of th. m. Vattel wrote his justly cel- 
 ebrated work on the law of cations, and was 
 sleeping in his grave, some years before the De- 
 claration of American Independence. It has 
 been our boast that our revolutionary ancestors 
 made some advance in.the principles and science 
 of government, aud kindled again the vestal fire 
 on the altar of liberty, which had been smoulder- 
 iug under the ashes of two thousand years. I am 
 not prepared, therefore, to ace Jpt Monsieur Yattel 
 as a valuable authority upon questions con- 
 cerning the powerofthe government of the TJ. 
 fs, or of the Confeder.Le .Stales. 
 
 I shall noTv proceed to enqiire somewhat more 
 particularly whether the power which is granted 
 to the Congress of the Confederate States to raise 
 and support armies is without any limitation , and 
 whether or not Congress is left to the exercise of., 
 an unlimited discretion as to the means by which 
 it may be carried into effect. In the opinion of 
 the Court^it is said that "in determining the con- 
 stitutionality of a law passed by the Confederate 
 Government, it is always important to consider 
 whether the act in question is done in the exercise 
 of a power expressly granted, or under the im- 
 plied powerg granted by the 18th paragraph of 
 the 8th section of the 1st Article of the Constitu- 
 tion. If it is the first, then the Confederate Gov- 
 ernment may use their discretion in the mode and 
 manner of its exercise, unless it is limited or re- 
 strained in so doing by some other express pro- 
 vision or clear and necessary implication, and the 
 burthen of showing this is upon thoso who assert 
 the limitation. 1 ' The Court further aays that "the 
 
 authority given, to make all laws which shall be 
 necessary and proper for carrying into execution 
 the expressly', granted powers, was not intended 
 merely to authorize Congre3S to exercise by leg- 
 islation the previously granted powers. And its 
 right, to do ao depends in no manner upon thia 
 clau&s, but it is itself n direct grant of all such 
 liary a^d incidental powers aa shall be ne- 
 proper to carry into effect the pre- 
 ;.• ranted powers. And it is admitted that 
 rity to do an act is claimed under it, 
 . is incumbent upon those who maintain it to 
 i iiow, ni t merely that it is a "necessary" law, but 
 cessary and proper one for carrying 
 into effect the cxpresaly granted power." 
 The mil paragraph of the 8th section of the 1st 
 of the Constitution of the Confederate 
 -in ihese words: "Congress shall have 
 r to make all laws which shall bo necea- 
 per for carrying into exeoution the 
 foregoing powers, and all other powers vestedby 
 .ion in the Government of the Con- 
 f.dera e States, or in any department or office 
 " The language is precisely the same aa 
 he last clause of the 8th section of the lat 
 of the Constitution of the United States, 
 e exception, of course, of the style of tho 
 Government. 
 
 >lauae of the Constitution of the United 
 
 has been much discussed. In Mr. Madison's 
 
 ,n the Virginia .Resolutions, of l"98,itia 
 
 ince to this clause : " The plain im- 
 
 ' this clause is, that Congress shall have all 
 
 dental or lnstrumentaiT°wer3 necessary 
 
 • per for carrying into execution all the 
 
 powers, whether they be vested in the 
 
 ■ ment of the United States more collectlve- 
 
 : the several departments or officers there- 
 
 s not a grant of new powers to Congress, 
 
 '•claration for the removal of all uncertain - 
 
 the means of carrying into execution those 
 
 Bierwise granted are included in the grant.— 
 
 ver, therefore, a question arises concern- 
 
 con-titutionality of a particular power, 
 
 ,s, whether the power bo ex- 
 
 : in the Constitution. If it be, the question 
 
 led. If it be- not expressed, the next en- 
 
 luat be, whether it is properly an incident 
 
 i power, and necessary to its execu- 
 
 Ifit be, it may be exercised by Congress. 
 
 If it be not, Congress cannot exercise it." 
 
 Judge Stbry ha3 incorporated this language into 
 his Commentaries on the. Constitution, with very 
 sligat alteration. lie says the clause in question 
 V neither enlarges any power specifically granted, 
 Bor is it a grant of any new power to Congress." 
 Mr. Monroe, in the celebrated paper containing 
 his views on the sabjectof internal improvements 
 —which accompanied his message vetoing the 
 " Act for the preservation and repair of the Cum- 
 berland road," (May 4th, 1822)— spoaking; of thia 
 clause of the Constitution said : »• I have always 
 considered this power as granted on a principle 
 or greater caution, to secure the complete execu- 
 tion of all the powers which had been vested in 
 the general Government. It contains no distinct 
 and specific power, as every other grant does, 
 such as to lay and collect taxes, &c. My impres- 
 sion has been invariably that this power would 
 havo existed substantially' if this power had Lot 
 been made." . 
 
