1864. January Term. V. danger to the liberties of the citizen or the rights of the States, or they would have taken care to use language which would leave no doubt that they did not Burroughs intend to confer it, instead of retaining that which had been construed, by many of the wisest statesmen under the government of the United States, to give it. But it is impossible that it could have been supposed, at the time of the adoption of the Constitution of the United States, that it would never be claimed by any one that it conferred this power; for such was the construction of the Constitution in the papers of the Federalist, written with the view of inducing the people of the States to adopt it; and recommending it to them because it invested the Federal government" with full power to levy troops, to build and equip fleets, and to raise the revenues which will be required for the support of an army and navy, in the customary and ordinary modes practised by other governments." Federalist, No. 23. See, also, Id. from No. 23 to No. 28, inclusive. The failure to make special objection, at the time, because of the grant to Congress of the power of conscription is not surprising. There was no serious reason to apprehend that a government, designing to overthrow the liberties of the people, would raise an army for the purpose by a conscription of the very people whose rights were to be assailed; and it was obvious that if it should have the folly to do so, the army, when raised, would be the most efficient instrument that could be devised for the defeat of the object in view. The danger really apprehended, from the grant of the power to raise and support armies, was that the Federal government would be enabled to raise and keep in its pay an army of mercenary troops, with no interests in common with the people; which might be used for the overthrow of their liberties and the destruction of the Peyton. Abrahams V. Same. 1864. January Term. v. Abrahams V. Same. rights of the States. It was to this danger that the objections pointed. It was guarded against by adding to Burroughs the grant of the power to raise and support armies a Peyton. proviso that "no appropriation to that use should be for a longer period than two years"; thus requiring the consent of every new Congress to the continuance of an appropriation for the support of the army. It was not deemed safe to go further than this in limiting the pow er of Congress on the subject. A proposition to limit the number of the army to be raised was rejected, because it was impossible to foresee what number the exigencies of the country might require. The objection to permitting a standing army to be kept up in time of peace was disregarded, because, when it was conceded that armies were necessary to protect the country from foreign aggression, it was manifest that it would be unwise to withhold the power to raise them until after hostilities had actually commenced. When it was resolved that the Federal government should be entrusted with the common defence, it followed, as a corollary, that it ought to be "invested with all the powers, requisite to the complete execution of the trust." It was wisely de termined, therefore, "that there should be no limitation of that authority which is to provide for the defence and protection of the community, in any matter essential to its efficacy-that is, in any matter essential to the formation, direction, or support of the national forces." Fed., No. 23. As has been already stated, experience had shown that the exercise of the power of compulsion was necessary to raise an army of sufficient size for the necessities of the country in time of war. It had been habitually applied by the States in the war from which the country had just emerged. What, then, could be more natural or proper than to entrust this power to the Federal government along with the other war powers confided to it? Why should it be excepted from the 1864. January Term. V. Peyton. V. Same. grant? Such exception would be opposed to the principle on which the grant was founded; and might, at a time of critical danger to the country, render the grant Burroughs itself nugatory. The power to raise armies by conscrip tion is less dangerous to the liberties of the people than Abrahams is the power of raising them by voluntary enlistment. An improper exercise of the power of conscription could not fail to excite at once the indignant opposition of the people; while an army might be improperly increased by voluntary enlistment without attracting much popular attention; and one thus raised would, as has been shown, be much more dangerous to the rights of the States and the liberties of the people than the one raised by conscription. It is said, however, that the absence of a provision requiring the power of conscription to be exercised equally and uniformly, shows that it was never designed to be conferred upon Congress; for, without some such limitation, Congress may act most unjustly and oppressively, distributing the burden of raising an army unequally between the different States; and that any State is liable to have its whole arms-bearing population withdrawn from it and carried off to any part of the world in the ranks of the army. To this it may be answered that this power, like all others, is unquestionably liable to abuse, though it does not seem probable that the attempt would ever be made. to abuse it in the manner suggested. The protection against its abuse, in this or any other manner, is to be found in the responsibility of Congress to the people, ensured by their short tenure of office; and in the reserved right of each State to resume the powers delegated to the Confederate Government, whenever, in her judg ment, they are perverted to the injury or oppression of her people. Again, it is objected that if the authority to raise 1864. January V. Same. armies gives to Congress the right to compel citizens to serve as soldiers, it embraces the whole war power, so Burroughs far as relates to the raising of men; and not only renPeyton. ders the provisions in reference to the militia supererogAbrahams atory, but enables Congress to destroy the militia itself, by absorbing into the army all the men who compose it. And it is argued that it must therefore be inferred that the right of conscription does not exist, as it cannot be supposed that it was intended to confer power upon Congress to destroy the militia of the States. It is true that the Constitution does recognize the militia, and provide for using it, as well as regular armies, in the military service of the country. A well regulated militia has (as is stated in one of the amendments) always been regarded as necessary to the security of a free State. It was therefore proper that provision should be made in the Constitution for its organization, and for the authority to be exercised over it by the State governments and Congress respectively. It was not probable that, in the exercise of the power to raise armies, Congress would, under ordinary circumstances, materially diminish the number of the militia. But it cannot be true that, with the view of preserving the militia entire, it was intended to deny to Congress the right to take individuals belonging to it for the regular army. This construction would prevent Congress from obtaining from its ranks not only conscripts, but volunteers also; and, as the militia embraces the whole arms-bearing population, it would render it necessary that the army should contain none but foreigners, hired for the purpose, and having no interest in common with the people of the country. No one can imagine that such was the intention of the framers of the Constitution. The true interpretation of the Constitution in reference to this matter would seem to be, that the power to use the whole military force of the country was con 1864. January Term. V. Peyton. Abrahams V. Same, ferred upon Congress, and it was left to their discretion. to fix, as the varying necessities of the country might require, the relative proportion of regular troops and Burroughs militia to be employed in the service. If it should appear at any time to be proper to increase the army, it might be done by taking men from the militia, either as volunteers or as conscripts-the action in either case being upon the individual citizen, and not upon the militia as an organized body. As it was impossible to foresee how large an army the exigencies of the country might demand, the number of militiamen to be thus transferred to its ranks was wisely left to the discretion of Congress. It may be difficult to say to what extent Congress have the right, in the exercise of this discretion, to affect the militia as an organized body. It is sufficient for the purposes of this decision to see, as we do, that neither of the acts of Congress, the validity of which has been called in question, does destroy or impair the organization of the militia, construing them, as it is proper that they should be construed, in connection with the exemption acts, which are in pari materia. It will be time enough when a case is brought before us, in which the organization of the militia is destroyed or impaired by Congress, to enquire what limits are fixed to their action in this respect. It is further objected that if Congress have the right of compelling citizens to serve in their armies, the State governments are at their mercy, and exist at their will; that they may conscribe all of the officers of the State, executive, legislative and judicial, and thus put a stop to the action of its government. This objection is without foundation. Congress can have no such power over State officers. The State governments are an essential part of our political system; upon the separate and independent sovereignty of the States the foundation of our confederacy rests. All powers not delegated to the |