A decision Adverse to the Constitutionality of the Conscript law.
The case of
Jas. M. Lovinggood, an enrolled conscript suing for his liberty, was brought before
Judges T. W. Thomas of the
Elberty county, Ga. Superior Court last week, and a decision given liberating the plaintiff from the hands of the enrolling officer.
Among the points made by the counset for the plaintiff was, that the ‘"Conscript act is unconstitutional, and therefore the act itself and all regulations and orders based upon it are likewise void." ’ Upon this point the decision of the
Judge was as follows:
We come now to the third point made by plaintiff's counsel to wit: That the Conscript art is unconstitutional, and, therefore, the act itself, and all regulations and orders based upon it are likewise void.
In every Government based on a written Constitution, containing restrictions on the legislative department, it follows necessarily that the indicatory must annul all acts in violation of that Constitution when attempted to be enforced against the citizen or his right.
But we are not left to this implication, plain as it is. The 17th clause of the first article of the
Constitution of this State declares Legislative acts in violation of the fundamental law are told and the judiciary shall so declare them.
If, therefore upon investigation we find this Conscript act to be in violation of the fundamental law, it must be declared void.
Our Confederate Government, like the old Federal one, is a Government of limited and restricted powers.
Congress has no powers save those delegated in the
Constitution; all others are withheld.
Neither Courts, nor Congress nor
Presidents can change it, the plan and means for its change are nominated in the bond and necessary is not among them.
The inquiry, then, is the power to pass the Conscript law delegated to Congress in the
Constitution.
It is claimed that such power is delegated in the 12th clause of the 8th section of the 1st article, which gives the power to raise and support armies, and in the 18th clause following, giving the power ‘"to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the
Government of the
Confederate States, or in any department or officer there "’
Now, if this law be necessary and proper for carrying from execution the 12th clause and is not in conflict with the reserved rights of the States, and not in conflict with any other portion of the
Confederate compact itself, then it is constitutional.
These clauses are identical in words with the clauses on the same subject in the old Constitution.
In the 16th clause the same section and article are reserved to the States the right of training the militia according to the discipline prescribed by Congress and of appointing the officer.
What are we to understand by the term ‘"militia,"’ as used in this clause.
The language used is such as describes a thing already existing and not hereafter to be created and taken in connexion with the fact that each State which was a party to the compact already had existing a body of man called its militia, the conclusion is plain in my judgment that the term was intended to mean these bodies and not to confer on Congress the power to create a militia of its own. A strict construction gives this result, and strict construction is our settled policy and law. This militias, by our law, in all males between 18 and 45 not exempt by law, and by State law, too, I hold.
I doubt not, when called into service, Congress might exempt others but could overrule no exemption made by the
State.
Does this Conscript law provides for training the conscripts by the authority of the
State.
Does it not on the contrary, take away this authority from the
State?
It enacts, also, that the
President shall appoint the officers — a clear and palpable violation of the rights of the States reserved in said 10th clause.
In this view I am sustained by the
President of the
Confederate States himself.
The fact is recorded in his life, written by
John Savage, contained in a book entitled ‘ "Our Living Representative Men,"’ page 172, as follows:
‘"The term of enlistment of the handful that remained of the
Mississippi regiment, expired in July, 1847. and
Col. Davis was ordered name.
While in New Orleans he received from the
President Polk the commission of
Brigadier General Volunteers, but declined the honor on the ground that neither Congress nor the
President had a right to make such an appointment.
The Constitution reserved to the States, respectively, the appointment of officers of the militia, and consequently the mption of this duty by the
Federal Government was a violation of the rights of the States."’
The Constitution he was then living under was exact in words with the present one on these points, and he preferred to retire to private life from the midst of his fame and usefulness.
violating it. This act of devotion to constitutional right contributed as much perhaps, as any other to elevate him to his present exalted station.
In the preamble to our Confederate Constitution care is taken to assert and maintain that the States are sovereign and independent.
In what sense can this be said of
Georgia, ry man of her militia can be taken from under the control of her constitutional
Commander in Chief without his consent.
Must he abdicate his most important duties by permitting himself to, be disarmed of his forces, and this, too, in violation of his oath?
Nay, if Congress can pass a Conscript act with certain exemptions they can pass it without exemptions.
No one will deny this.
If therefore, they have the power to prescribe what shall be militia, and to conscribe at pleasure, they may take the
Governor, the General Assembly, and the whole Judiciary, and thus southfists Government.
This palpable infraction or the
Confederate compact is sometimes, indeed, principally defended on the plea of necessity.
What a dangerous fallacy.
We have expended one hundred thousand lives and untold millions of money to maintain the
Constitution; and shall we now violate it and destroy the
State Governments?
As reasonably might we commit suicide to avoid personal danger.
Nor is this plea of necessity true in fact — The Conscript law can only furnish men. We have and had before, State laws to reach every man in the
State between eighteen and forty five, and to say the Conscript law war necessary to procure men, is to maintain the arithmetical absurdity that there are more men in the country between eighteen and thirty-five than between eighteen and forty five.
Whereupon, and for these reasons, it is ordered and adjudged by the
Court that the act of the Confederate Congress known as the Conscript law, and entitled an act to further provide for the public defence, is told, and is hereby declared void, and that the plaintiff,
James M. Lovinggood, he released and discharged from the custody and control of
Sydney P. Bruce, and from the custody, and patrol of the
Sheriff of this Court, and be set at liberty to go wherever he please.
