ENROLMENT AND DRAFT. 



371 



land and their retainers, " a numerous host, were en- 

 camped upon the grassy plain of Runnemede," to en- 

 force their demand that King John should sign, seal, 

 and swear to observe the provisions of Magna Char- 

 ta, the great charter of English liberties; and the 

 only possible ground upon which I could justify a re- 

 fusal to exercise the judicial authority of the United 

 States in this case, would be, that the relator was 

 within the jurisdiction and in the custody of the mili- 

 tary authorities, and charged with the purely military 

 crime of desertion. Unless he is within their jurisdic- 

 tion I have no right to remand him to their custody, 

 and that he is not, I have already substantially decid- 

 ed. Besides, the return does not allege that the rela- 

 tor is a deserter, or is held as such, and the facts stated 

 in the return give no countenance to the argument that 

 he is a deserter, or is held for trial for the offence of de- 

 sertion. It shows in the most direct and unmistakable 

 language that he is held only as a drafted man, and in 

 my judgment he is entirely beyond the jurisdiction of 

 the military authorities. 



This opinion has already attained to a length much 

 beyond my anticipations, and, pressed as 1 am with 

 other duties, I shall not further discuss the questions 

 argued in this case. Some of them, doubtless, have 

 been overlooked, and no one can be more sensible than 

 I am that the discussion of those which have been no- 

 ticed is imperfect and incomplete. With the frequent 

 interruptions, of more or less length, which have been 

 unavoidable, I could not (without a delay of decision 

 much greater than the counsel were led to anticipate 

 at the time the case was argued) give to the authori- 

 ties cited such careful and deliberate examination and 

 consideration as were desirable, or devote to the prepa- 

 ration of my opinion the time, care, and deliberation 

 which I wished to bestow upon it. Written in haste, 

 for the information of the parties, and the present jus- 

 tification of my decision, it must now stand as it is ; 

 but I indulge the hope that at some future time I may 

 be able to revise, amend, and condense it. Having 

 reached the conclusion that the relator must be dis- 

 charged, I shall add a few words in reference to a de- 

 cision which has been published since the hearing in 

 this case. 



The decision referred to, that of Judge Cadwallader, 

 of the eastern district of Pennsylvania, in the case of 

 Antrim, is not in conflict with my decision in this 

 case. Judge Cadwallader, in reference to the decision 

 of the enrolling board, says : " Cognizance of the ap- 

 plication for exemption, if taken, must be judicial, 

 however special the jurisdiction or summary the pro- 

 ceeding. The point in question is, whether the deci- 

 sion is or is not conclusive elsewhere as to the right 

 of exemption. This depends upon the effect of the 

 word final. It certainly imports that the decision of 

 the board shall not undergo executive or other revision. 

 The decision is, relatively to military jurisdiction, con- 

 clusive as well as final. Therefore, a decision in favor 

 of a claim of exemption is necessarily conclusive as to 

 the right of exemption." 



It is true that Judge Cadwallader also expresses the 

 opinion that, under the Constitution, Congress has not 

 the power, as against the citizen, to make the decision 

 of the enrolling board conclusive, so as to preclude 

 the citizen from appealing to the judicial department 

 of the Government ; but it is believed that no one ques- 

 tions the power of Congress to make such a decision 

 final and conclusive upon their own officers and agents. 



Whether, on mature consideration of Judge Cadwal- 

 lader's opinion, and a full and deliberate examination 

 of the question, I should be able to concur in the opin- 

 ion that the decision of the enrolling board, refusing 

 exemption in cases within their jurisdiction, is not 

 conclusive upon the citizen as well as the Government, 

 is a question I do not design to anticipate, and it will 

 be a matter of personal congratulation if no examina- 

 tion of the question shall be required. 



(See NEW YORK, for correspondence between 

 President Lincoln and Governor Seymour rel- 

 ative to the Conscription.) 



ETHNOLOGY AND ANTHROPOLOGY. 



In the scientific investigations, not less than 

 in the general thought, of our times, a large' 

 place has come very recently to be occupied by 

 certain questions relating to Man and to Man- 

 kind. Among these questions many of them 

 closely dependent one upon the other are : 1, 

 that of the origin of man ; 2, that of the possible 

 affinity of man with lower orders of creatures ; 

 3, that of the antiquity of man ; 4, that of the 

 unity or plurality of human, species ; 5, that of 

 the degree of possible variability of man, in 

 long periods of time, under climatic or other in- 

 fluences; 6, that of the number of the races of 

 men, the distinguishing characters of such 

 races, their history and distribution, and their 

 probable future career ; V, the question whether 

 *man is, or is not, in fact, cosmopolite that is, 

 whether races are to any extent restricted in 

 their habitat ; and 8, that of the effect of inter- 

 mixture of races. It should be borne in mind, 

 that, in connection with the study of mankind, 

 the terms " species " and " race " are properly 

 employed in very different senses; while* the 

 former is to be understood in the'exact signifi- 

 cation given to it by the zoologist and the 

 botanist, the latter merely implies a collection 

 of individuals exhibiting throughout certain 

 common characters, and which point to their 

 origin at some period from a common stock or 

 under similar conditions. Hence, we may admit 

 many races of men without admitting more 

 than a single species. 



Now, among the kinds of evidences that pres- 

 ent themselves, and that are sought for, in re- 

 lation to the questions above proposed, are those 

 afforded by 1, the nature, order, and physical 

 characters of the strata of the earth's crust 

 the geological evidences proper ; 2, the kinds of 

 fossils, and their distribution in different re- 

 gions and strata the palaeontological ; 3, the 

 monuments, implements, and other remains of 

 the works of man himself the archaeological ; 4, 

 the phenomena of languages, their growth, affin- 

 ities, and changes the linguistic; 5, records of 

 changes and events, 'such as in the main are due 

 to human agency the historical; 6, evidences 

 which in their character are chemical, anatomi- 

 cal, or physiological; and 7, those, afforded by 

 the direct study of existing^nations and races 

 of men in other words, the natural-historical, 

 Thus, as man is truly the microcosm the epi- 

 tome of nature, we find without surprise that 

 the study of man, once fairly entered upon, is 

 calling for the reflection and concentration 

 upon himself of the rays of nearly, if not quite, 

 all the sciences he has hitherto developed. 



There is evidently not as yet a science, in the 

 proper sense of the word, either of man con-, 

 sidered in his whole nature, or of the races of 

 mankind. But there is going forward in con- 

 nection with both these subjects an active ac- 

 cumulation of facts and of generalizations ; and 

 viewing them therefore as prospective sciences, 

 the former study has received the title of An- 

 thropology (science of man), and the latter that 



