26 Tex. 386 | Tex. | 1862
Lead Opinion
The relator (Coupland) applied to the Chief Justice on the 16th of July, 1862, in vacation, for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by R. T. P. Allen, in Travis county, as he believed, “without any order or process whatever, or any color of either.” The writ issued, and Allen made return, that the relator was placed originally in his custody by order of R. J. Townes, Provost Marshal
The first question for our decision arises upon a motion by the Attorney-General, who appeal’s on behalf of the respondent, Allen, that the application should for the present be 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 the control of the respondent. This motion is founded on an affidavit of á lieutenant belonging to said regiment, from which it appears that the relator, together with other members of said regiment, after his return to it, was furloughed 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 the regiment was ordered to rendezvous; but up to the 25th of September, when affiant left camp, he had not joined the regiment or been heard of by him.
This motion is urged upon two distinct grounds; first, that the court has no jurisdiction on the application, if the relator has escaped from the custody to which he was remanded by the judgment from which he appeals. Secondly, if the court has jurisdiction, it will not act upon his application while he is at large. There is no doubt that in answer to the writ the respondent must produce the body of the person alleged to be illegally obtained, if in his custody, or under his control at the service of the writ, unless excused from so doing by the circumstances indicated in art. 149 Code Criminal Procedure; and that a#return to the writ not accompanied, by the body will be scanned with great caution.
fQie second ground of the motion, we think as a question of practice, is well taken, if the facts of this case called for its application; and were it not, also, that, from the character of the case, we think the public interest will be better subserved by hearing the appeal than by its continuance. The rule of the court not to hear appeals in criminal causes where the defendant has escaped, to which this case is claimed to be analogous, being merely a matter of practice, depending in its application to particular cases upon the discretion of the court; and, as the affidavit relied upon does not show conclusively that the relator has escaped from the custody to which he was committed, and may not, after but a temporary delay, have joined his regiment, the motion for a continuance will be overruled.
The questions arising upon the merits on this application, have-been argued with great interest and zeal. Several of the points, however, made by the counsel for the relator, and most elaborately-discussed, can have no influence in the decision of the case, as presented by the appeal, and doubtless had none in its determination
As we have already said, a party’s right to the writ does not depend upon the legality or illegality of his original caption, but upon the legality or illegality of his present detention. (Dew’s case, 18 Penn., 37; Ren, v. Gordon, 1 Barn. & Ald., 572 n; Hurd. on Hab. Corp., 255, 256.) The relator was not, when the writ was served, detained by virtue of the order of the Provost Marshal, by whose order he seems first to have been arrested. We will not, therefore, consume time by a discussion of the questions that have been raised, as to the right or authority of a military officer, in time of war to declare martial law, or the effect of such declaration when made; or upon whom martial law when declared can operate; or the nature and character of such law. Nor will it be at all necessary that we should inquire into the regularity of the proceedings of the enrolling officers by whom relator was enrolled as a soldier, for, if he is subject to conscription, this court is not the appropriate tribunal for correcting the errors, if any, into which these officers may have fallen in discharge of their appropriate military duties; but his application for redress must be made to their, superior officers, or other proper military authorities. (Art-756,. Code of Criminal Procedure.)
The only question in this case for our consideration, and upon which the determination of the case must turn, is, as to the legality of the relator’s detention as a soldier in the army of the Confederate States, and this depends entirely upon the question, whether the “ Act to further provide for the public defence,” commonly known as the “ Conscript Law,” is constitutional. We address ourselves to the consideration of the question, with a full appreciation of its magnitude and importance, in respect both to public interest, and private rights; the liberty of the citizens, and the power of the government.
