.y*"^ n/"'' THE -"\ CONSCRIPTION ACT VINDICATED, ^^t^ .vely granted^"' both would fall to the ground. Revers- ing the usual order of things, the means would control the end, although that end were the protection^ pf the public safety, and even the preservation of the Government. In short, we should present to the world the remarkable spectacle of a People, who after an ex- perience of more than eighty years, had failed to understand the nature of their organic law. Ilaving thus endeavored to refute the objection raised against the constitutionality of the act, based on the proposition " that the power to pass such a law does not exist, unless affirmatively given to Con- gress by the Constitution," we now proceed to notice, briefly, objec- tions of a more general nature. In the first place it is maintained " that compulsory, military ser- vice is due primarily by the citizen to the State alone, and that the only title to it which the Federal Government can acquire, is by virtue of its transfer from the State to the National authorities ; that the Constitution means, that if Congress is unable to procure the necessar}^ number of men for its armies by voluntary enlistment, it must call upon the militia (in which every ablebodied citizen may be compelled to serve), which is then to be transferred to the service of the United States, to such an extent as may be necessary, under the regulations provided for that purpose in the Constitution." This is a surprising statement. On what ground does the writer claim, that under a Government emanating. State as well as National, from the People, the one has a more direct claim on the military service of the citizen than the other ? The People have invested the National Government with certain powers, amongst the rest, those of declaring war and raising and supporting armies. They have also enjoined on the State Government the duty of placing the militia in readiness for service. The duty of providing for the common defense was transferred by the People from the State to the National Government, because it had been found under the Confederation, the States could not exercise it efficiently. What reason is there to suppose that the People intended, or do now intend, that the powers granted to the one, shall be construed differently from those granted to the other? Such a presumption cannot be founded on a consideration of the comparative importance of the respective grants ; for that to the National Government, invested as it is with the duty of providing for the public safety, covers, to say the least, as important objects as that to the State. Nor can it be founded on the language of the respective Constitutions; for the phrase " to raise and support armies" is as definite as that " to arm, discipline, and keep the Militia in readiness for service." Nor, lastly, is it certain it can be founded on the idea that a more liberal con- struction is admissible in the case of the State Constitution than in that of the National ; and that whilst incidental powers can be introduced ad libitwm in the one case, they are to be studiously avoided in the other. Story says (in answering an argument of Judge Tucker, who was for a strict construction), " when it is insisted that the Constitution of the United States should be con- strued strictly, viewed as a social contract, whenever it touches the rights of property, or of personal security or liberty, the rule is equally applicable to the State Constitutions in the like cases." If, then, "An Original War Democrat" is sound on constitutional law, tlie inference would be that there is no power to compel the military 8 service of a solitary citizen, by virtue of any existing authority ; and in that case the provisions of the militia law relating to a draft would not be worth the paper on which they are written. Another inference conveyed in the passage previously quoted, is, that although the National Government cannot institute Conscription, it can accept volunteers. But on the reasoning of " An Original War Democrat," is there any more authority in the one case than in the other? No military force of any description can be lawfully called out, without a law of Congress ; and the President of the United States so clearly exceeded his powers in 1861, although it was eminently right and proper that he should do so, that, if we are not mistaken, an act was passed relieving him from responsibility. Now, whence does Congress derive the authority to pass laws calling out volunteers? It cannot be from the clause "to provide for calling out the Militia," for volunteers are a different description of force. It must be, then, from the power "to, raise and support armies:" and now we wish to inquire if this power, as is claimed, confers no authority on Congress to pass a conscription law, how could it con- fer any authority on that body to pass laws calling out five hundred thousand volunteers? The right to legislate in respect to a Conscrip- tion is denied, because the power is not expressed in the Constitution. Is not the want of an express power to accept volunteers, equally fatal? And thus the upshot of the whole matter would be, that this great Government charged by the Constitution (the work of the People) with the duty of protecting the public safety, with more than two millions of men liable to bear arms, and yet bereft of every means of defense, must fall helpless before the bugbear of incidental powers. This comes very near to a reductio ad absurdum, but it is nevertheless a fair deduction fro7n the reasoning of "An Original War Democrat." Again it is said, that "in construing constitutions, and indeed all other written documents, one of the most familiar aids to which lawyers and courts resort, when the question arises as to the meaning of a phrase, is to ascertain what was the defect which it was intended to remedy ; and the rule is well settled, that if the case is not within the meaning of the mischief to be guarded against, it is not within the meaning of the Statute, although it may be within the words of the Statute." Without either afldrming or denying the correctness of this rule, we are confident its application will not prejudice the Act of Congress under consideration. What were the defects of the Articles of Confederation, which Madison observed should never be overlooked, " in expounding and appreciating the Constitutional Charter, xuhich was the remedy pro- videdV They are sketched with unanswerable force in the Federalist, from which we extract the following passage relating to the military service: — " The power of raising armies, by the most 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 late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States, which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other, till bounties grew to an enormous and insurmount- able size. The hope of a still further increase afforded an induce- ment to those who were disposed to serve to procrastinate their enlistment ; and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs ; short enlistments at an unparalleled expense ; continual fluctuations in the troops, ruinous to their disci- pline, and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men, which were, upon several occasions, practised, and which nothing but the enthusiasm of liberty would have induced the People'to endure." It was to obviate such a state of things, that the Convention gave Congress power *' to raise and support armies ;" a power in regard to which the extraordinary statement is made "that all parties con- ceded it was what the lawyers call an enabling act; that is, an act which enables a corporation to accept an estate or other benefit proffered to it, and which it would otherwise have no legal power to accept and hold." Now, this we distinctly and unequivocally deny. We deny that " all parties conceded " any such thing, and we deny that any party conceded it. The Constitutional Convention did not concede it : the State Conventions called to ratify the Constitution did not concede it : the Judicial Tribunals have not conceded it : nor those learned commentators, whose expositions are universally relied on for their correctness and impartially. It is nothing but a bald and naked assumption. What remedy would it have been, for an evil of this magnitude, to have said. Congress may raise armies, but only by voluntary enliatment? The States possessed that power, 10 but after the first enthusiasm for the war was over, they could never fill their quotas, although they used extraordinary efibrts and paid large bounties. Is it probable that the Convention, with this fact in view, meant to confine the authority of Congress to the use of a single means ? If it had, would it not have been so stated ? Suppose no men could be raised in that way, was it the intention that the power should fall to the ground, carrying with it the power " to declare war," or at least to wage it? The remedy proposed by "An Original War Democrat," for this difficulty, is, to call out the Militia. But aside from the fact, that no protracted war ever has or ever can be carried on with such a force, we hold that no enumerated power in the Constitution can ever be rendered nugatory, whilst there are any means left within the meaning of the clause "necessary and proper" for its execution. The principle cited, " that words of doubtful meaning in one part of a statute will not be construed to include a case for which full provision is made in another part of the statute," will not apply. A constitution and a law are two different things. The first is a grant of powers, or a prohibition of powers, or both ; the last is rather a means of exercising powers. But conceding the analogy, still, on the assumption that a power " to raise and support armies," carries with it a power to draft, it must be for a National force and that alone; and tbe power " to provide for calling forth the Militia," must carry with it the power to draft, for tJiat description of force and that alone. How, then, would an exercise of the latter power, answer the requirements of the former? The compulsion, in either case, is only a means to an end; which, in the one case, is to form a regular force, and in the other a force of militia. The power " to provide for calling forth the Militia," is not, therefore, "a full 2^'^ovision,''^ for the power " to raise and support armies," nor any provision for it whatever. To sustain the theory as to the meaning of the clause, " to raise and support armies," which we are opposing, a further argument is drawn from contemporaneous construction. After the statement that the clause was vehemently opposed in the State Conventions, it is said that " no one ever dreamed that it would be construed as giving Congress the power to force the citizen into the army^'' and that "this remarkable omission of any contemporaneous allusion to such a power, under such circumstances, would of itself be quite conclusive against its existence." 11 In answer to this reasoning, we may repeat here, that the Consti- tution bears on its face the most unmistakable evidence that it is what it was intended to be, a grant of general powers ; and that in- stead of attempting to indicate in respect to them, the incidental powers or means, the Convention left them to be selected at the dis- cretion of Congress, under the clause " to make all necessary and proper laws " for that purpose. They never intended to go into any enumeration of incidental powers, and the debates were mainly confined to those of a general nature. They were framing a Gov- ernment to last for ages, and they saw the impossibility of doing more than marking out the great outlines of constitutional power, and defining the duties of the several departments of the Govern- ment. The forecast which marked the proceedings of the Convention of 1787 stamps it as beyond all question, the wisest, the most patriotic, the most august body, that ever assembled for the high purpose of framing a government for a political society. Let us reflect for a moment on what would have been the consequence of an opposite course. Suppose they had acted on the presumption that those who were to administer the Government they were instituting would be unworthy of confidence, and had proceeded lo restrict the sphere of their action by an enumeration of powers or means. Can any one fail to see, that great as these men were, there was not in that assembly a genius so lofty, that it could have pierced the veil of the future and anticipated the progress of the race for the next fifty years ? What, for instance, would have been the scope given to the power to regulate a commerce then in its infancy, but whose sails now whiten every sea? What would have been the limit fixed for the public debt, under the power to borrow money ? or what pro- vision would have been adopted for the acquisition of new territory ? Who could have foreseen the necessity for the embargo act, or the propriety of an expansion of our limits exceeding in extent those of the original thirteen States? These considerations weighed on the mind of the Convention. They saw, dimly though it were, the glorious future opening up for the Eepublic they were founding, and they determined to place no impediments in the way of its progress. In the expressive language of Hamilton, they realized " that a gov- ernment, the constitution of which renders it unfit to be entrusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depository of the 12 national interests ; and that whenever these can with propriety be confided, the coincident powers may safely accompany them." Now when the Constitution, framed with these views, came before the State Conventions, it had to pass through another and a severer ordeal. Here it was that the advocates of State rights, and of a confederation instead of a government of the People, made their final stand. The fears of the People were excited by the cry of a consolidated government, and