 Mr. Calhoun, in his discourse on the Constitution 
 arid Government of the ;United States, speaking of 
 this clause, says : "This power (meaning the power 
 
14 
 
 to pass laws, to carry Into effect th« powers expressly 
 rranted) comprehensive as it Is, Is nevertheless sub- 
 ject to two Important restrictions— one is, that the 
 law must be necessary, an 1 the other, that it raust be 
 proper. To understand the Import of the former, 
 rthat is, that the law must be nessary) it must be 
 borne In mind, that no power can execute itsetf — 
 They all require means, and the agency of the Gov- 
 ernment to apply them. The means themselves may 
 Indeed, be regarded as auxiliary powers. Of these, 
 some are so Intimately connected with the principal 
 power, that, without the aid of one or all of them, it 
 could not bo carried into execution ; and of course, 
 without them, the power itself w mid be nugatory.— 
 Hence they are "called implied powers ; and it Is to 
 this description of incidental or auxiliary powers, 
 that Congress is restricted in passing laws, necessary 
 to carry into execution the powers expressly dele- 
 gated." But Mr. Gdlhoun continues : "The law 
 mnstaW) be pioper as welU'as gnecessary, in order 
 g it within its competency. To understand 
 the true import of the term in this connec 
 tlon'U* Is necessary to hear in mind, that even the 
 implied poweis themselves are subject to important 
 I ons, when u?e 1 as means to carry powers or 
 f _-hts Into execution. Among these, the most pro- 
 t and important is, that they must b? so car- 
 ried Into execution as not to inure others; and as 
 conneql d subordinate to this, that where 
 
 the implied powers or means used, come in conflict 
 with the Implied powers, or mean.? u e I by another, 
 in the execution of the p jwers or rights vested in It, 
 the less iraportant'sbouln yield to the more import- 
 ant, the convenient to the useful, and both to health 
 and safety ; becau3e it is prsper they should do so." 
 In the celebrated case of McCulloch, vs. the Start 
 oi Maryland. (4th Wheatoa) Chief flifetke Marshall 
 in treating of tbeclause in question," savs : ■'We ad- 
 mit, as all must admit, that the powers of the Gov- 
 ernment are limited, uitt thut it. ; , jitnits are not to be . 
 transcended. B;}t we thin! ruction 
 
 of the Constitution, mu.st allow to' the A' at ional Le- 
 gislature that discretion with r6:-peci to the means' 
 oy which the power it confers -are to be carried into 
 execution, which will emb'e that body to perform 
 the high dutiesiassigoed to it, in the manner most be- 
 neficial to the people. Let the eud be legitimate^ let 
 it be within the score of the C and ail 
 
 means which are appropri :• . which are t 1 inly 
 adapted to that end, which err rj, tut 
 
 consistent with the letter and spibi* op ana coksti* 
 aniox. are constitutional." 
 
 In the light of these expositions, I think it safe to 
 say that there can be no shifting of the burthen of 
 arguments upoa questioi. (he powers of 
 
 the Government, u.-on the ground of a. 
 between express and, implied power.-. The Govern- 
 ment is one of limited powers, and whoever asserts 
 the constitutionality of a particular power, "must 
 show it. Is the power expressed in the Constitu- 
 tion ? If it is, the question is decided. If it is not 
 expressed, then it must be shown to be necessary to 
 the execution of some power that is expressed, and 
 notonly nectary, but proper to be use i in carrying 
 into execution some power that i< expressed. 
 
 The majority of the Court say, the power to raise 
 and support arniies is expressly granted, ■j.hic.of 
 course, is t. o o denied, but J beg leave to say.it is not 
 to the purpose. The question is not whether or not 
 the power to raise and support armies, is expressly 
 granted ; the question is, whether or not the power 
 to raise armies by conscription, is expressly granted F 
 It wil!. of course, be "conceded that the Constitution 
 contains no such express grant of power. Then the 
 further questions arise, is conscription one of the Im- 
 plied powers ? Is it a means necessary to be used in 
 carrying into effect the power to lalse armies? is it 
 a means proper to be used? does it consist with the 
 spirit of the Oons»itutio i ? is it not a means, the use 
 of which will conflict with the reserved rights of the 
 states, to train their militia, and to appoint the of- 
 ficers of themili'ia? 
 
 In considering whether a law is necessary, in the 
 sense of the constitution, to carry into effect an ex- 
 
 press power, if we are not to Jadopt the etrict rul» 
 laid down b\ Mr. Calhoun, towlt. that the express 
 power would be nugatory without the use of tuo 
 means proposed by the law, I take it f >r granted that 
 we will not on the other hand,go back to that latitud* 
 of construction, and to the reasoning by which the 
 Federalists of 17y8 claimed for the congre.-sof the Uni- 
 ted States, the power to exercise a censorship over 
 the press, as a means necessary and proper to can r 
 into effect the power t> suppress insurrections. We 
 have been accutomed to rea I, with the interest that 
 attaches to the drama, the history of t'aegr. at strug- 
 gle which elevated Mr. Jefferson to the Presidency 
 It is the first conspicuojas landmark lathe history of 
 the^Goverument of the United States, under the 
 Constitution. Ithus always been claimed tl 
 Republican party performed a patriotic service, in 
 resisting the tendency t > a rapi 1 con-'olidUion of 
 P vers in the General Government, and that their Il- 
 lustrious leader was the faithful sentinel 
 jj a -.ger to the Constitution, and met it with a noble 
 devotion to the cause of liberty. And ia the subse- 
 quent history of t ■ at ; in Mr. Monroe's 
 denial of th j power of the Government to establish a 
 Sysf?ui of i t.emal improvements without limita- 
 tion ■ in Gen. JaCksos's memorab'e struggle with the 
 Bank of the United In every step which 
 has been n ale. towards a strict construction of the 
 Con s l i t utlon , * he p »o pie , u ■ r u : 1 1 ph of 
 sound prim; I 
 stabi'ity o- I 
 fore a 
 
 stitutlon, which'iiiv p ivture 
 
 from these principles whicn conducted 
 the United iSlates to noeximpled pro.-p ii y and 
 greatness, and to preserve w;iieh, was t.^e. avowed 
 pnrp seof these Cp diaspVu- 
 
 tionof the oldUuiv::, and the e ii of our 
 
 ?.r- s nt Govf-rnpieht. 
 