The objections that have been made to the constitutionality of the law, are frequently vague, and at times rather contradictory, but when analyzed resolve themselves into one or the other of the
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 expressly granted, or under the implied powers granted by the 18th paragraph of the 8th section of the 1st article of the constitution; if it is tl^e first, then the Confederate Government may use their discretion in the mode and manner of its exercise, unless it is limited or restrained in so doing by some other express provision, or clear and necessary implication, and the burden of showing this is upon those who assert the limitation. 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 congress to exercise 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 grant of all such subsidiary and incidental powers as shall be “necessary and proper” to carry into effect the previously granted powers. And it is admitted that when authority to do an act is claimed under it, it is incumbent upon those who maintain it, to show, not merely that it is “a necessary” law, but that it is ua necessary and proper" one for carrying into effect the expressly granted power.
It can not for a moment be questioned, if there were no express grant of power to do so, that the right of the government of the Confederate States to raise and support armies could be sustained under the general granting clause of the constitution, to which we have referred. And we think it equally clear, that the law in question is in strict accordance with it, even when tested by the stringent rule of construction, that we have just recognized. The.
Does this law violate any of the abstract or guaranteed rights-of the citizen, or assume over him a control not delegated by the constitution? It has not, of course, been questioned that the power to raise an army may be exercised by congress. But it is said, it can only do this by voluntary enlistments, and that the citizens can only be compelled to do compulsory military duty as militia, under the 15th and 16th clauses of the same section of the constitution which gives to congress the power to raise-armies.
It is said by Vattel, (p. 294,) that “the public: authority 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 as 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 Ms choice to volunteers, who enlist without compulsion. No person is naturally exempt from taking up arms in defence of the State—the obligation of every member of society is the same.” It is insisted, however, that while it cannot be deMed that this - power exists under monarchical governments, it is not applicable to a republic. Its language imports its applicability alike to citizens or subjects. And this must be apparent when we consider that the abstract rights of every nationality over the mhabitants 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 individual can in a republic, with the same propriety as under a monarchy, be required to perform
These extracts show, that the grant of the power to make war, carries with it by necessary implication, unless expressly withheld, the right to demand compulsory military services from the citizens. If this right is an incident of the prerogative of making war in a.monarchy, where the people can exercise no control over the sovereign, how much more readily should we conclude that it •was “a necessary and proper” implied power with us; when the war making power is 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.
The power of the general government to do so has been long and frequently admitted in the United States, both by standard elementary authorities and judicial decisions. (Hurd on Hab. Corp., 8.) In the case of the United States v. Bainbridge, 1
Upon the same general principle, also, rests the right to call out the militia, for this is also a compulsory service, and the 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 compulsory service was authorized, or intended to be granted. How the mere grant of one power, compulsory in its character, can limit or destroy another which had been previously given in equally express terms, we do not perceive. But, in connection with this objection, it is also insisted that the right' to raise armies must be taken in subordination to the power conferred over the militia, as otherwise the rights of the State in this particular, would be destroyed. And hence, the power conferred upon the Confederate government to raise armies, it is said by those who urge the objection, must be construed as only authorizing, when an army is to be raised from the arms-bearing
To maintain this position with some degree of plausibility, its supporters are forced to assume that the militia, which the constitution says is necessary to the security of a free State, and which congress may provide for calling forth, subject to the right of the State to appoint the officers, is synonymous with the arms-bearing citizens of the State. And they, therefore, say, if an army is raised from these citizens, except by their voluntary 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.
