C. J. Woodward and J. Thompson dissented from the ruling of the court, and concurred in the following opinion by
Woodward, C. J.The judgment of this court, pronounced at Pittsburg on the 9th of November last, against the constitutionality of the act of Congress, of March 3, 1863, which is commonly known as the conscript law, was as regular, fair, and solemn a judgment as this court ever rendered. The parties bad a full opportunity to be heard. The defendants did not avail themselves of it, for they persistently refused to appear either by themselves or their counsel, to argue the single question involved, or to object to our jurisdiction, or to the form of proceeding. On the 23d of September, when the court assembled to hear the argument, we required proof of notice to counsel to be filed of record, and waited the return of a special messenger whom we dispatched in unsuccessful search for the counsel. The argument was not permitted to proceed on behalf of the plaintiffs until more than usual pains were taken to secure to the defendants their constitutional right to be heard. But the court was treated with studious contempt. The defendants did not condescend even to allege the constitutionality of the act of Congress. We have no right to hold counsel responsible for this treatment, because counsel generally act as they are acted upon, and the legal presumption is, in this instance, that they did not appear because they were instructed not to appear. The judgment was delayed for six weeks, an interval which bore the case beyond the excitements of a pending political contest — gave judges ample time for reflection on the grave question to be decided, and afforded the defendants space to repent of their contumacy, and to apply for leave to be heard, or to submit what we never refuse to receive — a printed argument.
Notwithstanding all this care and deliberation on our part, .\Ve were deprived of the assistance we were entitled to have from the competent counsel of the defendants. A party who *554has full opportunity to be heard is always treated as if he had been heard.' He, has had his day in court, though he has not improved it. The judgment we pronounced, therefore, was as binding upon the defendants as if they had been heard. It was binding upon all the citizens of the State, and was the highest judicial evidence that they yet have that the conscript law was and is null and void. The judgment was subject to review by the Supreme Court of the United States; not indeed in its present form, for the decree of a special injunction, though it involve the decision of the constitutional question by the whole court, is what is technically called an interlocutory decree, and an appeal to the Federal court lies only from judgment or decree, which is final as well as adverse to the Federal government. It was easy, however, for the defendants to put the record into shape for review.- Upon filing their answers to the bills of the plaintiffs the court could have made their interlocutory decree final, without further argument or delay, and thus the record could have been got into the Supreme Court of the United States before the beginning of their present term, last month. Or, if the court had desired reargument on the motion for final injunction, that could have been had while Judge Lowrie was still in office and in time for review in the Federal court early in the present term. No doubt delays were possible, if the purpose was to delay and not to speed justice; but it is equally clear that had there been any desire to obtain the opinion of the court of last resort, here was a good opportunity to obtain'it.
But though the court sat at Pittsburg a week after each judge had delivered an opinion, and the interlocutory decree had been entered, and though the commission of Chief Justice Lowrié did not expire until the first Monday of December, yet no motion or effort was made by the defendants to prepare the record to be reviewed; no reargument was asked for in this court, no explanation or apology for the non-appearance of the defendants was offered.
After Judge Lowrie was out of office, to wit, on the 17th day of December, the defendants, by counsel, appeared before Judge Strong, at Nisi Prius, who had been assigned to that court for that month, and moved to dissolve the injunction. This motion was grounded on no answer, plea, demurrer, affidavit, or reason filed of record.. It is understood that plaintiff’s counsel had notice of the motion, and appeared and objected to it, but it was granted, and the other members of the court summoned to an argument upon it on the 30th of' that month. When it came up before a full bench on that day, plaintiff’s counsel again objected to our entertaining the motion, but the argument of the question of practice, as well as of the *555constitutional question, was ordered by a majority to proceed, and' we heard counsel on both sides on the three questions “ of the regularity of the motion to dissolve,” the constitutionality of the act of Congress, and the jurisdiction of a court of equity to grant relief by injunction.