 It cannot be contended that conscription is a 
 means necessary to carry into effect the power to 
 raise armies. Such a proposition, besides being 
 contrary to reason, would find its contradictions 
 in history, and in the events which ate transpiring 
 before our eyes. The Government of the Uuited 
 States has always kept an ar-rsy on foot, maintained 
 an honorable contest with Great Britain in 1810, 
 and planted her banners on the walls of the Capi- 
 tol of Mexico, in 1P47, but has never ra : sed troops 
 by conscription.' We have se^n gallant armies 
 take the field at the call of th8se Confederate 
 States, without any conscription. We are told that 
 the Government of the United States is prepared 
 to precipitate uponus not, much less than a million 
 of men. They have been raided without any con- 
 scription. Conscription cannot, therefore, be a 
 necessary means of raising armies. And it would 
 seem that the fact above mentioned ought to fur- 
 nish a sufficient answer to the position which is as- 
 sumed, that if the Government cannot compel^the 
 citizens to enter the regular army, then the power 
 to raise an army is wanting, and the Government 
 has only the privilege of raising armies. It would 
 seem that a privilege which enables a Govern- 
 ment to bring a million of men into the field, can 
 only be a misnomer for a power to do so. The 
 word "privilege" properly signifies an exemption 
 from some general duty— an immunity from some 
 general burthen or obligation— a right peculiar to 
 some individual or body. The word could not 
 with propriety be substituted for the word power 
 in the Constitution. But let us suppose it had been 
 used instead of the word power. After the criti- 
 cism which would have been elicited because of 
 the use of an improper word., what meaning would 
 necessarily have been drawn from its use ? "Con- 
 gress shall have the privilege* of laying and col- 
 lecting taxe3, duties, imports and excises;" "Con- 
 gress Shall have the privilege of borrowing money 
 
li 
 
 ob the eradtt of the Confederate State*/' Would 
 W. not bare been said that the frainera of the Con 
 Ktitotlon meant to eay that Congress Bhould hare 
 the power to do these things ? The word povtr l» 
 the appropriate word, but It la net used in the 
 sense of force. We speak wilh correctnes of the 
 the military power of a Government. We say, 
 for example, the Government of the United States 
 has not the power to conquer the people of the 
 Confederate States; meaning that it cannot use 
 the necessary force. But when we speak of the 
 Legislative, the Executive, the Judicial power of 
 a Government, there ia no idea of force connect- 
 ed with the word. It is true that tho Executive 
 Department of the Government may sometimes 
 «ge force in carrying into execution the will of the 
 Legislative Department. The Executive Depart- 
 ment may use force in suppressing insurrections, 
 and must necesairily use itin repelling invasions. 
 But when it is said that Congress shall have pow- 
 er to constitute tribunals inferior to the Supremo 
 Court, to establish uniform 1 .ws of naturaliz ttion, 
 and uniform laws on the subject of bankruptcies, 
 to coin money, to borrow money, and (he like, 
 there is no idea of force connected with the uso of 
 the word power. It cannot be denied that Con- 
 gress may raise armies by accepting the acrvlces 
 ol those who may voluntarily enlist. It has than 
 the power to do this; but it cannot be s»aid that 
 Congress can use force, or require tho Executive 
 Department to use force to compel a citizen volun- 
 tarily to enli6t, because this would be sheer non- 
 eence. The use of tho word, then, by no mean3 
 carriea with it the implication that Congress may 
 employ force to do everj thing which it is said to 
 have the power to do. 
 
 For the purpose of testing this question of the 
 powel of the Government to compel cilizena to 
 enter the regular army, let us examine the tcope 
 of another of the express powers, raid one of a 
 kindred nature of that of raising armies. The 
 Constitution says : "Congress shall have power'' 
 " to provide and maintain a Navy." The grant of 
 power, so far as the language employed in making 
 the grant is concerned, is without any limitation, 
 'i he grant of power to raise and support armies is 
 limited by the provision thai " no appropriation 
 of money to that use shall be for a longer term 
 than two years." The power 'to provide and 
 maintain a navy'' ia without any such limitation. 
 I now recur onco more to the language of the Fed- 
 eralist, which is quoted in the opinion of the court. 
 Is the power of raising armies and equipping fleets 
 necessary ? This is involved in the foregoing 
 power (meaning the power to declare war). It ia 
 involved in -the power of self-defence. But was 
 it necessary to give an indefinite power of raiding 
 troops as well as of equipping fleets ; and of main- 
 taining both in peace, as well as in war V" Mr. 
 Madison insists that these powers were necess iry. 
 Now, I ask the question, has the Congre*s of the 
 Confederate S'ates the power, under the Constitu- 
 tion, to compel the citizens of these States, be- 
 tween the ages of eighteen and forty-five years, 
 to enter the naval service, to become seamen »r 
 marine s, for an indefinite period of time, or fur 
 five or ten years ? Who will answer the question 
 in the affirmative ? Yet the power tl to provide 
 and maintain x navy" is to the full extent as broad 
 and unlimited as the power to raiBe and support 
 armies : and the indefinite power of equipping 
 fleets, is put, by the author of the 41st number of 
 the Federalist, onpr.cisely the same footing as 
 
 the indefinite power *f raising troops. If the Br! - 
 ish practice of Impressing seamen is authorize* 
 by the Constitution of the Confederate States or of 
 the United States, I venture the assertion that the 
 people of both countries are ignorant of the fact. 
 And if it is admitted that the Congress of the Con- 
 federate States has not the power to compel cUl- 
 sens to enter the naval service, I should be glad 
 to be furnished with a reason why it has not, by 
 those who claim that it has the power to compel 
 citizens to enter into the regular army. Take the 
 '.wo grants of power, and how can you draw a dis- 
 tinction between them '? Congress shall have 
 power •' to raise and support armies.'' Congress 
 ahall have power "to provide and maintain a 
 navy." It is" well known that m Fnnce the con- 
 scription furnishes seamen and marines, as well as 
 soldiers for the regular army. If our government 
 possesses an unlimited control over "the citizens 
 for purposes of defence, then it baa the power to 
 assign them to the land or naval service, at its 
 pleasure. 
 
