Justices Strong and Bead dissented from the foregoing opinions, and the ruling of the majority of the court — holding the Conscription law of March 3d, 1863, to be constitutional, and delivered the following dissenting opinions:—
Strong, J.The complainants having been enrolled and drafted, under the provisions of the act of Congress of March 3d, 1863, entitled “An act for enrolling and calling out the national forces, and for other purposes,” have presented their bills in this court against the persons who constitute the board of enrolment, and against the enrolling officers; praying that they may be enjoined against proceeding under the act of Congress, with the requisition, enrolment, and draft of citizens of the commonwealth, and of persons of foreign birth who have declared their intention to become citizens under and in pur-. suance of the laws to perform compulsory military duty in the service of the United States, and particularly that the defendants may be enjoined from all proceedings against the persons of the complainants, under pretence of executing the said law *502of tbe United States. The bills having been filed, motions are now made for preliminary injunctions, until final hearing. These motions have been argued only on the part of the com» plainants. We have, therefore, nothing before us but the bills and the special affidavits of the complainants.
It is to be noticed that neither the bills nor the accompanying affidavits aver -that the complainants are not subject to enrolment and draft into the military service of the United States, under the act of Congress, if the act be valid ; nor is it asserted that they have been improperly or fraudulently drawn. It is not alleged that the defendants have done anything, or that they propose to do anything not warranted or required by the words and spirit of the enactment. The complainants rest wholly upon the' assertion that the act of Congress is unconstitutional, and, therefore, void. It is denied that there is any power in the Federal government to compel the military service of a citizen by direct action upon him, and it is in- _ sisted that Congress can constitutionally raise armies in no other way than by voluntary enlistments.”
The necessity of vesting in the Federal government power to raise, support, and employ a military force was plain to the framers of the Constitution, as well as to the people of the States by whom it was ratified. This is manifested by many provisions of that instrument, as well as by its general purpose, declared to be for “ common defence.” Indeed, such a power is necessary to preserve the existence of any independent government, and none has ever existed without it. It was, therefore, expressly ordained in the eighth article that the Congress of the United States should have power to “provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” It was also ordained that they should 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 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. Nor is this all. It is obvious that if the grant of power to have a military force had stopped here, it would not have answered all the purposes for which the government was formed. It was intended to frame a government that should make a new member in the family of nations. To this end, within a limited sphere, every attribute of sovereignty was given. To it was delegated the absolute and unlimited power of making treaties with other nations — a power explicitly denied to the States. This unrestricted power of making treaties involved the possibility of offensive and defensive alliances. Under *503such treaties the new government might be required to send armies beyond the limits of its territorial jurisdiction. And, in fact, at the time when the Constitution was formed, a treaty of alliance, offensive and defensive, was in existence between the old Confederacy and the government of France. Yet more. Apart from the obligations assumed by treaty, it was well known that there are many cases where the rights of a nation and its citizens cannot be protected or vindicated within its own boundaries. But the power conferred upon Congress over the militia is insufficient to enable the fulfilment of the demands of such treaties, or to protect the rights of the government, or its citizens, in those cases in which protection must be sought beyond the territorial limits of the country. The power to call the militia into the service of the Federal government is limited by express terms. It reaches only three cases. The call "may be made “to execute the laws of the Union, to suppress insurrections, and to repel invasions, and for no other uses. ' The militia cannot be summoned for the invasion of a country without the limits of the United States. They cannot be employed, therefore, to execute treaties, of offensive alliance, nor in any case where military power is needed abroad, to enforce rights necessarily sought in foreign lands. This must have been understood by the framers of the Constitution, and it was for such reasons, doubtless, that other powers to raise and maintain a military force were conferred upon Congress, in addition to those which were given over the militia. By the same section of the eighth article of the Constitution, it was ordained, in. words of the largest meaning, that Congress should have power to “raise and support armies” — a power not to be confounded with that given over the militia of the country. Unlike that, it was unrestricted, unless it be considered a restriction that appropriations of money to the use of raising and supporting armies were forbidden for a longer term than two years. In one sense this "was a practical restriction. Without appropriations no army can be maintained, and the limited period for which appropriations can be made enables the people to pass judgment upon the maintenance and even existence of the army every two years, and in every new Congress. But in the clause conferring authority to raise armies, no limitation is imposed other than this indirect one, either upon the magnitude of the force which Congress is empowered to raise, or upon the 'uses for which it may be employed, or upon the mode in which the army may .be raised. If there be any restriction upon the mode of exercising the power, it must be found, elsewhere than in the clause of the Constitution that conferred it. And if a re*504strieted mode of exercise was intended, it is remarkable that it was not expressed, when limitations were so carefully imposed upon the power given to call forth the militia — and, more especially, when, as it appears from the prohibition of appropriations for the army for a longer time than two years, the subject of limiting the power was directly before the minds of the authors of the Constitution.