This proceeding is so extraordinary, that I have felt it my duty to mark the several stages of its progress, and to express, with all possible brevity, the opinions of my brother Thompson and myself on the three questions submitted. And first as to the motion to dissolve. The Nisi Prius is held by the several judges of this court alternately, month by month, when not in session in other parts of the State — it is ordered by statute to be held by a single judge; but a practice has grown up of late years, when a very important question is presented to the Nisi Prius judge, for him to assemble the whole court to hear the argument — a practice which is not forbidden by statute, and has' some important advantages. In injunction cases, and especially where the motion for a special injunction involves the only question that is to be decided, and which must be decided speedily to be of any effect, the practice has the advantage of giving the parties the benefit of the opinion of the whole court, without appealing to the court in banc, and it speeds the justice which parties seek. But when the court hears such cases, it never rehears them unless a reargument be specially ordered. Their decision, though docketed in the Nisi Prius, is really a decision of the Supreme Court, and is published among the authorized decisions of the court. Cooper's Case, reported in 9 C. 278, and Ewing v. Thompson, 7 Wr. 372, passed in this way, under the former of which two millions of property are held and enjoyed, and under the latter of which the title to the office of Sheriff of Philadelphia for the time being was settled. Many other cases have been disposed of in the same manner. In this manner this constitutional question was tried and decided. The plaintiffs having filed their bills, moved before me, at Nisi Prius, for special injunctions, which motion was argued, as before stated, before the whole court, and decided by five several opinions of the judges, delivered seriatim,, and which the State reporter has already given to the public.
I have said all the citizens of the commonwealth were bound to respect that decree. I include, of course, the judges of this court. A dissenting judge is as much bound by the decrees and judgments of the majority, regularly entered, as the majority themselves. In the case of Gratz v. The Pennsylvania Railroad Company, 5 Wright, 447, where the opinion was delivered by my brother Strong, the dissenting judge considered the constitutional guarantees of the sinking fund of the State pal*556pably violated, and filed a dissenting opinion wbicb can be read in the Legal Intelligencer of December 20th, 1861, but * which concluded with these words: “ That judgment” (the majority opinion) “is the law of the case to which I shall always hold myself and all other men bound, as much as if it had received what I have been unable to give it, the approbation of my conscience and judgment.” That I believe to be the true doctrine as uniformly recognized in this court heretofore, and I am sure it is essential to the dignity and efficiency of the court.
Upon this principle I maintain, then, that a dissenting judge cannot, upon the same state of record and of facts on which the majority have granted an injunction, dissolve that injunction, nor set the majority to reviewing their decision. If he may, it is apparent that a dissenting judge may undo the work of the whole court, or, what is worse, make them go over the same ground again and again.
New trials and re-arguments can only be ordered by the court who first heard the case. These defendants should have applied to the court who granted the injunction for their motion to dissolve it, upon the same state of facts on which it was granted; ,and had they done so they would no doubt have been required to purge themselves of the contempt of which they had been guilty, and to exhibit some grounds for their motion.
I do not deny that a judge at Nisi Prius may dissolve a special injunction, upon coming in of the answer to the plaintiff’s bill, provided it 'be a direct, and full denial of the equity alleged, ov upon an affidavit disproving the plaintiff’s equities, for then the record presents substantial grounds for him to proceed upon. But where the record remains precisely as the court in banc left it — no new fact alleged, no equity denied — I hold that a single judge at Nisi Prius has no right or power to question the decree, in behalf even of the most respectful defendants, much less in behalf of defendants who, without appearing in obedience to our subpoena, or alleging the constitutionality of the act of Congress, or denying the equity on which the plaintiffs stand, simply demand that we dissolve the injunction most deliberately granted.
