¶1The opinion of the court was delivered
¶2These are three bills in equity, wherein the plaintiffs claim relief against the defendants, who, acting under the act of Congress of the 3d March last, well known as the Conscription act, claim to coerce the plaintiffs to enter the army of the United States as drafted soldiers. The claim of the plaintiffs is. founded on the objection that that act is unconstitutional. The question is raised by a motion for a preliminary injunction, and might have been heard by a single judge. But at the request of our brother Woodward, who allowed the motion, and on account of the great importance of the question, we all agreed to sit together at the argument. But we are very sorry that we are left to consider the subject without the aid of an argument on behalf of the government — its proper legal officers having deemed it their duty not to appear.
¶3For want of this assistance I cannot feel such an entire conviction of the truth of my conclusions as I would otherwise have, for I cannot be sure that I have not overlooked some *467grounds of argument that are of decisive importance. But the decision now to be made is only preliminary to the final hearing, and it is to be hoped the views of the law officers of the government will not then be withheld.
¶4- We have, however, a much greater difficulty in the decision of this question, and one that is quite inevitable. It is founded on the fact that the question has become a question of politics, and the great parties of the country have divided upon it. People have not awaited the decision of the courts on the subject, and could not be expected to do so ; but have studied and decided it for themselves, or have rallied, in opposing ranks, in support of leaders who profess to have studied it or have done so. Our own history shows that our courts have no moral authority adequate to bring such divisions into unity. That sort of authority requires a much larger degree of mutual confidence between the courts and the people than is usual in our experience, especially in times of popular excitement.
¶5All men believe themselves imp'artial in the decision even of' party questions, and therefore it is impossible for them to abandon their decisions on the mere authority of any one, unless when they feel that authority to be final. Partiality in such matters seldom proceeds from any dishonest purpose, and generally arises from giving undue prominence to some purpose or idea that, in itself, is quite proper, and, of course, this is usually done quite unconsciously. In times of excitement it is quite impossible to avoid this, and hence in such times moderate views are very sure to be condemned, and even government itself, in all its departments, is sure to be driven into measures which, in the course of a few years, are condemned' and pass away. With a sort of moral polarity, the extremes of social excitement breed each other, and moderation falls, for a_ while, powerless between them, and usually it is only by sqvere social trials that this condition of society is remedied, and then it is discovered what were the purposes and ideas to which undue prominence had been given, to the disturbance of the order and harmony of the State.
¶6On this question we ought to be able to avoid this vice, which is so common in all moral and political reasoning; for óur appeal is to the Constitution, a written standard, adopted by us all, sworn to by many of us, and obligatory on all who exercise the rights of citizenship under it, until they can secure its alteration in a regular and peaceable way. By that standard alone can we try this act. ,Is it authorized by the Federal Constitution ?
¶7.That Constitution, adopting our historical experience, recognizes two sorts of military land forces — the militia and the *468army, -sometimes called the regular, and sometimes the standing army — and delegates to Congress power “to raise and support armies," and “ to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” But though this act of Congress is intended to provide means for suppressing the rebellion, yet it is apparent that it is not founded on the power of “ calling forth the militia,” for those who are drafted under it have not been armed, organized and disciplined under the militia law, and are not called forth as militia under State officers as the Constitution requires. Art. 1, 8, 16.
¶8It is, therefore, only upon the power to raise armies that this act can be-founded, and as this power is undisputed, the question is made to turn on the ancillary power to pass “ all laws which shall be necessary and proper” for that purpose. — Art. 1, 8, 18. It is therefore a question of the mode of exercising the power of raising armies. Is it admissible to call forced recruiting a “necessary and proper”.mode of exercising this power ?
¶9The fact of rebellion would not seem to make it so, because the inadequacy or insufficiency of the permanent and active forces of the government for such a case is expressly provided for by the power to call forth the usually dormant force, the militia; and that therefore is the only remedy allowed, at least until it has been fully tried and failed, according to the maxims, expressio unis est exclusio alterius, and expressum foot cessare taciturn. No other mode can be necessary and proper so long as a provided mode remains untried ; and the force of these maxims is increased by the express provision of the Constitution, that powers not granted are reserved, and none shall be implied from the enumeration of those which are reserved.— Amendments 9,10. A granted remedy for a given case would therefore seem to exclude all ungranted ones. Or, to say the least, the militia not having been called forth, it does not and cannot appear that another mode is necessary for suppressing the rebellion.
¶10And it seems very obvious that a departure from the constitutional mode cannot be considered necessary because of any defect in the organization of the militia, for Congress has always had authority to correct this, and it cannot possibly found new powers in its own neglect of duty. Most of the Presidents have repeatedly called the attention of Congress to this subject, and yet it has never been adequately attended to. I do not know why it might not have been performed since this' rebellion commenced, and yet I do not know that it could.
¶11Though, therefore, this act was passed to provide means for suppressing the rebellion, yet the authority to pass it does not *469depend on the fact of rebellion. That fact authorizes forced levies of the militia under their own State officers, but not for the regular army.
¶12But it is not important that Congress may have assigned an. insufficient reason for the law. If it may pass such a law for any reason, we must sustain it for that reason. The question then is — may Congress, independent of the fact of rebellion or invasion, make forced levies in order to recruit the regular army ?
¶13If it may, it may do so even when no war exists or threatens, and make this the regular mode ,of recruiting; it may disregard all considerations of age, occupation, profession and offical station; it may take our governors, legislators, heads of State departments, judges, sheriffs and all inferior officers, and all our clergy and public teachers, and leave the State entirely disorganized; it may admit no binding rule of equality or proportion for the protection o'f individuals, States, and sections. In all other matters of allowed forced contribution to the Union, duties, imposts, excises, and direct taxes, and organizing and training the militia, the rule of uniformity, equality or proportion is fixed in the Constitution. It could not be so in calling out the militia, because the emergency of rebellion or invasion does not always allow of this.
¶14But for the recruiting of the army'no such reason exists, and yet, contrary to the rule of other cases, if it may be recruited by force, we find no regulation or limitation *of the exercise of the power, so as to prevent it from being arbitrary and partial, and hence we infer that such a mode of raising armies was not thought of and was not granted; If any such mode had been in the intention of the fathers of the Constitution, they would certainly have subjected.it to some rule of equality or proportion, and to some restriction in favor of State rights, as they have done in other cases of compulsory contributions to Federal necessities. We are forbidden by the Constitution from inferring the grant of this power from its not being enumerated as reserved; and the rule that what is not granted is reserved operates in the same way, and is equivalent to the largest bill > of rights.
¶15No doubt it would be unreasonable to suppose that Congress would so disregard natural rights as to take such an advantage of this want of regulation of their power, as that above indicated; but the fathers of the Constitution did presume that some such things are possible, and therefore they would have regulated the mode, if such a mode had been intended. It needed no regulation, if all recruits were to be obtained in the ordinary way, by voluntary enlistments.
¶16Our jealousy of the usurpation-of dominant parties is quite *470natural, and has been inherited through many generations of experience of cavalier and roundhead, court and country, whig and tory parties, each using unconstitutional means of enforcing the measures which they deemed essential or important for the public welfare, or of securing their own power; and the fathers of the Constitution had experienced such usurpations from the very beginning of the reign of George III., and were not at all inclined to grant powers which, for want of regulation, might possibly become merely arbitrary. They had had no experience of forced levies for the -regular army, except by the States themselves, and it seems to me they did not intend to grant such a power to the Federal government.
¶17Besides this, the Constitution does authorize forced levies of the militia force of the. States in its organized form, in cases of rebellion- and invasion, and, on the principle that a remedy expressly provided for a given case, excludes all implied ones, it is fair to infer that it does not authorize forced levies in any other case or mode. The mode of increasing the military force for the suppression of rebellion being given in the Constitution, every other mode would seem to be excluded.
¶18But even if it be admitted that the regular army may be recruited by forced levies, it does not seem to me that the constitutionality of this act is decided. The question would then take the narrower form. Is this mode of coercion constitutional ?
¶19It seems to me ‘that it is so essentially incompatible with the provisions of the Constitution relative to the militia, that it cannot be. On this subject, as on all others, all powers not delegated are reserved. This power is not expressly delegated, and cannot be impliedly so, if incompatible with any reserved or granted power. This is not only the express rule of the Constitution, but it is necessarily so-; for we can know the extent to which State functions were abated by the Federal Constitution only by the express or necessarily implied terms of the law or compact in which the abatement is provided for. And this is the rule in regard to the. common law; it is changed by statute only so far as the expression of the statute ' requires it to be.