This part of the Constitution, like every other, must be held to mean what its framers, and the people who adopted it, intended it should mean. We are not at liberty to read it in any other sense. We cannot insert restrictions upon powers given in unlimited terms, any more than we can strike out restrictions imposedi
There is sometimes great confusion of ideas in the considera-: tion of questions arising under the Constitution of the United States, caused by misapprehension of a well-recognized and oft-repeated principle. It is said, and truly said, that the Federal government is one of limited powers. It has no other than such as are expressly given to it, and such as (in the language of the Constitution itself) “ are necessary and proper for carrying into execution” the powers expressly given. By the tenth article of the amendments, it is ordained 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. Of course there can be no presumption in favor of the existence of a power sought to be exercised by Congress. It must be found in the Constitution. But this principle is misapplied when it is used, as is sometimes the case, to restrict the right to exercise a power expressly given. It is of value when the inquiry is whether a power has been conferred, but of no avail to strip a power given in general terms, of any of its attributes. The powers of the Federal government are limited in number, not in their nature. A power vested in Congress is as ample as it would be if possessed by any other legislature, none the less because held by the Federal government. It is not enlarged or diminished by the character of its possessor. Congress has power to borrow money. Is it any less than the power of a State to borrow money ? Because the Federal government has not all the powers which a State government has, will it be contended that it cannot borrow money, or regulate commerce, or fix a standard of weights and measures, in the same way, by the same means, and to the same extent as any State might have done had no Federal Constitution ever been formed ? If not, and surely this will not be contended, why is not the Federal power to raise armies as large and as unfettered in the mode in which it may be exercised, as was the power to raise armies *505possessed by the States before 1787, and possessed by them now, in time of war? If they were not restricted to voluntary enlistments in procuring a military force, upon what principle can Congress be? In Gibbons v. Ogden, 9 Wheaton, 196, the Supreme Court of the United States laid down the principle that all the powers vested by the Constitution in Congress are complete in themselves, and may be exercised to their utmost extent, and that there are no limitations upon them, other than such as are prescribed in the Constitution.
It is not difficult to ascertain what must have been intended by the founders of the government when they conferred upon Congress the power to “ raise armies.” At the time when the Constitution was formed, and when it was submitted to the people for adoption, the mode of raising armies by coercion, by enrolment, classification, and draft, as well as by voluntary enlistment, was well known, practised in other countries, and familiar to the people of the different States. In 1756, but a short period before the Revolutionary war, a British statute had enacted that all persons without employment might be seized and coerced into the military service of the kingdom. The act may be found at length in Ruffhead’s British Statutes at Large, vol. 7, p. 625. Another act of a similar character was passed in 1757, British Statutes at Large, vol. 8, p. 11. Both were enacted under the administration of William Pitt, afterwards Lord Chatham, reputed to have been one of the stanchest friends of English liberties. They were founded upon a principle always recognized in the Roman empire, and asserted by all modern civilized governments, that every able-bodied man capable of bearing arms, owes personal military service to the government which protects him. Lord Chat-ham’s acts were harsh and unequal in their operations, much more so than the act of Congress now assailed. They reached only a select portion of the able-bodied men in the community, and they opened wide a door for favoritism and other abuses. For these reasons they must have been the more prominently before the eyes of the framers of the Federal Constitution, when they were providing safeguards to liberty, and checks to arbitrary power. Yet, in full view of such enactments, they conferred upon Congress an unqualified power to raise armies. And, still more than this, coercion into military service by classification and draft from the able-bodied men of the country, was to them a well-known mode of raising armies in the different States which confederated to carry on the Revolutionary war. It was equally well known to the people who ordained and established the Constitution,expressly “in order to form a more perfect union, establish justice,, ensure domestic tranquillity, provide for the common defence, and secure the blessings *506of liberty for themselves and their posterity.” It is an historical fact, that during the later stages of the war, the armies of the country were raised, not alone by voluntary enlistments, but also by coercion, and that the liberties and independence sought to be secured by the Constitution were gained by soldiers made such, not by their own voluntary choice, but by compulsory draft. Chief Justice Marshall, himself a soldier of the Revolution, than whom no one was better acquainted with revolutionary history, in his Life of Washington (vol. 4, p. 241), when describing the mode in which the armies of the government were raised, makes the following statement: “In general the assemblies (of the States) followed the example of Congress, and apportioned on the several counties within the States the quota to be furnished by each. This division of the State was again to be subdivided into classes, and each class was to furnish a man by contributions or taxes imposed on itself. In some instances a draft was to be used in the last resort.” This mode of recruiting the army by draft, ■ in revolutionary times, is also mentioned in Ramsey’s Life of Washington (voi. 2, p. 246), where it is said, “When voluntary enlistments fell short of the proposed numbers, the deficiencies were-, by the laws of the several States, to be made up -by drafts, or lots, from the militia.”
Thus, it is manifest that when the members of. the convention proposed. to confer upon Congress the' power to raise armies, in unqualified terms, and when the people of the United States adopted the Constitution, they had in full view, compulsory drafts from the population of the country, as a known and authorized mode of raising them. The memory of the Revolution was then recent. It was universally known that it had been found impossible to raise sufficient armies by voluntary enlistment, and that compulsory draft had been resorted to. If, then, in construing the Constitution, we are to seek for and be guided by the intentions of its authors, there is no room for doubt. Had any limitation upon the mode of raising armies been intended, it must have been expressed. It could not have been left to be gathered from doubtful conjecture. It is incredible that when the power was given in words of the largest signification, it was meant to restrict its exercise to a solitary mode — that of voluntary enlistment,, when it was known that enlistments had been tried and found ineffective, and that coercion had been found necessary. The members of the convention were citizens of the several States, each a sovereign, and each having power to raise a military force by draft, a power which more than one of them had exercised. By the Constitution, the authority to ra.ise such a force was to be taken from the States partially, and delegated to the new goyernment *507about to be formed. No State was to be allowed to keep troops in time of peace. The whole power of raising and supporting armies, except in time of war, was to be conferred upon Congress. Necessarily with it was given the means of carrying it into full effect.