. I have heard it said during the argument that a motion to dissolve an injunction is always in order as a matter of course. This is a great mistake. Sometimes a. chancellor having granted a final injunction without argument, or upon a very partial hearing; will entertain a motion to dissolve, to give the parties an opportunity to be fully heard, but the general rule is (and if ever there was a case in which it ought to be observed, this is that case) that a motion to dissolve will only be entertained after answer or plea, or upon affidavit impeaching *557the equity of the bill. In Eden on Injunctions, 1 vol., 144, we read: “ This order (to dissolve) will not be made without an affidavit in answer to the material allegations of the bill, and several of the motions upon this subject stood over to give the defendants time to file satisfactory affidavits.” And again, on p. 145: “If the answer contains a sufficient defence to the case stated in the bill, the injunction will be dissolved. So where a plea is allowed, there is ordinarily an end of the injunction, but not always, and the court has said that an injunction is not absolutely dissolved on the allowance of the plea, but only nisi, because there may be some equity shown to continue it.” This text of Eden is supported by reference to the best English authorities. The American authorities are full to the same point. In Read v. Consequea, 4 Wash. C. C. R. 174, Judge Washington said: “ The motion which is now made to dissolve •the injunction absolutely without the answer of the defendant being filed, is altogether unprecedented. If the injunction be granted till answer and further order, which is the usual form, it is never dissolved until the answer comes in, even although the defendant should live abroad, and the motion is accompanied by an affidavit to support it. In this respect the practice of the Court of Chancery and of the Court of Exchequer in England is the same.” With reference to the point of practice suggested by Judge Washington, I may remark that in.the case before us the injunction was not granted subject to further order. The legal effect of it must be, therefore, that it was granted until the coming in of the answer.
Where an answer plainly and distinctly denies the facts and circumstance upon which the equity of the bill is based, the injunction will be dissolved. Mene v. Ferrel, 1 Kelly’s R. 7. But an injunction will not be dissolved, as a matter of course, on the coming in of the answer denying the equity of the bill, if the complainant has adduced auxiliary evidence of his right. Orr v. Littlefield, 1 Woodbury & Minot’s R. 13. In order to warrant the dissolution of an injunction upon bill and answer, it is necessary that the answer should deny all material allegations of the bill with the same clearness and certainty as they are charged. Buckner v. Breine, 9 Smedes & Marsh, 3 and 4. A denial from information and belief is not sufficient. 1 Hopkins, 48, and see 1 Paige, 103 and 311, and 3 Sumner, 78. Nor an evasive or contradictory answer — 1 Bland, 195 and 199 —nor an answer merely literal, which does not traverse the substance of the charges. Everly v. Rice, 3 Greene, 553. I refer also to the numerous cases to the same effect which are cited in the notes to 1st Eden on Injunctions, and in the 2d vol. of U. S. Equity Digest, from page 83 to page 92.
These cases, from nearly every State in the Union, settle *558with singular harmony the practice in injunction cases o.n the point now under consideration. If anything can be supported upon authority, they do establish, beyond all cavil or doubt, that an injunction granted after a full hearing anpl great deliberation, is not to be dissolved, either by a single judge or the whole court, upon mere motion, without answer, plea, or affidavit. And why should a cou'rt having any pretension to stability be expected to render a different judgment, on precisely the same state of record and of facts, in January from that which they rendered in November previously ?
It is another principle of equity, that favors are not to be granted to a party in contempt. Who does iniquity shall not have equity has long since crystallized into a maxim. When the defendants place themselves erect in court, and do what other defendants in such cases are required to do — answer the bills that have been filed against them — it will be soon enough for them to. move for a dissolution of the injunction — it will be as soon as they will deserve to be listened to.
It cannot be said that any great public interest demands the entertainment of this motion, for the defendants have not been Vestrained from executing the conscript law against the three plaintiffs even, much less against any other citizen. What the public interest demands is a decision of the constitutional question in the Supreme Court of the United States — a decision which the President publicly declared he would facilitate — and which our ruling afforded the defendants an opportunity to obtain. But instead of shaping the case for that court, they have taken the very course to keep it out -of that court, and the country is tortured with doubts and fears about drafts, which a decision of the constitutional question by the ultimate tribunal would relieve. Why should not such a decision be facilitated? Is the result feárecí? Suppose our judgment should be affirmed and this conscript law, so uncongenial to the spirit of our institutions, should be set aside, who does not see that civil liberty would gain a new guarantee, whilst the government, remitted to the true constitutional mode of raising armies by voluntary enlistments, would strengthen itself in the affections of the people, by exercising the war power in a manner agreeable to them.