¶20Now, the militia was a State institution before the adoption of the Federal Constitution, and it must continue so, except so far as that Constitution changes it, that is, by subjecting it, under State officers, to organization and training according to one uniform Federal law, and to be called forth to suppress insurrection and r.epel invasion, when the aid of the Federal government is needed, and it needs this force. For this purpose it is a Federal force; for all others it is a State force, and it is called in the Constitution “ the militia of the several States,” 2, *4712, 1'. It is, therefore, the standing force of the States, as well as, in certain specified respects, the standing force of the Union. And the right of the States to have it is not only not granted away, but is expressly reserved, and its whole history shows its purpose to be to secure domestic tranquillity, suppress insurrections and repel invasions. Neither the States nor the Union have any other militia than this.
¶21Now, it seems to m¿ plain that the Federal government has no express and can have no implied power to institute any national force that is inconsistent with this. This force shall continue, says the Constitution, and the Federal government shall make laws to organize and train it as it thinks best, and shall have the use of it when needed; this seems reasonable and sufficient; is the force provided for by this act inconsistent with it ?
¶22It seems to me it is. By it all men between the ages of 20 and 45 are “declared to constitute- the national forces,” and made liable to military duty, and this is so nearly the class which is usually understood to constitute the militia force of the States, that we may say that this act covers the whole .ground of the militia and exhausts it entirely. It is, in fact, in all its features, a militia, for national instead of State purposes, though claiming justification only .under the power to raise armies, and accidentally under the fact of the rebellion. In England this can be done, because, the State being a unit there, there can be no place for the distinction between State and Federal powers, and the army and militia forces become naturally confounded.
¶23It seems to me this is an unauthorized substitute for the militia of the States. If valid, it completely annuls, for the time being, the remedy for insurrection provided by the Constitution, and substitutes a new and unprovided one. Or, rather, it takes that very State force, strips it of its officers, despoils it of its' organization, and reconstructs its elements under a different authority, though under somewhat similar forms. If this act is law, it is supreme law, and thejStates can have no militia out of the class usually called to militia duty ; for the whole class is appropriated as a national.force under this law; and no State can make any law that is inconsistent with it. The State militia is wiped out if this act is yalid, except so far as it may be permitted by the Federal government. If Congress may thus, under its power to raise armies, constitute all the State militia men into “ national forces” as part of the regular army, and make them “ liable to perform duty in the service of the United States when called out by the President,” I cannot nee that it may not require from them all a constant military training under Federal officers as a preparation for the *472greatest efficiency when they shall be so called out, and then all the State militia and civil officers may be put into the ranks and subjected to the command of such officers as the President may appoint, and every one would then see that the constitutional State militia becomes a mere name. The Constitution makes it, and the men in it, a national force in a given contingency, and in a prescribed form, but this act makes them so, irrespective of the constitutional form and contingency. This is a substantial fact, and I am not able to refine it away.
¶24And it'seems to me that this act is unconstitutional, because it plainly violates the State systems in this, that it incorporates into this new national force every State civil officer, except the governor, and this exception might have been omitted, and every officer of all our social institutions, clergymen, professors, teachers, superintendents of hospitals, &c., and degrades all our State generals, .colonels, majors, &c,, into common soldiers, and thus subjects all the social, civil, and military organization of the States to the Federal power to raise armies — • potentially wipes them out altogether, and leaves the States as defenceless as an ancient city, with its walls broken down. Nothing is left that has any constitutional right to stand before the will of the Federal government.
¶25If this be so, the party in power at any time holds all State rights in its hands. It is subject to no restraints except that of the common morality of the time and of the party, and every one knows how weak and changeable this is in times of popular excitement, when the party in power, convinced of the rightness and greatness of its own ends, thinks lightly of the modes and forms that in any way obstruct or retard their attainment. There are no constitutional restraints of this power, if it exists, and, therefore, if the unsteady morality of party excitements will bear it, the party in power may require all the troops to be drafted from the opposite party or from States and sections where it prevails.
¶26Our fathers saw these dangers, and intended the Constitution. to stand as a restraint upon party power. They knew that a party in pow,er naturally encroaches upon every institution that obstructs its will, apd is inclined, when its power totters, to adopt extreme, unusual, and unconstitutional measures to maintain it; and they intended to guard against this. They knew how Episcopalians, Independents, and Presbyterians, cavalier and round-head, court and country, whig and tory parties, had each in turn, when in power, tyrannized over their opponents, and sacrificed or endangered public liberty; they had felt how great was this evil in all the partisan struggles that preceded our revolution, and they desired posterity to profit by their experience. The very restriction upon appro*473priations for the support*of the army exceeding two years, is copied from our English ancestors, and was deemed by them a constitutional limitation of the party in power. None of our constitutions, State or federal, have any purpose or function more important than that of restraining and regulating the party that may chance to be in power, and that is one of the most important purposes of the separation of governmental functions into different departments.
¶27Let any one recall a few of the instances in English history alone, without reference to our own or Roman or Grecian history, wherein liberty has been sacrificed to the interests of a party in power, and he will see how important are our constitutional restrictions, and how little probable it is that so great a power "as this should have been left by our fathers without restriction —courts of high commission, ecclesiastical commission; and star chamber, and high courts of justice, and special commissions of oyer and terminer, under such judges as Scroggs and Jeffries, created for the purpose of trying and condeming acts which no law forbade — liberty of speech and of the press most cruelly punished by such courts when it ventured on too free a dissent from the policy of the dominant party — informations by the Attorney-General substituted in such cases for indictments by the grand jury — members of Parliament expelled because their opposition was offensive or dangerous to the ruling power — military officers dismissed because of their political opinions, as were Lord Shelbourne, General Conway, and Col. Barre, under the Granville ministry, for their opinions in favor of America — rumors of plots, real or fictitious, such as the Oates conspiracy, the Meal Tub and Rye House plots, * raised and magnified in order to alarm the people against all opposition, and facilitate the downfall of dangerous rivals — patronage, pensions and seats in Parliament corruptly disposed of in opposition to public liberty — and the control of the militia'so attempted to be usurped as to produce a revolution that resulted in the execution of Charles I. But it seems to me that áll this experience was lost, in relation to a most important power, if the whole State militia system can be set aside by the Federal government at the very time when it ought to act with most vigor, as is done by this act. All this clearly shows how little reliance can be placed upon mere partisan morality in political affairs, and how necessary it is to have an acknowledged standard, such as the. compact of the Constitution by which it is to be moderated and tried.
¶28In England the popular jealousy of power was usually directed against the party which was ordinarily represented by the king, because he was a permanent authority; but in this country, in the act of framing the Federal Constitution, it could *474be directed against no other power but that which the people were then creating, or the parties that were sure to contend for it, and history tells.us that this jealousy was intense and watchful, and it was perfectly natural and inevitable that it should be so. States, as well as individuals, are careful in putting themselves under the power of others. That was the power to be feared in its relations with the ■ States, and I know not how it is possible to suppose, that under the power to raise armies, they were really giving up their whole militia system, at the time when it is most needed, to be the instrument of a suspected power, a Federal party in power, always prone, whatever be its name, to place its respect for the time-honored doctrines of constitutional liberty in subordination to the intemperate, and therefore often disingenuous zeal for party success. In great political commotions, liberty is in its greatest peril; because, neither party knowing how to give or'to receive those reasonable concessions or that generous respect that is necessary to restore peace, the occasion demands force, and alarm or excitement gives it an undue measure, which increases the resistance, and consequently the excitement or alarm and the force, until all the bulwarks of constitutional liberty are passed or swept away.
¶29If Congress may institute the plan now under consideration as a necessary and proper mode of exercising its power “ to raise and support armies,” then it seems to me to follow with more force that it may take a similar mode in the exercise of other powers, and may compel people to lend it their money; take their houses for offices and courts; their ships and steamboats for the navy ; their land for its fortresses; the mechanics and workshops for the different branches of business that are needed for army supplies; their physicians, ministers, and women for army surgeons, chaplains, nurses, and cooks; their horses and wagons for their cavalry and for army trains, and their provisions and crops for the support of the army. If we give the latitudinarian interpretation, as to mode, which this act requires, I know not how to stop short of this. I anf sure there is no present danger of such an extreme interpretation, and that even partisan morality would forbid it; but if the power be admitted, we have no security against the relaxation of the morality that genders it. I am quite unable now to suppose that so great a power could have been intended to be granted, and yet to be left so loosely guarded.
¶30It may be thought that even voluntary enlistments in the regular army have the same sort of inconsistency with the militia system as forced recruiting has; but more careful reflection will show that it is not so. Enlistment in the army takes away a part of the militia; but every militia system allows for *475this, and the general purpose of both is the same — the constitution of a military force. And, besides this, it is of the very nature of the system that it leaves every man free in the pursuit of his ordinary calling, and binds no man to any part of the militia, except by reason of his residence, which he may abandon or change as he pleases.