their selfishness aroused b}^ appeals to local feelings and jealousies. The Conventions were broken up into parties holding adverse opinions, and neither the friends nor the enemies of the new system were unanimous in their interpreta- tion of it, either as a whole or with respect to its separate parts. And now we desire to ask, if contemporaneous opinion is to be relied on, liow is it to he ascertained? How shall we proceed to eliminate the truth from the mass of conflicting testimony? If we refer to the debates in the Constitutional Convention, we find that in regard to some subjects, they were not preserved ; and on others, opinions differed. If we go to those of the States, we meet with the same difficulties. In respect to several, the proceedings were not preserved, and here there is absolutely no light whatever. In the Convention of Virginia, Patrick Henry held that, under the power "to provide for organizing the Militia," the States were absolutely bereft of all power; and although he was opposed by Governor Kandolph and others, he maintained this opinion to the last. There were members of the Convention who held, that the clause "to pro- vide for the common defense and general welfare," included of itself, the broadest powers of legislation, and George Mason was opposed to the Constitution for this and other reasons. On the other hand, many eminent men attached a more restricted meaning to it. It was denied in the Federalist that the President could exercise the power of removal without the consent of the Senate, and yet, in the first Congress, his power to do so was affirmed; and there are other cases on record, in which contemporaneous evidence has been overruled by the Judicial Tribunals. We remark here, that from the nature of the case, there never has been, and never can be, any difference of opinion as to the meaning of the enumerated powers. The powers to coin money, to regulate commerce, to declare war, to raise and support armies, and to pro- vide a navy, mean just what the language imports. There is here no room for doubt. It is only when we come to consider the inci- dental powers or means, that there ever has been or ever can be any 13 difference. Now, admitting for the sake of argument, that it could be ascertained beyond cavil, what was the scope given to these inci- dental powers by the founders of the Government, and by the pub- lic men of that day, we maintain it would have no binding force on the National Legislature ; and further, that they would be estopped from treating it as a precedent, in every case, where, in their opinion, it did not square with the power "to make all necessary and propef laws," to carry the enumerated powers into execution. There is no authority residing anywhere to make a law which is not necessary and proper, and of the necessity and propriety Congress must, in the first instance, be the judge. The opposite conclusion would involve the absurdity of supposing that the grant "to make all necessary and proper laws," means such laws only as may have been deemed necessary and proper at the time the Constitution was formed ; Oivbs excluding the power of choice for all future time, although the pro- gress of science, the changed circumstances of the country, or the presence of some great public exigency demanded it. However wide the circle of its deliberations, however clear its perceptions of the public wants. Congress, on the reasoning we are combating, must Btill come back to the point of contemporaneous construction, and be governed by the views of former generations. We shall conclude what we have to say, with a brief examination of objections drawn from the provisions of the Act. I. " That the Conscription Law is contrary to the Genius AND Spirit of our Institutions." The great and distinctive principle of our form of government is equality and equal laws. No man must be legislated into a worse position than his neighbor, and the difference in wealth, position and influence, must arise from those differences in natural endow- ments, in individual efforts, and fortuitous circumstances, which are beyond the domain of legal remedy. Now, if Conscription does not violate this principle, then the objection we are considering can- not be sustained. It certainly cannot attach to the idea of compul- sion, for that is admitted in civil matters, and without the power to compel obedience, no government could stand a moment. Jury service is a familiar instance of this, as is also compulsory attend- ance as a witness for the government in criminal cases. If military institutions are a means for the protection of life, property and government, whenever a coercion of laws fails (and if they cannot be j ustified on this ground, they are an anomaly under a govern- 14 ment like ours, and ought not to be tolerated) there is no reason why they should depend on the voluntary obedience of the citizen for their support, any more than those of a civil character. What then is Conscription? It is an enrollment of persons of a certain age, who are held liable to be afterwards drafted into the military service by lot. It was part of the Roman system, was adopted in France at the period of the Revolution, and prevails in one form or another under all the great military governments of Europe, with the exception of that of Great Britain. This exception, however, furnishes no argument against it, hut is the result of the isolated position of that government, its greater dependence on the naval arm, and the custom of employing paid mercenaries of other nations. In the Peninsular War, we believe the native English troops never reached one hundred thousand, and at Waterloo they were less than eighty thousand. In the campaign of 1813, England furnished no troops to the Allied Armies; but her subsidies of money helped to keep them in the field. In India, almost the whole force employed there at the breaking out of the rebellion, was composed of Sepoys or natives. Now, when we reflect that England has not yet had a regular force much exceeding one hundred thousand men in service, with a population as large as that of tlae loyal States, with low wages, and a surplus of laborers, we can easily see why she has been able to keep up the strength of her military forces by voluntary enlistments. In France the case is different. In the first years of the Revolution, half a million of disciplined troops were precipitated on her borders, and when the first enthusiasm for the war, which crowded the highways with volunteers, had abated, as it always will in protracted wars, it became necessary to establish some general system, for the purpose of keeping up such a military force as the public exigency required. This was done by conscription, and an annual draft, from the persons conscripted or enrolled. This system, modified, perhaps, from time to time, is still in force. If we consider further, that Conscription prevailed in the two most powerful republics that ever existed in Europe, and that