 I make bold to say, 'haUhe Government of the 
 Confederate States possesses no-power to com; 
 
 s to enter in'.o its naval service; and for the 
 simple reason that the Governmer t is one of lim- 
 wers, that the people whoinatituted it were 
 afro.- people, and had the right to make such a 
 go ernmentas they pleased to make, and thut they 
 never intended to invest the government with an 
 unlimited control over their persons for the pur- 
 
 fosesof war; And fur the s«me reasons, -the gov- 
 t baa no power to compel the citizens of 
 atcs to enter the regular army. The truth Is. 
 e are limitations upon the,powers of the gov- 
 ernments of the United States, and of the Goofed- 
 ft rate States, besides those which are expressed in 
 Co^siitutioua of each. And this is what ia 
 ' ftieant by the spirit of the Government. 
 J It would have been impossible j Li the formation 
 of c Constitution of governmpnt by the free po 
 'tile of several independent States, having for its 
 oip.il object tho regulation and control of their 
 ju relations and interests, to have specified 
 Aie powers and rights which they intended to rc- 
 ■ervo to themselves. All that could be done was, 
 /for the sake Of Caption, to declare that they reserv- 
 to themselves the powers which were not dele- 
 gated by the Constitution to the General Govern - 
 it. When, therefore, we c jmo to enquire what 
 the reserved powers are, or, in other words, what 
 are the limitations upon tho delegated powers, we 
 are entering a wide held of investigation, and one 
 that invites \o the noblest exercise of mind. In 
 I determining such questions, respect must be paid 
 to all the circumstances under which the Constitu- 
 tion was established, to the purposes for which it 
 was established, to the condition, and to tho inten- 
 tions of the parties who established it. And it is 
 never to be inferred that a delegated power is ab- 
 solutely without limitation, because no limitation 
 is expreeaed in the Constitution, nor yet becauso 
 there is no clear implication of a limitation from 
 auything that is expressed. Mr. Calhoun says . 
 "There is indeed no power of the Government 
 without restriction ; not even that which is called 
 the discretionary power of CongreBs." 
 
 The Constitution says that "che President shall have 
 
 power bv, and with the advice and consent of the 
 
 • ■' Senate, to make treaties, provided two-thir-is of the 
 
 , .Senators present concur." And *n another Dlr.ce it is 
 
 . ■ said that "The Constitution and the laws of the Cou- 
 
 , -federate $jMes, niade in pursuance .ncreof; and a. 
 
 treatieo made, or which shall be nude under the au- 
 
 ' thority of tjft Conner ,te.S:ates,>,lia!l b*]the supreme 
 
11 
 
 law of ti.' j l.tnr]. ; ' Itwll be teen thU ihn power to 
 make treaties is without ar.y express limitation, yet 
 there musirb^ important limitations upon the treaty 
 nuking'po'wer. ]t must be considered with lefer- 
 <;•- for which the Govern- 
 ne of 111 i* limitations upon 
 will be f jund to aiise by 
 I "i provision; 
 '.. 
 ty with Ihi gland, to make 
 ke war 
 and one provision of the 
 Const! 
 of an:- nlditb? compete t fort] 
 
 • a treaty, ceding that oor- 
 
 she consent 
 people ' there Is any Iprohib'- 
 
 in the conau 
 i ion can. be clearly 
 loil lit res el. lut because 
 
 ; e pur- 
 s'.ituted, and 
 ie iple ol Texa*|n< ver intended to clothe 
 veronient with any such power. Other ex- 
 amples m'ght be given, were it necessary, of limita- 
 tions upon the pow. rs of Government, which are not 
 exDreeseu in the constitution; but which spring ne- 
 cessarily, tVoni the reserved fights ot the people .— 
 The substance of the whole is, that the powers of 
 the government must be so construed as to trench as 
 littL-as possible upon the liberty of the citizen; 
 and so as to interfere ii u>e least possible degree 
 with! concerns of the people, .the regu- 
 
 lation of which is reserved to the States respective- 
 ly. 
 
 ] t may be argued , and it may be true, that to deny 
 to thegenr-rilgovernmenl the right to compel cit'- 
 zens to enlist hi the regular army, and to contine its 
 power to make war to the employment of the, militia 
 and of such regular force- ts may be rated by the 
 voluntary enlistment of the people, will leave the 
 government less alve to wage war with vigor, than 
 it would be i the power contended for 
 
 by the advocates of conscription. 
 