¶31This act seems to me to be further unconstitutional in that it provides for a thorough confusion between the army and the militia, by allowing that the regular soldiers obtained by draft may be assigned by the President to any corps, regiment, or branch of service he pleases; whereas the Constitution keeps the two forces distinct. Under this law, the President may even send them to the navy. Under the militia system every man goes out with his neighbors and friends, and under officers with whom he is acquainted. It is very properly suggested that, in 1790, General Knox, the Secretary of War under President Washington, and with his approval, and in 1814, Mr. Monroe, President Madison’s Secretary of War, recommended plans of recruiting the army which were very similar to this one, and no doubt this is some argument in favor of its constitutionality. But, notwithstanding our great reverence for those illustrious names, it is impossible to .admit them as very influential on this question, when we consider that neither of those plans was adopted by Congress, and the subject never received such a discussion as to settle the question. Instead of Mr.' Monroe’s plan a pure militia bill was reported by Mr. Giles from the Senate’s committee on military affairs.
¶32I have noticed an argument that, because the notorious Hartford Convention opposed the war of 1812, and with it Mr. Monroe’s plan of recruiting the army, therefore opposition to a similar plan now ought to be suspected as unpatriotic. No doubt such an argument may have some influence, but it has no real value in ascertaining truth, for even bad men may have many correct principles. It was not for opposition to Mr. Monroe’s plan that that Convention became notorious. Even their denunciation of it seems intended as a prefatory apology for their other schemes; for it was not prepared until two months after the plan had been virtually abandoned by the report of Mr. Giles’ plan to the Senate. The condemnation of the Hartford Convention was founded mainly on the undue and selfish prominence which it gave to, and the agitations it raised in favor of its own sectional interests, when the country was engaged in a dangerous war — its- opposition to the admission of new States, for fear of losing the balance of power — its demand that negroes should be considered part of the militia— its opposition to persons of foreign birth being allowed to hold office, and to its real or supposed intention to produce a secession *476of the eastern States, if it should not succeed in its measures. Their views, therefore, even by inversion, or ad invidiam., amount to nothing in favor of this law.
¶33On the subject of our authority to hear such a case, I must infer, from the refusal of the Federal counsel to appear, that it is denied; and I express my views as well as I am able without that assistance which I think they ought to have rendered.
¶34T No.one denies that a Federal as well as a State officer, acting without constitutional authority to the injury of any one, is liable to be sued for his acts in the State courts; and I am quite unable to discover that there is any distinction in such cases between preventive and redressive remedies. As at present advised, I cannot doubt that the State courts, having authority to determine the right in such cases in the first instance, they may exercise it according to any known remedy that suits the J^case, legal or equitable.
¶35No ordinarily well-educated man can doubt that, independent of the Federal Constitution, such universal juridical power is inherent in the States, and might by them be assigned to their judiciary, as it is in our State in the authority to enjoin against all acts contrary to law and prejudicial to the rights of individuals ; and, therefore, this power remains to the States, unless it is taken away by direct prohibition, or is otherwise incompatible with the Federal system.
¶36No one that I know of pretends that it has been directly taken away. Indeed, so far as the Constitution itself goes, it is expressly left to the States, and therefore to the State courts; for the Constitution actually institutes no court but the Supreme Court; and it gives to it no original jurisdiction except in cases where a foreign minister or consul, or a State is a party. For all other cases within the Federal power it gives only appellate jurisdiction. And, as there may be no other than State courts to try those cases, the appellate jurisdiction of the Federal Supreme Court necessarily leaves an original jurisdiction in them.
¶37True, the Constitution authorizes such inferior Federal courts as Congress may think proper to establish ; but the authority to establish such inferior courts cannot divest this original State jurisdiction; for Congress might never exercise its authority, or it might not assign to them the whole of this original jurisdiction, or it might not assign it to them exclusively of the State courts. The very frame of the Constitution, therefore, admits that the States may have the original jurisdiction of such cases, subject to the appellate jurisdiction of the Federal Supreme Court, and no Federal law has yet forbidden it to them, even if this may be done.
¶38And-such a judiciary system was not at all strange to the *477fathers of the Constitution, and is well known in history. It was the very system of the colonies before our independence. Our colonial courts had authority to try all kinds of cases, whether arising rujder colonial or under imperial law, and the only remedy for misjudgment was by appeal or writ of error to the proper imperial courts in England; ■ and so it was in Ireland before the union. And so it is everywhere with courts and other authorities that are merely local in their constitution and jurisdiction; they administer even the general law of State, but always subject to the appellate authority of more general jurisdiction. And this appellate jurisdiction was in general considered sufficient to preserve the Anglo-Saxon courts in due subordifiation to the royal courts after the Norman conquest; though certiorari to transfer causes before trial was also in use, and no Norman was bound to abide the judgment of a Saxon court to whose jurisdiction he chose to object. No doubt a similar practice can be traced in every country, not purely despotic, where different state organizations or different peoples have been united under one , general government. In many cases the paramount law is international law, and yet national or State courts may decide what it is, subject to the' appellate jurisdiction of treaties or of armies.
¶39With all this present to the minds of the fathers of the Constitution, it seems to me that they could not have intended a departure without giving expression of their intention, and this they have not done. They seem even to express the contrary when they declare the Constitution and the laws made under it to be, not merely Federal law, but “the supreme law of the land,” and require all State officers to be sworn to support it. That mere Federal authority does not exclude State action is very well illustrated by this very subject of the militia, where the Federal authority to legislate has never been regarded as preventing actual State legislation. And the danger of conflicts between Federal and State’authority is not different in its character from that which may arise between different departments of the same government, and lead to results. that are quite insoluble. Mutual trust and respect and a careful adherence to the Constitution can alone save us from such difficulties. -
¶40It fs with very real distress that I find my mind forced into this conflict with an act of Congress of such very great importance in the present juncture of Federal affairs; but I cannot help it. Possibly, and the question is so presented that I can_not evade it, an argument from the counsel of the government might have saved me from this, if it is an error ; and it may ' yet produce a different result on the final hearing, which I *478trust will take place so soon that no public or private injury may arise from any misjudgment now and here.
¶41Certainly in this great struggle we owe nothing to the rebels but war, until they submit, unless it be that we do not let the war so depart from its proper purpose as to force them to submit to a Constitution and system different from that against which they have rebelled. But we do owe it to each other, to minorities and individuals, that no part of that sacred compact of union shall become the sport of partisan struggles, or subjected to the anarchy of conflicting moralities, urged on by ambitious hopes veiled in the background. Our solemn oaths and plighted faith have made that compact the shield of State constitutions, institutions, and peculiarities, and of their right to their own free development, against all arbitrary and inter-meddling action of the central government (which in all free countries represents a party), and I venture to hope that that shield will continue to afford its intended protection.
¶42What I have written I have written under a very deep sense of the responsibility imposed upon me by my position, and with an earnest desire to be guided only by the Constitution. Very many will be dissatisfied with my conclusions; but I submit to the judgment of God, and also to that of my fellow citizens, when the present troubles shall have passed away and are felt no more.
¶43I am in favor of granting the injunction in favor of each of the plaintiffs, for his own protection, but not for the staying of all proceedings under the act.
¶44Order. — November 9, 1868. Preliminary injunction (in each case) granted for the protection of the plaintiff; on his giving bond with surety, to be approved by the prothonotary, in the sum of five hundred dollars, according to law, and refused for any further purpose.
¶45Concurring opinion by
¶46On the 3d day of March, 1863, the Congress of the United States passed an act for “enrolling and calling out ofx the national forces,, and for other purposes,” which is commonly called the Conscription Law. The plaintiffs, who are citizens of Pennsylvania, have set forth the act fully in their bills, and they complain that they have been drafted into military service of the government in pursuance of said enactment, but that the same is unconstitutional and void, and that the defendants, who are engaged in executing the act, have violated the rights and are about to invade the personal liberty of the plaintiffs, and thereupon they invoke the equitable interposition of this court to enjoin the defendants against a farther execution of the said act.
¶47Eor the jurisdiction of this court to set aside an act of Con*479gress as unconstitutional, and to grant the relief prayed,for, I refer myself to the views of the chief justice in the opinion he has just delivered in these cases, and I come at once to the constitutional question.
¶48The act begins with a preamble which recites the existing insurrection and rebellion against the authority of the United States, the duty of the government to suppress insurrection and rebellion, to guarantee to each State a republican form of government, and to preserve the public tranquillity, and declares that for these high purposes a military force is indispensable, “to raise and support which all persons ought willingly to contribute,” and that no service can be more praiseworthy and honorable than the maintenance of the Constitution and Union; and then goes on to provide for the enrolling of all the able-bodied male citizens of the United States, and persons of foreign birth, who have declared their intention to become citizens, between the ages of twenty and forty-five years, and these able-bodied citizens and foreigners, with certain exceptions afterward enumerated, are declared to be 11 the national forces'' and made liable to perform military duty when called out by the President. The act divides the country into military districts corresponding with the congressional districts, provides for provost marshals and'enrolling boards, and regulates the details of such drafts as the President shall order to be made from the national forces so enrolled. The payment of $300 excuses any drafted person, so that it is, in effect, a law providing for a compulsory draft or conscription of such citizens as are unwilling or unable to purchase exemption at the stipulated price. It is the first instance in our history of legislation forcing a great public burthen on the poor. Our State legislation, which exempts men who are not worth more than $300 from the duty of paying their own debts, is in striking contrast with this conscription law, which devolves upon such men the burthen which belongs to the whole “national forces,” and to which “all persons ought willingly to contribute.” This, however, is an ebjection to the spirit of the enactment rather than to its constitutionality.