monarchical governments borrowed instead of originating it, it will afford an argument in favor of it, since republics are presumed to be founded on principles, recognizing the rights of the people. But there is another axiom which applies here ; and that is, where the whole population participates in the rights, privileges and immunities U of a free people, they must share equally also in its burdens. This, we think, is a principle as applied to civil matters, and we can see y 15 no reason why it should not apply to a military institution as well, if the definition we have already given of it is correct. If it does apply, then it binds each individual to the military service, just as he is bound to the performance of a civil duty ; and the same impar- tial justice that allows of cornjndsion in the one case, will justify it in the other. Conscription does not, then, violate the principle of equality and equal laws, and hence it is not, on that ground, cou' trary to the genius and spirit of our institutions ; but, on the other hand, it is conformable to both. II. "That it Creates a Privileged Class." The first question that arises here is, what constitutes a privileged class ? We can think of no better definition than that it is a portion , of a political society, released from certain duties and invested with certain privileges, which are denied to the rest of the community. Now the act of Congress declares that the National forces include a/? ablebodied citizens between the ages of twenty and forty-five, exclud- ing all over that age, on the presumption that they are unfit for the military service, or at least they are not to be called out except in a case of the extremest necessity. This is a sweeping clause, and incompatible with the idea of a privileged class, unless it is quali- fied by other provisions of the act. The only sections which narrow the limits of its operation, are the 13th and the 17th which pro- vide for a commutation to be paid to the Grovernment and for sub- stitution, and the 2d, which defines who are exempt. If a privileged class, is created, it must be by one or the other of these sections, or all. Let us see whether such an objection can be sustained against them. The 13th and 17th sections read as follows : — Sec. 13. And be it further enacted. That any person drafted and notified to appear as aforesaid, may on or before the day fixed for his appearance, furnish an acceptable substitute to take his place in the draft ; or he may pay to such person as the Secretary of War may authorize to receive, such sum, not exceeding three hundred dollars, as the Secretary may determine, for the procuration of such substi- tute, which sum shall be fixed as a uniform rate by a general order made at the time of ordering a draft for any State or Territory ; and thereupon such person so furnishing the substitute or paying the money, shall he discltarged from further liahility under that draft. And any person failing to report after due service of notice, as here- in prescribed, without furnishing a substitute, or paying the required sum therefor shall be deemed a deserter, and shall be arrested by the Provost Marshal and sent to the nearest military post for trial by court-martial ; unless upon proper showing that he is not liable to military duty, the board of enrollment shall relieve him from the draft. 16 Sec. 17. And be it further enacted^ That any person enrolled and drafted according to the provisions of this act who shall furnish an acceptable substitute, shall thereupon receive from the Board of En- rollment a certificate of discharge from such drait which shall exempt him from military daty during the time for which he was drafted, and such substitute shall be entitled to the same pay and allowance ])ro- vided by law as if he had been originally drafted into the service of the United States. The object of tlie 13th section we presume was twofold : first, to restrict the price of substitutes to a fiixed limit, and next to enable the Government to offer bounties for re-enlistments. It will no doubt ac- complish the first object, because no man will pay more for a substi- tute than he would have to pay to the Government to procure him one, •under this section. There is then this advantage, that it will gov- ern tlie price of substitutes, and thus bring them within the means of a larger lum-^ber of persons. The benefit derived from the re-enlist- ment of tried soldiers is so manifest that it only needs to be stated. Napoleon III seems to have realized it so fully that in 1855 he made it a State affair, and piovided for the release of drafted men on tlieir paying a certain sum to the Government, which goes into a fund from which bounties are paid to soldiers who re-enlist after the ex- piration of their term of service, thus retaining tried veterans for the raw recruits that are generally offered as substitutes. How f^ir such a plan would be advantageous here, must depend on the number of discharged soldiers, who might be induced in this way to re-enter the service. But to return to the direct question. It may be remarked that so long as exemption from a Draft is open to (dl and denied to none it can- not be said that the section just quoted creates a privileged class be- cause to do that it would have to declare that all men worth a cer- tain sum were for that reason to be exempt, just as judicial officers, teachers and students, ministers of the gospel, and tlie vario\is other classes of persons, are exempt under the laws of this State, by virtue of their professions or occupations. The men are drafted without reference to their professions, or occupations, or wealth or poverty. All are on a footing of the most perfect equality. This we presume, would settle the question as to the creation of a privileged class by the section referred to, and as it is an answer to the objection taken on this ground by " An Original War Democrat," we might leave the subject without further discussion. But we do not propose to shirk argument in this way, but to meet another objection that may be 17 urged with some force and plausibility, that although the act does not (Urecihj create a privileged class, its practical operation will re- sult in the same thing. To tliis we answer in the first place, that no government can fairly be made responsible for the advantages which the possession of means will give to one citizen over another in the matter of a draft any more than for advantages arising from talent, ingenuity or skill in anj^thing. When the laws have placed all men on a par in regard to the acquisition, the rest must be left to individual effort and to for- tune. This is so plain that it may be stated as a self evident truth. If the results of individual effort had to go into a common stock, for the benefit of the whole community, there would be no individual effort, and thus the condition of one portion of the community would be depressed, without elevating that of the other. In fact the most powerful