 The plain answer to all such arguments and 
 complaints is,ihatihe Government was not insti- 
 tuted with a view to the greatest possible efficien- 
 cyinwar. It was not the purpose of the fpeople 
 in its establishment to foster a military spirit, or 
 to tempt their rulers to undertake those enter- 
 prises so attractive to vulgar ambition, by furnish- 
 ing the means for their easy accomplishment. 
 They"' their purpose to be to establish 
 
 justice, to insuro domestic tranquility, and to se- 
 cure the blessings of liberty to themselves and 
 their posterity. I am of opinion that they never 
 intended to arm a Government instituted for such 
 purposes, with the tremendous military power 
 which is claimed by the act of conscription. I 
 •do not believe those acts to bo necessary to carry 
 into effect Ihe war power with wlwch the Govern- 
 ment has been clothed. I do not believe them to 
 be proper, because not necessary, and not con- 
 sistent with the spirit of the Constitution. More 
 than this, if more be needed to condemn them, I 
 believe them to be directly in conflict with the re- 
 served rights of the States oyer the militia ; or, 
 -what is perhaps the same thing substantislly, the 
 reserved rights of the people to do military ser- 
 vice as militia, when military service is required 
 of them. 
 
 Before proceeding, however, to the examina- 
 tion of the provisions of the Constitution, respect- 
 ing the militia, I will briefly notice, as matter of 
 historical interest, and also as bearing somewhat 
 upon the question under discussion, the fact which 
 is alluded to in the opinion of the Court, that ihe 
 power to compel citizens to do military serrlce in 
 
 the regular array was claimed for the Govern- 
 ment of the United States by General K,nox. dur- 
 ing General Washington's administration, and by 
 Mr. Monroe during Mr. Madison's administration. 
 General Kncx was Secretary of War, and a soldier 
 by profession. The plan which he proposed had 
 the approbation of General Washington, and 
 would have been little burdensome in its opera- 
 tion. There had but a short time before 1 
 insurrection in Massachusetts, and there' 
 of the. Government with Franco were fa 
 satisfactory ; Lut the plan was rejected, 
 lieu ot It the militia Jaw of . 1:92, wh^ch, with slight 
 has continued in force ever since, 
 .was enacted. 
 
 In 1814 Mr. Monroe was Secretary of War 'and 
 also Secretary of State. The war with Great Brit- 
 tain was assuming the most serious aspect. The 
 temporary cessation of hostilities in Europe, con- 
 sequent upon the first expulsion of Napoleon, left 
 England at liberty to employ an .immense force 
 against the United States. England; threatened 
 a war of destruction. 
 
 Mr. Monroe recommended to Congress a p'an' 
 for the increase of the army, in which ho asserted 
 the right of the government to compel the citi- 
 zens to do military service in the regular array. 
 His plan was substantially as follows : 
 
 That the free male population of the United 
 States, between ihe ages of eighteen and forty-five 
 years should be "formed into classes of one hun- 
 dred each, and that each class should furnish four 
 iaen for the war, and replace them in the event 
 of casualty ;. that the classification should be 
 formed wi ha view to the equal distribution of 
 property among the classes ; that if any any class 
 failed to furnish the men required of them, within 
 the time specified, they should bo raised by draft 
 on the whole class, and that any person thus draft- 
 ed should be allowed to furnish a substitute ; that 
 the bounty in land which the government was of- 
 f-ring should be allowed to each recruit, and the 
 bounty in money, which the government was pay- 
 ing, should be paid to each draft or recruit by the 
 class to which he belonged, according to the value 
 of the property which the persons composing the 
 respectively possessed. Mr. Monroe proposed 
 to carry this plau into effect by committing the 
 execution of it to the county courts throughout 
 nited States, or by relying on the militia 
 •ers in each county, or by appointing particu- 
 lar persons in each county for the purpose. This 
 plan was denounced as a French conscription, 
 and was rejected. While it was under considera- 
 tion, John Randolph, of Roanoke, addressed a 
 public letter to a distinguished citizen of Massa- 
 • chusetts, in relation to the position of hostility to 
 . the war which that State had nssumod. In elo- 
 quent terms and in a patriotic spirit, he urged 
 upon the people of Massachusetts fidelity to the 
 Union," and a proper support of the government. 
 In the conclusion of the letter, after speaking of 
 the great increase of the army, he says, "If, under 
 such circumstances, you ask me what you are to 
 do, should a conscription of the model ol Bona- 
 parte be attempted, I will refer you to its reputed 
 projector, Col. Monroe. Ask him what he would 
 have done whilst Governor of Virginia and pre- 
 paring to resist Federal usurpation, had such an 
 attempt been made by Mr. Adams and his minis- 
 ters, especially in 1800. He can give the answer." 
 
 Mr. Monroe was Governor of Virginia in the 
 year 1800, and ii is known thai the State, in the 
 language ef Mr. Randolph, "was preparing it 
 
17 
 
 resist Federal usurpation." I can only under* 
 stand M •. Randolph as meaning lo say, that he 
 would expect the Siateof Massachusetts lo resist, 
 if a conscription was I'lteropted. 3dr. Monroe 
 was a m n of known patriotism, of great eleva- 
 tion of character, of revolutionary services. He 
 had home himself »s a galla-l soldier on many 
 fields— Harlem Heights and White Plains, Bran- 
 dywine, Germantown and Mo, m mh. 11* had 
 led the vanguard with conspicuous gallantr*. , at 
 Trenton, and had received tiere a grarious 
 wound. But w« are told hat his proposal of a 
 consciption, as it was calif d, was i elteved by 
 himself to hav* damaged his popularity to such a 
 degree thai he determined net to become a can- 
 didate for the Preeidoi c , 8s successor to Mr. 
 Madison, and on y abandoned his resolution be- 
 cause of the speedy close of the war, and a re- 
 turn of toe people to a better temper. Whin it is 
 remembered hit at the time Mr. Monroe proposed 
 his plan lor an increase or iho army the Gov, r - 
 mentor the United States was paying to every 
 soldi r who enlisted the enormous b uufy of 
 one huudred and twenty-five dollars, b-sl-es a 
 libera' bounty in land, I think the rejection of 
 the principle of conscription, in the mild form in 
 which it was proposed, ought to be regarded aia 
 somewhat weighty exprewion of the sense of the 
 nation, or to say the toast, that no argument or 
 influence iu favor of the constitution liiy of tue 
 principle can be d awn from all the facts. 
 
