I concur in what is said in the opinion of the court respecting the motion which has been made by the Attorney-General for the continuance of this cause. I concur, also, in the *406correctness of the proposition that the right of a party to a writ of habeas corpus does not depend upon the legality or illegality of his original caption and detention, but upon the legality or illegality of the restraint at the time the writ is issued and the rer turn made. I do not, therefore, feel at liberty to discuss the legality of the original arrest of the appellant, or the right of military commanders to place the citizens of these Confederate States under martial law. As it appears, however, from the record, that the Chief Justice, upon the original hearing, declared that “ his mind was made up as to the constitutionality of martial law,” from which expression I understand that he meant to express the opinion that martial law, as it existed in the county of Travis at the time of the return of the writ in this case, might be declared and enforced in conformity with the constitution of the Confederate States.; that it may not be supposed that I entertain'a similar opinion, I take leave to say, that nothing, in my judgment, could be a more palpable violation of the constitution and of the rights of citizens. I believe that “the constitution,” in the language of Vice President Stephens, “was- made for war as well as for peace;” and that there exists no power, in any department of the government of the Confederate States, to transcend it or to suspend it upon any notion of public necessity. I believe that no power exists anywhere in the Confederate Government to subject citizens, not belonging to the army or navy, and not actually serving in the militia, to any military code, or to the will of any military officer, provost marshal or other, or to the jurisdiction of any other tribunal than the ordinary courts of justice established by law. I believe that under the constitution of the Confederate States “no person can 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 Avar or public danger;” and that “ in all criminal prosecutions the accused, has the right to a speedy and public trial by an impartial jury of the State and district Avherein the crime shall have been committed.” I know that some have supposed that congress has the power to declare martial laAV, as an incident of the poAver to *407make Avar. It is true that congress has the Avar poAver; but that power and all its other poAvers must be exercised in subordination to those provisions of the constitution which I have just quoted. But I said that I do not feel at liberty to discuss this subject. I therefore take leave of it, having said thus much only from a desire that my humble testimony, worthless as it may be, shall ever be in support of the Iuavs, and of the rights of the people, rather than in support of arbitrary potver, which is destructive alike of public liberty and private right.
I am not able to concur in the judgment Avhich has been rendered in this case, nor in the reasoning of the majority of the court in support of the constitutionality of the acts of the congress of the Confederate States, commonly called the conscript laws. I believe those acts to be unconstitutional. The question is one of -the greatest magnitude; it is directly presented for decision; and believing it to be fraught with the most vital concern to the pi-in¡tiples of civil liberty and free government, I cannot forbear to express my opinion.
It is said in support of the constitutionality of these acts of conscription, that the war making poAver is committed to congress by the constitution, and that it is also declared by the constitution that congress shall have poAver “to raise and support armies.” And it is contended that this power to raise and support armies is without any limitation, and that congress may exercise an unlimited discretion in the choice of the means by which to carry it effect. In the opinion of the court, the arguments employed by the authors of the Federalist, Avhen the constitution of the United States Avas before the people for their consideration, to show that it was necessary to confide to the general government about to be instituted the poAver to raise and support armies, are quoted. The arguments employed by the same writers to show that there ought to be no limitation upon the power of the general government to raise and support armies, are also quoted. Yattel is quoted as authority for the proposition that “no person is naturally exempt from taking up arms in defence of the Stateand that “ every man capable of bearing arms should .take them up at the first order of him who has the power of *408making war,” that is, at the first order of the sovereign. It is further argued, in the opinion, that if the power of the government to compel citizens to enter the military service be denied, this is equivalent to the denial of the power to raise armies; that if the government can only raise armies by the voluntary enlistment of citizens, the power is wanting, and only a privilege remains. It is also assumed that for the general government to compel all citizens between the ages of eighteen and forty-five years to enlist in the regular army, under officers appointed by the President, is no interference with the constitutional rights of the States over their militia, because it is said the general government takes the individual in, his capacity of citizen, and not in his capacity of militia man.
I shall notice these positions and arguments only so far as may be necessary to the presentation of my own views.
In any inquiry into the form, the spirit and the powers of gbvernment, and in the examination of questions which are in themselves fundamental, while the proper weight is to be given to. former usage, to cotemporaneous expositions, and to the opinions of eminent men, the impartial and philosophic inquirer after truth will not fail to note carefully all the circumstances under which any particular usage obtained, the sources from which cotemporaneous expositions emanated, and the general character, the cast of mind, the political predilections, the party connections and the like, of any eminent or distinguished person whose opinion may happen to be in question.