¶49■ The description of persons to be enrolled, able-bodied citizens between twenty and forty-five years of age, is substantially the description of the militia as defined in our Pennsylvania statutes and probably in the statutes of all' the States. The national forces, then, mean the militia of the States — certainly include the militia of Pennsylvania. This expression, “national forces,” is modern language, when so applied. It is not found in our constitutions, either State or Federal, and if used in commentaries on the Constitution, and in history, it will generally be found to apply to our land and naval forces in actual service— *480to what may be called our standing army. It is a total misnomer when applied to the militia, for the militia is a State institution. The, general government has no militia. The State militia, always highly esteemed as one of the bulwarks of our liberties, are recognized in the Federal Constitution, and it is not in the power of Congress to obliterate them, or to merge them in “ national forces.”
¶50. Unless there is more magic in a name than has ever been supposed, this conscript law was intended to act upon the State militia, and our question is, therefore, whether Congress has power to impress or draft the militia of the State. I cannot perceive what objection can be taken to this statement of the question, for surely it will not be argued that calling the militia national forces, makes them something else 'than the militia. If Congress did not mean to draft the militia under this law, where did they expect to find the national forces ? “All able-bodied male white citizens, between the ages of twenty-one and forty-five years, residing in this State, and not. exempted by the laws of the United States,” with certain exceptions, constitute our State militia. Will it be said that the conscript law was not intended for these ? I think it will not. Then if it does touch, and was framed and designed to draft this very class of citizens, no possible objection can be taken to the above statement of the question we have to decide.
¶51I, therefore, repeat the question, with great confidence in its accuracy: has Congress the constitutional power to impress or draft into the military service of the United States, the militiamen of Pennsylvania ?
¶52This question has to be answered by the Constitution of the United States, because that instrument, framed by deputies of the people of the States, and ratified and put into effect by the States themselves in their respective corporate capacities, delegates to Congress all the powers that body can exercise. These delegations are either express or such implications as are essential to the execution of expressly delegated powers.
¶53There are but three provisions in the Constitution of the United States that can be appealed to in support of this legislation. In our ordinary editions they stand numbered a's clauses 13, 16 and 17 of the VIII. section of Art. 1 of the Constitution.
¶54“ 13. Congress shall have power to raise and support armies, but no appropriations of money to that use shall be for a longer period than two years.
¶55“ 16. Congress shall have power to provide for the calling forth the militia to execute the laws of the Union, to suppress insurrections and repel invasions.
¶56“ 17. Congress shall have power to provide for organizing, *481arming and disciplining the militia, and for governing ■such part of^them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
¶57“To raise armies” — these are large words; what do they mean ? There could be no limitation upon the number or size of the armies to be raised, for all possible contingencies could not be foreseen, but our question has not reference to numbers or size, but to the mode of raising armies. The framers of the Constitution, and the States wh-idh adopted it, derived their ideas of government principally from the example of Great Britain — certainly not from any of the more imperial and despotic governments of the earth. What they meant to make was a more free Constitution than that of Great Britain— taking that as a model in some things — but enlarging the basis of popular rights in all respects that would be consistent with order and stability. They knew that the British army had generally been recruited by voluntary enlistments, ■ stimulated by wages and bounties, and that the few instances of impressment and forced conscription had 'met with the disfavor of the English nation and had led to .preventive statutes. Tn 1704 and.again in 1707 conscription bills were attempted in Parliament, but laid aside as unconstitutional. During the American revolution, a statute, 19 Geo. III. C. 10j permitted the impressment of “ idle and disorderly persons not following any lawful trade, or having some substance sufficient for their subsistence,” and this was as far as English legislation had gone when our Federal Constitution was planned. Assuredly the framers of our Constitution did not intend to subject the people of the States to a system of conscription which was applied in the mother country only to paupers and vagabonds. On the'contrary, I infer that the power conferred on Congress was the power to raise armies by the ordinary English mode of voluntary enlistments.
¶58The people were justly jealous of standing armies. Hence they took away most of the war power from the Executive, where, under monarchical forms, it generally resides, and vested it in the legislative department, in one branch of which the States have equal representation, and in the other branch of which the people of the States are directly represented according to their numbers. To these representatives of the States and the people, this power of orginating war was com-mitted, 'but even in their hands it was restrained by the limitation of biennial appropriations for- the support of the armies they might raise. Of course, no army could be raised or supported which did not command popular approbation, and it was rightly considered that voluntary enlistments would never be *482wanting to recruit the ranks of such an army. The war power, existing only for the protection of the, people, and left, so far as it was possible to leave it, in their own hands, was incapable of being used without their consent, and, therefore, could never languish for enlistments. They would be ready enough to recruit the ranks of any army they deemed necessary to their safety. Thus the theory of the Constitution placed this great power, like all other governmental powers, directly upon the consent of the governed.
¶59The theory itself was founded on free and fair elections — which are the fundamental postulate of the Constitution. If the patronage and power of the government shall ever be employed to control popular elections, the nominal representatives of the people may cease to be their real representatives, and then the armies which may be raised may not so command public confidence as to attract the necessary recruits, and then conscript laws and other extra constitutional expedients may- become necessary to fill the ranks. But governmental interference with popular elections will be a subversion of the Constitution, . and no constitutional argument can assume such a possibility.
¶60Supposing, then, that the people are always to be fairly represented in thé halls of Congress, I maintain that it is grievous injustice to them to legislate on the assumption that any war, honestly wraged for constitutional objects, will not always have such sympathy and support from the people as will secure all necessary enlistments. Equally unjust to their intelligence is it to suppose that they meant to confer on their servants the power to impress them into a war which they could not approve.
¶61When to these considerations we add the ability of a great country like ours to stimulate and reward enlistments both at home and abroad, by bounties, pensions, and homesteads as well as by political patronage in countless forms, we see how little necessity or warrant there is for implying a grant of the imperial power of conscription.
¶62If the very improbable case be supposable, that enlistments into the Federal armies might become so numerous in a particular State as^sensibly to impair its own proper military power, is it not much more improbable that the States meant to confer upon the general government the power to deprive them, at its own pleasure, altogether of the militia, by forced levies? Yet this might easily happen if the power of conscription be conceded to Congress. There are no limitations expressed — nothing to compel Congress to observe quotas and proportions as among the several States — nothing to prevent their raising armies wholly from one State, taking every able-bodied citizen out of it, to the endangering, if not utter undoing of all its domestic interests.