 I now p ocetd to notice verv briefly the consti- 
 tutional provisions on the subject ot the militia. 
 It is said in the C > stitution, "'Congress sh».ll 
 have the power to provide lor calling to th the 
 militia to execute the laws of the Confederate] 
 St.les. suppress insurrections, and rep*il inva- 
 sions." Again, it is said, "Congress snail have 
 power to provide for organizing armng, ai.d 
 discipling the miiitia, and for governinf such 
 part of thfm as may beemplojed in tbeserviee of 
 the Conl'e Urate Mutes, reserving to the St.ies 
 respectively the appointm ut of the officers and 
 the. authority of training the militia according lo 
 the discipl n j prescribed by Congress." Another 
 provision ofth: Constitution , 11 to the following 
 effect: "A well regulated militia being necessary 
 to ttte security of a free State, the right of tbe 
 people to keep and bear arms shall "not be in- 
 fringed." This latter provision was one of the 
 ameudra ■ nts to the Constilu tii n of the United 
 States, proposed by Congress and ratifi- d by the 
 States, for the purpose of meeting the ohjec ioat 
 that were made to the Constitution as it came 
 from the hands o' the Convention, on the ground 
 that the rights of the fjevple were not sufficiently 
 secured by it. 
 
 The clauses which give to Co rress the pow ; r ts 
 provide, for i al ihg fo. iu ti,e mi it a, and tor org n- 
 rains*, arming and discirlig them, are p-eci^iy the 
 us tn j econtained in the Constitution of the 
 Ui ited States. When the su: ject of die militia w«3 
 u*.dei disc jfsion In ths Federal CoBTenti n whleja 
 framed t ie Coustit ition of tbs United State-, a Ion? 
 and interesting deb^e transpired, with w i.ii th> 
 students of our poiiicdl h sto y < re fanJiitr, and 
 which ne d not be ,qubi«»d extensively . it wa> pro- 
 po>po by Mr. Sherman to .-t Ike out'the da'i-e re- 
 serving to ilv S at<s the riRhl to tr it th - m 'i'ia. 
 Mr. i.l swortb remark d that th > o Jeetlou w-v Id tp- 
 piy a>- weli to the re erv.idm to the S'a *h i f ihe ao- 
 pointment of (fficers, and doubted thepropriety 
 of sriklog outeith n r. Mr. Kin.' said thatby or- 
 ganizing the committee meant proportioning the 
 officers and men ; by armivg, specifying the kind 
 
 size, and calibre of arms; and by dinrfpl 
 prescribing the manual, exercise, evolutioi 
 
 Mr Gerry «aid, the power in the United Mates, 
 as explained by Mr. K;ne, would make the State* 
 dpi -sergeant*. He had as lief let the citizens oi' 
 M is.«achu«ett8 be dis nnn 1 as to t-ike 'he comnr-nd 
 fipom the States, and subject them to the general 
 ure. It would he regarded as a system of 
 despotism. 
 
 In the prog-ess of th* debate, Mr. Madison 
 mov d to amend the clmse relating to tbe ap 
 po ntnient of officers. i'S follows: '* K. serving te 
 the S latest respectively, the appointment of the 
 
 officers, under the rank tf gtM alttjjicrs " Mr 
 Sherman fcbusi ere-' ihis as absolutely inulmissi- 
 ble. He said that if the poop!- should be so far 
 asleep as to all >w tho most influential officers of. 
 the militia to be appoli ted by Iht g-neral govern 
 ment, t very man of discernment would rouse, ihem 
 by sounding ihe alarm to them. Mr dory said., 
 Let us at once destroy the State G tvernraents.beve 
 :.n Executive for lib, or tiered itary, and a p oper 
 Seinie. Then there would be some consistency 
 in giving full powers to the General Government, 
 b it as h B ates were i ot to be abol shed, he won 
 dered atthe at erupts that were made to yive pow 
 ers incousis ent with ;he<r existence. He wa* ueC 
 the convention against poshing the experimen 
 too fkt. Mr. Madison s-id: "As the treat dan 
 ger is that of disunion of the States, 't is uuceasi 
 ry to guard against U by giving sufficient powerf 
 to the commotijijoverniuent ; and as ihe. greatest 
 dinger to liberty is frourslarge standing armies, it. 
 is best to prevent them by an effectual pro 
 forgoo.i militia." 
 
 Mr. Madwio's amendment was rejected by & 
 vote of eigh' States to three, or of nine to two, it 
 is not certain which. 
 
 On the question ti azree to "the reserving to 
 the Stales the appointment of the officers." it wag 
 agreed t > without a dissent ng vote I think this 
 statement of th i debate (and all contemporaneous 
 expositions) shows most conclusively that the fra- 
 niers of the Constitution of the United States in- 
 tended to reserve to the States such a control ovei 
 the militH as tfould make the States secure agains' 
 t'Je encroachments ot the general government, 
 and as would enable the people to maintain theit 
 liberties. And I consider the proposition which 
 asserts a di.tinctioa between tue cit zeu and the 
 militia-man, as too shallow a sophism to require 
 the use ol argument to expose it. 
 