In any question concerning the constitution of the United States, (and equally in any question concerning our own, constitution, so far as it is a copy of that celebrated original,) the writings, of Hamilton, Madison and Jay, knowh’ as “The Federalist,” are entitled to very high consideration, as a cotemporaneous exposition of the powers intended to be conferred by the constitution upon the government which it proposed to establish. It is known to. all persons who are possessed of even a slight knowledge of the •political history of the United States, that Mr. Hamilton was the great exponent of the opinions of the federal party of that day, and that he was in favor of a much stronger government than that. *409established by the constitution of 1787. It is also known that Mr. Jay, the first Chief Justice of the United States, was also a member of the federal party, and entertained, in the main, the same views as Mr. Hamilton, on the subject of government. But it is not so generally known that Mr. Madison, who soon after the adoption of the constitution joined the republican party, and became the ablest supporter of Mr. Jefferson in his great struggle with the elder Adams, was, until the adjournment of the convention which framed the constitution, as much in favor of a strong government as Mr. Hamilton himself, or nearly so. Such, however, was the fact, and all his propositions and speeches in the federal convention bear testimony to the fact.
In his discourse on the constitution and government of the United States, Mr. Calhoun commenting upon the opinions of the authors of the Federalist, and arguing to show that they had fallen into a radical and dangerous error concerning the very form of the government, as federal or national, uses the following language: “How the distinguished and patriotic authors of this celebrated work fell—against their own clear and explicit admission—into an error so radical and dangerous, one which has contributed more than all others combined, to cast a mist over our system of government, and to confound and lead astray the minds of the community as to the true conception of its real character, cannot be accounted for, without adverting to their history and opinions as- connected with the formation of the constitution. The two-principal writers (meaning Mr. Hamilton and Mr. Madison) were prominent members of the convention, and leaders of that body of the party which supported the plan for a national government. The other, (meaning Mr. Jay) although not a member, is known to have belonged to the same party. They all acquiesced in the decision which overruled their favorite plan, and determined, patriotically, to give that adopted by the convention a fair trial, without, however, surrendering their preferences for their own scheme for a national government.
It was in this state of mind—which could not fail to exercise a strong influence over their judgments—that they wrote the Federalist; and On all questions connected with the *410character of the government, due allowance should he made for the force of the bias under which their opinions were formed.” This language is used, I think, in the spirit of just and enlightened criticism, differing somewhat from the spirit of the senate and ¡house of representatives of South Carolina, as exhibited in their “protest against the system of protecting duties,” in which they thought proper to offer an apology for citing the Federalist as an authority upon a political question. If. then, it can be shown that the writers of the Federalist have not only not claimed for the government of the United States an unlimited power over the citizens for the purposes of war, but have constantly based their arguments concerning the war power of the government upon assumptions wholly at variance with any idea of unlimited control over the citizens, this would*seem to go a great way toward establishing the proposition that the government has no such unlimited control. The authors of the Federalist painted in strong colors the imbecility of the States under the articles of confederation, and showed that congress, under that system, lacked the powers essential to efficient and stable government. It devolved upon them to answer, or they rather assumed the task of answering the arguments which were rife throughout the country against standing armies in time of peace. They asserted the evident proposition that if the government about to be established was charged with the common defence of the States, it should be entrusted with the means essential to such defence. It was said that the danger to which the States might at some future time be exposed could not be estimated or foreseen, and therefore the government charged with the duty of defending against such danger, should not be limited in its power to defend. Nothing but the utmost jealousy of their liberties could have made it necessary to urge upon the people propositions so plain and fundamental.