I agree that Congress is not at liberty to employ means for the execution of any powers delegated to it that are prohibited by the spirit of the Constitution, or that are inconsistent with the reserved rights of the States, or the inalienable rights of a citizen. The means used must be lawful means. But I have not been shown, and I am unable to perceive, that compelling military service in the armies of the United States, not by arbitrary conscription, but, as this act of Congress directs, by enrolment 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 (with some few exceptions), and by draft by lot from those enrolled, infringes upon any reserved rights of the States or interferes with any constitutional right of a private citizen. If personal service may be compelled — if it is common duty— this is certainly the fairest and most equal mode of distributing the public burden.
It was urged in the argument that coercion of personal service in the armies is an invasion of the right of civil liberty. The argument was urged in strange forgetfulness of what civil liberty is. In every free government the citizen or subject surrenders a portion of his absolute rights in order that the remainder may be protected and preserved. There can be no government at all where the subject retains unrestrained liberty to act as he pleases, and is under no obligation to the State. That is undoubtedly the best government which imposes the fewest restraints, while it secures ample protection to all under it. But no government has ever existed, none can exist, without a right to the personal military services of all its able-bodied men. The right to civil liberty in this country never included a right to exemption from such service. Before the Federal Constitution was formed, the citizens of the different States owed it to the governments under which they lived, and it was exacted. The militia systems of the States then asserted it, and they have continued to assert it ever since. They assert it now. No one doubts the power of a State to compel its militia into personal service, and no one has ever contended that such compulsion invades any right of civil liberty. On the contrary, it is conceded that the right to civil liberty is subject to such power in the State governments, and the history of the period immediately antecedent to the adoption of the Federal Constitution shows that it was then admitted. Is civil *508liberty now a different thing from what it was when the Constitution was formed ? It is better protected by the provisions of the Constitution, but are the obligations of a citizen to the government any less now than they were then ? This cannot be maintained. If, then, coercion into military service was no invasion of the rights of civil liberty enjoyed by the people of the States before the Federal Constitution had any existence, it cannot be now.
Again, it is insisted that if the power given to Congress to raise and support armies be construed to warrant the compulsion of citizens into military service, it must with equal reason be held to authorize arbitrary seizures of property for the support of the army. The force of the objection is not apparent. Confessedly the army must be raised by legal means. By such means it must also be supported. It has already been shown that enrolment and draft are not illegal; that to make them illegal a prohibition must be found in the letter or in the spirit of the Constitution. Arbitrary seizures of private property for the support'of the army are illegal and prohibited. Not only does the Constitution point out the mode in which provision shall be made for the support of the army, but in numerous provisions it protects the people against deprivation of property without compensation" and due course of law-. Exemption from such seizures was always an asserted and generally an admitted right, while exemption from liability to being compelled to the performance of military service was, as has been seen, never claimed. There are, therefore, limitations upon the means which may be used for the support of the army, while none are imposed upon the means of raising it.
Again, it is said this act of Congress is a violation of the Constitution, because it makes a drafted man punishable as a deserter before he is mustered into service. The contrary was declared by Chief Justice Marshall, when delivering the judgment of the Supreme Court of the United States in Houston v. Moore, 5 Wheaton. Under the act of 1795 the drafted men were not declared to be subject to military law until mustered into service. This is the act of which Judge Story speaks in his commentaries. But in the opinion of Judge Marshall, Congress might have declared them in service from the time of the draft, precisely what this act of Congress does. Judge Marshall’s opinion, of course, explodes this objection.
The argument most pressed in support of the alleged unconstitutionally of the act of Congress, is that it interferes with the reserved rights of the States over their own militia. It is said the draft takes a portion of those who owe militia service to the States,'and thus diminishes the power of the States to protect themselves. The States, it is claimed, retain the prin*509cipal power over the militia, and therefore the power given to Congress to raise armies must be so construed as -not to destroy or impair that power of the State. If, say the complainants, Congress may draft into their armies, and compel the service of a portion of the State militia, they may take the whole, and thus the entire power of the States over them maybe annulled for want of any subject upon which it can act. I have staled the argument quite as strongly as it was presented. It is more plausible than sound. It assumes the very matter which is the question in debate. It ignores the fact that Congress has also power over those who constitute the militia. The militia of the States is also that of the general government. It is the whole able-bodied population capable of bearing arms, whether organized or not. Over it certain powers are given to Congress, and others are reserved to the States. Besides the power of calling it forth, for certain defined uses, Congress may provide for its organization, arming and discipline, as well as for governing such portion as may be employed in it? service. It is the material, and the only material, contemplated by the Constitution,out of which the armies of the Federal government are to be raised. Whether gathered by coercion or enlistment, they are equally taken out of those who form a part of the militia of the States. Taking a given number by draft no more conflicts with the reserved power of the States than does taking the same number of men in pursuance of their own contract. No citizen can deprive a State of her rights without her consent. None could, therefore, voluntarily enlist, if taking a militiaman into military service in the army of the United States is in conflict with any State rights over the militia. Those rights, whatever they may be, it is obvious, cannot be affected by the mode of taking. It is clear that the States hold their power over the militia, subordinate to the power of Congress to raise armies out of the population that constitutes it. Were it not so, the delegation of the power to Congress would have been an empty gift. Armies can be raised from no other source. Enlistments in other lands are generally prohibited by foreign enlistment acts, and even where they are not, they may, under the law of nations, involve a breach of neutrality.