The fallacy of the position seems to be manifest from the qualification which they are forced to give it. For, as we have shown, the citizen has no right to exercise volition, with regard to the performance of military duty, • so as to impair, or qualify the power of congress to raise armies, and, if the qualification exists by reason of the rights of the State over the arms-bearing citizens as its militia, and to appoint their officers when in the service of the Confederate States, these rights could not surely 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 the State must be presumed to have consented to his voluntary enlistment; for it is as impotent as the citizen to destroy in this manner a constitutional right conferred upon congress, or thus to confer one not otherwise given. The question goes to the right of the State to appoint officers to command its arms-bearing citizens, when in the service of the Confederate States, because they are militiamen. But the individual is equally an arms-bearing citizen, whether he has gone into the service voluntarily, 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 has been organized, armed and disciplined as provided for by congress, and for whom a call is made by the Confederate States, in pursuance with the constitution, cease to be integral parts of the arms-bearing citizens oí the State, because they pre
The construction contended for would destroy one of the grants of power conferred upon congress by the constitution, and would reduce its authority merely to that of raising and supporting armies, by calling forth the militia, instead of authorizing it, as it does, to raise and support armies, and under certain circumstances to call forth the militia. For, if you remit congress to the voluntary consent of the individual citizen to enable it to raise an army, you have destroyed its power, and conferred upon it simply the privilege of doing so. But the strong language of the constitution is, that “congress shall have the power,” &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
And this leads us to the inquiry, whether the construction contended for will clothe the Confederate government 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 the militia, it follows, as a necessary consequence, that it can do so only for the purposes for which it is authorized to call forth the militia by the constitution. It cannot, therefore, raise an army except to enforce the execution of the laws to suppress insurrections or repel invasions. It is consequently powerless to protect the country from sudden assaults from without, or unexpected commotions from within. It is impotent either to enforce private rights, or maintain national honor against foreign powers. But it is said that it is contrary to the spirit and genius of our institutions that we should engage in foreign or aggressive war, unless absolutely necessary; that it is against the theory of our government that we should make war merely for conquest or dominion; and as congress has the privilege of raising armies by voluntary enlistments, we may safely rely upon the patriotism and martial spirit of the people to raise armies amply sufficient to prosecute all necessary and proper foreign war; that the fact that the government is forced thus to rely upon voluntary eslistments for its soldiers to maintain foreign wars, operates, and was doubtless so intended, as a salutary check in restraining it from engaging in them unnecessarily. And as was said by counsel at the bar, “ where war is made, it is the people’s war; and if they are not willing to fight to carry it on, the government ought to stop it.” But if the individual citizen may determine for himself whether he will aid the country in the field, why may he not 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 ór 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
The origin of this grant of power to raise armies shows most conclusively that it was not intended to leave the government dependent upon the will either of the citizen or the State to carry it into effect. It is given in our constitution, as it was originally in the constitution of the United States, and was placed in that
But suppose the theory of those who oppose the constitutionality of this law is correct, and the new levies had been called into the field, not as troops of the Confederate States under the power to raise armies, but as militia, what might be the consequences ? The theatre of the war, if at present 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 our 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 the government to demand their services for the purpose of repelling invasion. This doctrine was expressly recognized and maintained in congress, in 1812, by all the strict constructionists and State-rights politicians. It may be said there would, under such circumstances, be no fear that the States would not' sanction this use of its militia, and the patriotism of the citizen soldiers could be relied on with equal confidence, to sustain their country in this, as well as in every other emergency. It was said by Mr. Cheves, than whom we could obtain no better authority, in response to this character of reasoning: “ Though the gentleman from New York says the service of the militia is not to be bounded by geographical limits, I cannot discover the premises by which he comes to this conclusion, if the general government has no other power over the militia than is given to it in this clause of the constitution. If they may cross the line, why not go to the walls of Quebec ? The principle is
The theory of our government, when properly understood, does not militate against the constitutionality of the law. On the contrary, it clearly tends to sustain it. The difficulty in the minds of many seems to grow out of a failure to discriminate in the use of the word “State.” Whether it imports merely the local or State government, or the political community, the nationality, the. people of the State in the aggregate, as a nation or political community, or as it is frequently expressed, the “Sovereign State,” and in this way they come to think of the local (or, so to call it? domestic,) government, as the government of the sovereign States? having some undefined imaginary grant of powers, possessing itself, as the representative of the sovereign State, some degree of sovereignty. Especially so, with reference to the Confederate government, which they seem to think should he regarded as a creature of its creation, and subordinate to it. And hence that its powers should be construed in subordination to those of this immediate representative of the sovereign State. In fact, 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 distinguishing different forms of government, “ sovereign powers,” neither of them are themselves sovereign, but each of thorn represents the sovereign?