incentive to individual effort, in any direction, is the con- viction that it can appropriate and hold fast of the results, and this arises from the selfishness of human nature. Now, to come to the point, we admit that under the practical working of section 13, the citizen who has three hundred dollars, or such less sum as shall be fixed on by the Secretary of War, can free himself from the draft, whilst another, who has not that sum, and cannot procure it, will have to serve, unless he can get a substitute under section 17. In other words, the man who has money may be advantaged by it in this as in a thousand other ways. Indeed, the principle of commutation is recognized in our civil and criminal laws and even in the Constitution of 1846, in respect to Quakers and other persons religiously opposed to bearing arms. And it is embodied in certain amendments to the militia law, now before the legislature, wdierein it is provided, that persons holding conscientious scruples, shall be exempted on payment of three hundred dollars to the state. One portion of the community that has means can own houses or farms, whilst another portion must remain houseless and landless until they can acquire means to possess them. There is, in fact, throughout every profession and occupation an inequality — the result of circumstances wholly beyond the control of legislation. Why, then, should this loth section be denounced on the ground that all men cannot avail themselves of it. Or, if it be said that no man should be relieved from a draft, unless he furnished a substitute, what is there in the 13th section which militates agninst that principle. The man who pays his three hundred dollars does furnish his substi- tute just as much as the man who procures one for himself. The 18 only difference is, that in the first instance it is the act of the Government, and in tlie other that of the individual. But suppose the 13th section were stricken out, how would the case stand then ? Why those who could buy substitutes would be relieved, whilst those who could not would have to render personal service. It would be only changing the location of the objection, without removing it. There would still be the same disparity between those who have means, and those who have none, in- creased by the feet that without the 13th section there would be no limit to the price of substitutes, and as the price increased, the number who would be able to obtain them would diminish. It will appear evident, then, that striking out the section referred to, would not remedy the inequality complained of, nor is there any rule that would, save that of exempting no drafted man for any reason what- ever, except that of physical disability. This would remedy it but we doubt whether it would not give rise to objections equally well grounded, although arising from other considerations. There will be a very large number of persons who will desire to go as substitutes if they can get the price they ask, and an equally large number who will desire to procure them. In fact these two classes will comprise nearly the whole population liable to draft, and if it should be announced that it was the intention of the Government to insist on the personal service of every man drafted, it would be most strenuously opposed by both classes. It would be said that the Government refused the services of those who desired to go, and com'pelled the services of those who did not ; that it was an innova- tion on every precedent furnished by the military history of this and other countries in cases of compulsory service, and that whilst it increased the rigors of a Conscription, it was absolutely a damage to the Government, by forcing an unwilling class into the field, and at the same time closing the doors of the service against those who might really wish to enter it or re-enlist in it, if they could be allowed to make such terms as they saw fit. Suppose the case of a person employing a large number of men who would be thrown out of employment by his absence, and who with their families, would thus be deprived of their usual means of support. Is it not clear that the interests of society would be better promoted by allowing him to furnish a substitute, than by compelling his personal service. It would be hard to answer these complaints, and especially when we reflect that if substitutes are received, the price they will obtain, odded to the Government bounty and pay, will make the aggregate 19 more than double the allowances, under any other Government in the world. Men to whom the prospect of getting three or four hun- dred dollars a year on a two years' service, is attractive, will not willingly forego it, and any regulation which should have that effect would not be likely to be popular. On the whole, then, we cannot see in either of the sections we have been considering, the creation of a privileged class, either directly or indirectly ; nor do we believe that if they were stricken out of the bill, it would be any more advantageous to the Government, or any more acceptable to the people. It only remains in this connection to notice briefly the second section of the act relating to exemptions ; and in order to compare it with the iirst section of the militia law relating to the same sub- ject, we give both sections entire : Act of Congress. Sec. 2. And be it further enacted, That the following persons be, and they are hereby exce})ted and exempt from the provisions of this act, and shall not be liable to military duty under the same, to wit: Such as are rejected as physically or mentally unfit for the service; also, first, the Vice-President of the United States, the Judges of the various Courts of the United States, and the heads of the various Executive Departments of the Governments, and Gover- nors of the several States; second, the only son of a widow, liable to military duty, dependent upon his labor for support; third, the only son of aged or infirm parent or parents dependent upon his labor for support; fourth, where there are two or more sons of aged or infirm parents subject to draft, the father, or if he be dead, the mother may elect which son shall be exempt; fifth, the only brother of children not twelve years old, having neither father nor mother, and dependent upon his labor for support; sixth, the fixther of motherless children under twelve years of age, dependent upon his labor for support ; seventh, where there are a father and sons in the same fjimily and household, and Jwo of them are in the military service of the United States as non-commissioned officers, musicians or privates, the residue of such family and household, not exceeding two, shall be exempt ; and no persons but such as are herein excepted shall be exempt; Provided, however, That no person who has been convicted of any felony shall be enrolled or permitted to serve in said forces. State Militia Law. Sec. 1. All able-bodied, white male citizens, between the ages of eighteen and forty-five years, residing in this State and not exempted by the laws of the United States, shall be subject to military duty, excepting : — 20 1st. All persons in the army or navy or volunteer force of the United States. 