Justly, therefore, may it be said, the objection now under consideration begs the question in debate. It assumes a right in the State, which has no existence, to wit: a right to hold all the population that constitutes its militiamen exempt from being taken, in any way, into the armies of the United States. When it is said, if any portion of the militia may be coerced into such military service, the whole may, it is but a repetition of the common but very weak argument against the existence of a power because it may possibly be abused. It might with *510equal force be urged against the existence of any power in either the State or general governments. It applies as well to a denial of power to raise armies by voluntary enlistment. It is as conceivable that high motives of patriotism, or inducements held out by the Federal government might draw into its military service the entire able-bodied population of a State, as that the whole might be drafted. We are not to deny the existence of a power because it may possibly be unwisely exercised, nor are we to presume that abuses will take place. Especially are we not at liberty to do so in this case, in view of the fact that the general government is under constitutional obligations to provide for the common defence of .the country, and to guaranty to each State a republican form of government. That would be to impose a duty and deny the power to perform it. •
These are all the objections deserving of notice that have been used against the power of Congress to compel the complainants into military service in the army. I know of no others of any importance. They utterly fail to show that there is anything in either the letter or the spirit of the Constitution to restrict the power to “ raise armies,” given generally, to any particular mode of exercise. For the reasons given, then, I think the provisions of the act of Congress under which these complainants have been enrolled and drafted, must be held to b¿ such as it is within the constitutional power of Congress to enact. It follows that nothing has been done or is proposed to be done by the defendants that is contrary to law or prejudicial to the rights of the complainants.
An attempt was made on the argument to maintain that these provisions of the act of Congress which allow a drafted man to commute by the payment of $300, are in violation of the Constitution. But this is outside of the cases before us. By these provisions the complainants are not injuriously affected, and the bills do not.complain of anything done or proposed to be done under them. It is the compulsory service whieh the plaintiffs resist; they do not complain that there is a mode provided of ridding themselves of it. If it be conceded Congress cannot provide for commutation of military service by the payment of a stipulated sum of money, or cannot do it,in the way adopted in this enactment, the concession in no manner affects the directions given for compulsion into service. Let it be that the provision for commutation is unauthorized, those for enrolment and draft are such as Congress had power to enact. It is well settled that part of the statute may be unconstitutional and the remainder in force. I by no means, however, mean to be understood as conceding that any part of this act is unconstitutional. I think it might easily *511be shown that every part of it is a legitimate exercise of the power vested in Congress, but I decline to discuss the question, because it is not raised by the cases before us.
Nor while holding the opinions expressed, that no rights of the complainants are unlawfully invaded or threatened, is it necessary to consider the power or propriety of interference byr this court, on motion, to enjoin Federal officers against the performance of a duty imposed upon them in plain terms by an act of Congress. Upon that subject I express no opinion. I have said enough to show that the complainants are not entitled to the injunctions for which they ask, and I think they should be denied.
Dissenting opinion delivered November 9, 1863, by
Bead, J. — The power of the government of the United States extends over all the States and Territories of the Union. It has no rival in the State governments, whose power is strictly confined to their own territorial limits. It is the only representative of the people recognized by foreign nations, in their various relations with us, in time of- war and peace. All the powers, therefore, vested in the national government are necessarily supreme and paramount, and cannot be rightfully disobeyed by her citizens. This general government has the sole and exclusive power of declaring war and making peace, of raising and supporting armies, of providing and maintaining a navy, of laying and collecting taxes, duties, imposts, and excises, to pay the debts, and provide for the common defencé and general welfare of the United States, and of borrowing money on the credit of the United States. The avowed object of these and other powers, vested in the general government, was to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and insure the blessings of liberty to the people of the United States and their posterity. It was therefore solemnly declared, and made a fundamental article of the national Constitution, that the Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The power to raise armies for the United States being vested solely in Congress, the legislative branch of the government, it must “ exist without limitation; because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means *512•which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defence.” 1 Federalist, No. 23.
“ The result from all this is, that the Union ought to be invested with full power to levy troops, to build and equip fleets, and to raise the revenues which will be required for the formation and support of an army and navy in the customary and ordinary modes practised in other governments,” id. p. 151; and “ there can be no limitation to that authority which is to provide for the defence and protection of the community in any manner essential to its efficacy, that is, in any manner essential to the formation, direction, or support of the National Forces.” Id. p. 150. The necessity of employing a regular force in case of seditions and insurrections is forcibly portrayed in the 28th number of “ The Federalist.”
No person is naturally exempted from taking up arms in defence of the State — the obligation of every member of society being the same. Those alone are excepted who are incapable of- handling arms or supporting the fatigues of war. This is the reason why old men, children, and women are exempted. “The clergy cannot naturally and as a matter of right arrogate to themselves any peculiar exemption. To defend one’s country is an action not unworthy of the most sacred hands.” Yattel, book 3, ch. 2, s. 10. ed. 1760; 2 Burlamaqui, Politic. Law, part 4, ch. 1, s. 14, p. 158.
Every citizen is bound to serve and defend the state as far as he is capable; and it would seem that the duty incumbent on qvery citizen to defend his country, as well from foreign aggression or injury as from intestine disorder, was fully recognized by the common law. Yattel, id. s. 8 ; Bowyer’s Const. Law of England, p. 484.
In the first Constitution of Pennsylvania, and in those of several other States, the duty of the citizen to yield his personal service when necessary, or an equivalent thereto, is distinctly asserted. This is the more remarkable in our State, as, owing to the preponderating influence of the Society of Friends, the colony had no efficient militia law, at any time, and in the earlier and later periods of its history, none at all. In 1756 the Assembly prepared a new militia bill, by which all the male inhabitants were subjected to. military duty, commutable for a fine in the ordinary courts of justice. The officers, however, were still elective, for which reason the Governor ob*513jecfced to the bill. He also required that persons alleging conscientious scruples against bearing arms should appear in open court and declare to what society they belonged; that they were truly and religiously opposed to war; and that a court martial should be authorized to punish, by death or otherwise, as was provided by the English militia bill. But the house, unwilling to strengthen the hands of the executive by giving him the appointment of the officers, and to lodge such powers in courts-martial, refused to remodel- their bill. Gordon’s Hist, of Penn., p. 340.