The time and manner of bringing forward this motion would seem to indicate that it was a sort of experiment upon the learned judge who has just taken his seat as the successor of Judge Lowrie. Does anybody suppose it would have been made if Judge Lowrie had been re-elected ? I presume not. Are we to understand, then, that whenever an incoming judge is supposed to entertain different opinions on a constitutional question from an outgoing judge, every case' that was carried *559by the vote of the retiring judge is to be torn open, rediscussed, and overthrown? God save the commonwealth, if such a precedent is to be established. The personnel of this court is very changeable. In les* than twelve years that I have been here, I have sat with twelve gentlemen, including the four brethren now with me. We come and go by elections, if other causes do not remove us; but let it never be said that our records are as unstable as ourselves, or, worse still,. as unstable as the vicissitudes of politics. Many estates in Pennsylvania are held and enjoyed to-day by virtue of votes that Judge Lowrie has cast in this court during the last twelve years. If this constitutional question, which was decided in the same way, is to be reopened because his successor is presumed to differ in opinion, I see not how any of the other questions are to be considered settled or the cases concluded. If these defendants are entitled to have Judge Lowrie reversed in this summary and unprecedented manner, I know not how we are to deny other suitors the same privilege. The general rule is, that courts do not allow themselves to be experimented upon. I would hold 'to that rule very firmly. I cannot admit that a popular election should overthrow a judicial record. I maintain that the decision of 9th November is the law of this court, and will be until it is regularly reversed or avoided, according to established judicial rules, and as such is entitled to be respected and obeyed by all orderly and loyal citizens.
I must be understood as conceding to the members of the court, from whom I differ, the same freedom of opinion and rectitude of purpose I claim for myself — and I do it most cheerfully — but I should be recreant to my convictions of duty, if I did not enter a very earnest. protest against this proceeding to dissolve a regularly and a carefully granted injunction in.the manner proposed. Judge Thompson and I would dismiss the motion to dissolve as unfit to have been entertained, but as we are overruled in this by a majority of the court as now constituted, something must be said of the other two questions discussed.
I do not intend to enter at large into the constitutional question again. Nor is it necessary, for the positions assumed in the opinions of the majority when the case was here before, (much strengthened and confirmed by the last argument, were shaken by nothing that was advanced against them. It may not be unprofitable, however, to state the results to which the discussions at bar and on the bench have come.
It is agreed on all hands that the Government of the United States is a government of delegated powers; that the Constitution is the instrument of delegation; that the'powers intended to be conferred are either expressed therein or are such as are *560necessary for the carrying into effect the expressed powers; that the Federal government is supreme in the exercise of its rightful powers, and that all government powers not delegated to the Federal nor prohibited to the State «government are reserved to the States and people. It is further agreed that if the power to enforce a draft against the people of the State be conferred on Congress, it is contained in the thirteenth clause of the eighth section of the first article, “ to raise and support armies.”
The clause which authorizes Congress to pass all laws necessary to carry the enumerated powers into effect is sometimes mentioned as bearing on this question, but most thoughtlessly, for both the language of the clause and the judicial interpretation it has always received, import a grant of no new or additional power whatever, but only a recognition of the legislative duty to provide the necessary laws for carrying into effect the 11 foregoing powers.” What the foregoing powers are, will never be discovered from this clause, but only from the foregoing clauses.
All judges and lawyers are substantially agreed, therefore, that Congress does not possess the power to pass such an act as that of the 3d March, unless it be conferred by the thirteenth clause to raise and support armies. But here opinions begin to diverge upon the rules of construction to be applied to that clause.
On one hand it is contended that the words, being simple, absolute, and unqualified, are to be received in their largest sense, and that they import a right to raise armies by any of the means that have ever been employed by civil governments, and conscription is claimed as one of the means practised by European governments, and sanctioned by Gen. Knox, when Secretary of War, and by Mr. Monroe in the war of 1812. It is likened to the expressly conferred powers to levy and collect taxes, coin money, establish post roads, &c., all of which, it is argued, are unlimited powers, because plainly granted and 'not expressly qualified. In further support of this view, Yattel, Grotius, Puffendorff, and other writers on natural law, are cited for the principle that the right to call on its citizens or subjects for military service is an essential and inherent right of every government. When the attention of counsel was called to the fact that the act of Congress under review does not provide for drafting citizens generally, but only a certain class of citizens, to wit, the able-bodied men between 21 and 45 years of age, and that' all citizens of that class constitute the State militia, for calling whom forth another part of the Constitution expressly provides, the answer was that the 16th and 17th clauses of the 8th section (which are the *561militia clauses) conferred on Congress the chief control over the State militia, and hence it was inferred that Congress might draft them.