When we enquire, then, what disposition the sovereign State has made of its right to military service from its citizens, between these two agencies, by which it proposes to administer its government, we find that it has given to its Confederate Agency, so to call it, the sole power to determine upon the questions of war and peace, and that it has consequently made it the duty of that agent to protect the State itself, and its local agency from attacks from both domestic and foreign foes, and that it has clothed it with the power to do this, by authorizing 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 not have provided amply for those purposes, or should be overtaken by a sudden emergency, it is further authorized to call upon the other agency to bring to its aid, if necessary, all of the arms-bearing population it had left still under the control of the local agent, for whose organization it was required to provide, that the local agency might be thus prepared to meet the call that these sudden emergencies might occasion. But as these calls would be rare, and the armies which the Confederate government would require to prosecute and carry on the war in which it would become involved, except under extraordinary circumstances, which would hardly happen more than once in the life time of a nation, vrould compose but a small part of the population of the State, and the local agency might,, also, be called upon by sudden emergencies to defend itself and the State before a call could be made upon the other agent, and as that was intended, more especially, to represent the foreign, and this the domestic affairs of the State; the militia or citizens not required in the armies raised by the Confederate agency were left under the control of the local agency, with the right of appointing their officers, when it should be required to furnish them in these cases of emergency for the services of the Confederacy. These agencies, though possessing distinct powers, have to look for their performance to the citizens, and, consequently, as in many other grants of power to them, their action is concurrent over the same
It is also urged that this law introduces a novel practice in this country for raising armies. If, however, it is within congressional discretion, in the exercise of the power granted, this does not ■affect its constitutionality. And if the practice of conscription is novel with us, so are the circumstances which now surround the country. Engaged in a contest that involves our existence as a
Though this is the first occasion, in this country, that an army has been raised by conscription, it does not come before the country without the sanction of high authority. The principle upon which it is based was sanctioned and approved by General Washington in 1790; and it was maintained in 1812 by Mr. Monroe, then Secretary of War, in an argument of convincing clearness and cogency—(7 vol. Niles’ Register, 137, 294; vol. 8, Id., 281)—and Mr. Troupe, and other distinguished strict constructionists of that day gave it their sanction.
The judgment is affirmed.
Concurrence Opinion
I concur in what is said in the opinion of the court respecting the motion which has been made by the Attorney-General for the continuance of this cause. I concur, also, in the
I am not able to concur in the judgment Avhich has been rendered in this case, nor in the reasoning of the majority of the court in support of the constitutionality of the acts of the congress of the Confederate States, commonly called the conscript laws. I believe those acts to be unconstitutional. The question is one of -the greatest magnitude; it is directly presented for decision; and believing it to be fraught with the most vital concern to the pi-in¡tiples of civil liberty and free government, I cannot forbear to express my opinion.
It is said in support of the constitutionality of these acts of conscription, that the war making poAver is committed to congress by the constitution, and that it is also declared by the constitution that congress shall have poAver “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 unlimited discretion in the choice of the means by which to carry it effect. In the opinion of the court, the arguments employed by the authors of the Federalist, Avhen the constitution of the United States Avas before the people for their consideration, to show that it was necessary to confide to the general government about to be instituted the poAver to raise and support armies, are quoted. The arguments employed by the same writers to show that there ought to be no limitation upon the power of the general government to raise and support armies, are also quoted. Yattel is quoted as authority for the proposition that “no person is naturally exempt from taking up arms in defence of the Stateand that “ every man capable of bearing arms should .take them up at the first order of him who has the power of
I shall notice these positions and arguments only so far as may be necessary to the presentation of my own views.