 The militiaiethe militia of the States respective- 
 ly, and not of the Confederate S ates, or of tne 
 Ucited States. This is clear irom the Constitutiot 
 of each. " Tho President shall be Commauderin 
 Chief of the Army and Navy of the Con ederate 
 States, nd of the mitiiiv of the several States, 
 when nail d into the ac ual service of the Conted 
 trate States." When the militia are called into 
 the service of tbe general government, they be- 
 come national miliua alter th y a-e musterdat 
 the place of rendezvous designated by the propet 
 authority, and not until then, as was decided by 
 the Supreme Court of the Uni ed States, in the case 
 of Houston vs. Moore. 5th Wheaton. The Su- 
 preme Court of the United States also decided ir 
 the case of Martin vs. iMoit, 12th Wheaton. that i\ 
 belongs exclusively to the Presidentto judge whet 
 the exigency his arisen, in which he has author 
 ity, under the Constitution and laws, to dll fortb 
 the militia, and that his decision is conclusive up- 
 on all other persons. My views, then, of the true 
 
18 
 
 power of the general government are the.= e : Con- 
 grrs^ may raise regular armies by '.he voluntary 
 enlistment of the citizens : the States have con- 
 Ben led to this, and tins cannot, therefore, without 
 it violation of their constitutional obiiga ions, pro. 
 hibit the citiz -n from voluntarily eniisliiiK in tha 
 regular i rmy The-Cougreas may provide for call- 
 ing nut the militia to e'xei lite the 1 iws, t < suppress 
 insuTrectioi 8, and to repel i v ■ " ;i .and uns au- 
 
 th riz'- the Preaideut t >dec Alien the exigency 
 
 htttoferisen. The Pr«*i<4cB,'1 ma) n i out the militia 
 by r qunOtions upon the -G >\ • rn id of the Sta es, 
 who-.- duty it would tie' to cause the c 1 to bo 
 I ; o- perhaps the Piesid nt mi ht transmit 
 his orders directly to tha proper officers of the 
 in lii'H. m ihe lespeciive State*-. 
 
 T h • m.'i'i i m j be drafted into the servile un- 
 der thfi pr ptjr omci-ns, and .bey may l> • punish- 
 ed il hey reiuse lo Obey the dr It. They my be 
 kept iu servtoe as long as the naceasit «s ofthe 
 *ase to ty rfeqair . and uu ler snob systrrn of disci, 
 pli e as m:i> beprovid m! hy Uw . EachtUate may 
 exempt from nidi ia. duty all Buoh persons as the 
 Stave ma deem neo esary to itsown gover. went; 
 and the right to exempt LB in the State, and is not 
 a matter of grace oa the part of the general gov- 
 ernment. 
 
 This^qe-stfoto of the rightof exemption wasdis- 
 cussed who; the Congress Of the Unit d Stales 
 fi -: provided f r tli-; or-; un/.ition of tha militia, 
 and I un i r stand the act of 17H2 to recogniz/3 the 
 principle ( n l>uo edly corraot) that the. right la 
 in I'm State ; fo« that ,-.ct i xempt the olfi;e,rs and 
 c rtiin employees of the United Statj-s, and also 
 tk ull pers us \v :o now are, or may tiereaf or bo 
 ex muted bj th l law sot th- respective Suuos.'' 
 
 Such w the war i o ver of the. general g vern- 
 nient. Itis the? pbr,e'r which those who framed 
 the gover meut thought pro|)er lo commit lo it, 
 and t is enough lor every po-^iole emergency. 
 
 These a e my vP-ws upon this .Teat question. 
 Though they are- ihe re-ult of mich reii-'Cion, 
 they I ave been sdmfeWhat hastily expressed, and 
 I am s u i le that th'ev 1-c'c order and condensa- 
 tion. 1 has e s! ted them under a prolound con- 
 vi 10.11 , hat I am nol equal to the great argument. 
 
 I feel, al the same tim •, a, conviction as profound, 
 t'o t ii republican go> fern men if and civil liberty 
 survive, the great struggle iu which we are row 
 
 I I gi- imI, Wh ch I do not permit myself to doubt, 
 B me Marshall or dam lie d will make tin argu- 
 rffent uh eh will cons-go the acts of eo sori|rtion 
 Which have been under diteu -si .n, to the uoiver- 
 pal obloquy wveh they he-erve. I shall not, 
 therefore, Indulge in any vain regret that 1 have 
 not the powers i ecers.try to setth s momentous 
 ques'ioti in aclSM light, but shall content m self 
 with the consciousness of having performed my 
 duly, in my place, and according to my abilities. 
 
 JAMES H. BULL. 
 
 It will be observed that on the first page of ths 
 fori going opinion I use the following language: 
 " A* it a pourp how. ver. from the record, that 
 the Thie' Jusrti e. up m -..he original heat ing, de- 
 clared that, ' His mind was made up as to the 
 constitutionality of Martial Law ;' from which ex- 
 pression I uiit5ersti.ua that be meant to express 
 pinion that tuar.ial law, as it existed in the 
 count} of Travis, at ihe time of the rein rn ofthe 
 w it in this case, might be declared and enforced, 
 in conformity with the Coiiflitufion of the Con- 
 federate States ; that it may not be supposed that 
 
 I entertain a similar opinion, I take leave to gay, 
 &c." 
 
