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[488] by 11 Yeas (all Democrats) to 35 Nays: consisting of every Republican lican present, with Messrs. McDougall, of California, Harding and Nesmith, of Oregon. The bill then passed without a call of the Yeas and Nays.

The President proceeding to constitute an enrolling board for each Congress district in the loyal States, and the Board to enroll those who were held to military service under its provisions, the repugnance to being drafted into the service began to threaten organized and formidable resistance. That the enrolling act was unconstitutional and void, was very generally held and proclaimed by the Opposition, and was in due time formally adjudged by Justice John H. McCunn, of the New York Supreme Court, as also by the Democratic justices1 forming a majority of the Supreme Court of Pennsylvania. That Court held broadly that the Federal Government has no power to recruit its armies otherwise than by voluntary enlistments; that the Militia can be called out only by State authority, under State officers, and in accordance with State laws. Says Judge Woodward:

The great vice of the conscript law is, that it is founded on an assumption that Congress may take away, not the State rights of the citizen, but the security and foundation of his State rights. And how long is civil liberty expected to last, after the securities of civil liberty are destroyed? The Constitution of the United States committed the liberties of the citizen in part to the Federal Government, but expressly reserved to the States, and the people of the States, all it did not delegate. It gave the General Government a standing army, but left to the States their militia. Its purposes, in all this balancing of powers, were wise and good; but this legislation disregards these distinctions and upturns the whole system of government when it converts the State militia into National forces, and claims to use and govern them as such.

If, then, the Governors of the States, or of most of them, should see fit to respond to the President's requisitions as Gov. Caleb Strong, of Massachusetts, did to those of President Madison in 1813-14, and as Govs. Letcher,2 Ellis, Harris, Magoffin, Jackson, and Burton, did to President Lincoln's requisitions in 1861, the Federal authority may be successfully defied, and what Mr. Jefferson Davis terms “the dissolution of a league” secured. It were absurd to contend that judges who so held were opposed, either in principle or in sympathies, to the cause, or at least to the ethics, of Secession.

The Constitution of the United States (Art. I., § 9) prescribes that

The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

The implication that it may be suspended in the cases specified is so irresistible that its justice has never been seriously questioned. But by whom may it be suspended? And with what effect? That Congress should authorize the suspension, was generally held by the early and esteemed commentators: but suppose Congress not in session — nay, suppose no Congress to be in existence — when a great and imminent public peril shall require such suspension — what then? To this question, no conclusive answer had been given, when, at the very outbreak of the Rebellion, the President authorized.3 Gen. Scott to suspend the privilege of habeas corpus,

1 Chief Justice Lowrie and Justices Woodward and Thompson.

2 See Vol. I., pp. 459-60. The Democratic Governors were a unit.

3 April 27, 1861.

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