In any inquiry into the form, the spirit and the powers of gbvernment, and in the examination of questions which are in themselves fundamental, while the proper weight is to be given to. former usage, to cotemporaneous expositions, and to the opinions of eminent men, the impartial and philosophic inquirer after truth will not fail to note carefully all the circumstances under which any particular usage obtained, the sources from which cotemporaneous expositions emanated, and the general character, the cast of mind, the political 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 Hamilton, Madison and Jay, knowh’ as “The Federalist,” are entitled to very high consideration, as a cotemporaneous exposition of the powers intended to be conferred by the constitution upon the government which it proposed to establish. It is known to. all persons who are possessed of even a slight knowledge of the •political history of the United States, that Mr. Hamilton was the great exponent of the opinions of the federal party of that day, and that he was in favor of a much stronger government than that.
In his discourse on the constitution and government of the United States, Mr. Calhoun commenting upon the opinions of the authors of the Federalist, and arguing to show that they had fallen into a radical and dangerous error concerning 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 and explicit admission—into an error so radical and dangerous, one which has contributed more than all others combined, to cast a mist over our system of government, and to confound and lead astray the minds of the community as to the true conception of its real character, cannot be accounted for, without adverting to their history and opinions as- connected with the formation of the constitution. The two-principal writers (meaning Mr. Hamilton and Mr. Madison) were prominent members of the convention, and leaders of that body of the party which supported the plan for a national government. The other, (meaning Mr. Jay) although not a member, is known to have belonged to the same party. They all acquiesced in the decision which overruled their favorite plan, and determined, patriotically, to give that adopted by the convention a fair trial, without, however, surrendering their preferences for their own scheme for a national government.
It was in this state of mind—which could not fail to exercise a strong influence over their judgments—that they wrote the Federalist; and On all questions connected with the
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 to reduce them into classes, as they related to different objects. The first object to which he called attention was, “security against foreign danger.” He classified the powers necessary to security against foreign danger, thus: “ Those of
I have no controversy with the quotations which are made, in the opinion of the court, from Yattel. The principios announced in the 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 them. Yattel wrote his justly celebrated work on the law of nations, and was sleeping in his grave some years before the declaration of American Independence. It has been our boast that our revolutionary ancestors made some advance in the principles and science of government, and kindled again the vestal fire on the altar of liberty, which had been smouldering under the ashes of two thousand years. I am not prepared, therefore, to accept Monsieur Yattel as a valuable authority upon a question concerning the power of the government of the United States, or of the Confederate States.
I shall now proceed to inquire 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,
In the celebrated case of McCulloch v. The State of Maryland, (4th Wheaton,) Chief Justice Marshall, in treating of the clause in question, says: “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national. legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
In the light of these expositions I think it safe to say, that there can be no shifting'of the burthen of argument upon questions involving the powers of the government, upon the ground of any
■ In considering whether a law is necessary, in the sense of tbe constitution, to carry into effect an express power, if we are not to adopt the strict rule laid down by Mr. Calhoun, to wit, that the express power would be nugatory without use of the means proposed by the law, I take it for granted that we will not, on the other hand, go back to that latitude of construction, and to the reasoning by which the federalists of 1798 claimed for the congress of the United States the power to exercise a censorship over the press, as' a means necessary and proper to carry into effect the power to suppress insurrections. We have been accustomed to read, with the interest that attaches to the drama, the history of the great struggle which elevated Mr. Jefferson to the presidency. It is the first conspicuous landmark in the history of the government of the United States under the constitution. It has always been claimed that the republican party performed a patriotic service in resisting the tendency to a rapid consolidation.