Such is an outline of the argument in support of the constitutionality of this statute.
Those of us who think the statute unconstitutional answer the argument by urging these several considerations :—
1st. That the Constitution, being a written document, must be taken ás a whole, and every specific grant, however unqualified the language in which it is expressed, must be so construed as to be consistent with other provisions of the instrument — in a word, that the document must be construed in such a manner as to give effect to every part of it. No lawyer will deny that this is a settled canon of construction. If a will devises Black-acre to A in language, that is unqualified, but in a subsequent clause gives half of Black-acre to B, no lawyer would insist on the positiveness of the first devise as a reason for excluding the second, but would receive the second as qualifying or limiting the first. Applying this familiar rule of construction to the case in hand, we say that if the 13th clause confers the power to draft any citizen for any war, it does not confer the power to draft the militia for suppression of an insurrection, because another and an inconsistent mode is subsequently provided in the Constitution for calling out the militia to suppress insurrections. I will not dwell on this argument, for it was fully presented in our former opinions; but I regret that so little of the subsequent discussion was directed to this point, which is the vital point of the controversy. Indeed, 'the very case is that of a law for enrolling and drafting the militia to suppress an insurrection. Now, if the Constitution does expressly declare that they shall be called forth under State officers to suppress insurrections, and does recognize the right of the States to maintain a militia, how can the same instrument authorize them to be drafted irrespective of State authority ? If it declared in terms that they might be drafted, the Constitution would be guilty of the inconsistency, but it does not. It is only by misapplying the provision which authorizes armies to be raised by enlistment, that the inconsistency is made to disfigure the fair face of the Constitution.
As to the suggestion of counsel that the chief control of the militia is vested in Congress, this is a mistake. No organ of the General government has any control over the militia until they have entered the military service of the General government in pursuance of a call directed to the Governor or other proper military officer of the State. This is the purport of the language of the Constitution and of the judicial construction it has uniformly received. The militia are organized and dis*562ciplined by tbe States, according, to the rules prescribed by Congress, but this vests no more control in Congress than it would in an author whose work on military science the Constitution might have adopted instead of congressional rules of discipline. And, let nobody suppose this act to be the exercise of the power conferred by the 16th clause, to call out the militia, for it is not that either in fact or form. To call forth the militia, in a body, with their State officers at their head, is very unlike drafting them, man by man, into the Federal armies under such officers as the President may choose to appoint over them. The act does this latter thing, and therein it violates the Constitution.
The argument then remains unimpaired, almost untouched, which is derived from the militia clauses of the Constitution against the constitutionality of the act of Congress.
2d. But another limitation upon all the grants of power in the Constitution is to be implied from the nature or genius of the government which the Constitution formed. It was to be a free and popular government. Therefore the power to levy taxes, meant such taxes as would be necessary to the support of the government, levied in that equal and fair mode which free governments were accustomed to practise. This power, though absolute in its terms, was not a power to farm out the public revenues after the manner of tyrannical governments of Europe, nor the power to levy taxes for works of internal improvement, or for purposes of speculation.
So with the power to borrow money, nobody would contend that it would justify forced loans, which governments have sometimes practised, nor loans for any other purposes than support of the government.
So again with the power to maintain a navy, whilst all readers of the Constitution would imply the power to establish ship-yards, dry-docks, and naval asylums, no one would understand the press-gang to be legalized. And here let it be remarked as one of the curiosities of this subject, that impressment of militiamen into the Federal armies is claimed to be constitutional, whilst no American voice has yet been raised in favor of impressment into the Federal navy.
Take this very thirteenth clause: Congress shall have “ power to raise and support armies.” The power to support is as absolute as the power to raise, but does'it mean that Congress may support armies by quartering them on the farmers of the country ?
In all these instances, and in many more that might be cited, nay, in every instance of a granted power, the Constitution is to be taken as intending such an exercise of it as is consistent with popular liberty, which it was the purpose of the Constitu*563tion to secure. Limitations in behalf of liberty are always to be implied. And never can they be more in place than when, as here, citizens are complaining that the government is violating their liberty.
I think due attention has not been given to this argument— that all delegations of power are to be read in a manner consistent with the free and popular nature of the government.
