marshal had levied upon property and collectcd the fine assessed; the owner of the property replevied the property thus taken, which was distrained for the fine; and the whole case came to the Supreme Court of the United States. The entire question was brought before the court, and a great variety of points was started. The constitutionality of such a law was contested. The court, however, sustained the levying of a fine by a court martial in that case. They said it was a constitutional law, notwithstanding the provision of the Constitution which I have read."

Mr. Carlile, of Virginia, in reply, said: "The clauses in the Constitution authorizing the President to call forth the militia, and to provide for their organizing and disciplining, have been cited as authority for the power sought to be exercised by this bill; and the distinguished senator from Vermont, for whose learning and intellectual ability I have the highest respect, contented himself this morning, by way of sustaining the provision, by citing two precedents, decisions which he says have been made by the Supreme Court, the proper tribunal to settle constitutional questions. I desire to invite his attention to an authority which I know will be respected by him. It is none other than ChiefJustice Story, who wrote his Commentaries long after the decisions to which the senator from Vermont has referred, and who it must be presumed was perfectly familiar with those decisions, which authority directly controverts the position attempted to be established by the precedents cited, and denies the power claimed by the friends of this bill. It is a remarkable fact that in the discussions of this subject by Chief Justice Story, he refers to the debates in the Convention which formed the Federal Constitution, and shows by reference to those debates that one of the objections urged to the clauses as they now stand in the Constitution, providing for calling forth the militia and organizing and disciplining and governing them when in the service of the United States, was that it might be construed to confer the very power which is now sought to be exercised by the fourth section of this bill. I repeat, Mr. President, and I desire to call the attention of senators to this important fact, that one of the reasons urged in the Federal Convention against the adoption of the clauses of the Constitution which are relied upon as conferring authority for this provision which is now moved to be stricken out, was, that it might be construed as a warrant for the exercise of the very power sought to be ingrafted into this bill. 2 Elliot's Debates, pages 287, 288, and 294, shows the fact that I have stated; and Justice Story, in commenting upon it, says:

The right of governing them [the militia] was confined to the single case of their being in the actual ser vice of the United States, in some of the cases pointed out in the Constitution. It was then, and then only, that they could be subjected by the General Govern

ment to martial law.

"This fourth section proposes to subject the men who may be drafted under the provisions of this bill to martial law, to bring them under the rules and articles of war, to deprive them of their constitutional right of being tried for criminal offences by presentments and an indictment before a jury of their peers before they have been mustered into the service, or before they have entered the service of the United States. Such a power, Justice Story says, in the passage which I have quoted, is not conferred by the Constitution or warranted by that instrument. (Story's Commentaries on the Constitution, volume 3, page 85, section 1202.) I will read it again:

single case of their being in the actual service of the The right of governing them was confined to the United States, in some of the cases pointed out in the Constitution. It was then, and then only, that they could be subjected by the General Government to mar

tial law.

"We know that this right of calling the militia into the service of the United States, out of their States, was resisted by Connectcut and Massachusetts; and Justice Story, in his Commentaries, refers to that resistance:

In Connecticut and Massachusetts it was held that the Governors of the States, to whom orders were addressed by the President to call forth the milita account of danger of invasion, were entitled to judge fre not bound by the opinion or orders of the President themselves whether the exigency has arisen; and were

"Again, Justice Story says in the same volume, page 93, section 1208:

There is a clear distinction between calling forth the militia and their being in actual service. These are not contemporaneous acts, nor necessarily identical in their constitutional bearings. The President is no commander-in-chief of the militia except when in ac tual service, and not when they are merely ordered to service. They are subjected to martial law caly when in actual service, and not merely when called forth, before they have obeyed the call.

"Now, Mr. President, upon the constitutional question, it seems to me the authority which I have read, laid down by Justice Story, in his Commentaries on the Constitution, should be sufficient, and is a sufficient answer to the constitutional argument made by the senator from Massachusetts, and the precedent cited by my distinguished friend from Vermont.

"We cannot shut our eyes to the factwhether it be true or false, the fact existsthere is a prevailing opinion and impression in the country that this war is not being waged for the maintenance of the Constitution and the restoration of the Union as it was. Soling as that sentiment exists, your efforts will be more or less paralyzed, and all your bills and all your authority will, if in the opinion of the people they are the exercise of unconstitutional arbitrary power, be resisted by them. That impression will prevail in my opinion, if we look to force, and force alone, not only to suppress the rebellion, but to fill up our armies, and to strengthen the arm of this Government. Sir, force is one of the means to be used against

this rebellion; but force is not the most desirable means to be used against the people loyal to the Constitution and the Government of their country."