It camiot 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 contradiction in the facts of history, and in the events which are transpiring before our eyes. The government of the United States has always kept an army on foot, maintained an honorable contest with Great Britain in 1812, and planted her banners on the walls of the capital of Mexico in 1847, but has never raised troops by conscription. We have seen gallant armies take the field at the call of these Confederate States, without any conscription. We are told that the government of the United States is prepared to precipitate upon us not much less than a million of men. They have been raised without any conscription. Conscription cannot, therefore, be a necessary means of raising armies. And it would seem that the facts above mentioned ought to furnish a sufficient answer to the position which is assumed, 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
For the purpose of testing this question of the power of the government to compel citizens to enter the regular army, let us examine the scope of another of the express powers, and one of a kindred nature to 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. The grant of power to raise and support armies is limited by the provision that “no appropriation of money to that use shall be for a longer term than two years.” The power “to provide and maintain a navy ” is without any such limitation. I now recur once more to the language of the Federalist, 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 is involved in the power of self defence. But was it necessary to give an indefinite power of raising troops, as well as of equipping fleets, and maintaining both, in peace as well as in war?” Mr. Madison insists that these powers were necessary. Now I ask the question, has- the congress of the Confederate States the power, under the constitution, to compel the citizens of these States, between the ages of eighteen and forty-five years, to enter the naval service, to become seamen or marines, for an indefinite period of time, or for five or ten years ? Who will answer the question in the affirmative ? Yet the power “to provide and maintlin a navy” is to the full extent as broad and unlimited as the power to raise and support armies; and the indefinite power of equipping fleets is put, by the author of the 41st number of the Federalist, on precisely the same footing as the indefinite power of raising troops. If the British practice of impressing seamen is authorized 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 Confederate States has not the power to compel citizens to enter the naval service, I
It will be seen that the power to make treaties is without any express limitation. Yet there must be important limitations upon the treaty making power. It must be considered with reference to the general purposes for which the government was instituted. Some of the limitations upon the treaty making power will be found to arise by necessary implication from other provisions of the constitution. For instance, the president and senate could not enter into a treaty with England to make war against France, because the power to make war is committed to congress, and one provision of the constitution cannot be construed to the destruction of another. Nor would it be competent fot the president and senate to make a treaty ceding that portion of the territory of Texas which lies west of the Nueces river to Mexico, without the consent of the people of Texas—not because there is any prohibition of such a treaty expressed in the constitution, nor yet because such a prohibition can be clearly implied from anything that is expressed, but because such a treaty would not be in pursuance of the purposes for which the government was instituted, and because the people of Texas never intended to clothe the government with any such power.
Other examples might be given, were it necessary, of limitations upon the powers of the government, which are not expressed in the constitution, but which spring, necessarily, from the reserved
Before proceeding, however, to the examination of the provisions of the constitution respecting 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 the power to; compel citizens to do fliili
There had, but a short time before, been an insurrection in Massachusetts, and the relations of the government with France were far from satisfactory, but the plan was rejected, and in lieu of it the militia law of 1792, which, with slight alterations, 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 Britain was assuming the most serious aspect. The temporary cessation of hostilities in Europe, consequent 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 plan for the increase of the army, in which he asserted the right of the government to compel the citizens to do military service in the-regular army. His plan was substantially as follows: That the free male population of the United States, between the ages of eighteen and forty-five years should be formed into classes of one hundred men each, and that each class should furnish four men for the war, and replace them in the event of casualty; that the classification should be formed with a view to the equal distribution of property among the classes: that if any class failed to furnish the men required of them within the time specified, they should he raised by draft on the whole class; and that any person thus drafted should be allowed to furnish a substitute: that the bounty in land which the government was offering should be allowed each recruit, and the bounty in money, which the government was paying, 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 class respectively possessed. Mr. Monroe proposed to carry this plan into effect, by committing the execution of it to the County Courts throughout the United States,
I now proceed to notice very briefly the constitutional provisions on the subject of the militia. It is said in the constitution, “ Congress shall have the power to provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections and repel invasions.” Again, it is said, “ Congress shall have power to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the Confederate States, reserving to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by congress.” Another provision of the constitution is to the following effect: “ A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This latter provision was one of the amendments to the constitution of the United States, proposed by congress and ratified by the States, for the purpose of meeting the objections that were made to the constitution as it came from the hands of the convention, on the ground that the rights of the people were not sufficiently secured by it. The clause which gives to congress the power to provide for calling forth the militia, and for organizing, arming and disciplining them, are precisely the same as those contained in the constitution of the United States.