2(.l. Ministers and preachers of the gospel. 3d. The Lieutenant-Governor, members and officers of the Legis- lature, the Secretary of State, Attorney-General, Comptroller, State Engineer and Surveyor, State Treasurer, and clerks and employees in their offices, judicial officers of this State, including Justices of the Peace, Sheritis, Coroners and Constables. 4th. Persons being of the people called Shakers or Quakers, pro- fessors, teachers and students in all Colleges, and professors, teachers and students in the several academies and common schools. 5th. Persons who have been or hereafter shall be regularly and honorably 'discharged from the Army or Navy of the United States, in consequence of the performance of military duty, in pursuance of any law of this State, and such firemen as are now exempted by law. 6th. The commissioned officers who shall have served as such in the militia of this State, or in any one of the Li^nited States, for the space of seven years; but no officer shall be so exempt unless by his resignation after such term of service duly accepted, or in some other lawful manner, he shall have been honorably discharged. 7th. Every non-commissioned officer, musician and private, of every uniform com[>any or troop raised or hereafter to be raised, who have or shall hereafter uniform himself according to the pro- visions of any law of this State, and who shall have performed service in such company or troop for the space of seven years from the time of his enrollment thereni, shall be exempt from military duty, except in cases of war, insurrection or invasion. Will any one fail to see after examining and comparing the two sections, to which the inequality and pnvilege attaches? Under the act of Congress there are no classes exempt, and the individual exemptions are narrowed down to the lowest possible point. In fact, nearly the whole section is devoted to the recognition and pro- tection of the claims of the widow and orphan, the aged and infirm, and of those who have glready made sacrifices in the cause of their country. On the other hand, the State law recognizes fully, an exemption of classes and extends them beyond all reasonable limits. The exemption of persons of conscientious scruples, of judicial officers, under which head is included even constables, of teachers and students, of firemen, and of numerous other classes, is a clear violation of, as it is incompatible with the idea of equality and equal laws. Its practical working may be seen in "the statistics of the draft," contained in the late report of the Adjutant-General, from which it appears that out of 764,000 persons enrolled there were (including cases of physical disability) 139,000 exempts, or nearly 21 one in every five. Can it be possible that any man will attempt to bold up the humane and well-considered provisions of the act of Congress to public condemnation, as " odious,^^ and in the next breatli recommend as a substitute for them the regulations of the State law? Or is there any doubt which of the two sections the people would adopt, if they could make known their preferences through the ballot-box ? But our object in this connection was to show that there is nothing in the act of Congress to justify the assertion that "it creates a privileged class," and we proceed to notice other objections. III. "That the possession of such a power as the act arro- gates TO Congress, is utterly inconsistent with the existence, except at the pleasure of congress, of the State Militia." Let us examine for a moment what ground there is for this appre- hension. On the 1st of January last the organized militia of the State numbered in the aggregate about twenty-two thousand, whilst the number of persons liable to bear arms was over five hundred and fifty thousand. The National Guard, which is the organized Militia, is limited by law, in time of peace, to thirty thousand, the Commnnder-in-Chief having a discretionary power to increase the force in case of insurrection or invasion. Of the organized regi- ments only a portion are supplied with arms, and these, in some instances, of an inferior quality. The total number in the hands of the troops and in the Arsenals of the State on the 1st of January, 1863, was less than fifteen thousand, and outside of the large cities there is a lamentable want of discipline and efficiency. The subject of a thorough reorganization and increase of this force engaged the atten- tion of the late State Administration, and a bill was prepared for the purpose, which was submitted to the Legislature, and became a law. If its provisions could be fully executed, we should have a force of thirty thousand men in a condition of efficiency and ready for service. Such a result, however, cannot be attained without means, and it will be found impossible to make the system self-sup- porting. Hitherto, the action of the Legislature has not indicated any disposition to make the liberal appropriations necessary to accomplish the objects of the act, nor is it at all probable any differ- ent policy will prevail, unless a great exigency, threatening the safety of the State, should arise. Such is the condition of the Militia, and it will appear on a mo- ment's reflection, that the enforcement of the act of Congress cannot 22 have tlie effect of disorganizing and breaking up a force that has never yet been brought to a state of organization. Indeed, up to the time of the completion of the enroHment, even the number of persons subject to mihtary duty was only a matter of conjecture. It is on this large body, comprising more than five hundred thou- sand men, that the Conscription must mainly fall; and it will be likely to operate on the National Guard only in a proportionate degree. A draft of fifty thousand men, would not, we think, exceed one in twelve of the population liable to bear arms, nor in that pro- portion would it draw in the aggregate more than two thousand men from the organized regiments. But, suppose the draft to fall on them with greater severity than we anticipated, would not the raising of fifty thousand men by voluntary enlistments operate the same way, and affect the organized regiments to a greater extent ? It is presumed there is no power residing anywhere to prevent the volimtary act, and unless the choice of means is denied to the Gov- ernment, there can be no greater power to prevent the compulsory. In either case it is the sovereign right of a Government emanating from the people, over the individual citizen, a Government clothed by the Constitution with the momentous duty of providing for the public safety and seeking to fulfill the high trust by constitutional means. We say constitutional means, because we have no more doubt that the act of Congress we are discussing is within the limits fixed by the