In the 41st number of the Federalist, written by Mr. Madison, taking a general view of the powers proposed to be vested in the Union, he proceeded to reduce them into classes, as they related to different objects. The first object to which he called attention was, “security against foreign danger.” He classified the powers necessary to security against foreign danger, thus: “ Those of *411declaring war, and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money.” Here, it will be seen, the power of the government over the militia is treated as a part of the war power. In number 29, it is said by Mr. Hamilton, “ The power of regulating the militia, and of commanding its services in times of insurrection and invasion, are natural incidents to the duty of superintending the common defence, and of watching over the internal peace of the Confederacy.” Here again the militia is treated as a part of the means to be used by the government in the exercise of the war power. Again, Mr. Hamilton says, “If standing armies are dangerous to liberty, an efficacious power over the militia, in the same body, (that is, in Congress,) ought, as far as possible, to take away the inducement and the pretext, to such unfriendly institutions.” In the 45th and 46th numbers, Mr. Madison entered upon a full discussion of the supposed danger to the State governments from the powers of the Union, and of the ability of the State governments to sustain themselves against encroachments upon their reserved powers, by the government of the Union. In one place he says : “The number of individuals employed under the constitution of the United States, will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive and judiciary departments of thirteen and more States; the justices of the peace, officers of the militia, ministerial officers of justice, with all the county, corporation, and town officers for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of the people, must exceed beyond all proportion, both in number and influence those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, with the members of the corresponding departments of the single government of the union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in *412this view alone we may pronounce the advantage of the States to he decisive.” In summing up the argument upon this subject, Mr. Madison said; “ The only refuge left for those who prophecy the downfall of the State governments, is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose, indeed, if it could be necessary now to disprove the reality of this danger, that the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both ; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every 'one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it, however, be made; let a regular army fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not he going too far to say, that the State governments, with the people on their side, would be able, to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well»be doubted whether a militia thus circumstanced, could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against *413the British arms, will he most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people ate attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than a simple government of any form can admit of. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone, they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.” Thus wrote Mr. Madison. Even the injustice of party never denied either to Mr. Madison or Mr. Hamilton great talents, ardent patriotism, honesty of purpose, and purity of personal character. Can it be possible, I ask, that such men could present the arguments and the views which I have quoted, to their fellow citizens, to induce them to adopt a form of government which committed to the legislative department the power, by a single vote, to compel every man, between the ages of eighteen and forty-five years, to become a regular soldier, subject to the orders of the President? It is not possible; and we are, therefore, driven to the conclusion that when those illustrious men contended that the general government, which was charged by the constitution with the Common defence, should be clothed with “the indefinite power of raising troops;” and when they said, ill general terms, that the power of congress “ to raise and support armies,” should be without any limitation, they only meant to say that congress ought not to be controlled by any limitation in the cofistitution as to the number of troops they might raise-; and that they ought not to be limited as to the time When they might raise armies, but that they should have the *414power to raise armies, and to support them in time of peace as well as after a declaration of war.- In the last quotation which I have made from the 46th number of the Federalist, by Mr. Madison, he assumes that an extensive military establishment could only be created by the uniform and systematic pursuit of some fixed plan for that purpose and when he proposes to concede, for the sake of the argument, all that the government could do by way of accumulating a military force for the projects of ambition, he limits its possible efforts to the accumulation of a force of twenty-five or thirty thousand men, having reference to the population of that day; which force, he concludes, could not cope successfully with the militia of the States. Gan it be possible that a statesman like Mr. Madison would have ventured upon such a position and such an argument, if it could have been replied to him that the congress could vote a hundred thousand men into the ranks of the regular army whenever they pleased, and compel them to serve or he treated as deserters; and that the militiamen of the states could be compelled, in their character of citizens, to serve in the army as regular soldiers ? I say again, it is not possible.
I have no controversy with the quotations which are made, in the opinion of the court, from Yattel. The principios announced in the passages quoted are sound. But they have application only where written constitutions have not imposed limitations upon sovereign power at variance with them, or in restraint of them. Yattel wrote his justly celebrated work on the law of nations, and was sleeping in his grave some years before the declaration of American Independence. It has been our boast that our revolutionary ancestors made some advance in the principles and science of government, and kindled again the vestal fire on the altar of liberty, which had been smouldering under the ashes of two thousand years. I am not prepared, therefore, to accept Monsieur Yattel as a valuable authority upon a question concerning the power of the government of the United States, or of the Confederate States.
I shall now proceed to inquire somewhat more particularly whether the power which is granted to the congress of the Confederate States to raise and support armies is without any limitation, *415and whether of not congress is left to the exercise of an unlimited discretion as to the means by which it may be carried into effect. In the opinion of the court, it is said that, “in determining the constitutionality of a law passed by the Confederate government, it is always important to consider whether the act in question is done in the exercise of a power expressly granted, or under the implied powers granted by the' 18th paragraph of the 8 th section of the 1st article of the constitution. If it is the first, then the confederate government may use their discretion in the mode and manner of its exercise, unless it is limited or restrained in so doing, by some other express provision or clear and necessary implication, and the burthen of showing this is upon those who assert the limitation.” The court further say, that “ the authority given to make all hiws which shall be necessary and proper for carrying into execution the expressly granted powers, was not intended merely to authorize congress to exercise by legislation the previously granted powers. And its right to do so depends in no manner upon this clause, hut it is itself a direct grant of all such subsidiary and incidental powers as shall be necessary and proper to carry into effect