278 



CONGRESS, U. S. 



" 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 im- 

 pression 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 consti- 

 tutional law. In the very same case, Mr. Jus- 

 tice 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 de- 

 ficiency. 



" In the conclusion of his opinion, going on 

 to show still that what the senator from "Wis- 

 consin 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 constitu- 

 tionally 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 pas- 

 sage 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 re- 

 corded in the annals of mankind. The young 

 men of the republic for more than twenty 

 months have been thronging to the field to up- 

 hold 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 unswerv- 

 ing 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 Con- 

 stitution 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 bat- 

 talions. 



" 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. Patriotism, 

 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 our 

 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 oar 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 involun- 

 tary system. If we summon the militia, we 

 must have new regiments and new officers 

 raw soldiers and untrained officers enormous 

 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 bat- 

 tle-scarred regiments one new recruit is worth 

 more than three in new regiments under un- 

 tried officers; and the chances of comfort, 

 health, and life are far greater in the old than 

 in new regiments. 



"Volunteers we cannot obtain, and every- 

 thing forbids that we should resort to the tem- 

 porary expedient of calling out the militia. 

 Such a call would waste resources and absorb 

 the energies, and increase but little the military 

 forces of the country. The needs of the nation 

 demand that we should rely not only upon vol- 

 unteering, 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 population 

 of the country under the constitutional author- 

 ity 'to raise and support armies.' The Con- 

 stitution of the United States confers upon 

 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 