National Charter, than we have that the sun rises and sets. But suppose it were a subject of doubt. Does it comport with the dignity, the honor or the best interests of the State of New York to assume the truth of the opposite conclusion, to anticipate the decision of the Judicial Tribunals, and to poi'son the public mind with unfair statements as to the motives and measures of the Admin- istration. IV. "That under the system which the Act of Congress ESTABLISHES THE StATE AND THE NATIONAL MILITARY SYS- TEM COME INTO PERPETUAL CONFLICT WITH EACH OTHER." "We do not think this objection well founded, and it has been already substantially answered under the previous head. There are no militia organizations in any of the States, that include a tenth part of the population liable to. bear arms, and in many of them these organizations only exist on paper. Indeed so little attention has been paid to this subject, that it is probable the enrollment made in 1862 presents the first complete statistics of the number of 23 the arms-bearing population of the country on record. The appli- cation of the term military system^ in a general way, to the Militia of the States, is out of place. Nothing will be found beyond an enrollment, more or less perfect, and a very small proportion of the ao-are^ate number ororanized into regiments. The draft will fall mainly on the great body of the unorganized Militia, and the num- ber of men that will be drawn from the portion organized into regi- ments will be comparatively insignificant. In this State on a quota of fifty thousand it will not equal the number that volunteered in 1861 from the regiments in the city of New York alone. "What ground is there then for a collision? V. " That there was no necessity for the passage of such AN Odious, Oppressive and Unconstitutional Law." The constitutional objection has already been noticed, as also objections drawn from the provisions of the bill. The question of necessity is one on which there may be a difference of opinion, founded on conflicting views as to the number of troops required, and the probable extent of our losses. For ourselves, we have not only, never for a moment doubted its necessity, but we believe the life of the Nation hangs on its prompt and complete enforcement. We have arrived at this conclusion after a careful survey of the whole ground. On an experience of a year and a half in the organi- zation of troops, during which time nearly two hundred thousand men were raised, organized and placed in service, with the best means of ascertaining the tone of public sentiment, and noting the ebb and flow of the popular feeling, we have no hesitation in stating our belief, that the lev}'' under the call of July, 1862, was the last expiring effort of voluntary service in this State. Nor, if we look for a moment at the springs of human action, and consider the experience of other nations, will this appear surprising. It does not by any means force us to the conclusion, that the views of the great body of the people have changed on the subject of the war, neither does it indicate a state of exhaustion ; for our resources are not perceptibly weakened. It does indicate, however, a lack of that enthusiasm, which, in a popular contest, responds to the first call to arms, and of the spirit with which the people of this State answered the proclamation of the Executive in 1861, and the large force sent to the field last fall, was due mainly to the stimulus of large boun- ties, and to the unceasing efforts of the local committees. 24 If there is any weight in what is here said, then the question is narrowed down to the decision of the authority through which a draft shall be made ; for we assume there is but one determination as to carrying on the war until the supremacy of the Constitution and laws is acknowledged, over every foot of the Eebel States, and that whatever may be thought as to the strength of the addi- tional force which should be called out, they will at least be allowed to decide that question at Washington. Should it then be through the authority of the State or through that of the National Govern- ment? in other words, should it be a National force or Militia? In deciding in favor of a National force, enlisted for a long period of ser- vice, and to be used in the first instance to fill up the regiments now in the field, we think the Government acted most wisely. Nothing but a highly disciplined army will avail in a contest with an enemy who possesses military resources of the most formidable character, and under complete control, and who has the additional advantage derived from acting on the defensive. To attempt to carry on a war like this, with a Militia, would be futile and dangerous in the extreme. There is no existing law by which they could be called out for more than nine months, and deducting the time occupied in organizing them, it would reduce the period of their active service to less than six, in face of the fact, that you cannot transform a citizen into a soldier, well instructed and disciplined, in a year. Nor could a Militia, transferred into the service, with its officers, be used to fill up the gaps in the old regiments ; and thus these fine orga- nizations, on the efficiency of which our success mainly depends, would have to be consolidated, and the supernumerary officers dis- missed. The history of the two former wars in which we have been engaged, ought to convince the most skeptical, that a Militia will never answer out of its proper sphere, which is to meet sudden exigencies, and to act within their own States. To transfer thera from thence, to take the place of a regular army, can only be done at the extremist peril of the National interests. VI. " That never before has Congress passed a Conscription* Act, not even during the war of 1812, when the Nation was in imminent danger from a powerful enemy, aided BY Domestic Traitors, and when such was the need of the Country, that we had to draft men into the army." There are two allusions in the above passage, from which the writer will derive so little advantage, that, in our opinion, it would 25 bave been better to have omitted tbem altogether. Congress, it is said, has never before passed a conscription law ; but -was such a law never proposed ; and if it was, what defeated it ? Let us see. In 1814, the position of the military affairs of the country was such as to excite the liveliest alarm and apprehension. The enemy ' had occupied Washington ; the operations on the Northern frontier had amounted to no substantial advantage ; the army was reduced to an insignificant number, and, in every aspect, the prospects of the country seemed most discouraging. Such was the difficulty of obtaining men, that bounties were paid of one hundred and fifty dollars, and eight dollars to every person bringing in a recruit. This was the condition of things, when, in October, Monroe, then acting Secretary of War, sent to the Military Committee of the House of