¶63*483There is nothing in the history of the Constitution, nor in the debates upon it in the conventions, Federal and State, nor in those excellent contemporaneous papers known as the “Federalist,” to justify the suspicion that this vast and dangerous power lies wrapped up in the few plain words of the thirteenth clause, but, on the contrary, the most indubitable evidence is derivable from all those sources that the thought of subjecting State militia to Federal draft had no existence in the minds of that day. If such a construction had been anticipated, the objections which the Constitution encountered in the State conventions would doubtless have been found insurmountable. But what ought to be sufficient to settle the question is the language of clauses 16 and 17, which, if it have any meaning at all, absolutely forbids the interpretation on which the Conscription Act is founded. And these clauses must be taken in connection with the 13th in,fixing' the meaning of the words “to raise and support armies,” because the Constitution, like most other written documents, is its own best interpreter, and must be construed as a whole — by its four corners, as we sometimes say. Therefore, if we concede this dangerous power to the language of the 13th clause, we destroy the force and effect of the words of the 16th and 17th clauses. We make the instrument self-destructive, which is violative of all canons of construction. Congress shall have power to provide for calling forth the militia in the manner, and subject to the limitations prescribed in clauses 16 and 17, and, therefore, I argue Congress has not the power to draft them. Is an express rule of the Constitution to give way to an implied one ? If the 13th clause confers power to draft the militia, the words of the 16th and 17th clauses are the idlest that were ever written. - But if the 13th conferred only the power to enlist volunteers, then the subsequent clauses become very intelligible — stand well with the 13th, and add essentially to the martial faculties of the Federal government. Look at those clauses. The militia are to be called forth to execute the laws of the Union, suppress insurrections and repel invasions, to be organized, armed, and disciplined by the State, but according to the laws of Congress, and such part of them as may be employed in the service of the United States are to be governed by the President, but officered by the respective States. Now, this conscription law recites an “ existing insurrection and rebellion” as the ground and reason, not for calling forth the militia under the above -provisions, but for drafting them. The very case has occurred in which the Constitution says the militia shall be called out under State officers, but Congress says they shall be drafted, in contempt of State authority. This cannot be put on that clause of the *484Constitution which authorizes Congress to make all laws necessary and proper for carrying into execution 'the foregoing powers, because that is not a grant of any additional powers, but only of the legislative faculty to execute “the foregoing powers.” What those powers are is first to be ascertained, and then, in virtue of this provision, Congress may provide' the necessary and proper laws. The question we are dealing with has not reference to the mere forms of legislation, but to the essential powers of government. If any conscription law may be directed against State militia, for the suppression of rebellion and insurrection, this may be conceded to be a valid enactment, but whether a government of limited and expressly delegated powers may, for such a purpose, forcibly take away the militia of other governments, which are sovereign in their respective spheres, is a question which the instrument of delegation can alone answer. Congress have said in this act that the rights of States may be thus disregarded. Gen. Washington and the men of his day did not so read, the Constitution, when, in suppressing the whiskey insurrection in this State, they paid the most scrupulous regard to the rights and powers of the State. Under pressure of a foreign war, a conscript bill was reported in Congress in 1814, but it did not pass, and if it had it would have been no precedent for this law, because we are now dealing with an insurrection, and insurrections are specially provided for in the Constitution. If to support a foreign war, Congress may draft the militia, which I do not admit, the power of draft to suppress insurrections is not to be implied, since another mode of suppressing 'insurrections is expressly provided. When a State is called on for its quota of militia it may determine, by lot, who of the whole number of its enrolled militia shall answer the call, and thus State drafts are quite regular; but a congressional draft to suppress insurrection is an innovation that has no warrant in the history or text of the Constitution. Either such a law, or the Constitution must be set aside. They cannot stand together. ,
¶64And, happily, no ill consequences can flow from adhering to the Constitution, for the standing army of the Federal government, recruited by enlistments in the ordinary mode, with the State militia, called forth according to the Constitution, are a force quite sufficient to subdue any rebellion that is capable of being subdued by force of arms. Such a formidable force, wisely wielded, in connection with a paternal and patriotic administration of all other constitutional powers, will never fail to put down refractory malcontents, and preserve peace and good order among the American people. This conscript law, therefore, not sanctioned by the Constitution, is not adapted to *485the exigencies of the times, nor likely to have success as a war measure.
¶65In its political bearings, even more than in its military aspects, it is subversive of the Constitution and of the rights of citizens that depend upon State authority. A few thoughts will make this plain.
¶66It is impossible to study our State and Federal Constitutions without seeing how manifestly the one was designed to guard and maintain the personal and social rights of the citizen — the other to take care of his external relations. Nurture, education, property, home, wife and children, servants, administration of goods and chattels after death, and a graveyard in which to sleep the sleep of death, these are among the objects of State solicitude, for the protection of which the State provides civil authorities, and back of them the posse comiiafcis, and the militia, to make the civil administration effectual. Now, if the principle be admitted that Congress may take away the State militia, who does not see that the ultimate and final security of every man’s domestic and personal rights is endangered? To the extent delegated in the Constitution, nobody questions the right of Congress to control the State militia, but if to the extent to which this enactment goes, the States will be reduced to the condition of mere counties of a great commonwealth, and the' citizen of the State must look to the Federal government for the enforcement of all his domestic rights as well as for the regulation of his external relations.
¶67The Citizens of the State need protection from foreign foes and Indian tribes — peaceful intercourse and commerce with all the world — a standard of values, and of weights and measures that, shall be common to all the States, and a postal system that shall be co-extensive with interstate trade and commerce. To adjust and maintain these external relations of the citizen are high duties which the Constitution has committed to the Federal government, and has furnished it with all necessary civil functionaries, and with power to levy and collect taxes from the people of the States, to raise and support armies, to provide a navy, and to call forth the militia to execute the laws.
¶68Thus is the American citizen amply provided, by means of constitutions that are written, with protection for all his rights natural and artificial, domestic and foreign, but, as the war power of the general government is his ultimate security for his external, so is the militia his ultimate security for his internal or domestic rights.
¶69Could the State government strike at the war power of the Federal government without endangering every man’s rights? In view of the existing rebellion, no man would hesitate how to answer this question, and yet is it not equally apparent that *486when the Federal government usurps a power over the State militia which was never delegated, every man’s domestic rights (and they are those which touch him most closely) are equally endangered ?
¶70The great vice of the conscript law is, that it is founded on an assumption that Congress may take away, not the State rights of the citizen, but the security and foundation of his State rights. And how long is civil liberty expected to last after the securities of civil liberty are destroyed' ? The Constitution of the United States committed the liberties of the citizen in part to the Federal government, but expressly reserved to the States, and the people of the States, all it did not delegate. It gave the general government a standing army, but left to the States their militia. Its purpose in all this balancing of powers was wise and good, but this legislation disregards these distinctions, and upturns the whole system of government, when it converts the State militia into “national forces,” and claims to use and' govern them as such.
¶71Times of rebellion, above all others, are the times when we should stick to our fundamental law, lest we drift into anarchy on one hand, or into despotism on the other. The. great sin of the present rebellion consists in violating the Constitution, whereby every man’s civil rights are exposed to sacrifice. Unless the government be kept on the foundation of the Constitution, we imitate the sin of the rebels, and thereby encourage them, whilst we weaken and dishearten the friends of constitutional order and government. The plaintiffs in these bills have goo'd right, I think, as citizens of Pennsylvania, to complain of the act in question, not -only on the ground I have indicated, but on another to which I will briefly allude.
¶72The twelfth section provides that the drafted person shall receive notice of the rendezvous at which he is to report' for duty, and the thirteenth section enacts “ that if he fails to report himself in pursuance of such notice without furnishing a substitute or paying the required sum therefor, he shall be deemed a deserter, and shall be arrested by the provost marshal, and sent to the nearest military post for trial by court marshal,” The only qualification to which this provision is subject is, that upon proper showing that he is not able to do military duty, the board, of enrolment may relieve him from the draft.
¶73One of the complainants, Kneedler, has set forth the notice that was served on him in pursuance of this section, and by which he was informed that “unless he appeared on a certain day he would be deemed a deserter, and be subject to the penalty prescribed therefor by the rules and articles of war.” I believe the penalty of desertion by the military code is any *487corporeal punishment a court martial may choose to inflict, even to that of being put to death.
¶74Gan a citizen be made a deserter before he has become a soldier ? Has Congress the constitutional power to authorize provost marshals, after drawing the name of a freeman from a wheel and serving him with a ten days’ notice, to seize and drag him before a court martial for trial under military law ? This question touches the foundations of personal liberty.
¶75In June, 1215, the barons of England and their retainers, a “ numerous host encamped upon the grassy plain of Runnymede,” wrung from King John that great charter which declared, among other securities of the rights and liberties of Englishmen, that “ no freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or ybe outlawed or exiled, or in any manner harmed, nor will we (the King) proceed against him, nor send any one against him by force of arms unless according to the sentence of his peers (which includes trial by jury) or the common law of England.” Here was laid the strong foundation of the liberties of the race to which we belong. And yet not here, for Magna Charta created no rights, but only re-asserted those which existed long before at common law. It was for the most part, says Lord Coke, merely declaratory of the principal grounds of the fundamental laws of England. ' Far back of Magna Charta, in the customs and maxims of our Saxon ancestry, those principles of liberty lay scattered which were gathered together in that ^immortal document, which, four hundred years afterwards, were again re-asserted in two other great declaratory statutes, “ The Petition of Right” and “ The Bill of Rights,” and which were transplanted into our Declaration of Independence, the bill of rights to our State Constitution, and the amendments to our Federal Constitution, and which have thus become the . heritage of these plaintiffs. Says the fifth article of the amendments: “No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger.” What is the scope of this exception ? The land or naval forces mean the regular militaryorganization of the government, the standing army and navy, into which citizens are introduced by military education from boyhood or by enlistments, and become, by their own consent, subject to the military code, and liable to be tried and punished without any of the forms or safeguardsof the’common law. In likemanner the militia, when duly called out and placed “in actual service,” are subject to the rules and articles of war, all their common law rights of personal freedom being for the time suspended. *488But when are militia men in actual service ? When they have been notified of a draft? Judge Story, in speaking of the authority of Congress over the militia, says: “The question when the authority of Congress over the militia becomes exclusive, must essentially depend upon the fact when they are to be deemed in the actual service of the United States. There is a clear distinction between calling forth the militia and their being in actual service. These are not contemporaneous acts nor necessarily identical in their constitutional bearings. The President is not commander-in-chief of the militia, except when in actual service; and not merely when they are ordered into service. They are subjected, to martial law only when in actual service, and not merely when called forth before they have obeyed the call. The acts of 1795 and other acts on the subject manifestly contemplate and recognize this distinction. To bring the militia within the meaning of being in actual service, there must be obedience to the cadi, and some acts of organization, mustering, rendezvous, or marching done in obedience to the call in the public serviced' Story’s Con. Law, vol. 8, sec. 1208.
