CONGRESS, U. 8. 



277 



this rebellion ; but force is not the most desira- 

 ble 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 re- 

 ferred to by the honorable senator from Ver- 

 mont is a case arising under the law of Penn- 

 sylvania. 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 pro- 

 vided 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 pro- 

 perty seized by virtue of this order of the court 

 martial was replevied, and the controversy 

 which grew out of that went up to the Su- 

 preme Court of the United States; and then 

 this question, which, my honorable friend is 

 now discussing, was one of the precise ques- 

 tions which were discussed in that case. Jus- 

 tice 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 era- 

 ployed 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 Eng- 

 land, which was supposed to be a little disaf- 

 fected to the war of 1812, in delivering a dis- 

 senting 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 Sen- 

 ator 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 deliv- 

 ering the opinion of the court, uses this lan- 

 guage : 



The first question, then, is at what time and un- 

 der 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 con- 

 fining it to me 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. 

 This would certainly be included in the more exten- 

 sive powers of calling forth the militia, organizing, 

 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 de- 

 clare 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, ana it could 

 be wished they had been, I am, nevertheless, of opin- 

 ion that a fair construction of the different militia 

 laws of the United States will lead to a conclusion that 

 something more than organizing and equipping a de- 

 tachment, 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 con- 

 clusion that the law of Pennsylvania is uncon- 

 stitutional and void, uses the same language 

 which he subsequently put into his Commen- 

 taries, and that is the language which the 

 senator from Virginia has read." 



Mr. Carlile, of Virginia, still further in ex- 

 planation said : " Mr. President, I did not in- 

 terrupt 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 vs. 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. Jus- 

 tice Washington says : 



The other judges are of opinion that the judgment 

 ought to be affirmed ; 



" That is, the judgment of the court below 

 but they do not concur in all respects in the reasons 

 which influence my opinion. 