the previously granted powers. And it is admitted, that where authority to do an act is claimed under it, it is incumbent upon those who maintain it to show, not merely that it is a ‘ necessary ’ law, but that it is. a necessary and proper one for carrying into effect the expressly granted power.” The 18th paragraph of the 8th section of the 1st article of the constitution of the Confederate States is in these words: “ Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the Confederate States, or in any department or officer thereof.” The language is precisely the same as that of the last clause of the 8th section of the 1st article of the constitution of the United States, with the exception, of course, of the style of the government. This clause of the constitution of the United States has been much discussed. In Mr. Madison's report on the Virginia resolutions of 1798, it is said in reference to this clause, “ The plain import of this clause is, that congress shall have all the incidental or instru*416mental powers necessary and proper for carrying into execution all the express powers, whether they be vested in the government of the United States, more collectively, or in the several departments or officers thereof. It is not a grant of new powers to congress, but merely a declaration for the removal of all uncertainty, that the means of carrying into execution those otherwise granted are included in the grant. Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by congress. If it be not, congress cannot exercise it.” Judge Story has incorporated this language into his Commentaries on the Constitution, with very slight alteration. He says the clause in question “neither enlarges any power specifically granted, nor is it a grant of any new power to congress.” Mr. Monroe, in the celebrated paper containing his views on the subject of internal improvements, which accompanied his message vetoing the “Act for the preservation and repair of the Cumberland road,” (May 4th, 1822,) speaking of this clause of the constitution, said: “I have always considered this power as granted on a principle of greater caution, to secure the complete execution of all the powers which had been vested in the general government. It contains no distinct and specific power, as every other grant does, such as to lay and collect taxes, &c. My impression has been invariably, that this power would have existed substantially, if this grant had not been made.” Mr. Calhoun, in his discourse on the constitution and government of the United ■ States, speaking of this clause, says: “This power,” (meaning the power to pass laws to carry into effect the powers expressly granted,) “this power, comprehensive as it is, is, nevertheless, subject to two important restrictions; one is, that the law must be necessary; and the other, that it must be proper. To understand the import of the former, (that is, that the law must be necessary,) it must be borne in mind that no power can execute itself. They all require means, and the agency of the government to apply them. The *417means themselves may, indeed, be regarded as auxiliary powers. Of these, some are so intimately connected with the principal power, that, without the aid of one, or all of them, it could not be carried into execution; and of course, without them, the power itself would be nugatory. Hence, they are called implied powers; and it is to this description of incidental or auxiliary powers that congress is restricted in passing laws necessary to carry into execution the powers expressly delegated.” But, Mr. Calhoun continues, “ the law must also be proper as well as necessary in order to bring it within its competency. To understand the true import of the term in this connection, it is necessary to bear in mind that even the implied powers themselves are subject to important conditions, when used as means to carry powers or rights into execution. Among these, the most prominent and important is, that they must be so carried into execution as not to injure others; and as connected with, and subordinate to this, that where the implied powers or means used come in conflict with the implied powers or means used by another, in the execution of the powers or rights vested in it, the less important should yield to the more important, the convenient to the useful, and both to health and safety; because it is proper they should do so.”
In the celebrated case of McCulloch v. The State of Maryland, (4th Wheaton,) Chief Justice Marshall, in treating of the clause in question, says: “We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national. legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
In the light of these expositions I think it safe to say, that there can be no shifting'of the burthen of argument upon questions involving the powers of the government, upon the ground of any *418distinction between express and implied powers. The government is one of limited powers, and whoever asserts the constitutionality of a particular power, must show it. Is the power expressed in the constitution ? If it is, the question is decided. If it is not expressed, then it must be shown to be necessary to the execution of some power that is expressed, and not only necessary, but proper to be used in carrying into execution some “power that is expressed. The majority of the court say, the power to raise and support armies is expressly granted. This, of course, is not denied ; but I beg leave to say, it is not to the purpose. The question is not. whether or not the power to raise and support armies is expressly granted; the question is, whether or not the power to raise armies by conscription is expressly granted. It will, of course, be conceded, that the constitution contains no such express grant of power. Then the further questions arise, is conscription pne of the implied powers ? is it a means necessary to be used in carrying into effect the power to raise armies ? is it a means proper to be used ? does it consist with the spirit of the constitution ? is it not a means, the use of "which will conflict with the reserved right of the States to train their militia, and to appoint the officers of the militia ?
■ In considering whether a law is necessary, in the sense of tbe constitution, to carry into effect an express power, if we are not to adopt the strict rule laid down by Mr. Calhoun, to wit, that the express power would be nugatory without use of the means proposed by the law, I take it for granted that we will not, on the other hand, go back to that latitude of construction, and to the reasoning by which the federalists of 1798 claimed for the congress of the United States the power to exercise a censorship over the press, as' a means necessary and proper to carry into effect the power to suppress insurrections. We have been accustomed to read, with the interest that attaches to the drama, the history of the great struggle which elevated Mr. Jefferson to the presidency. It is the first conspicuous landmark in the history of the government of the United States under the constitution. It has always been claimed that the republican party performed a patriotic service in resisting the tendency to a rapid consolidation. *419of powers in the general government, and that their illustrious leader was the faithful sentinel who saw the danger to the constitution, and met it with a noble devotion to the cause of liberty. And in the subsequent history of the government; in Mr. Monroe’s denial of the power of the government to establish a system of internal improvements without limitation; in General Jackson’s memorable struggle with the bank of the United States; and in every step which has been made towards a strict construction of the constitution, the people have hailed the triumph of sound principles and felt renewed confidence in the stability of republican institutions. I camiot, therefore, accept that as a sound construction of the constitution which involves an immeasurable departure from those principles which conducted the people of the United States to unexampled prosperity and greatness, and to preserve which was the avowed purpose of these Confederate States in the dissolution of the old union, and the establishment of our present government.