¶76If it be suggested that this plain rule of common sense and constitutional law is not violated by the conscription act, because it applies to the “ national forces,” I reply, as before, that this is only a new name for the militia, and that the constitutional rights of a citizen are not to be sacrificed to an unconstitutional name. When Judge Story was endeavoring to mark with such distinctness the time at which the common law rights of the citizen ceased and his liability to military rule began — the time, in a word, when he became a soldier — why did it not occur to his fertile mind that Congress could render this distinction valueless and unmeaning by a new nomenclature — by calling the militia “national forces”? It is not difficult to conceive how such a suggestion would have fared had it occurred or been made to him. But it is difficult, in the presence of the grave issues of the present day, to treat so frivolous a suggestion with the dignity and forbearance the occasion demands. I have shown what rights of personal liberty these plaintiffs inherited from a remote ancestry, and how they are guaranteed to them by our constitutions, and at what time they are to give place to martial law, and surely if a wheel set in motion by Congress .can crush and grind those rights out of existence, without regard to the limitations of the Constitution, some weightier reason should be found for it-than the misnomer which the act so studiously applies to the militia — some reason that deserves to stand instead of Magna Charta, our Constitutions, and all our traditional freedom.
¶77The only one that I have ever heard suggested, and which is applicable against all the views advanced in this opinion, is *489called military necessity. The country is involved in a great civil war which can be brought to an honorable close only by an energetic use of all our resources, and no restraints should be tolerated, in such circumstances, save only those which Christian civilization has imposed on all warfare. Whatever is according to the Constitution, the argument claims, may be done, of course; whatever is over and beyond the Constitution is justified as military necessity, and of that the President and Congress are exclusive and final judges.
¶78The amount of the argument is that the exigencies of the times justify the substitution of martial law for the Constitution. But what is martial law ?' Blackstone and Sir Mathew Hale tell us “ it is built upon no settled principles, but is entirely arbitrary in its decisions, is, in truth and reality, no law, but something indulged rather than allowed as law.” The unrestrained will of one or a number of men, then, is the rule which the argument substitutes for the Constitution. It is of no consequence that the will thus set up for supreme law is that of men whom a majority of the people have chosen, because, according to our system, the majority can only choose ■men to administer the Constitution.as it is written. Majorities, as a power recognized by law, have no more right to establish a despotism than a minority would have. But may majorities or minorities set aside the Constitution under pressure of rebellion and insurrection? *
¶79As the Constitution anticipates and provides for such calamities, it is a reproach to its wisdom to say that it is inadequate to such emergencies. No .man has any historical right to cast this reproach upon it. No current experience proves it. It never can be proved except T>y an unsuccessful use of the legitimate powers of the Constitution against rebellion, and then the thing proved will be that the instrument needs amendment, which its machinery is flexible enough to allow. Even such a melancholy demonstration would do no more than point out necessary amendments — it would not surrender the people to the arbitrary will of anybody. Presidents and congressmen are only servants of the people, to do their will, not as that will may be expressed under passion or excitement, but as it stands recorded in the Constitution. It is the Constitution, indeed, which makes them presidents and congressmen. They have no more power to set up their will against the Constitution than so many private citizens would have. Outside of the Constitution they are only private citizens.
¶80I do not, therefore, feel the force of the argument drawn from the distressing circumstances of the times. Bad as they are, we make them worse by substituting arbitrary power for constitutional rule; but if we made them better and not worse, *490the judicial mind ought not to be expected to approve the substitution, for it can recognize no violation of the Constitution as a legitimate mode of vindicating the Constitution. To place ourselves under despotic sway, in order to bring back rebels to the Constitution we have given up, is a procedure that perplexes the student of political science, and will quite confound the future historian of our times.
¶81■ There are other features of the conscript law that deserve criticism, but, not to extend my opinion farther, I rest my objections to its constitutionality upon these grounds:—
¶821st. That the power of Congress to raise and support armies does not include the power to draft the militia of the States.
¶832d. That the power of Congress to call forth the militia cannot be exercised in the forms of this enactment.
¶843d. That a citizen of Pennsylvania cannot be subjected to the rules and articles of war, until he is in actual military service.
¶854th. That he is not placed in such actual service when his name has been drawn from a wheel, and notice thereof has been served upon him.
¶86For these reasons I am for granting the injunction.
¶87Concurring opinion by
¶88^-The act of Congress under which the complainant in this case is required to enter the army of the United States as a soldier, for a period of three years or during the war, provides for the enrolment, by officers of -the United States, of all persons liable to do military duty, between the ages of 20 and 45 years, and classifies them. The names of all persons thus enrolled were required “to be put into a wheel, and the requisite number for the districts, with a surplus of 50 per cent, for contingencies, were to be drawn thence under the supervision of certain Federal officers. Those thus drawn from the wheel, if not exempted from disability or otherwise, will be compelled to serve for the period mentioned, or find.acceptable substitutes, or commute the service by the payment of $300.
¶89Beyond all controversy this is a draft, or involuntary conscription from the militia of the States, without any requisition upon State executives, or upon officers-in command of the militia in the States, and without any reference to State autho-rities whatever. Is this enactment in accordance with the Federal Constitution ? The answer to this question determines the case, for it is not denied that the complainant is within the provisions of the act, and was drawn as and for a soldier under its provisions. He must, therefore, serve, if the act be constitutional, or seek exemption under some of its provisions.
¶90*491Our jurisdiction of the case, I think, is plain. We have authority to restrain acts contrary to law, and prejudicial to the rights of individuals, act of 16th June, 1836. If the act of Congress of 3d March, 1863, under and by virtue of which the complainant is holden as a soldier, and sought to be coerced into the service, be not constitutional, the custody of his person under pretence of it, is contrary, to law, and prejudicial to his interests. The injury too, if the proceedings be illegal, is undoubtedly within what is denominated irreparable injury or mischief, and hence the propriety of the specific remedy. An action for damages would perhaps nipt be sustainable under a recent act of Congress, but if it should be, it would be against parties wbo intended no injury, and from whom, on account of obeying what they supposed to be law, in conducting the proceedings against him, but little could be recovered, although the soldier may have been carried to distant places, from his home, and may have undergone great hardships and vicissitudes. j I dismiss this branch of the case, with this short view of it, and with the additional remark, that if our judgment is against the constitutionality of the law, the case can be removed to the Federal judiciary at Washington, if the authorities there see proper, and be reviewed by the court in the last' resort in such cases; a thing which the President of the United States has, on a recent occasion, expressed a wish for, and determination to facilitate.
¶91I now proceed to the main question. The Constitution of the United States defines and enumerates the powers of the general government, and limits them by the solemn declaration that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
¶92The government established by the Constitution'is, therefore, a limited government, beyond the limitations of which, includ- . ing necessary incidents of expressly granted powers, all exercise of authority by Congress is mere usurpation. We should remember this in construing the Constitution, and we should remember, also, that the entire machinery of government, provided by it, was poised between checks and balances designed - not only to prevent it from transcending its own orbital limits, but to guard against aggressions from other sources. The objects to be attained, as declared in- the preamble, must also be kept in view, when we are called to expound its provisions; and we are bound to construe it so as to preserve and advance then^all.' The purpose, as declared in the preamble, was “to form a' more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves *492and our posterity.” Each of these objects are supposed to be secured by the Constitution, and no one of them must be overlooked in a too eager desire to lend a supposed efficiency to some other. To do so would endanger the whole. To “provide for the common defence” is one purpose avowed for establishing the Constitution, and the duty devolves on Congress to execute it; but it must not be executed in such a manner as to encroach on the paramount purpose of securing “ the blessings of liberty to ourselves and our posterity,” also declared. This is one instance to show that no legislation, nor no construction can be valid 01; sound which is not in harmony with every .provision of the Constitution.
¶93In the light of these general and fundamental principles, we must investigate the grave questions presented by the bill of the complainant now before us. And here I may express my regret, that it did not meet the views of the government officials, having in charge the law department for ^this United States district, to appear at the argument of this case, of which they had notice, and give us the benefit of-their views and' researches on the momentous questions involved. It can hardly, I presume, be fairly attributable to a disregard of what might be the ultimate judicial action of the State on the question, or in contempt of State authority altogether. Whatever may have been the reason for the course adopted, the magnitude of the question involved is not at all diminished thereby, nor is our duty most carefully to examine the whole case in all its aspects, the less imperative.
¶94Is the act of Congress, approved March 3d, 1863, entitled, “ An act for enrolling and calling out the national forces, and for other purposes,” now familiarly known as the Conscription Act, constitutional?