The battle of Lexington having, roused the indignation of the people, the Committee of Correspondence of the city and county of Philadelphia, to supply the want of a militia law, called a meeting of the citizens, who resolved to form a military association for the protection of their property, their liberty, and their lives. This association extended through every county of the province, its members furnishing themselves with the necessary arms. The Assembly approved the association, and engaged to provide for the pay and sustenance of those called into actual service. The Committee of Public Safety prepared articles for the government of this military association, but the citizens refused to sign them, alleging that many persons, rich and able to perform military duty, claimed exemption under pretence of conscieptious scruples. Both parties addressed the Assembly, the Committee of Correspondence, and of the officers and soldiers of the military association, saying emphatically, “ Be this as it may, self-preservation is the first duty of nature, which every man indispensably owes, not only to himself, but to the Supreme Director and Governor of the universe, who gave him being. In political society all men by the original compact are required to unite in the defence of the community against such as would unlawfully deprive them of their rights, and those who withdraw themselves from this compact are not entitled to the protection of the society. The' safety of the people is the supreme law. He who receives an equal benefit should bear an equal burden.”
The Assembly, April 5,1776, imposed a fine on all able-bodied effective male white persons capable of bearing arms, not assoeiators, between the ages of sixteen and fifty years; ministers of the gospel of all denominations, schoolmasters in actual employ; and servants purchased bona fide and for a valuable consideration, only excepted, which fine was largely increased by the first Assembly under the State Constitution. 14 February, 1777, McKean’s ed. p. 22.
The revolutionary Congress was a body entirely dependent on the will of the several States, and the good 'feeling of their citizens; .for the Articles of Confederation were not finally rati*514fled by all tbe States until the 1st of March, 1781. The Congress assigned the quota of troops to the several States, and they followed the example by apportioning to the several counties the quota.to be furnished, by each. This division of the State was again to be subdivided into classes, and each class was to furnish a man by contribution or taxes imposed. In some instances a draft was to be used in the last resort. Pennsylvania concentrated the requisite power in the President, Mr. Reed, and authorized him to draw forth the resources of the State, under certain limitations, and, if necessary, to declare martial law over the State.* Bradford’s Hist, of Mass., p. 211; 4 Marshall’s Life of Washington, p. 241; 8 Penna. Archives; p. 267; 3 Hildreth’s Hist. U. S. pp. 273, 310, 316; 2 Ramsay’s Life of Washington, p. 246; 3 Cordon’s Hist. U. States, p. 62:
The Articles of Confederation did not really increase the powers of Congress, for the land forces were to be raised by the several States upon requisitions for their several quotas, and the legislature of each State was to appoint the regimental officérs, raise the men, and clothe and arm and equip them in a soldierlike manner, at the expense of the United States, and march them to the place appointed. All the action therefore of the Confederacy was upon the States, and not upon the people, and its entire inadequacy to fulfil the purposes of a general government was felt and acknowledged by all reflecting men. It was simply a confederacy, while the Constitution of 1787 is a truly national government, acting not upon the State governments, but directly upon the people of the United States, as a nation, by whose free will it was established.
The power, therefore, to raise and support armies was from sheer necessity given to Congress, for it was a right which could not, from the nature of things, be reserved to tbe people, nor to the States, who could not step beyond their own narrow limits. It is clegr, then, that whatever means might be required to raise an army, could be used by the Congress, and they were the sole judges of its expediency and propriety. Now there is not a word in the Constitution limiting the natural power of the government over its citizens, to oblige them to render personal service as soldiers, nor is there a single phrase implying that they can only be compelled to serve when they choose to do so by voluntary enlistment.
The plan of General Knox, Secretary of War, submitted to Congress by General Washington (18 Jan. 1790, 21 Jan. 1790) contemplated as liable to service all persons between the ages of eighteen and sixty, and stated certain general principles on *515■which it was formed; the fourth is in these words: “That every man of the proper age and ability of body is firmly bound, by the social compact, to perform personally his proportion of military duty for the defence of the state.” 7 Niles’ Reg. 296.
Rhode Island was the last State which ratified the Constitution. On the 29th May, 1790, their convention made a declaration of rights, the 18th paragraph of which was: “ That any person religiously scrupulous of ¿earing arms ought to be exempted upon payment of an equivalent, to employ another to bear arms in his stead.” 1 Elliot’s Deb. 371. They, at the same time, proposed certain amendments to the Constitution, the sixth of which was: “ That no person shall be compelled to do military duty otherwise than*by voluntary enlistment, except in cases of general invasion, anything in the second paragraph of the sixth article of the Constitution, or any law made under the Constitution, to the contrary notwithstanding.” Id. 372.
The works of Burlamaqui, Montesquieu, Puffendorf, Grotius, Locke, Vattel, and all the writers on government and the laws of nations, were familiar to the- statesmen of the Revolution, and were largely used in their discussions, which from necessity involved the fundamental principles of civil society. Votes of Assembly, 1776 'to 1780, p. 3, &c. No one, for instance, can read the second chapter of the third book of Vatfcel’s Law of Nations, without seeing that the clause to raise and support armies, and the consequent power to oblige every able-bodied man to become a soldier, is but an embodied expression of the sound views of this enlightened writer. The very volume I quote from bears the marks of the studies, most probably, of some of the great men who framed the Constitution, and to whom the use of the library had been tendered. Vattel, Book iii. ch. 2, vol. 2, p. 3, &c., ed. 1760, in Phila. Library.