It camiot be contended that conscription is a means necessary to carry into effect the power to raise armies. Such a proposition, besides being contrary to reason, would find its contradiction in the facts of history, and in the events which are transpiring before our eyes. The government of the United States has always kept an army on foot, maintained an honorable contest with Great Britain in 1812, and planted her banners on the walls of the capital of Mexico in 1847, but has never raised troops by conscription. We have seen gallant armies take the field at the call of these Confederate States, without any conscription. We are told that the government of the United States is prepared to precipitate upon us not much less than a million of men. They have been raised without any conscription. Conscription cannot, therefore, be a necessary means of raising armies. And it would seem that the facts above mentioned ought to furnish a sufficient answer to the position which is assumed, that if the government cannot compel the citizens to enter the regular army, then the power to raise an army is wanting, and the government has only the privilege of raising armies. It would seem that a privilege which *420enables a government to bring a million of men into the field can only be a misnomer for the power to do so. The word “privilege ” properly signifies an exemption from some duty, an immunity from some general burthen or obligation, a right peculiar to some individual or body. The word could not with propriety be substituted for the word power in the constitution. But let us suppose it had been used instead of the "word power. After the criticism which would have been elicited because of the use of an improper word, what meaning would necessarily have been drawn from its use? “Congress shall have the privilege of laying and and collecting taxes, duties, imposts and excises“ Congress shall have the privilege of borrowing money on the credit of the Confederate States.” Would it not have been said that the framers of the constitution meant to say that congress should have the power to do these things? The word power is the appropriate word, but it is not used in the sense of force. We speak with correctness of the military power of a government. We say, for example, the government of the United States has not the power to conquer the people of the Confederate States; meaning that it cannot use the necessary force. But when we speak of the legislative, the executive, the judicial power of a government, there is no idea of force connected with the word. It is true that the executive department of the government may sometimes use force in carrying into execution the will of the legislative department. The executive department may use force in suppressing insurrections, and must necessarily use it in repelling invasions. But when it is said that congress shall have power to constitute tribunals inferior to the Supreme Court, to establish uniform laws of naturalization, and uniform laws on the subject of bankruptcies, to coin money, to borrow money, and the like, there is no idea of force connected with the use of the word power. It cannot be denied that congress may raise armies by accepting the services of those who may voluntarily enlist. It has then the power to do this; but it cannot be said that congress can use force, or require the executive department to use force to compel a citizen voluntarily .to enlist, because this would be sheer nonsense. The use of *421the word, then, by no means carries with it the implication that congress may employ force to do everything which it is said to have the power to do.
For the purpose of testing this question of the power of the government to compel citizens to enter the regular army, let us examine the scope of another of the express powers, and one of a kindred nature to that of raising armies. The constitution says “congress shall have power” “to provide and maintain a navy.” The grant of power, so far as the language employed in making the grant is concerned, is without any limitation. The grant of power to raise and support armies is limited by the provision that “no appropriation of money to that use shall be for a longer term than two years.” The power “to provide and maintain a navy ” is without any such limitation. I now recur once more to the language of the Federalist, which is quoted in the opinion of the court. “Is the power of raising armies and equipping fleets necessary ? This is involved in the foregoing power (meaning the power to declare war). It is involved in the power of self defence. But was it necessary to give an indefinite power of raising troops, as well as of equipping fleets, and maintaining both, in peace as well as in war?” Mr. Madison insists that these powers were necessary. Now I ask the question, has- the congress of the Confederate States the power, under the constitution, to compel the citizens of these States, between the ages of eighteen and forty-five years, to enter the naval service, to become seamen or marines, for an indefinite period of time, or for five or ten years ? Who will answer the question in the affirmative ? Yet the power “to provide and maintlin a navy” is to the full extent as broad and unlimited as the power to raise and support armies; and the indefinite power of equipping fleets is put, by the author of the 41st number of the Federalist, on precisely the same footing as the indefinite power of raising troops. If the British practice of impressing seamen is authorized by the constitution of the Confederate States or of the United States, I venture the assertion that the people of both countries are ignorant of the fact. And if it is admitted that the congress of the Confederate States has not the power to compel citizens to enter the naval service, I *422should he glad to he furnished with a reason why it has not, by those who claim that it has the power to compel citizens to enter into the regular army. Take the two grants of power, and how. can you draw a distinction between them? Congress shall have power- “to raise and support armies.” Congress shall have power “to provide and maintain a navy.” It is well known that in France the conscription