¶95In order -to provide for the common defence and thereby promote the general welfare, Congress has, by the Constitution, power to “raise and support armies,” and “to provide-and maintain a navy.” It was under no extraordinary pressure of circumstances or emergent necessity that this power was granted. It was deemed to be, and thereupon introduced as, a part of the ordinary machinery of government, the convention acting on an axiom as old as government itself, “ that the surest means of avoiding war is to prepare for it in times of peace.” Without such a power,’“it would,” says Story in his Commentaries on the Constitution, section 1185, “present the extraordinary spectacle to the world of a nation incapacitated by a Constitution of its own choice from preparing for defence before actual invasion.”
¶96It was an ordinary power, not superinduced by impending war. “ In the mild season of peace,” says the Federalist No. *4932, “ with minds unoccupied by other subjects, they (the convention) passed many months in cool, uninterrupted, and daily consultation ; and finally, without having been awed by power, or influenced by any passion, except love for their country, they presented and recommended to the people the plan produced by their joint and unanimous councils.” Is there room for a doubt that under such circumstances, the mode in which the power to 11 raise armies” was to be executed was the accus'tomed one; namely, by voluntary enlistments? At the time, this was the usual mode of raising, and recruiting armies in Great Britain, and the people of this country were better acquainted with the laws, customs, and even habits of the people of England than of those of any other people in the world. Notwithstanding we had been at war with them, and an angry spirit had been generated between the two countries, yet it is a notorious fact that their customs and laws were generally adopted .in this country, and to this day continue to a great extent. ’ Voluntary enlistments as by contract, was the general method of raising armies there and with us prior to and at the time the Constitution was framed. As this was the customary mode, every presumption supports the idea that this was the onlyv mode in the minds of the framers of the Constitution. Indeed, it is a common law rule, that when anything is directed to be done without special instructions as to how the act is to be performed, the customary mode of doing it is supposed to be'included in the direction. We cannot suppose that at the moment the country had achieved its liberty, at so much cost of blood and treasure, that such a despotism over the lives and liberties of men would be incorporated into the Constitution as would authorize Congress to fill the armies to be raised by conscription, as though by the agency of the press gang. This was no more in the contemplation of the convention than that the civil department of the government should also be filled by coercive measures. Can any one now be credulous enough to believe that if a power had been supposed to exist to raise an army not by voluntary means but by coercive, especially as there were no limits fixed, as to its magnitude, that the Constitution would have been ratified by the States ? The idea would, it seems to me, be preposterous. Without such a thought once 'having been suggested by the opponents of the Constitution, a standing army, to be raised in the usual way, was a source of many fears in the public mind. It was thought to be dangerous'to'liberty in its very nature, but what would have been thought, if it had been discovered or avowed that in its creation-it might be directly and openly destructive of the individual liberties of those who were to compose it, and that it might be extended to embrace" all the able bodied citizens in *494the States! It required many numbers of tbe ablest paper ever" written on the Constitution, I mean the Federalist, to remove those fears. See Fed. from No. 24 to 28 inclusive on this subject.
¶97The Constitution was adopted in ignorance, certainly, of any such power if it does exist, and it has required the lapse of three-quarters of a century to develop its latent evils. The usual evidences are all against the' idea, and I think something more demonstrative will show that these ’ evidences stand not alone against it.
¶98A conscript is one taken by lot from the conscription (or enrolment) list, “and compelled to serve as a soldier or sailor.” (Web. Die. verb, “conscript”) The power to raise an army by conscription or coercion (the words are nearly synonymous) rests alone on the idea that the power is unlimited, as to the means to be used, as well as to the numbers of which it may be composed. If there was no other power or principle in the instrument to be affected in its operation by such a view, there would be force in the idea. But the Constitution must be administered so that the whole may stand in full force, unimpaired by any particular portion.
¶99The limitation of a power may appear otherwise than by express terms. Its scope may be curtailed by the necessity to preserve some other function necessary to co-exist for preservation of the whole. One object in framing the Constitution, as already remarked, was to “perpetuate the blessings of liberty.” It can hardly be contended for by any one, that the execution of a power which would effectually destroy this object would be constitutional. Again, a power so executed as to destroy the reserved rights of the States could hardly be claimed to be constitutional. There are, therefore, limitations as effectual as if expressed; “ut res magis valeat quam pereat" is a maxim out of which this grows.
¶100A limitation of this power was undoubtedly supposed to exist in the discretion of Congress; but that cannot be relied on in this argument. To give it any force would be to allow the acts of Congress to be evidence to establish the proper discretion of Congress. This would be to argue in a circle, and would prove nothing — we are testing the acts of Congress, not by Congress but by the Constitution. So, too, it was supposed to exist in a time when no more voluntary enlistments could reasonably be procured, or when they might not be procured rapidly enough. That this was so is demonstrable by the fact that the Constitution provides for calling out the militia when the army may not be sufficient. I use this contingent expression because Í look on the army as an ordinary power, and ordinarily to be used unless insufficient for the end in view, *495or the exigencies of the times. However this may be, it is absolutely certain that the military forces of the government for all purposes were to be the army and the militia.
¶101In tb,e article of the Constitution containing the power to “raise and support armies,” and consecutive to that and other war powers and as part of them, is the power to be found in Congress “ to provide for calling forth the militia to execute the laws of the Union, suppress insurrections ahd repel invasion “ To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be imployed in the. service of the United States, reserving to the States, respectively, the appointment of officers, and the authority of training the militia according to discipline prescribed by Congress.”
¶102The army to be raised and the militia liable to be employed in the service of the United States, are the constituted military forces of the Government. They co exist, and must co-exist, if the Constitution be obligatory. We sometimes employ volunteers, but they are merely a form, as they are a part, of .the militia, and do not militate against the idea of the two species of forces. It is conceded that both may not be required in any given case, but both must exist, or rather the militia cannot be destroyed or extinguished by an act of Congress. »The Constitution forbids this by the positive injunction to provide for organizing, arming, and disciplining them. They are the security of the States against the Federal Government, and their only security; for the States themselves are not allowed to support armies.
¶103“It may safely be received as an axiom in our political system,” says the “Federalist,” No. 28, “that the State governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority.” … “ They can at once adopt a regular plan of opposition in which they can combine all the resources-of the community!” How can this security be afforded against the danger of invasion of the public liberty by the national authority, unless there be some military force with which to resist it? What resources are there in a community, if all the “ able-bodied men” may be absorbed in the national'forces? It will at once be agreed, I think, in view of the constitutional provisions cited, that the militia, the only power of the States, must be maintained in tact, and that no system is constitutional which extinguishes them.. Let us inquire, therefore, whether or not the act of Congress of the 3d of March, 1863; known as the conscription act, does not in fact attempt the complete demolition of the militia of the States.
¶104The preamble to the act sets forth the existence of insurrec*496tion and rebellion; that’a military, force is indispensable to suppress it; that to raise and support which “ all persons ought willingly to contribute.” It is therefore enacted, Sec. 1, “That all able bodied male citizens of the United States and persons of foreign birth who shall have declared on oath their intention to become citizens in pursuance of the laws thereof, between the ages of twenty and forty-five years, except as excepted, are hereby declared to constitute the national forces, and shall be liable to perform military duty in the service of the United States, when called out by the President for that purpose.” Then follow numerous provisions for classifying them, for the lottery or draft of the required number in each military district, the closing up of the wheel until again required, and the order and terra of service, not as militiamen belonging to and officered by the States, but as parcel of the army of the United States “raised and supported” under the clause of the Constitution which provides for raising and supporting armies, and to be officered by Federal authority exclusively.
¶105Every able-bodied man in the United States, between twenty and forty-five, is by these provisions enrolled, and declared to constitute the national forces. This covers the entire material of the militia in the Union. All able-bodied white men between twenty-one and forty-five years are liable as militiamen in this commonwealth, and it is believed that this is about or near the standard in most, if not all the other States. This act is broader, both as to age and color. The specified age, however, amounts to nothing, for Congress, by a very slight extension of power in fixing the standard, could just as well have made it to include all between the ages of eighteen and sixty. Let the power be once established, the right must follow, and in this way every man in public or private life in a -State between those ages might be included. No one is exempt under the present law but the Governor. All other officers, judges, legislators, representatives in Congress, sheriffs, magistrates, county and township functionaries of every description, if under forty-five, are liable now to be forced into the army, or to commute by the payment of $300, or to find substitutes. As it is, this would draw heavily upon the public, and necessary local officers — but if extended to the ages of eighteen and sixty, as it could as readily be made to do, it might include all, not excepting even the Governor. Can it be that the machinery of our government is so incongruous as tó admit of this? Can it for a moment be believed that the framers of the Federal Constitution intended to create such a monstrous power ? One that would not only absorb the military power of the State but the civil also? This is exactly the principle *497of this enactment, and to a great extent will be the practical workings of it.
¶106I hold that the act plainly and directly destroys the militia system „of the States, as recognized in the Constitution, and the acts of Congress of 1792 and 1795. By its provisions the militia are to be enrolled as part of the national forces, another term, as will be seen, for national armies, and it requires each individual, so enrolled, to answer and report himself, when drawn, to the military officers of the Federal government, under the pains and penalties prescribed for desertion. If this is not taking possession of the entire materiel of the militia and consequently the militia itself bodily, I cannot comprehend the meaning or effect of language.