. Generally, deeds are construed most strongly against grantors, and so are political constitutions when granted by rulers to people, but not when granted by a people to their rulers. In this instance, the rule is to be taken inversely, and the grant is to be read most favorably to the grantors, because the natural tendency of political power is always from the many to the few, and the very end and aim of a written constitution, where the people write it, is to restrain this tendency. To construe a people’s constitution so as to «favor usurpation-i-to throw doubts into the scale of rulers — to set up questionable powers against the unquestionable liberty of the citizen — is an unwholesome practice which, however' grateful to the passions of the hour, may prove fatal to the republic. It would not be difficult, _ indeed, to trace all the maladies the body politic has suffered to this practice. A return to a strict construction of the Constitution — by which I mean ‘a construction that denies no expressly granted power, and no implied power which is essential to the full enjoyment of the express powers, but a construction which limits itself to these two conditions, and always keeps in view the nature, scope, and purpose of the Constitution — would re-establish health and soundness. When the colonies revolted they became “ free and independent States, with full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent States might do.” Amongst other things that such States might do was to confederate, and they did confederate". Such States might form a General government as a common shield from external dangers and a common agent for the conduct of external and inter-state relations, and they did so. Possessing as States all the sovereignty that pertains to any free government, they could impart to the General government all the powers essential to its purposes, without impairing their reserved powers to regulate all affairs purely domestic and local. They set down in detailed language the powers conferred, and retained in mass whatever was not granted away or denied to themselves.
But if now we construe the grants irrespective of limitations which the scheme necessarily implies, and concede to Congress the power to pass all acts which they deem necessary to carry powers so read into effect, we had better have had no written *564Constitution to dispute about. The government becomes whatever the government chooses to be — a limited monarchy or an unlimited despotism.
This power to raise and support armies meant the power which other governments, less free, exercised of raising armies by voluntary enlistments. The framers were not ignorant of the arbitrary and violent measures by which despotic governments sometimes rais'ed armies, but they were not forming a despotic government. Great Britain, according to Hallam, had repudiated conscription as fit only for paupers and vagabonds. Voluntary enlistments were her main reliance when we formed our Constitution. This government, in all possible parts and forms, was to rest upon the consent' of the governed. Did the framers mean, then, to pass by the example of the mother, country, and plant in the Constitution of this more free government the imperial and despotic power of conscription? Did the people of the States mean to place themselves under a more severe rule than they were under before they revolted ? Did they achieve freedom only to give it up in the very act of adding new securities? Is it credible that people of free and independent States voluntarily surrendered to any government on earth the power to force them from their homes and families into the tented field ?
Until some evidence, historical or traditional, is produced in support of propositions which seem so monstrous to me, I must be pardoned for withholding assent to them.
3d. The denial that the power to draft citizens was ceded to the General government results in the conclusion that the power still remains with the States. No doubt the State may force its able-bodied men into the military service of the State. For _ here, in the State, is where that principle of natural law inheres, which has been erroneously ascribed to the General government. The State is parens patriae. The Supreme Court of the United States said so in terms in Wheeler v. Smith, 9 Howard, 78. As such, the State possesses this great right of summoning all her children to her defence, and what she gave to the General government was the power of raising armies by enlistments and of calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. I repeat, this act of Congress is not and does not profess to be a militia law in pursuance of the sixteenth clause, and as it is not warranted by either the text, the history, or the reason of the thirteenth clause, it has no foundation in the Constitution to rest upon.
General Knox, in 1790, and Mr. Monroe, in 1814, expressed themselves in favor of a scheme of conscription, not indeed such as this law, but involving the same principle, and their good names have been much used in this argument. Against *565them may be set off the constitutional arguments of Mason and Webster — the refusal of Congress to pass such a law in 1814, when we were at war with one of the mightiest nations of the globe — and the facts that Washington put down the Whiskey Insurrection — Madison carried the country through the war of 1812, and Polk carried it through the Mexican war, without a resort to conscription, or anything like it. Do not such names and facts more than answer the argument drawn from the suggestions of Knox and Monroe? Whilst great names ought not to weigh much in any argument, traditional testimony, or what it is commonly called among lawyers, contemporaneous construction, is entitled to great respect in fixing the meaning of any written document. That is to say, the generally received opinion amongst those most interested in a right interpretation of the document, is very high evidence of its meaning. This kind of testimony is altogether against such legislation as we are discussing. In all our history, since the formation of the Constitution, the general opinion of statesmen has been, as I believe, adverse to forced recruits for either the army or the navy.