Mr. Doolittle thus explained the case stated by Mr. Collamer: "Mr. President, the case referred to by the honorable senator from Vermont is a case arising under the law of Pennsylvania. Congress had provided by law for the drafting of the militia, and subjecting those who did not appear to penalties to be imposed by courts martial. Congress did not provide that the courts martial should be established by the authorities of the United States. The law of Pennsylvania, however, stepped in, and provided that if persons were drafted in pursuance of this act of Congress and failed to come, they should be subjected to the penalties imposed by this act of Congress, and provided also that a court martial of the State should be organized to impose the penalty. The State court martial of Pennsylvania imposed the penalty and levied the fine. The property was seized. The property seized by virtue of this order of the court martial was replevied, and the controversy which grew out of that went up to the Supreme Court of the United States; and then this question, which my honorable friend is now discussing, was one of the precise questions which were discussed in that case. Justice Washington, who delivered the opinion of the court, laid down the rule that under the law of Congress as it then existed, a distinction was taken between a person called to go into the service and a person who was actually employed within the service. He said, further, that Congress might, by law, have declared, and perhaps it would have been better if they had declared, that the time when he went into the service might date from the time when he was drafted, or from the time when the order went to the Governor to call for the troops, or when it went to any other officer. Mr. Justice Story, who was a member of the bench of the Supreme Court at that time from New England, which was supposed to be a little disaf fected to the war of 1812, in delivering a dissenting opinion, took issue with the court, and laid down this dogma, which he subsequently put into his book, in which he claimed that under the Constitution such a distinction did exist; and it is this opinion of Justice Story expressing a dissenting opinion which the Senator from Virginia has quoted.

"Having said thus much, in order to make it certain, I propose to read a little from this authority. Justice Washington, in delivering the opinion of the court, uses this language:

The first question, then, is at what time and under what circumstances does a portion of militia, drafted, detached, and called forth by the President, enter into the service of the United States, and change their character from State to national militia? That Congress might by law have fixed the period by confining it to the draft; the order given to the chief magistrate or other militia officer of the State; to

the arrival of the men at the place of rendezvous; or to any other circumstances, I can entertain no doubt. sive powers of calling forth the militia, organizing, This would certainly be included in the more exten arming, disciplining, and governing them. But has Congress made any declaration on this subject, and in what manner is the will of that body, as expressed in the before-mentioned laws, to be construed?"

"Then he goes on to say that under the laws of 1795 and 1814, and the other laws of Congress, Congress, in the legislation which had taken place on that subject, did not declare that they were to be considered as in the service of the United States until they were finally mustered in, and were entitled to receive their pay. There is one point further. He says:

But, although Congress has been less explicit on this subject than they might have been, and it could be wished they had been, I am, nevertheless, of opinlaws of the United States will lead to a conclusion that ion that a fair construction of the different militia something more than organizing and equipping a detachment, and ordering it into service, was consid ered as necessary to place the militia in the service of the United States.

"And therefore he arrives at his conclusion that, inasmuch as Congress had not by its law declared when a man was drafted, he was from that moment in the service of the United States and subject to the rules and articles of war; and as Congress still left him as a part of the State militia, he was still subject to the laws governing the State militia, and therefore a militia court martial of the State could impose a legal, valid fine upon him for refusing to obey the call. The court, therefore, sustained the proceeding of the court martial. Justice Story, in giving a dissenting opinion, in which he as a dissentient judge arrives at the conclusion that the law of Pennsylvania is unconstitutional and void, uses the same language which he subsequently put into his Commentaries, and that is the language which the senator from Virginia has read."

Mr. Carlile, of Virginia, still further in explanation said: "Mr. President, I did not interrupt the senator from Ohio; but on this subject of conscription I have not expressed myself as he seems to think. On the question of giving up this contest I agree with him; the people of this country never will give up their Government; but I desire to call the attention of the senator from Wisconsin (Mr. Doolittle) to the authority which he presumed he found decided in the case of Houston rs. Moore. If the senator will turn a little further to the history of that case, he will find that what he read as the opinion of the court is the mere dictum of Mr. Justice Washington, who deliv ered the opinion of the court, which was not concurred in by any of the other judges so far as the case shows. On the contrary, Mr. Justice Washington says:

The other judges are of opinion that the judgment ought to be affirmed;

"That is, the judgment of the court belowbut they do not concur in all respects in the reasons which influence my opinion.