¶107The direct object of the act is to constitute the national forces of the same material as that which constitutes the militia of the States, and for that purpose a Federal enrolment is made, and a portion so enrolled are drawn from the wheel and separately and individually transferred to the army of the United States to be commanded not by State, but by United States officers. They are henceforth not militiamen, but regulars. They are to be carried into the army under the power granted to Congress “ to raise and support armiesnot under that other power which authorizes Congress “ to provide for calling out the militia to execute the laws, suppress insurrection and repel invasion.” If called out in this capacity, it would be done by requisition of the President upon State authorities, at least, upon State military officers, and then the militia would come forth in organized bodies, not as individuals, and be officered by State authority. This is widely different from directing the Federal authority to each individual — to conscript him in his individual character, and to compel him to serve not with State contingents and under State officers, but under Federal or army officers.
¶108In short, the provisions of the act incorporates into the Federal armies the entire material constituting the militia, by directing their authority to them individually, without a requisition on the States, and without any power in any State to appoint a single officer to command them, although the entire force was, by the Constitution, to be, when called into the service of the United States, under the military officers of the State. Such an act, disregarding such plain provisions of the Gonsti- ' tution, is certainly unconstitutional, if such a thing be possible, at all, of any act of Congress, and this view, if correct, establishes conclusively the limitation of the power to raise and support armies.
¶109Those enrolled and not drawn out of the wheel at the first draft, remain subject to be called out afterward. They are the *498unemployed national forces, and are declared to be subject to be called into service under the plan of the act for two years, after the 1st of July succeeding the enrolment, to serve for three years or during the war. It is true, when called into service, the act says they shall be “placed on the same footing in all respects as volunteers, including advance pay and bounty, as is now provided by law.” I presume it is' not meant by this, that the conscripts are to elect their own officers. But even if this were so, it would be no less a deprivation of the right of the States to appoint the officers of their militia, and unconstitutional for that reason.
¶110As the enrolment or conscription into the national forces for two years, although unemployed, is nevertheless an incorporation of them with the national forces, it is a withdrawal of them for that period from the control of the States. The act would be worth nothing if the States might resolve that this should not be. The act of Congress is supreme or it is nothing. If it be supreme, then the enrolled men can be and are directly under the Federal authority all the time, and thus every citizen or enrolled person, in or out of service, may be liable to be controlled by military law all the time, if Congress chooses. Can this be possible? What is to become of the States and their sovereignty, a matter often sneered at, but among the most distinct, clear, and cherished principles in the whole body of the Constitution? One portion of the militia conscripted and actually in the field, the balance conscripted and not yet in the field, but subject to the military authority of the United States, where are the militia and where is the security of the States against being entirely absorbed, and against invasions of the public liberty by the national authority, which the writers of the Federalist thought existed in the militia ? It is neither in the field nor at home; it is abolished !
¶111Apprehensions, doubtless, of just such an enactment as this now under consideration superinduced the introduction of the bill of rights by amendment and consent of two-thirds of the States, in which is the declaration, that “a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” '
¶112I contend that the act of Congress under discussion, violates this declared right, by absorbing the militia into the army, as contra-distinguished from the militia; by taking all the material which constitutes the militia and calling them out individually without requisition on the States, and placing them under officers not chosen by the States.
¶113It disregards the organization of the militia altogether, not *499only in providing others than militia officers, but in its total disregard of State regulations and exemptions. Heads of departments of the States, judges of the several courts, ministers of the gospel, professors in colleges, school directors are exempt, by our militia law. But the mode adopted for calling out the forces of the country, disregarding the militia system, disregards all these. These were within the militia, but as the militia itself is overthrown by the act in question, they fall with it. It is possible that this power may be exercised, and the States live through it, but although they may not fall, their foundations will be fatally sapped, and if the precedent remain, it will in time become the authority for their extinction.
¶114The Constitution authorizes Congress to provide for calling out the militia to suppress insurrections and repel invasion.” During the whiskey insurrection in this State, President Washington 'called upon the militia for this purpose, by a requisition on the Governor, and in person commanded them. So the militia were called out from many of the States during the war with Great Britain, and in every instance a requisition was made by the President upon the Governors of the States. It is true that in 1814, the question was much agitated in Congress whether or not, under the power to “'raise armies,” the militia might not be conscripted by the Federal authority. The bill which proposed this had the sanction of high names — but it differed much from this act, and was never finally acted on, because of the termination of the war by the peace of Ghent. The discussion on this bill was able, but partisan, and furnishes little aid to a judicial examination, and hence I have not recurred to it much in taking the view herein expressed. That a government like that of Great .Britain may resort to conscription to fill the ranks of her armies, and has done so on many occasions, is no argument or precedent for that practice under the Federal Constitution. Even in 'England, this is far from the ordinary mode of recruiting the army, and it will hardly be contended that the exception to the rule will establish a custom, by which to define the meaning of the words “ to raise and support armies,” used in our Federal Constitution, so that ex vi termini, conscription or draft, both involuntary modes, were thereby meant.
¶115But the precedent would go for nothing in this inquiry, even if the practice had been common in England. The difference between the construction of the British and Federal Constitutions is radical. In the former, all governmental powers not expressly prohibited to the government, may be lawfully exercised. In the latter, whatever power is not expressly granted is withheld. There is no grant of such a power to the latter, *500as I have endeavored to show, and no restraint upon it in the former, as the exercise of it proves.
¶116This remark is equally applicable to the difference between the State and Federal Constitution. Between, them the same difference in construction exists. The governmental powers of the States extend to all rightful subjects, not prohibited — and the national only to such as are granted. It therefore does not advance the argument a step in favor of those who contend for the constitutionality of the Conscription Act, to point to instances in which drafts have been made by State authorities. Militia duty is compulsory in all the States. They are not prohibited from compelling it any more than from compelling the payment of the taxes. It is in this way, and in this way only, in my opinion, that the national forces can be compulsorily raised; that is to say, by a requisition on the State authorities for militiamen in a just proportion to population.
¶117Why have not the militia been called out in the present emergency ? They are composed of the men the draft proposes to furnish. They are to be governed, while in the service, as Congress shall prescribe. They may be retained for one, two, or three years, or while the insurrection lasts, and will become just as good soldiers in the one character as in the other, They are the constitutional power for that purpose, if the army be not sufficient to effect the object without them. Why not employ them ? “ There is but one of two alternatives,” says Judge Story, “ which can be resorted to in cases of insurrection, invasion, or violent opposition to the laws, either to employ regular troops or to employ the militia to suppress them.” Story on Con., sec. 1201. If it be said that the militia will be inefficient, which I deny with equal training, I insist that the imperfection of the system is no justification for the overthrow, in part or in whole, of the Constitution.
¶118There is nothing on earth that I so much desire as to witness the suppression of this unjustifiable and monstrous rebellion. It must be put down to save the Constitution, and the constitutional means for the purpose I believe to be ample, but we gain but little, if in our efforts to preserve it when assailed in one quarter, we voluntarily impair other portions of it. Its entirety is vital, it must all stand, or it will all fall; it can never be apportioned.
¶119Believing that I have shown that the power “ to raise and support armies” is limited to voluntary enlistments, and necessarily so limited that the militia of the States may remain in full force, I am impelled by no choice of alternatives, to the conclusion that as the act of Congress transcends these limits, and by force of law attempts to abolish the militia, instead of calling on them to suppress the insurrection now so wide*501spread, I am of opinion that the act of Congress is violative of the Constitution of the United States, and void.
¶120I most sincerely confess that it would have been a much more agreeable duty to me to have been able at this time and at all times, to give my full accord to the measures resorted to to restore the peace and order of our once happy country ; but looking to the Constitution, at the reasons for its provisions, and then to the solemn obligation which I have voluntarily come under to support the Constitution, I cannot, even at the risk of misrepresentation of motives, hesitate, when the question is a judicial one, to express my unmixed convictions as I have done, of the enactment in question.
¶121Standing recently on the gentle slopes at Eunnymede, memory - sent a thrill to my heart in admiration of those old Barons who stood up there and demanded from a tyrannical sovereign that the lines between power and right should be then and there distinctly marked, and all my feelings at the moment paid an involuntary tribute of regard to the fidelity with which their descendants have continued to maintain what they there demanded and obtained, although often overshadowed by insurrection and war. Our forefathers marked these lines in the Federal Constitution. I must adhere to them. I cannot help it, and while I. live I trust to Heaven that I may have the strength to say that I will ever do so.
¶122There is no legal authority, in my opinion, in the officers of the Government to hold the complainant against his consent. I am therefore in favor of enjoining them as prayed for until further hearing, and I agree to the same order in the other cases.