ENROLMENT AND DRAFT. 



369 



tion to become citizens, between the ages of twenty 

 and forty-five (with some few exceptions), and by 

 draft by lot from those enrolled, infringes upon any 

 reserved rights of the States, or interferes with any 

 constitutional right of a private citizen. 



The argument most pressed, in support of the al- 

 leged unconstitutionality of the act of Congress is that 

 it interferes with the reserved rights of the States over 

 their own militia. It is said the draft takes a portion of 

 those who owe militia service to the States, and thus 

 diminishes the power of the States to protect them- 

 selves. The States, it is claimed, retain the principal 

 power over the militia, and therefore the power given 

 to Congress to raise armies must be so construed as 

 not to destroy or impair the power of the States. 



I have stated the argument quite as strongly as it 

 was presented. It is more plausible than sound. It 

 assumes the very matter which is the question in de- 

 bate. It ignores the fact that Congress has also pow- 

 er over those who constitute the militia. The militia 

 of the States is also that' of the General Government. 

 It is the whole able-bodied population capable of bear- 

 ing arms, whether organized or not. Over it certain 

 powers are given to Congress, and others are reserved 

 to the States. Besides the power of calling it forth, 

 for certain defined uses, Congress may provide for its 

 organization, arming, aud discipline, as well as for gov- 

 erning such portion as maybe employed in its service. 

 It is the material, and the only material contemplated 

 by the Constitution, out of which the armies of the 

 Federal Government are to be raised. Whether ga- 

 thered by coercion or enlistment, they are equally 

 taken out of those who form a part of the militia of the 

 States. Taking a given number by draft no more con- 

 flicts with the reserved power of the States, than does 

 taking the same number of men in pursuance of their 

 own contract. No citizen can deprive a State of her 

 rights without her consent. None could, therefore, 

 voluntarily enlist, if taking a militiaman into the mili- 

 tary service in the army of the United States is in con- 

 flict with any State rights over the militia. Those 

 rights, whatever they may be, it is obvious, cannot 

 be affected by the mode of taking. 



I have said enough to show that the complainants 

 are not entitled to the injunctions for which they ask, 

 and I think they should be denied. 



Judge Hall, of the Northern District of New 

 York, in the matter of David J. Crichton, thus 

 considered the constitutionality of the act : 



The fourth point of the relator's counsel that which 

 insists that the act of Congress, under which the pro- 

 ceedings against the relator are sought to be justified, 

 is unconstitutional, was not argued by the counsel for 

 either party ; nor has it received, since the argument, 

 the serious attention which should be given to a ques- 

 tion of such magnitude in a case where any court or 

 judge is required to declare an act of Congress to be 

 unconstitutional. If I had not before expressed an 

 opinion upon that question, while acting in a judicial 

 capacity, I should now decline to do so ; for such ques- 

 tions ought not to be determined, when there has been 

 an opportunity for argument, without the fullest pos- 

 sible argument and the most serious consideration. 

 Nevertheless, as the point was raised by the counsel 

 for the relator, and the counsel for the Government 

 desired an expression of opinion upon that question, 

 there is certainly no impropriety in my reiterating the 

 opinions that I have heretofore expressed to the grand 

 juries of this district, in respect to persons accused 

 of offences against the provisions of that act. 



Such grand juries have been instructed that the 

 Constitution of the United States expressly grants to 

 Congress the power " to raise and support armies;" 

 that the manner in which such power is to be exer- 

 cised is not prescribed by the Constitution; that, 

 therefore, the mode or manner in which such armies 

 are to be raised, is confided to the discretion and pru- 

 dence of the National Legislature ; and that the main 

 provisions of the Enrolment or Conscription Act of 



363, and such of its provisions as authorized indict- 

 TOL. III. 24 A 





ments'by a grand jury, were constitutional and bind- 

 ing. My present opinion is, that Congress may con- 

 stitutionally provide for raising armies by an enrol- 

 ment and conscription, under the direct action of the 

 General Government, instead of relying upon drafts 

 from the militia of the different States ; ana although 

 there are some constitutional restrictions upon that 

 power, there are none that bear upon the questions 

 presented in this case unless, indeed, there is some 

 loundation for the claim that the relator is, in fact, held 

 as a deserter, in order that he may be tried before a 

 court martial for the purely military offence of deser- 

 tion. On that point my views will be presented in a 

 subsequent portion of this opinion. 



There may be some minor provisions of the act, the 

 constitutionality of which may hereafter be drawn in 

 question, but I feel no difficulty in saying that I do not 

 perceive any reason for holding that the relator in this 

 case is entitled to his discharge upon the ground that 

 the provisions of the enrolment aoi, under which it is 

 insisted that he can be legally detained, are unconsti- 

 tutional. 



This was an application by Crichton for dis- 

 charge from arrest by the enrolment board. 

 He had been drafted, examined, and exempted 

 on the ground of disability. The board subse- 

 quently reconsidered the action, and declared 

 him subject to the terms of the act, it being 

 alleged that the exemption was procured by a 

 fraud practised on the board. Crichton refus- 

 ed to submit to reexamination, and was put 

 under arrest. Judge Hall decided that the en- 

 rolment board, having rendered their decision 

 in the case, had no right to review that decision. 



The statute declares in express terms that the de- 

 cision of the enrolling board shall be final upon the 

 question of exemption, and it can hardly be presumed 

 that Congress, while declaring the decision of the en- 

 rollipg board to be final, intended that it should be 

 final only against the party claiming exemption, and 

 not final against the Government. Nor can it be pre- 

 sumed that, while declaring such decision final, they 

 intended that the enrolling board, after having de- 

 cided against the conscript, should have the power, at 

 any time during the term of the draft, to reverse their 

 own decision, and thus require his discharge from mil- 

 itary service. In short, the language of the statute 

 shows that Congress intended the decision of the board, 

 when made and promulgated, should be final and con- 

 clusive upon the question of the exemption of any per- 

 son, subject to the jurisdiction of the board, who might 

 be drafted ; -whether such decision was in favor of or 

 against the exemption claimed. 



The powers and duties of the commissioners in re- 

 spect to the draft and the exemption of the persons 

 drafted, are purely statutory. They are in part minis- 

 terial, and in part quasi-judicial ; but whether minis- 

 terial or quasi-judicial, thejr are coiferred by the statute 

 alone; and they are subject to the well-established 

 rules of construction and decision which define and 

 limit the powers of all boards and officers having a 

 special and limited jurisdiction, and exercising statu- 

 tory powers of a similar character. 



These powers are in some respects like those con- 

 ferred in this State upon canal appraisers ; upon jurors 

 summoned to determine the amount of damages to be 

 allowed for laying out a public highway, or for land 

 taken for a public street or railroad, or any other pub- 

 lic purpose ; upon commissioners of estimate and as- 

 sessment authorized to estimate the damages and assess 

 the benefits of laying out and opening the streets ; 

 upon special commissioners tolay out public high ways 

 through different towns, or to locate public buildings, 

 or perform any quasi-judicial duty in respect thereto ; 

 or upon justices of the peace and count}' judges in 

 special cases ; and it is believed that no court of supe- 

 rior jurisdiction and acknowledged authority has ever 

 sanctioned the doctrine that any such officers, juries, or 



