§ 471. During a late session of Congress, a statute was enacted which prescribes in substance that all orders of the President to the army, or any portion thereof, shall be directed to, and shall issue through, the general; and that the general shall have his permanent headquarters at Washington. The President objected to these provisions on the ground that they interfered with his independent functions as Commander-in-chief. It may not be improper to express the opinion, that the first of these statutory requirements is clearly not obnoxious to the criticism made upon it. It is simply a rule for the regulation of the army; a rule similar in its nature to hundreds of others which are found in the code of tactics adopted by authority of Congress. It does not limit in the least the power or discretion of the President as to the orders he may issue; but only regulates the manner in which those orders shall be communicated from superior to subordinate. The other requirement of the statute appears to be more open to objection. It seems to restrict the President in the exercise of his functions as Commander-in-chief; it prevents him from assigning the general to such place and position as he deems expedient; and so far forth it interferes with his power to dispose of the forces. If Congress may do this in respect to one officer high in rank, may do it in respect to all officers, and the private soldiers, and may thus assume to itself the entire attributes of Commander-in-chief. it Third. Those Powers which relate to the Employment of the Militia in the Service of the General Government. § 472. In the first place it should be observed that the Constitution makes no provision for a national militia under the exclusive control and direction of the central government. The militia was, and still is, that of the states, the jurisdiction of the United States over it being at all times partial and exceptional. Thus the appointment of officers, and the training of this militia is, under every emergency, left to the states. Congress may adopt a mode of training, a system of tactics; and, if it does, the several states must follow that mode and system; if it does not, each state may choose one for itself. While any part of the militia are employed in the service of the United States, Congress may prescribe the rules for their government, that is, may bring them under its code of military law. At all other times, under all other circumstances, the regulation and government are exclusively within the control of the respective states. - § 473. Finally, Congress may provide for calling forth the militia in order to execute the laws of the Union, that is, to aid the civil authority when the posse comitatus fails; and in order to suppress insurrections and repel invasions, that is, when the civil authority is utterly powerless, is entirely abandoned, and a resort to actual hostilities, to war, is necessary. This is the extent of the power which the general government may exercise over the militia; and it will be observed that in no case can they be compelled to serve without the territory of the Union. The laws must be executed where they have force, and that is only within the country itself. Insurrections and invasions must be internal. We do not repel an invasion by attacking the invading nation upon its own soil. Still, there can be no question that the militia may be called out before the invaders have set foot upon our territory. It is a fair construction of language to say that one means of " repelling" an invasion is to have a force ready to receive the threatened intruders when they shall arrive. The same principle must apply to the suppression of insurrections. If the government must wait until the invaders are actually upon the soil doing their work of destruction, or until the insurgents have actually risen and commenced their process of social disorganization, before it can resort to all the means appropriate to secure its own safety and integrity, the United States is indeed the weakest of all nations. § 474. The language of the constitutional grant of power should be noticed. It is not that Congress may call forth, but may provide for calling forth, the militia. The legislature may therefore pass general laws applicable to circumstances that may arise in the future, and therein may empower the Executive- and perhaps any other designated individual—to sum mon the militia into active service, upon the happening of either contingency contemplated by the Constitution. Such a law is almost indispensable. The Congress is not always in session; and circumstances may arise during its recess demanding an immediate resort to arms, when a delay would be ruinous. Governed by these considerations, Congress at a very early day (1795) passed a statute authorizing the President to call forth the militia in the cases prescribed by the organic law, which is still operative. Under its provisions President Lincoln made his first requisition for 75,000 men. § 475. Two cases have been decided by the Supreme Court of the United States under the grant of power to call forth the militia. These cases, and especially the first in order of time, enter somewhat fully into a discussion of the relative powers of the nation and of the states over the militia, the nature and object of this military organization, etc., which it is unnecessary to quote. The reader is referred to the judgments themselves for the views of the different members of the court. I will