A volume of judicial pronouncement recognizes, without a discordant note, the unlimited character of this Federal power."

8

The Federal draft acts were tested in the courts and sustained in McCall's Case and Kneedler v. Lane, upon the theory of the full and unrestricted character of the constitutional grant. And the constitutionality of the Confederate conscript acts, which was much more vigorously contested, was sustained upon the same ground by the courts of the Confederate States without exception. Such constitutional canon pronounced by the highest court of the nation repels the contention and closes the door to the argument that the militia status furnishes an exemption from the operation of the vital national power, though the court has had no opportunity to apply the canon to the specific question. But in several instances the highest courts of the Confederacy did have such occasion, and in every instance rejected all such contentions in opinions justly celebrated for their cogency, learning, and completeness of disposition.

In Ex parte Coupland' the Supreme Court of Texas, in disposing of the contention in the course of an admirable opinion, said:

"The fallacy of the position seems to be manifest from the qualifications 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 individual is equally an arms-bearing citizen whether

See Dynes v. Hoover, 20 How. 65 (1857); Johnson v. Sayre, 158 U. S. 109, 114 (1894); Ex parte Milligan, 4 Wall. 2, 139 (1866); United States v. Sweeny, 157 U. S. 281, 284 (1894); United States v. Bainbridge, Fed. Cas. 14, 497 (1816); United States v. Blakeney, 3 Gratt. (Va.) 405 (1847); Commonwealth v. Gamble, 11 Serg. & R. (Pa.) 93 (1824); Commonwealth v. Morris, 1 Phila. 381 (1852); Ex parte Brown, 5 Cranch (U. S. C. C.) 554 (1839); and the cases hereinafter discussed.

7 5 Phila. 259, 268 (1863).

8 45 Pa. St. 238 (1863).

• 26 Tex. 386, 396 (1862).

he goes 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 of the State, because they prefer to volunteer their services directly to the Confederate government, and it is willing thus to accept them.

"It is said, however, that . . . the control of the State over its militia may be entirely destroyed; but would not the result be the same if an equal number of its militia were to volunteer into the service of the Confederate States? The truth of the matter is, that when the citizen goes into the army raised by Congress, either voluntarily or in obedience to the law requiring him to do so, he does this as a citizen, and not as a militiaman. Congress has not the right to raise armies in either mode, beyond the necessities of the Confederate government for carrying into effect its granted powers. But in either case the citizen, when placed in its service, is temporarily withdrawn from the control of the State as a militiaman. For the time being the right of the State, or, more properly speaking, the right of the State government over him, must yield to the more pressing and important demand for his services by the Confederate government to enable it to discharge the duties for which it has been authorized to raise and support armies."

And further on the court said:

"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 for the purpose of correcting one of the leading defects in the articles of confederation, experience having proved it absolutely essential, not only to the safety, but to the very existence of the Confederacy." 10

Then, inquiring as to what disposition the sovereignty of the people had made of its right to military service from all its citizens between the two agencies by which they proposed to administer their government, the court further said:

"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

10 Page 399.

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. . 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 subject matter, and at times may thus present seemingly conflicting grants of power. What then is to be their construction? The answer is plain. The limited and subordinate must yield to the general and superior. Consequently, such as usually pertain to, or are indices of sovereign power must control, and be regarded as superior to those of a local and domestic character. Ordinarily there would be no appreciable conflict between these grants of power, as the number of citizens the Confederate government would require for its armies would be so inconsiderable with reference to the bulk of militia, left under control of the local government, as to be, for practical purposes, unimportant to the latter. But great emergencies like that which now exist, will sometimes arise when the Confederate government is forced to exercise the entire military power that has been granted to it; and there is consequently a call for the great bulk of the arms-bearing citizens into its armies, and a corresponding diminution of those under the immediate control of the State government under the laws governing the militia." "

In Burroughs v. Peyton,12 the Court of Appeals of Virginia said:

"It is true that the constitution does recognize the militia, and provides for using it, as well as regular armies, in the military service of the country. 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 that 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 a view to preserving the militia entire, it was intended to deny to Congress the right to take individuals belonging to it into the regular army. This construction would prevent Congress from obtaining from its ranks not only conscripts but volunteers also;

but as the militia embraces the whole armsbearing 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 conferred 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 militia to be employed in the service. If it should appear at any time to be appropriate 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."

In Ex parte Tate 13 the Supreme Court of Alabama said:

"Until he [the militiaman] ceases to be a citizen, with the rights and duties which appertain to citizenship, he cannot exonerate himself, nor be exonerated by the legislative power, from the obligations which inherently attach to that relation. Protection is his right, and allegiance his duty, so long as he remains a citizen; and the highest duty of allegiance is to respond to the call of his country for soldiers, when her liberty, including his own, is threatened, and her existence endangered by an invading enemy."

In Fitzgerald v. Harris 14 the Supreme Court of Georgia, after holding that Congress could not grant irrepealable exemption from draft, used the following significant language:

"Even in war, when it becomes necessary to send into the field a larger portion of the population, it is greatly desirable that another portion be left at home. There are always men who can be more useful at home than others and more useful there than in the field. As in the raising of armies, the Congress is not bound to take the whole population, nor even the whole of a class (where resort is had to classification), in the exercise of a sound discretion, exemption may be granted as incidental to the general power, but they must be always revocable at the will of the Congress. No man or set of men can be placed without the pale of legislative control in this matter for a single day."

In Barber v. Irwin,15 another case in which the constitutionality of the Confederate conscript law was brought into question and again held valid, it was objected, among other things, that the unlimited power of Congress to place all citizens capable of bearing arms in the Army of the Confederate States is incompatible with State sovereignty and may be so exercised as to deprive them of their right to enforce their police power or to execute the mandates of their courts. To this argument the court replied that:

"Public exigencies, and especially military exigencies, require that the Legislature be entrusted with ample powers. If the presumption, that no power susceptible of abuse could have been intended to be given, is to govern, in the construction of the constitution, the palpable result is, that our government is too weak to accomplish the ends for which it was instituted. In the language of Gov. Troup, so understood, 'it is the weakest and most contemptible Government on earth; it is neither fit for war nor peace.'

Adverting to the admission in argument that in order to meet invasion Congress, by calling out the militia, had the power to place in actual military service all men capable of bearing arms, even to the last man, the court commented as follows:

"Now, this done, what becomes of the sovereignty of the States, so jealously guarded, in construing the other clause? Where would be their police force; where their sheriff's posse comitatus? Why is the presumption so vigorously wielded against one power allowed to slumber when the other is invoked?" 17

In Jeffers v. Fair 18 it was argued that the proceeding by which the plaintiff-in-error was held in custody was a virtual calling forth of the militia and violated the Constitution in that it took from the State the right of appointing officers of the militia so called forth. The court replied that:

"This argument rests upon the fact that the men now being enrolled for service in the army, have been previously enrolled in the States as militiamen. The simple and obvious reply is, that the status of the citizen is not merged in the militiaman; that the fact of enrolment with