When the subject of the militia was under discussion in the federal convention which framed the constitution of the United States, a long and interesting debate transpired, with which the students of our political history are familiar, and which need not be quoted extensively. It was proposed by Mr. Sherman to strike out the clause reserving to the State the right to train the militia. Mr. Ellsworth remarked, that the objection would apply 'as well to the reservation to the States of the appointment to offices, and doubted the propriety of striking out either. Mr. King said, that by organizing, the committee meant proportioning the officers and men—by arming, specifying the kind, size and calibre of arms—
These are my views upon this great question. Though they are the result of much reflection, they have been somewhat hastily expressed, and I am sensible that they lack order and condensation. I have stated them under a profound conviction that I am not equal to the great argument. I feel, at the same time, a conviction as profound, that if republican government and civil liberty survive the great struggle in .which we are now engaged, which I do not permit myself to doubt, some Marshall or Mansfield will make the argument which will consign the Acts of conscription which have been under discussion, to the universal obloquy which they deserve. I shall not, therefore, indulge in any vain regret that I have not the powers necessary to set this momentous question in a clear light, but shall content myself with the consciousness of having performed my duty, in my place, and according to my abilities.
Concurrence Opinion
I concur in the opinion delivered by Mr. Justice Moore. I express this concurrence in order that there may be no misapprehension as to my opinion as to the real question involved in the case and the grounds of the decision.
The expression simply of my concurrence might suffice. And it might suffice to dispose of the argument upon martial law to say, there is no question of martial law properly arising for discussion in the case.
But the observations indulged in the dissenting opinion of Mr. Justice Bell concerning the bill of exceptions and martial law, render it proper that I should advert briefly to my action and rulings upon the hearing, in order to prevent misapprehension as
There was in this case no pretence that at the time of the return, or of the service of the writ, the complainant was detained under martial law, or by any other authority than as a soldier, called into the service of the Confederate States under the act of congress, known as the conscription law. Whether his original arrest and detention was legal or not, was then wholly immaterial, since he had been discharged from that restraint: and the only question was whether the return showed good cause for his then detention, he having been enrolled as a conscript; whether the law under which he was detained as a soldier was constitutional. It was my opinion that the law was constitutional; and it was upon this ground .alone that I remanded him into the custody of the officer. This being manifestly the only question proper to be decided or considered, I excluded all evidence offered by the complainant to bring into discussion the proceedings attending the original arrest under martial law, as wholly irrelevant and immaterial. If any wrong had been done the complainant in the matter of the original arrest; if a trespass or false imprisonment had been committed, this proceeding could not afford a remedy for such injury already overpast; the remedy must be sought in a different proceeding. Hence I declined to hear evidence touching any proceedings under the order of the provost martial. There was and could be no question of martial law in the case. Yet the counsel for the complainant seemed to suppose that there was, or at least to wish to make it a question; and in order to afford the complainant the utmost benefit of his appeal in the estimation of his counsel, and them the opportunity to be heard in this court upon evéry question they might see proper to urge in his behalf, I gave the bills of exceptions in the terms in which they were drawn and presented by his counsel
I have thought proper to say this much explanatory of my action and rulings upon the hearing, to prevent misapprehension as to my opinion and the course I should deem proper ordinarily to pursue on sticli an occasion. Under different circumstances I should cer-' tainly have heard argument; and I might have stricken from the bills of exceptions matter which I deemed wholly immaterial and irrelevant to the case. If I did not do so on this occasion, it was for reasons which I thought sufficient at the time, and from a wish to give the party the benefit of every question his counsel might suppose could possibly be of advantage to him on the final hearing. This has now been accorded to the party. And our conclusion upon the only question properly arising in the case for decision, has been announced in the opinion of the majority of the court upon reasons so fully, and to my mind satisfactorily presented by my associate, as to render it unnecessary that I should add more than the. expression of my concurrence.
Judgment affirmed.