only state the points decided. In the first case, Housston v. Moore,1 it was held that the several states have concurrent jurisdiction with the United States to aid the general gov ernment in calling forth the militia, though not to hinder or prevent such calling forth. Therefore a statute of Pennsylvania, providing that persons called forth by the United States, and neglecting or refusing to obey the call, should be tried by a state court martial, and punished according to state laws, was declared to be constitutional and valid. I remark in passing, that the principle upon which this case rests is identical with that which supports the authority of the states to punish counterfeiters of national coin and securities, which was referred to in § 420. The states also acted upon the same principle in the aid which they gave to the general government during the late civil war, by promoting the enlistment of vol unteers. § 476. In Martin v. Mott 2 it was decided that, under the authority given to the President by the statute of 1795, to call forth the militia under certain circumstances, the power is 15 Wheaton's R. 1. 2 12 Wheaton's R. 19. exclusively vested in him to determine whether those circumstances exist; and when he has determined by issuing his call, no court can question his decision. This was the important doctrine settled by the case; but it was also held that when a person had been ordered to appear and report himself under such call, and had neglected to obey, and had in fact never appeared and been mustered in, he was still liable to be tried and punished by a court martial appointed by the authority of the United States, although the trial took place several years after the war was ended, to serve in which the militia had been ordered out. Conscription. § 477. I am now brought to the question whether, under either of these classes of powers, that to raise armies, and that to call forth the militia,- Congress may adopt the method of a draft or conscription. It is well known that the mode has been resorted to. In March, 1863, Congress passed an act for "enrolling and calling out the national forces." The preamble of this statute sets forth the existence of the rebellion; of the war raging to suppress it; the necessity of a military force; and the duty of all persons to contribute towards its raising and support. The act then provides in substance for the enrolling of all citizens between the ages of twenty and forty-five years; that all these, with a few designated exceptions, should constitute the "national forces," and be liable to serve when called out by the President. Provision is made, by means of local districts and officials, for completing the enrolment and enforcing the call; the quotas called from each district are to be drawn by lot, etc. The President made a call which was apportioned among the states, and the quotas of each state allotted to the several districts. § 478. It will be seen that this law resembles, in some of its practical features, the process of calling forth the militia; but in others it is entirely different. I remark, by way of introduction, that if such a statute may be passed in time of war, and adapted to a state of hostilities, it may also be passed in time of peace, and made the permanent policy of the govern ment. Congress, with two exceptions, gets no increase of direct power over military matters in time of war; it has only new and singular opportunities for calling its powers into action, which would probably be left dormant in periods of tranquillity. The exceptions to this general principle are, the power to make rules concerning captures, and the power to provide for calling forth the militia. The conscription measures certainly do not fall within the first of these exceptions; it will be shown in the sequel that they do not fall under the second. That Congress would not be likely to adopt this mode of replenishing its armies in peace, is plain enough; its direct responsibility to the people is sufficient to prevent a resort to so stringent a method, except under circumstances of the direst necessity. § 479. I am aware of but one judicial decision in which the constitutionality of this conscription act was elaborately considered and passed under review. The case was Knudler v. Lane,1 and arose in Pennsylvania. Its history was somewhat peculiar. In that state the Supreme Court consists of five judges. Each of these presides at Nisi Prius or Circuit, for the trial of jury causes, and the hearing of equity suits. According to their practice, it is customary, when a very important and difficult question is presented to a single judge at Nisi Prius, for him to call upon all his brethren for their assistance and advice in its decision; and thus the parties have the opinions of a full bench at once. The case now referred to arose as follows: The plaintiff had been enrolled, and was subject to a draft. He commenced a suit in equity against the officers who had the matter in charge, and prayed an injunction restraining them from prosecuting the draft; the only ground alleged being the unconstitutionality of the conscription act. Application for a preliminary injunction was made to Woodward, J., at Nisi Prius. He called in the other judges, who differed in opinion; Lowrie, C. J., Woodward and Thompson, JJ., holding the statute void, while Strong and Read, JJ., dissented. The preliminary injunction was therefore awarded. Shortly after, and be 19 Wright's (45 Penn. St.) R. 238. |