There can, therefore, be no doubt that the contemporaneous construction of this clause was that adopted by General Knox and approved by President Washington, particularly when we advert to the amendment of Rhode Island, proposed four months afterwards, to confine this compulsory power to cases of general invasion.
In the second war of independence, Mr. Monroe, then Secretary of War, with the approbation of Mr. Madison, a framer of the Constitution, and one of the authors of The Federalist, proposed a plan to Congress, by which'the free male population of the United States, between eighteen and forty-five years, should be formed into classes of one hundred men, each class to furnish — men for the war, within thirty days after the classification, and replace them in the event of any casualty. 7 Niles’ Reg. 137,17 Oct. 1814; Id. 139. If any class failed to provide *516the men required of it, within the time specified, they should be raised by draft on the whole class, any person thus drafted being allowed to furnish a substitute. This, therefore, was a compulsory draft, and the argument of Mr. Monroe in favor of the power of Congress, is clear,'full, and exhaustive, and never has been answered. (See Note A.)
It was opposed by the peace men of that day, gentlemen who favored the Hartford Convention, and who were entirely opposed to the general administration, and the further prosecution of the war. Mr. Charles J. Ingersoll supported the measure in a very able speech, and, after a lapse of thirty-seven years, his deliberate judgment was in favor of its constitutionality. 3 Annals of 13th Congress, 807. Ingersoll’s Hist, of Second War, 2d series, vol. 2, ch. 7. The war was drawing near to a close, all"parties expected peace, and the news of it in February, 1815, stopped all further warlike preparations.
In the State of New York, then strongly in favor of the administration and the vigorous prosecution of the war, at a special session of the legislature called by Governor Tompkins, Mr. Yan Burén introduced a bill into the Senate to raise twelve thousand men by drafting, and placing them in the service of the United States, which, after being amended, became a law on the 24th of October, 1814. It was stigmatized as a conscription bill by the opposition, and in the Council of Revision, Chancellor Kent reported objections, the first of which was “Because the Constitution of the United States has granted to Congress the power to raise and support armies, and with it the exclusive power to lay and collect imposts, and the concurrent power to lay and collect taxes, duties, and excises, in order to provide for the common defence and general welfare.” Street’s New York Council of Revision, 443. These objections were, however, overruled by Governor Tompkins, Chief Justice Thompson, and Spencer and Yates, Justices of the Supreme Court, and the bill became a law. The same legislature passed an act to raise a corps of four thousand sea fencibles, and also an act for raising two regiments of men of color.
Governor Tompkins was an ardent supporter of the war and a most popular executive, and was rewarded by a grateful people by being twice elected to the high office of Yice-President of the United States.
A bill of a similar character was introduced into the Senate of Pennsylvania, entitled “ An act to raise for a limited time a military force,” which passed that body by a vote of twenty-one to nine, but was lost in the House. Mr. Nicholas Biddle, then a member of the Senate from Philadelphia, made a very able speech in favor of the bill, and voted for it. Senate Journal, 1814; Lowrie’s Rep. 49, id. 75, id. 135; Aurora, Jan. 21, 1815.
*517On the 3d March, 1863, Congress passed “ An act for enrolling and calling out the national forces, and for other purposes,” by which all able-bodied male citizens, and persons of foreign birth who shall have declared on oath their intention to become citizens, between the ages of twenty and forty-five years, except as therein excepted, are declared to constitute the national forces, and to be liable to perform military duty in the service of the United States when called out by the President for that purpose. These forces were divided into two classes. Those who were drawn by lot, after having been regularly enrolled, unless exempted by law, were either to serve as soldiers, or to procure substitutes, or to pay three hundred dollars. The service is, therefore, compulsory, or in the words of the declaration of rights to our first Constitution, the drafted man must yield his “personal service,” or “ an equivalent thereto,” for Congress has decided it necessary. I cannot, therefore, doubt that this act of Congress, in the present situation of the country, is a clearly constitutional exercise of power by the supreme legislature of the Union. This is the view entertained by two judges of the United States courts, both men of eminent learning and talents, and living in different districts — I mean Judge Betts, of New York, and Judge Cadwalader, of Pennsylvania. Washington Chronicle, Sept. 19, 1863; 20 Legal Intelligencer, 300.
If there ever was an occasion to call every man into the service of his country, it is the present one, when we are engaged in combating the most formidable, wicked, and causeless rebellion known in history, of which the object of its traitorous leaders is to destroy the Union, to erect a purely slave confederacy, and to make Pennsylvania a border State, exposed to the annual inroads of unprincipled enemies. I am, therefore, for using the whole population, if necessary, of the loyal States, to extinguish this treasonable rebellion. I have no idea of allowing Northern sympathizers to stay at home, whilst loyal men fight their battles and protect their property. I would oblige all such men to render their full share of military service, and if I had the power, I would place the New York rioters in the front ranks of the army.
We have, however, been referred to the example of England, as showing that the framers of the Constitution contemplated the armies of the Union should only be raised by voluntary enlistment. This has been said without a sufficient examination of the acts of the English Parliament, all of which were perfectly familiar to our revolutionary statesmen.