"Mr. Justice Johnson delivered a separate opinion on that occasion, to which I desire to call the attention of the honorable senator from Ohio, who seems to be under the impression that in opposition to the action of the States and without State concurrence in your action of conscription, you can still enforce it. If Mr. Justice Johnson be authority, the sena tor is mistaken in that as a question of constitutional law. In the very same case, Mr. Justice Johnson said:

They [Congress] may command or request; and in the case before us, they obviously confined themselves to the latter mode. Indeed, extensive as their power over the militia is, the United States are obviously intended to be made in some measure dependent upon the States for the aid of this species of force. For, if the States will not officer or train their men, there is no power given to Congress to supply the deficiency.

"In the conclusion of his opinion, going on to show still that what the senator from Wisconsin thought was the opinion of the court was nothing but the dictum of Mr. Justice Washington, Mr. Justice Johnson said:

In this case it will be observed that there is no point whatever decided, except that the fine was constitutionally imposed upon the plaintiff in error. The course of reasoning by which the judges have reached this conclusion is various, coinciding in but one thing, namely, that there is no error in the judgment of the State court of Pennsylvania.

"In the opinion as rendered by Justice Story, the weight of authority is decidedly with him so far as this case is concerned, as is stated by him in his Commentaries, from which I read; for Justice Story expressly tells us that in his views he has the concurrence of one of his brethren, and not one of them concurred with Justice Washington in the opinion referred to by the senator from Wisconsin.”

The motion to strike out was rejected. Yeas, 13; nays, 28.

On the 16th, the subject came up again in the Senate.

Mr. Wilson, of Massachusetts, urged the passage of the bill, stating these reasons: "We are now engaged in a gigantic struggle for the preservation of the life of the nation, menaced by the foulest and most wicked rebellion recorded in the annals of mankind. The young men of the republic for more than twenty months have been thronging to the field to uphold the cause of their perilled country. They left their homes in the pride and bloom, and filled with the high hopes of young manhood. Those noble regiments of volunteers that left their homes full of lusty life, and in all the pride of strength and assured confidence, are now thinned and wasted by the diseases of the camp and the storms of battle. The old regiments hardly average now more than four hundred men in the field fit for the stern duties of war. Many who rallied at the call of their country, and who have followed its flag with unswerving devotion, now sleep in bloody graves, or linger in hospitals, or, bending beneath disease and wounds, can no longer fill the ranks of our

legions in camp or on the battle field. If we mean to maintain the supremacy of the Constitution and the laws, if we mean to preserve the unity of the republic, if we mean that America shall live and have a position and name among the nations, we must fill the broken and thinned ranks of our wasted battalions.

"The issue is now clearly presented to the country for the acceptance or rejection of the American people: an inglorious peace with a dismembered Union and a broken nation, on the one hand, or war fought out until the rebellion is crushed beneath its iron heel. Patrictism, as well as freedom, humanity, and religion, accepts the bloody issues of war rather than peace purchased with the dismemberment of the republic and the death of the nation.

"If we accept peace, disunion, death, then we may speedily summon home again cur armies; if we accept war, until the flag of the republic waves over every foot of our united country, then we must see to it that the ranks of our armies, broken by toil, disease, and death, are filled again with the health and vigor of life. To fill the thinned ranks of our battalions, we must again call upon the people. The immense numbers already summoned to the field, the scarcity and high rewards of labor, press upon all of us the conviction that the ranks of our wasted regiments cannot be filled again by the old system of volunteering. If volunteers will not respond to the call of the country, then we must resort to the involuntary system. If we summon the militia, we must have new regiments and new officersraw soldiers and untrained officers-enorm. c3 expenses and impotent forces. The nation needs not new regiments nor more officers; it needs new bayonets in the war-wasted ranks of the veteran regiments. In the ranks of these battle-scarred regiments one new recruit is worth more than three, in new regiments under untried officers; and the chances of comfort. health, and life are far greater in the old than in new regiments.

"Volunteers we cannot obtain, and everything forbids that we should resort to the temporary expedient of calling out the militis. Such a call would waste resources and absorb the energies, and increase but little the military forces of the country. The needs of the natio demand that we should rely not only upon volunteering, nor upon calling forth the militia but that we should fill the regiments now in the field, worn and wasted by disease and death, by enrolling and drafting the populati a of the country under the constitutional author ity to raise and support armies.' The Costitution of the United States confers upen Congress the absolute and complete power to raise and support armies,' qualified only by the provision that appropriations for that purpose shall be for not more than two years

"Sir, this grant to Congress of power to raise and support armies' carries with it the

right to do it by voluntary enlistment or by compulsory process. If men cannot be raised by voluntary enlistment, then the Government must raise men by involuntary means, or the power to raise and support armies for the public defence is a nullity."