Representatives, a plan of Conscription, for the purpose of filling up the army to one hundred thousand men. In an accompanying let- ter, the Secretary reasoned with much force on the propriety of the measure, and its necessity for the safety of the country. He remarked : " The idea that the United States cannot raise an army in any other way than by voluntary enlistments, is believed to be repugnant to the uniform construction of all grants of power, and equally so to the first principles and leading objects of the Federal compact. An unqualified grant of power gives the means necessary to carry it into effect. This is a universal maxim which admits of no excep- tion. Equally true is it that the conservation of the State is a duty paramount to all others. The Commonwealth has a right to the service of all its citizens. In support of this right in Congress, the militia service affords a conclusive proof and striking example. The organization of the Militia is an act of public authority, not a volun- tary association, and the service must be performed by all under penalties which delinquents pa3\" "The limited power which the United States have in organizing the Militia, may be used as an argument against their right to raise regular troops in the mode proposed. If any argument could be drawn from that circumstance, I should suppose that it would be in favor of an opposite conclusion. The power of the United States over the Militia has been limited, and that for raising regular armies granted without limitation. There was doubtless some object in this arrangement. The fair inference seems to be' that it was made on great consideration ; that tlie limitation in the first instance was intentional, the consequence of the unqualified grant in the second." 4 26 But the measure was not destined to become a law. It was opposed on precisely the same grounds as the recent act of Congress, and the close of the war early in 1815, by the Treaty of Ghent, withdrew the subject from the arena of debate. The opposition to the plan was especially earnest amongst what were called the anti- war Federalists of New England, and their views found expression in the resolutions and proceedings of the Hartford Convention, which met in December, 1814. The men who composed that Con- vention are, we presume, alluded to under the term " domestic traitors," but, reasoning from analogy, in what sense does it apply to them^ more than to the men of to-day^ who are using the same arguments against similar measures, that will be found in the reso- lutions of the Convention referred to. It is beneath the dignity of the subject we are discussing, to attack the motives of any set of men, but we may be permitted to say that never, in the political history of the country, has a more remarkable coincidence arisen. It will be fortunate for those who now feel called on to adopt and proclaim anew the opinions of the anti-war Federalists, if the coinci- dence does not hold good to the end; and if they escape that judg- ment at the bar of public opinion, which drove that party into a political exile, and which the moral sense of a great people will ever pronounce on those who, in a great public exigency, adopt a course which, no matter what the intention may be, must result in embar- rassment to the Government, and even peril to its existence. In concluding our task, we desire to congratulate "An Original War Democrat," that he has so completely fulfilled his promise of making his argument ^'■entirely intelligible and not uninteresting to the general readei-r We assure him it is interesting in more senses than he probably anticipated. The account of the blood letting, and the analogy between a grant by the Constitution to Congress, and one by the President of the United States to an " embryo captain,^^ are not only interesting, but exceedingly appropriate to the subject under discussion. It is interesting, too, to find that, in addition to the Gunpowder Plot, the Eye House Plot, the Blue- Light Federalist Plot, and a host of other plots, history will be indebted to "a??. able and dear-headed lawyer," for an additional chapter on the subject of plots, containing an account of a plot to create a j-j^wi- leged class and a plot to overawe the Legislatures of Indiana and Illinois, by the exhibition of a force of black janizaries, directed by Abolitionist Governors. Lastly, it is interesting to find how much we may be mistaken as to the opinions of the great commen- 27 tators, and even of noble old John Marshall himself, on the inter- pretation of the Constitution and the powers of Congress ; and how apt we are to be deceived, in gathering the meaning of an author from the general course of his reasoning, rather than from some isolated passage. It is true the particular clause that strikes us, may be in close proximity to something incongruous, but in that case the proper way would appear to be to avoid the conflicting element, by some process like cancellation. The name " Democrat" brings back old reminiscences. Once we were a Democrat, and we still love the distinctive doctrines of the party. We left it, because the teachings of its great lights had been ignored, its principles trampled under foot, and its moral power wasted, to satisfy the arrogant demands of a Southern oligarchy. It supported the measures of Government in the war of 1812 ; now it has changed places with the Anti-War Federalists and denounces them. Once it applauded, when its greatest chieftain swore by the Eternal the Union should be preserved, and when he proclaimed to traitors that they should hang high as Haman ; now, under the pre- text of a sacred regard for civil rights and personal liberty, it refuses to lift up its voice for their punishment. As we stood in the rotunda of the Capitol, and contemplated the full length portait of the " Old Hero," we could not help exclaiming, 01 for one hour of Jackson, to bring back the great Democratic party to the old landmarks, to expurgate from its platform the heretical doctrines that have been foisted into it, and to marshal its hosts, side by side, with all that is true and patriotic in the land, in an unconditional and unqualified support of the Government ! Such a moral power would sweep every obstacle out of its path. It would overawe treason on the one hand and fanaticism on the other. It would shape the policy of the Government at home and control the policy of Govern- ments abroad. It would do more than this. It would convince the rebellious States of the folly of further resistance, and leave them no hope but in submission. Then our Country, rising out of the dust of humiliation, would commence anew its march, on a bound- less career of progress and prosperity, and the Union, clothed with all the freshness of a perennial youth, would once more reflect its benignant rays throughout the world, enduring as the principles on which it rests, and from which alone it can receive its proper nutri- ment and support. EX-ADJUTANT-GENEEAL. '7 / 4-