“ Unquestionably a military government established as the permanent government of the State, would not be a republican government, and it would be the duty of (Jongress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the State authorities. And, unquestionably, a State may use its military power to put down an armed insurrection too strong to he controlled by the civil authority. The power is essential to the existence of every government—essential to the preservation of order and free institutions, and is as necessary to the States of this union as t'o1 any other government. The State itself must determino what degree of force the crisis demands, and if the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force, and the declaration of martial law, we see'no ground upon-which this court can question its authority.”
The court accordingly decided, that under the authority of martial law an officer might lawfully arrest any one who ho had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched when there was reasonable grounds for supposing he might be there concealed. (7 Howard, S. C. R., 45, 46.)
Such was the opinion and decision of the Supreme Court- of the United States in a case which texeited much attention at the time. That it was deliberately, and not hastily or inconsiderately decided, is manifest from the fact that Mr. Justice Woodbury delivered a most ableand elaborate dissenting opinion, reviewing the whole subject, and denying the constitutional power of the legislature to declaro martial law.
Judge Woodbury deduces his conclusion thus: “The necessities of foreign-war, it is conceded, sometimes impart great powers both as to things and persons. But they are modified by those necessities, ttncí subjected to numerous regulations of national law, and justice, and humanity. These, when; they exist in modern times, while allowing the persons who condnct war some necessary authority of an extraordinary character, must limit, control, and make its exercise, under certain circumstances and in a certain manner, justifiable or void, with almost as much certainty and clearness as any provisions concerning municipal authority or duty. So may it be in some extreme stages of civil w ar. Among these, my impression is, t-bat a state of war, whether foreign or domestic, may exist, in the great perils of which it is competent, under its rights and on principles of national law, for a commanding officer of troops under the controlling government, to extend certain rights of war, not onfy over his camp, hut its environs and the near field of his military operations, (6 American Archives, 186,) but no further or wider. (Johnson v. Davis, et al., 3 Martin, 530, 531.) On this rested
I cite these because the principal judicial opinions I have met with on the subject. It is one of great moment, involving the powers of the government and the liberty of the citizen, which has no safeguard but in the supremacy of law. It is a subject, too,-which the history of this country, until recently, had given but little occasion to investigate. And hence, when the occasion arose in a time of great public danger, the subject was not so well under stood, nor the limits of the legitimate exercise of power as well guarded as since the unwarranted powers assumed in some instances have challenged a more thorough investigation and understanding of the subject by congress and the country. Since congress has been called upon to revise its own legislation on the subject, conceded now to have been at first not well considered, the judiciary committee of the House have made a report in which the subject has been examined and some general views presented, which appear to have been approved by congress. The committee concluded that as laws can be suspended only by the law making power, and as all the legislative power of the Confederate States is vested by the constitution in congress, it follows that no law can exist by the authority of the Confederate States unless it be enacted by congress. “ And in whatever sense martial law may be declared, (they say,) the power to declare or authorize it seems to belong exclusively-to the legislature, whether of a State or of the Confederate States.” “ If martial law over the people be necessary in any case, it should be regulated and defined in a sense consistent with the constitution by distinct enactments.” It is conceded that the necessities of war may sometimes impart extraordinary pow ers to military commanders. Such instances are referred to in the opinion of Mr. Justice Woodbury. But these seem to be the cases contemplated in the observations above quoted. Whenever, therefore, a case shall arise under the legislation of congress, it will become the province of the judiciary to decide whether such legislation is warranted by the grant of pow ers in the constitution.
In any view, the difficulty seems to be to define what is meant by martial law. If by it is meant a power to exalt the military above the civil authority, or to supersede the latter by the former, no one would contend for such a power in any officer or department of the government; for that would be in manifest violation of the constitution, which must ever be held paramount, and in subordination to which all power must be exercised as well in war as in peace. But unless what is meant by martial law be defined in advance, it would seem difficult to pronounce either that it can, or cannot constitutionally be declared or enacted. And the only test to which any legislation which may be had on the subject can be applied, is its conformity to the constitution, which, of course, cannot be done in advance of, or without knowing what that legislation is.