In 1704, 1756, 1757, 1778, and. 1779, acts were passed for recruiting of His Majesty’s land forces and marines, directing a speedy and effectual levy of able-bodied men to serve as soldiers. The commissioners under these acts were required to *518levy and raise all able-bodied idle and disorderly persons who cannot, upon examination, prove themselves to exercise and industriously follow some lawful trade or employment, or to-have some substance sufficient for their support and maintenance, to serve His Majesty as soldiers. 4 Anne, ch. 10; 29 Geo. 2, ch. 4; 30 Geo. 2, ch. 8; 18 Geo. 3, ch. 53 ; 19 Geo. 3, ch. 10. If/ upon their delivery to the military officers, such men shall appear more proper for service by sea than by land, -they may be delivered over to any commissioned officer of His Majesty’s fleet, to serve as common sailors. None were to be impressed under sixteen or above the age of fifty, or who had a vote in the election of members of Parliament. •
If an able-bodied man had sufficient substance, however idle and disorderly he might be, he could not be impressed, and the evident object of these acts was to force the poor- man to servé at all events, and never to call compulsorily upon the nobility and gentry and the middle classes of the kingdom. Lord Mahon gives a strong instance of this in the case of a gentleman being by some mistake pressed for a foot soldier, and confined in the Savoy, and as the habeas corpus act of Charles the Second applied only to criminal cases, could only be released from imprisonment upon an application to the Secretary of War. Lord Mahon’s Hist. vol. 2, p. 255, 1758.
Impressment for the navy has always existed in England. In speaking of these modes of raising men for the army and navy, a very able writer of the present day says,' “ But perhaps the greatest anomaly in our laws — the most signal exception to personal freedom — is to be found in the custom of impressment for the land and sea service. There is nothing incompatible with freedom in a conscription or forced levy of men for the defence of the country. It may be submitted to in the freest republic like the payment of taxes. The service of every subject may be required in such form as the state determines. But impressment is the arbitrary and capricious seizure of individuals from among the general body of citizens. It differs from conscription as a particular confiscation differs from a general tax. 2 May’s Const. Historyof England, p. 259.
In England, when the militia cannot be filled by volunteers, the men (the privates) are selected by a compulsory ballot, and by an act of 30th June, 1852, the Queen was authorized to raise eighty thousand private militiamen, which might be increased to one hundred and twenty thousand. 14 Law Magazine, p. 58 ; 21 Stat. at L. p. 90.
In fact, conscription, or its-equivalent, has been resorted to by every civilized nation. The English government have never had in any single portion of the world in active service a native army much exceeding sixty thousand, the number which in*519vaded France in 1814, whilst the armies of the other allied powers amounted to a million of men.
The present rebellion, according to Lord Ooke, is a war. “ So when by invasion, insurrection, rebellion, or such like, the peaceable course of justice is disturbed and stopped, so as the courts of justice be, as it were, shut up, et silent leges inter-arma, then it is said to be time of war and such, also, is the opinion of the Supreme Court of the United States, and of this court. Co. Litt. 2496; 2 Wilson, 363; Pratt on Contraband, p. 75; Prize Cases Sup. C. U. States, 20 Legal Int. 84; 2 Black. 635; Monongahela Ins. Co. v. Chester, 10 Leg. Journal, 217.
The individuals making war against us are both traitors and enemies, and it is waged upon a scale of the greatest magnitude, calling into the service of the country an army*of eight hundred thousand men. It is, therefore, the duty of the government to use every means within the scope of their authority to recruit the armies of the Union, and to sustain the gallant soldiers and generals who, by their glorious efforts and sacrifices, are gradually but certainly restoring the Union to the full extent of its ancient limits.
I am, therefore, of opinion that the act in question is constitutional, and that on-this ground the motion for a special injunction should be refused. Here-1 might stop, but as I have grave reasons for believing that this court has no power in the premises, it is proper to state my views upon this point.
The proposition submitted to this court by the counsel of 'the plaintiffs is, that a State tribunal should prohibit an officer of the. United States, acting in strict conformity to an act of Congress, from performing the duties imposed upon him by law. I cannot think we have any such power. If we have it, has not the governor or the legislature the same power ? and \f so, to what must it inevitably lead ? — a collision between the National government and one or more of the branches of the State government, of which the judiciary is certainly the weakest. We have had serious lessons on this subject, which should teach us to be careful in asserting that the State authorities are to be the judges of the constitutional powers of the general government.
In 1812 the judges of the Supreme Court of Massachusetts, all of whom in turn were chief justices, gave their opinion that Governor Strong, and not the President, was the judge of the exigencies in which the militia could be called into the service of the United States. 8 Mass. 549. This opinion was solemnly overruled by the unanimous decision of the Supreme Court of the United States upon this same question. Martin v. Mott, 12 Wheat. 19 ; 5 Gray, 121.
A celebrated convention, in 1815, in relation to Mr. Monroe’s *520bill for a draft, used this language: “ The power of compelling the militia and other citizens of the United States, by a forcible draft or conscription, td serve in the regular armies, as proposed in a late official letter of the Secretary of War, is not delegated to Congress by the Constitution, and the exercise of it would be not less dangerous to their liberties than hostile to the sovereignty of the States. The effort to deduce this power from the right of raising armies is a flagrant attempt to. pervert the sense of the clause in the Constitution which confers that right, and is incompatible with other provisions in that instrument. The armies of the United States have always been raised by contract, never by conscription, and nothing more can be wanting to a government possessing the power thus claimed to enable it to usurp *e entire control of the militia, in derogation of the authority of the State, and to convert it by impressment into a standing army.” 7 Niles’ Reg. 307. They also denounced as unconstitutional the law authorizing the enlistment of minors and apprentices without the consent of parents and guardians. The remedy proposed by the Convention was contained in its first resolution: “ Resolved, That it be, and hereby is recommended to the legislatures of the several States represented in this Convention, to adopt all such measures as may be necessary to protect the citizens from the operation and effects of all acts which have been or may be passed by the Congress of the United States, which shall contain provisions subjecting the militia or other citizens to forcible drafts, conscriptions, or impressments, not authorized by the Constitution of the United States.” Id. 312.