furnishes seamen and marines as well as soldiers for the regular army. If our government possesses an unlimited control over the citizens for purposes of defence, then it has the power to assign them to the land or naval service, at its pleasure. I make bold to say that the government of the Confederate States possesses no power to compel citizens to enter into its naval service; and for the simple reason that the government is one of limited powers, that the people who instituted it were a free people, and had the right to make such a government as they pleased to make, and that they never intended to invest the government with an unlimited Control over their persons for the purposes of war. And for the same reasons the government has no power to compel the citizens of the States to enter the regular army. The truth is, there are limitations upon the powers of the governments of the United States and of the Confederate States, besides those which are expressed in the constitutions of eách. And this is what is meant by the spirit of the government. It would have been impossible, in the formation of a constitution of government by the free people of several independent States, having for its principal object the regulation and control of their-foreign relations and interests, to have specified the powers and rights which they intended to reserve to gfhemselves. All that could be done was, for the sake of caution, to declare that they reserved to themselves the powers whichAvere not delegated by the constitution to the general government When, therefore, we come to inquire, what the reserved powers are, or, in other words, what are the limitations upon the delegated powers, we are entering a wide field of investigation, and one that invites to the noblest exercise of mind. In determining such questions respect must be paid to all the circumstances under which the constitution was established, -to the purposes for which it was established,, to-*423the condition, and to the intentions of the parties who established it. And it is never to be inferred that a delegated power is absor lutely without any limitation, because no limitation is expressed in the constitution, nor yet because there is no clear implication of a limitation from anything that is expressed. Mr. Calhoun says, “there is indeed no power of the government without restriction; not even that which is called the discretionary power of congress.” The constitution says that “ the president shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” And in another place it is said that the “constitution and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made under the authority of the Confederate States, s.hall be the supreme law of the land.”
It will be seen that the power to make treaties is without any express limitation. Yet there must be important limitations upon the treaty making power. It must be considered with reference to the general purposes for which the government was instituted. Some of the limitations upon the treaty making power will be found to arise by necessary implication from other provisions of the constitution. For instance, the president and senate could not enter into a treaty with England to make war against France, because the power to make war is committed to congress, and one provision of the constitution cannot be construed to the destruction of another. Nor would it be competent fot the president and senate to make a treaty ceding that portion of the territory of Texas which lies west of the Nueces river to Mexico, without the consent of the people of Texas—not because there is any prohibition of such a treaty expressed in the constitution, nor yet because such a prohibition can be clearly implied from anything that is expressed, but because such a treaty would not be in pursuance of the purposes for which the government was instituted, and because the people of Texas never intended to clothe the government with any such power.
Other examples might be given, were it necessary, of limitations upon the powers of the government, which are not expressed in the constitution, but which spring, necessarily, from the reserved *424rights of the people. The substance of the whole is, that the powers of the government must be so construed as to trench as little as possible upon the liberty of the citizen; and so as to interfere in the least possible degree with the domestic concerns of the people, the regulation of which is reserved to the States respectively. It may be argued, and it may be true, that to deny to the general government the right to compel citizens to enlist in the regular army, and to confine its power to make war to the employment of the militia, and of such regular forces as may be raised by the voluntary enlistment of the people, will leave the govern-. ment less able to wage war with vigor, than it would be if possessed' of the power contended for by the advocates of conscription. The plain answer to all such arguments and complaints is, that the government was not instituted with a view to the greatest possible efficiency in war. It was not the purpose of the people in its establishment, to foster a military spirit, or to tempt their rulers to undertake those enterprises so attractive to vulgar ambition, by furnishing the means • for their easy accomplishment. They dedared their purpose to be, to establish justice, to insure domestic tranquillity, and to secure the blessings of liberty to themselves and their posterity. I am of opinion that they never intended to arm a government instituted for such purposes with the tremendous military power which is claimed by the acts of conscription. I do not believe those acts to be necessary to carry into effect the war power with which the government has been clothed. I ,do not. believe; them to be proper, because not necessary, and not consistent with the spirit of the constitution. More than this, if more be needed to condemn them, I believe them to be directly iru conflict with the-reserved rights of the States over the militia; or, what is perhaps. the same thing substantially, the reserved rights of the people to do military service as militia, when military service is required of them.