4th. In one of the majority opinions, the 12th and 13th sections of the conscript law were alluded to as unconstitutional, on the ground that no citizen could be made liable to be shot as a deserter before he had entered the army, and Judge Story’s Commentaries on the Constitution were cited to prove that militiamen are subjected to martial law only when in actual service, and not merely when called forth, before they have obeyed the call. To bring him within the meaning of being in actual service, there must be, says Judge Story, “some acts of organization, mustering, rendezvous, or marching done in •obedience to the call.”
It is remarkable that this argument, founded in the very language of our most accredited cdmmentator, was not noticed in the last discussion. Was it because of the insignificance of the interests at stake — only the liberties of three citizens. Is it nothing to the people of Pennsylvania that they are liable to be shot, and their memories branded as deserters, if they fail to answer a notice of a draft? When such questions press home upon the hearts of the people, is it unworthy of counsel to look into the constitutional rights of the people? The deserter deserves to be punished, but he only can be a deserter who has become subject to martial law, and serving a paper notice on a man does not put him into actual service and subject him to martial law. It has been said that Judge Washington’s obiter dictum in Houston v. Moore, 5 Whar. 1, explodes this rule as stated by Judge Story. What was decided in Houston v. Moore was the constitutionality of an act of *566Assembly of the State of Pennsylvania for inflicting military punishment upon a militiaman neglecting to march with his detachment to the place of rendezvous, after being duly called out under the 16th clause of the 8th section of article 1 of the Constitution of the United States.
It was not the case of a draft under the 18th clause — it was not an act of Congress at all that the learned judge was to decide upon. How an affirmance of the constitutionality of that State legislation can explode the rule of Federal law laid down by Judge Story, is hard to understand. If it is meant that an unnecessary and inaccurate obiter dictum of Judge Washington, or anybody else, can explode a settled rule of constitutional law, that is staking the constitutionality of this part of the act of Congress on a desperate venture. Some broader and more solid ground should be found to rest the argument upon. Yet no other has b'een discovered or pointed out.
For these reasons, as well as for those rendered before, we still maintain that the enrolment act is unconstitutional, and this brings us to the final question, as to the remedy by injunction.
^ A few words as to the remedy. In the opinions of Judge Lowkie and Judge Thompson, our act of Assembly was referred to as our authority for restraining acts contrary to law, and prejudical to the rights of individuals. And it was shown that the acts complained of here were of that character, if the conscript law be unconstitutional. If habeas corpus had not been suspended, that would have been the plaintiffs’ true remedy; for in numerous cases, as was shown on the argument, State courts have delivered citizens from the military authority of the Federal government on habeas corpus.- But we are at present situated as if we had never had habeas corpus. It is im-e /possible, therefore, to deny the equity jurisdiction on the ground / that there is remedy at law. There is no remedy at law, and even where there is, the rule in equity is that it must be an adequate remedy to oust the jurisdiction of equity. We had a great consideration a few years ago of the question whether, equity would decree specific performance of a contract for sale of lands, there being remedies at law both by covenant and ejectment, but the equity jurisdiction was sustained on the ground of the inadequacy of the legal remedies. Had there been no legal remedies whatever, which is the case here, the question would scarcely have been made.
I say no legal remedies, for habeas corpus being suspended, it cannot be seriously urged that a civil action for assault and battery would be a remedy for a citizen who denied the right of the government to put him into the army as a soldier.
But it is supposed that a State court cannot lawfully resist *567the execution of an act of Congress. Here a distinction exists which never ought to be lost sight of. 'State courts have no power to interfere with or resist the process or judgments of the Federal courts, and the rule is reciprocal — the Federal courts have no power to disregard the.process or judgments of State courts, as was determined in the notable case of Taylor v. Carryl, about the Eoyal Saxon, reported in 20th Howard, 583.
