CONGRESS, U. S. 



275 



have not the authority, in my judgment, to 

 govern the militia of the United States. You 

 may provide for their organization ; you may 

 provide for their enrollment, which is part of 

 the organization ; you may provide for arming 

 them ; you may provide the mode and manner 

 in which they shall be disciplined; but you 

 cannot execute that by your own executive; 

 it is left to the States to do it themselves, the 

 authorities of the States being in express terms 

 authorized to do it. You may provide for the 

 government of such part of them as are em- 

 ployed in the service of the United States. 

 Does that include the right to place the entire 

 control over all citizens between eighteen and 

 forty-five in every State at the mere discretion 

 of the President, whether they have been mus- 

 tered into the service or not? Is it not an 

 abuse of terms to say that they are in the em- 

 ployment of the United States ? " 



Mr. Nesmith, of Oregon, expressed the fol- 

 lowing views on the points under considera- 

 tion : " The power which it is proposed to con- 

 fer upon the President is merely a power which 

 is to go into force antecedent to these militia- 

 men becoming a portion of the army of the 

 United States. It is merely provided that he 

 shall make rules and regulations for enrolling 

 and drafting the militia ; not for the execution 

 of the enrollment and the draft itself, that be- 

 ing already provided for by law. It is there- 

 fore clear to my mind that the constitutional 

 objection which has been raised by the senator 

 from Delaware does not apply. The language 

 is, ' all proper rules and regulations.' I appre- 

 hend that the term ' proper,' as there used, 

 must have reference to existing laws ; and if 

 the President should make rules and regula- 

 tions for drafting the militia into the service of 

 the United States, which were not authorized 

 by the existing laws, the courts might inter- 

 vene and discharge from service persons who 

 were drafted into the service by means of an 

 improper exercise of this power. 



" The objection which the senator from Il- 

 linois made was that certain classes or persons 

 of particular political opinions or of some par- 

 ticular complexion might be drafted or might 

 be left out, as the President, in the exercise of 

 his power, saw proper. I think the provisions 

 of the section are euch as to exclude any such 

 idea. It is very explicit in the enumeration of 

 the persons who shall be subject to the draft, 

 and it says that in all cases it shall ' include all 

 able-bodied male citizens between the ages of 

 eighteen and forty-five years, except such as 

 may be exempt therefrom by existing laws of 

 the United States.' I do not suppose that un- 

 der the provisions of the section as it stands 

 the President could make any discrimination 

 against persons entertaining political sentiments 

 different froin his own ; neither do I suppose 

 that he could force any alien or any person of 

 African descent into the service under this 

 section. It confines him strictly to those who 

 are citizens of the United States." 



Mr. Eichardson, of Illinois, interrupting the 

 senator, said: "Allow me to suggest to the 

 senator that the Attorney-General has given 

 an opinion that all persons who are born free 

 in this country are citizens, no matter whether 

 of African descent or not. I believe that is the 

 purport of his opinion, and I presume the Pres- 

 dent accepts that as the law." 



The amendment of Mr. Carlile was rejected 

 as follows : 



YEAS Messrs. Bayard, Carlile, Davis, Hicks, Ken- 

 nedy, Latham, Powell, Rice, Richardson, Saulsbury, 

 Turpie, Wall, Willey, and Wilson of Missouri 14. 



NATS Messrs. Anthony, Arnold, Chandler, Clark, 

 Collamer, Cowell, Dixon, Doolittle, Fessenden, Foot, 

 Foster, Grimes, Hale, Harding, Harlan, Harris, Hen- 

 derson, Howard, Howe, King, Lane of Indiana, Lane 

 of Kansas, Morrill, Nesmith, Pomeroy, Sherman, Sum- 

 ner, Ten Eyck, Trumbull, Wade, Wilkinson, Wilmot, 

 and Wilson of Massachusetts 33. 



A motion from Mr. Carlile to strike out the 

 fourth section of the bill was next considered. 



Mr. Collamer, of Vermont, took the floor in 

 opposition. He said : " The section now under 

 consideration provides that when a man shall 

 have been drafted into the militia according to 

 law, he shall from that time be considered as 

 subject to the rules and articles of war. The 

 provision is that he ' shall, when so drafted, be 

 deemed to be in the actual service of the 

 United States.' It is suggested that that de- 

 claration is beyond our power. I do not pro- 

 pose to argue that point now, but simply to 

 suggest that if I can find a precedent in the early 

 practice of the country, in our better times, if 

 you please, I shall have gone far enough. I do 

 not want to consider it as res Integra again. 

 The Constitution, indeed, provides in the 

 amendments : 



ART. V. No person shall be held to answer for a cap- 

 ital, or otherwise infamous crime, unless on a present- 

 ment or indictment of a grand jury, except m cases 

 arising in the land or naval forces, or in the militia 

 when in actual service in time of war or public dan- 

 ger ; nor shall any person be subject for the same of- 

 fence to be twice put in jeopardy of life or limb ; nor 

 shall he be compelled in any criminal case to be a witness 

 against himself, nor to be deprived of life, liberty, or 

 property, without due process of law. 



" That phrase ' due process of law ' has often 

 been decided by our courts to mean the ordi- 

 nary course of judicial proceedings by courts 

 and juries. In the act of 1795, regulating the 

 drafting of the militia, it is provided that when 

 a man who is drafted neglects or refuses to ap- 

 pear and do duty, he shall be subject to such 

 and such fines described, which shall be levied 

 upon him by a court martial. The part of the 

 Constitution which I have read would not sub- 

 ject any man to the infliction of any penalty 

 by a court martial (for that is not ' due process 

 of law) ' unless he was in the service of the 

 United States. The act of 1795 subjected men 

 to fine by court martial when they had been 

 drafted, though they had not been mustered. 

 That has been the law ever since. In the case 

 of Martin vs. Mott, which the honorable sena- 

 tor will find in 12 Wheaton's Eeports, and also 

 in another case reported in 5 "Wheaton, the 