Before proceeding, however, to the examination of the provisions of the constitution respecting the militia, I will briefly notice, as-matter of historical interest, and, also, as. bearing somewhat upon the question under discussion, the fact, which is alluded to in the-opinion of the court, that the power to; compel citizens to do fliili*425tary service in the regular army, was claimed for the. government of the United States by Gen. Knox, during Gen. Washington’s administration, and by Mr. Monroe; during Mr. Madison’s administration. Gen. Knox was Secretary of War, and a soldier by profession. The plan which, he proposed had the approbation of Gen. Washington, and would have been little burdensome in its-practical operation.
There had, but a short time before, been an insurrection in Massachusetts, and the relations of the government with France were far from satisfactory, but the plan was rejected, and in lieu of it the militia law of 1792, which, with slight alterations, has continued in force ever since, was enacted. In 1814 Mr. Monroe was Secretary of War, and also Secretary of State. The war with Great Britain was assuming the most serious aspect. The temporary cessation of hostilities in Europe, consequent upon the. first expulsion of Napoleon, left England at liberty to employ an immense force against the United States. England threatened a war of destruction. Mr. Monroe recommended to congress a plan for the increase of the army, in which he asserted the right of the government to compel the citizens to do military service in the-regular army. His plan was substantially as follows: That the free male population of the United States, between the ages of eighteen and forty-five years should be formed into classes of one hundred men each, and that each class should furnish four men for the war, and replace them in the event of casualty; that the classification should be formed with a view to the equal distribution of property among the classes: that if any class failed to furnish the men required of them within the time specified, they should he raised by draft on the whole class; and that any person thus drafted should be allowed to furnish a substitute: that the bounty in land which the government was offering should be allowed each recruit, and the bounty in money, which the government was paying, should be paid to each draft or recruit by the class to which he belonged, according to the value of the property which the persons composing the class respectively possessed. Mr. Monroe proposed to carry this plan into effect, by committing the execution of it to the County Courts throughout the United States, *426or by relying on the militia officers in each county, or by appointing particular persons in each county for the purpose. This plan was denounced as a French conscription, and was rejected. While it was under consideration, John Eandolph, of Eoanoke, addressed a public letter to a distinguished citizen of Massachusetts, in relation to the position of hostility to the war, which that State had assumed. In eloquent terms and in the most patriotic spirit, he urgéd upon the people.of Massachusetts, fidelity to the Union, and a proper support of the government. In the conclusion of the letter, after speaking of the great increase of the army, he says, “If, under such circumstances, you ask me what you are to do," should a conscription of the model of Bonaparte be attempted, I will refer you to its reputed projector, Col. Monroe. Ask him what he would have done whilst Governor of Virginia and preparing to resist federal usurpation, had such an attempt been made by Mr. Adams and his ministers, especially in 1800. He can give the answer.” Mr. Monroe was governor of Virginia A. D. 1800, and it is known that the State, in the language of Mr. Eandolph, “was preparing to resist federal usurpation.” I can only understand Mr. Eandolph as meaning to say, that he would expect the State of Massachusetts to resist, if a conscription was attempted. Mr. Monroe was a man of known patriotism, of great elevation of character, of revolutionary services. He had borne himself as a gallant soldier on many fields—Harlem Heights and White Plains, Brandywine, Germantown and Monmouth. He had led the van-g-uard, with conspicuous gallantry, at Trenton, and had received "there a grievous wound. But we are told that his proposal óf a conscription, as it was called, was believed by himself to have damaged his popularity to such a degree that he determined not to become a candidate for the presidency, as successor to Mr. Madison, and only abandoned his resolution because of a speedy close of the war, and the return of the people to a better temper. When it is remembered that at the time Mr. Monroe proposed his plan for an increase of the army, the government-of the United States was paying to every soldier who enlisted, the enormous bounty of one hundred and twenty-four dollars, besides a liberal bounty in land, I think the principle of conscription, in the mild *427form in which it was proposed, ought to be regarded as a somewhat weighty expression of the sense of the nation, or to say the least, that no argument or inference in favor of the constitutionality of the principle, can be drawn from all the facts.
I now proceed to notice very briefly the constitutional provisions on the subject of the militia. It is said in the constitution, “ Congress shall have the power to provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections and repel invasions.” Again, it is said, “ Congress shall have power to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the Confederate 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.” Another provision of the constitution is to the following effect: “ 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.” This latter provision was one of the amendments to the constitution of the United States, proposed by congress and ratified by the States, for the purpose of meeting the objections that were made to the constitution as it came from the hands of the convention, on the ground that the rights of the people were not sufficiently secured by it. The clause which gives to congress the power to provide for calling forth the militia, and for organizing, arming and disciplining them, are precisely the same as those contained in the constitution of the United States.