Of course, the appellate jurisdictions of the Supreme Court of the United States are to be excepted from this remark. In the forms of the Constitution that court may review certain proceedings of State courts; but in all other respects, even where concurrent jurisdiction exists over the subject-matter, the Federal and State courts mutually respect-that jurisdiction which first attaches. The case of Ableman v. Booth, 21st Howard, 523, so much relied on, belongs to this class of questions upon judicial process, and all that fell from the chief justice! in that case is to be restrained to the facts of the case. This is a rule always necessary to be imposed upon judicial language. That case is authority for nothing but the well-settled doctrine that State authorities cannot resist the judicial process of the United States.
But these defendants were not acting under any judicial process of the United States. They were mere ministerial agents of the executive department engaged in executing what we held to be an unconstitutional act of Congress, and, therefore, are not within the rule above stated, nor within the authorities cited to sustain that rule. Such ministerial agents have often been restrained by State courts and State judges, generally upon habeas corpus, where personal liberty has been at stake; but the right of State judges to inquire into the validity of ministerial proceedings under acts of Congress, is as perfectly vindicated by habeas corpus cases as any other. I refer to Commonwealth v. Harrison, 11 Mass. R. 63; State v. Dimmick, 12 N. H. 194; Smith v. Shaw, 12 Johns. 257 ; State v. Brearly, 2 Southard, 555; Maryland v. Rutter, 12 Niles’ Reg. 115; Commonwealth v. Murray, 4 Binney, 487; Commonwealth v. Barker, 5 Binney, 428; Commonwealth v. Fox, 7 Barr, 336; Olmstead's Case, Brightly’s R.; Lackey's Case, Ibid. 269.
I think these authorities fully sustain the proposition of the learned counsel, that a State court has the right to prevent the invasion of the personal liberty of the citizen of the State by officers of the United States, acting under color of an unconstitutional law, when the. act complained of is not the subject of suit, prosecution, or proceeding in the courts of the United States.
And if a State court may do this in any form, we hold that this court may do it when sitting as a court of equity in a State where habeas corpus has been suspended. Our jurisdiction as *568a court of equity under our act of 1836, has not been suspended, and any citizen has a right to appeal to it in defence of personal liberty.^'Courts of equity are accustomed to enjoin to prevent frauds, waste, nuisa&ces, trespasses, obstructions, and diversion of watercourses, and in numerous other torts. The principle of injunctive relief against a tort is that the inadequacy of the remedy at law is a sufficient equity, and will warrant an injunction against the commission or continuance of the wrong: Adams’ Equity, 478. The inadequacy of all remedies at law for infringement of personal liberty, when habeas corpus is suspended, is too plain to be doubted or discussed, and the necessary consequence is that courts of chancery would have jurisdiction, and the act of Assembly clothes us with all their powers. If courts of chancery have not jurisdiction Íof torts which touch liberty, what are we to say, that property is better guarded with us than liberty ? Who is willing to stand on that ground? For one, I am not. I would not say that man has more rights in his horse or, his .house than he has in himself. If equity will restrain torts in respect to lands and goods, much more will it restrain torts in respect to the ‘ immensely higher interest — his liberty — when all legal remedies have been taken away.
* Whilst more might be said on these questions, I do not deem it necessary, after the full discussion they received from the whole court on the former occasion. I would dismiss the motion to dissolve, both because it is premature, and because I entertain no doubt of the unconstitutionality of the act of Congress, and of our right or duty to enjoin against its execution. And I am happy to add that my Brother Thompson, concurs in all of these conclusions, though he would doubtless have expressed them bétter than I have done.
Since this opinion was prepared, I learn what was not stated before, that the injunctions awarded in these cases have not been issued. Had this fact been disclosed when the motion to dissolve was'made, or even when it was argued, it would have modified the line of discussion, somewhat, that has been pursued.
But now that it has been disclosed, Judge Thompson and myself see in it only an additional reason for not granting the motion. Why dissolve an injunction which is not restraining the defendants ? It is not because the decree hinders or delays them — it can only be, it seems to us, to expunge a. record which a majority of the court now think a majority should not have made in November. That is not the legal and constitutional method of reviewing the decree. We, therefore, dissent from the opinion of the majority, even more earnestly than if the defendants were under restraint.
Justice Thompson, in a few words, expressed his concurrence in the views set forth by the chief j ustice.