We may presume that neither the executive nor legislative branches of our State government would adopt so unpatriotic a course, originally marked out by a body of men who, however respectable in private life, were believed by the dominant party and the people of that day to entertain designs of a treasonable character. Their reward was a forced retirement from public life, and involuntary political oblivion. i
But this appeal is made to the State judiciary, who clearly have no more right to interfere with an officer, of the United States, holding a citizen under the authority of the United States, under a law of the United States, upon an allegation of unconstitutionality, than the State executive or the State legislature would have. This is clear. The Supreme Court of the United States have indeed decided this question in direct terms, intended to prevent all interferences of State authorities with*the execution of the laws of the United States by their own officers. Ableman v. Booth, 21 Howard, 523. It will be recollected that the present application is a substitute for the writ of habeas corpus, which has been suspended; and that the *521plaintiffs in the cases before us allege that they have been drafted, and have received notice of the draft, and are placed on the footing of enlisted soldiers, and liable to be punished as deserters should they fail to report for duty, which they have done. All these facts appear on the face of the plaintiffs’ bills of complaint, and the court is judicially apprised that they are in custody, under the authority of the United States. Chief Justice Taney says: “ They then know tha.t the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus nor any other process issued under State authority, can pass over the line between the two sovereignties. He is then within the dominion and jurisdiction of the United States.” “ No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judges by whom it is issued, and an attempt to enforce it beyond these boundaries is nothing less than lawless violence,” which would be resisted by force. Id. 524.
The doctrine contended for by the plaintiff’s counsel is simply the Calhoun heresy of nullification exploded by General Jackson, applied, not by a convention or a State legislature, but •by a State judiciary, who may, by preliminary injunctions, stop the raising of armies and the collection of taxes, duties, imposts, and excises, and thus paralyze the arm of government when stretched out to repel a foreign foe, or to suppress a rebellion backed by several hundred thousand men in the field.. I cannot agree that this court can nullify an act of Congress by any prohibitory writ.
I therefore think this court has no power to entertain these bills, and, of course, no authority to grant the injunctions prayed for, in which I find I am supported by the Supreme Court of Michigan. Am. Law Reg. vol. 2, N. S. 598.
But I am also of opinion that we have no power, sitting as a court of equity, to grant the relief prayed for. Our authority is ^alleged to proceed from the fifth clause of the thirteenth section of the act of 16th June, 1836, which is in these words : The Supreme Court (and now all the courts of common pleas and district courts) shall have the power and jurisdiction of courts of chancery, so far as relates to “ V. The prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community, or the rights of individuals.” Brightly’s Purdon, p. 401.
Now neither in this provision, nor in the report of the revisers, nor in any of the decisions of the court, do I find any warrant to grant injunctions to stop the proceedings of officers of the United States' under acts of Congress regularly enacted. If such be our power, then the sooner the legislature interposes *522its legitimate power to alter the law, and to prevent the various courts of the State from exercising a jurisdiction with which they never intended to invest them, the better.
I am, therefore, of opinion that under the act of assembly we have no such jurisdiction as is here claimed.
Appendix to Judge Read’s Opinion,
B.
Mr. Biddle was in France, with General Armstrong, and the following is an extract from his speech in the Senate of Pennsylvania, on 10th January, 1815. Mr. Biddle said: “I well know, sir, that a project of this kind has been assailed in Congress, where it has been branded as a French conscription, the very name of which was fatal to it. One word, sir, about conscription. It is thought because Bonaparte made use of it, it is improper for any country to resort to anything like it. But take it in its most odious form, it is not the project of Bonaparte. It was resorted to by the French Convention, in their contest for liberty, when all the nations of Europe were arrayed against them, and when they had alone the hearts of the people of this country in their favor. It was resorted to and found successful in repelling the foes of that republic.. The Emperor afterwards employed the same method of raising troops, and he abused it. In its original form it was efficient without being tyrannical.” “Yet with all its faults the French conscription is the most equal mode of military levy on the continent of Europe.” “ I say it, because I have seen its operations.” “ This mode, however, is not peculiar to France; it was resorted to in our revolutionary war, long before it was used in France. It was made use of by every State in that war.”
0.
It is obvious that a State court, without declaring an act of Congress unconstitutional, might by their decisions upon its construction, practically nullify it, if they can use the writ of injunction to enforce their decrees against the officers of the United States intrusted with the execution of its provisions.
D.
The intention of the legislature in giving the writ of injunction was to enable the court to restrain nuisance, trespass, waste, and proceedings at law, but never to substitute it for the writ of habeas corpus in favor of a person in custody. It is clear that the State writ could not be used to restrain proceed*523ings at law in a court of tbe United States. Before tbe act of June 16, 1836, the Supreme Court possessed no general equity powers, and could not issue writs of injunction, and tbe legislature never dreamed that' by these words that court would claim under them, to stop the execution of the laws of the United States, by officers appointed by the general government in the regular performance of their official duties.
President Reed proclaimed martial law on 9th. June, 1780. Penna. Journal, 21st June, 1780.