Numerous amendments were made to the bill.

Mr. Cowan, of Pennsylvania, moved to make the period of service for the conscripts one year. This was rejected by the following vote: YEAS-Messrs. Collamer, Cowan, Davis, Dixon, Foot, Grimes, Harris, Henderson, Hicks, and Trum

ball-10.

NAYS-Messrs. Anthony, Arnold, Chandler, Clark, Doolittle, Fessenden, Foster, Harding, Harlan, Howard, Howe, King, Lane of Indiana, Lane of Kansas, Latham, McDougall, Morrill, Nesmith, Pomeroy, Rice, Sherman, Sumner, Ten Eyck, Wade, Wilkinson, and Wilson of Massachusetts-26.

The bill was then ordered to be engrossed for a third reading, and read the third time and passed. The vote is not given in the official report.

On the 23d of February, the bill was considered in the House.

Mr. Olin, of New York, who had charge of the bill in the House, thus stated the course he proposed to pursue: "I propose to move to commit the bill to the Committee on Military Affairs, and on that motion to permit discussion upon the merits of the bill for a reasonable length of time; then, after such discussion, if I can obtain the floor, I propose to withdraw that motion, and to ask the House to vote upon the bill as reported from the Senate.

"My reasons for adopting this course are simply these: the bill, in some of its details, I consider more or less imperfect; but all these details are of minor consequence when compared with the great importance of the measare itself; and so far as these details are concerned, if any of them are objectionable, they can very easily be remedied by a supplementary bill. These defects or imperfections are, in my judgment, of infinitely less importance than that this measure, or one substantially like this, should be secured and passed into law by the present Congress. I am, therefore, not willing to hazard the loss of a bill which I deem so important by opening it to the various propositions which may be made by way of amendment to this bill. The Committee on Military Affairs have carefully considered this measure. It has been a measure of vital interest from the commencement of the session to the present hour. Our attention has not been diverted from this measure since the commencement of the session.

"Now, although the committee would, if the time permitted, alter some of its minor provisions, yet I think as a whole they agree with me in the propriety of asking this House to pass this bill without amendment, and thus to secure with certainty the measure, and clothe the Government with power to exercise this

necessary authority under the present situation of our public affairs. I intend, if there shall be time during the present session, to introduce a bill into the House, open for discussion and amendment, to allow us to perfect, if it is thought we can perfect, some of the details of this bill. I mean that the House shall have an opportunity to do so if this bill shall become a law.

Mr. Olin then noticed the chief objections to the bill thus: "Some objections are made to this measure. First, that it does not ask the cooperation of the States, and invite the instrumentality of State organizations in raising these troops conceded to be necessary at this time. My first answer is, there is no time to employ such instrumentality. Many of our State Legislatures would not and could not perfect such measures within the next twelve months. In the mean time untold disasters would very likely befall our arms by reason of such delay. All concede the present is the critical period of the war, and that the present exigency demands imperiously that whatever of vigor, whatever of authority, whatever of power the National Government has as a Government, should be exerted at this time.

"My second answer is, that this 'power to raise and support armies,' expressly given by the Constitution to Congress, should be exercised by Congress, and not petitioned for as a boon from the State Governments. This idea of calling upon the Governors of the States to furnish troops had its origin in that accursed doctrine of State rights, State sovereignty, which has been chiefly instrumental in bringing upon the republic our present calamity. It is high time the Federal Government exerted every power clearly and expressly granted to it. And if the Government cannot exercise those powers, the sooner we know it the better, and let us resolve again into that Confederacy which existed before the formation of the Federal Constitution. I am unwilling to rely upon State instrumentality for the exercise of this sovereign power. I wish now that the Government, as a Government, should be felt in the exercise of its rightful authority. This is not the time to abdicate any of the sovereign powers granted in the Federal Constitution, or to withhold their exercise."

Mr. Holman, of Indiana, said: "I wish to ask the gentleman from New York, whether I understood him to say that he should not give opportunity to offer amendments to the bill?"

Mr. Olin replied: "The gentleman certainly could not have misunderstood me if he had listened to my remarks. I stated that I was unwilling to hazard the passage of this bill by putting amendments to it, and thereby sending it back to the Senate at this late hour of the session.

"I stated further that I intended, if the House would give us the liberty to do so, to bring in a bill speedily, and thereby afford