 My attention has been called to thi.« language, 
 nod it has been suggested to me that it might bt 
 construed to me initial 1 understand Chief Jus- 
 tice W heeler to express Ihe opinion that marlisl 
 law was declared in Texas, in conformity *'Ui 
 t e i oo-tiuitioti of the C n federate States. The 
 language used by me wVs not intended to bear 
 any such c instruction, nor do 1 think any such 
 construction can properly be given to it. I u'l- 
 der to d the judgment of the Chief Justice n on 
 tiie . rigin'al hearing to proceed U|)'-n iiitormatiou 
 communicated to him, that the Congress of the 
 Cooled rate utiles uad pasaed an act autaorizinsf 
 tiie President to declare martial law in such 
 places and districts of the Confederacy as ho 
 might think proper, an 1 upon the presumption 
 thai the mi itary cominan('er ace i under the or- 
 der of ihe President in deel -.ring martial law iu 
 Texas. 
 
 I u*ed the expr ssion "Martial Law ssitexistsd 
 in in-.- county m Travis, at the time of the return 
 ofthe writ in this case,'' by way of designating 
 the kind of martial law to which I had reference, 
 when 1 denied the power in any department of 
 the government to declare it, because several 
 different ideas prevailed in reference to wlut 
 maitial law is, and what kind of martial law the 
 government has the power lo declare. I would 
 not, of course, deny the power of Congress to 
 Suspend tne writ of habeas corpus, when the 
 state of case contemplated by 1 the Constitution ex- 
 ists; aud if the mere ettspenslon of tha writ of 
 habeas corpus, without any further interference 
 with citizens, or wiih the cuatomary civil admin- 
 istration, leaves the district iu which the writ li 
 so suspended, under martial law, thus making the 
 suspension of the writ, and the declaration of 
 martial I .w to be synonymous things, as some 
 have contended, I would not deny tha power of 
 Congress to declare this kind of martial law , 
 tti'.ugh I misht suppose such a state of things u 
 be improperly d-jcriuei as a declaration of mar- 
 tial law. 
 
 It was my intention (o express ray dissent from 
 the 'pi 6 position that the power exisls in any de- 
 partment of Ihe Government of the Confederate 
 States, or in any ol ils officers, under any circum- 
 stances, to declare and enforce that kind of mar- 
 shal law which i xi^ied, during the past summer 
 iuthe county of Travis. 
 
 1 tlii k it due to mysell further to say, (a^ my opln 
 io i i-i to bo published in a newsi aper, unaccompan- 
 ied, peril 'i>s, by the recordJf'tlpit in the reference 
 w Mc i I made i i my opinion to ti e ruling ofthe Ch ef 
 Justice uo.m the original hearing, 1 quoted the la u 
 guage of a bill o! exceptions, signed by him-elf, am! 
 constituting a part of the record. 1 le it m;. sell at, lib- 
 erty to do so. and to express my own Opinion eopecrp- 
 irg jmaitial l»w, bec^u e Hie power oi the Guvi'm- 
 me-.-it to estaMish aim ^:j force martial law, had peen 
 a serted by ti e Chief Justice upon the original hear- 
 ing, had b eh made a culestibn upon the appeal, and 
 hail been fully argued by counsi 1 at the ear ofthe Su- 
 premo Court, it is true thut no expression of opinio!. 
 on tee subject of marti il law w-as necessary to the 
 decision ot the c ise upon the appeal, and ia th« omn- 
 io.iof toe majority of the Court, delivered by Mr. 
 Justice Moore, there is no expression of oninion on 
 the mi! j ct. But, I did net teel precluded from ex- 
 p.e.-si.g niyown opinion, more especially as I was 
 writing a ttj-enting opinion, and as what. I said wa-t 
 chargeable to myself, and Lot to the Court. I heard 
 the subject of martial law fully argued by iearned (tad 
 
19 
 
 able counsel; I had studied the subject for mvself, 
 and had an t v^d at a conclusion which was not likely 
 to be changed. Expi-e.^ing my opinion under such 
 Circumstances, although the question wjs not neces- 
 ary t > the decision of Che ca>e , I did nothing more 
 th n has been often done by cou' ts and Julge* of the 
 hiuhest reputaM >'i, at,d notbli g more thin wa-* do e 
 by the Cliief Ju.-,tke on the original hearing iu the 
 prefer t c se. 
 
 If It be supposed by any one that I intended any 
 disrespect to the Chief Justice by the manner lu 
 which I expressed myself, I u'terly disclaim it ; 
 and I must declao my-elfata loss to perceive how 
 a quotation of tho record and a statement of my 
 understanding of it, uiadv for the purpose of lay- 
 ing a basis for tie expr gsion of my opinion upon 
 the subject matter, can be construed into animad- 
 ver-iou upon the opinion or ruling of the Chief 
 Justice, or can be considered an improper or un- 
 warrantable allusion to hjs opinion. The case was 
 one out of the ordinary routine of Judicial pro- 
 
 ceedings. 
 
 Tho questions involred and discussed were or 
 the greatest public interest, filled the minds of 
 the whole country, and had never before been 
 presented to the Court. My position, as dissenting 
 from the majorUy of the Court upon the main ques- 
 tion, was one of some responsibility, so far as my 
 reputation as a Uw>er was concerned. Under 
 these circumstances I used plain language. I was 
 more solicitous about what I said than I was about 
 the manner of spying it. I wrote under the con- 
 viction that I would never, probably, be again 
 called upon during my judicial career, to write 
 upon questions of such vast importance to the 
 public. 
 
 I again disclaim— although I consider all dis- 
 claimer unnecessary— any intention to animad- 
 vert upon the opinions Of any one. 
 
 JAMES H.BELL. 
 
Hollinger Corp, 
 P H8.5