When the subject of the militia was under discussion in the federal convention which framed the constitution of the United States, a long and interesting debate transpired, with which the students of our political history are familiar, and which need not be quoted extensively. It was proposed by Mr. Sherman to strike out the clause reserving to the State the right to train the militia. Mr. Ellsworth remarked, that the objection would apply 'as well to the reservation to the States of the appointment to offices, and doubted the propriety of striking out either. Mr. King said, that by organizing, the committee meant proportioning the officers and men—by arming, specifying the kind, size and calibre of arms— *428and by disciplining, prescribing the manual exercise, evolutions, &c. Mr. Gerry said, the power in the United States, as explained by Mr. King, would make the States drill-sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the command from the State, and subject them to the general legislature. It would be regarded as a system of despotism. In the progress of the debate, Mr. Madison moved to amend the clause relating to the appointment of officers, as follows: “reserving to the States, respectively, the appointment of the officers, under the rank of general officers.” Mr. Sherman considered this as absolutely inadmissible. He said, that if the people' should be so far asleep as to allow the most influential officers of the militia to be appointed by the general government, every man of discernment would rouse them by sounding the alarm to them. Mr. Gerry said, let us at once destroy the State governments, have an executive for life, or hereditary and a proper senate, then there would be some consistency in giving full powers to the general government ; but as the States were not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the convention against pushing the experiment too far. Mr. Madison said, “as the greatest danger is that of disunion of the States, itffs necessary to guard against it by giving sufficient powers to the common government; and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia.” Mr. Madison's amendment was rejected by a vote of eight States to three, or of nine to two, it is not certain which. On the question to agree to “the reserving to the States the appointment of the officers,” it was agreed to without a dissenting vote. I think this statement of the debate, (and all contemporaneous expositions,) shows most conclusively that the framers of the constitution of the United States intended to reserve to the States such a control over the militia as would make the States secure against the encroachments of the general government^ and as would enable the people to maintain their liberties. And I consider the proposition which asserts a distinction between the citizen and the militiar-man as too shallow a sophism to require the use of argument to expose *429it, The militia is the militia of the States respectively, and not of the Confederate States, or of the United States. This is clear, from the constitutions of each. “ The president shall be commander-in-chief of the army and navy of the Confederate States, and of the militia of the several States, when called into the actual service of the Confederate States.” When the militia are called into the service of the general government, they become national militia after they are mustered at the place of rendezvous designated by the proper authority, and not until then, as was decided by the Supreme Court of the United States, in the case of Houston v. Moore, 5th Wheaton. The Supreme Court of the United States also decided, in the case of Martin v. Mott, 12th Wheaton, that it belongs exclusively to the president to judge when the exigency has arisen, in which he has authority, under the constitution and laws, to call forth the militia, and that bis decision is conclusive upon all other persons. My views, then, of the war power of the general government are these: Congress may raise regular armies by the voluntary enlistment of the citizens; the' States have consented to this, and they cannot, therefore, without a violation of their constitutional obligations, prohibit the citizens from voluntarily enlisting in the regular army. The congress may provide for calling out the militia to execute the laws, to suppress insurrections, and to repel invasions, and may authorize the president to decide when the exigency has arisen. The president may call out the militia by requisitions upon the governors of the States, whose duty it would be to cause the call to be obeyed; or, perhaps, the president might transmit his orders directly to the proper officers of the militia in the respective States. The militia may be drafted into the service, under their proper officers, appointed by the State, and they may be punished if they refuse to obey the draft. They may be kept in service as long as the necessities of the case may require, and under such system of discipline as may be provided by law. Each State may exempt from militia duty all such persons as the State may deem necessary to its own government ; and the right to exempt is in the State, and is not a matter of grace on the part of the general government. This question of the right of exemption was discussed when the con*430gress of the United States first provided for the organization of the militia; and I understand the Act of 1792 to recognize the principle, (undoubtedly correct,) that the right is in the State; for that Act exempts the officers and certain employees of the United States, and also “all persons who now are, or may hereafter be, exempted by; the laws of the respective States.” Such is the war power of the general government. It is the power which those who framed the government thought proper to commit to it, and it is enough for every possible emergency.
These are my views upon this great question. Though they are the result of much reflection, they have been somewhat hastily expressed, and I am sensible that they lack order and condensation. I have stated them under a profound conviction that I am not equal to the great argument. I feel, at the same time, a conviction as profound, that if republican government and civil liberty survive the great struggle in .which we are now engaged, which I do not permit myself to doubt, some Marshall or Mansfield will make the argument which will consign the Acts of conscription which have been under discussion, to the universal obloquy which they deserve. I shall not, therefore, indulge in any vain regret that I have not the powers necessary to set this momentous question in a clear light, but shall content myself with the consciousness of having performed my duty, in my place, and according to my abilities.