Concurring opinion by
Woodward, J.On the 3d day of March, 1863, the Congress of the United States passed an act for “enrolling and calling out ofx the national forces,, and for other purposes,” which is commonly called the Conscription Law. The plaintiffs, who are citizens of Pennsylvania, have set forth the act fully in their bills, and they complain that they have been drafted into military service of the government in pursuance of said enactment, but that the same is unconstitutional and void, and that the defendants, who are engaged in executing the act, have violated the rights and are about to invade the personal liberty of the plaintiffs, and thereupon they invoke the equitable interposition of this court to enjoin the defendants against a farther execution of the said act.
Eor the jurisdiction of this court to set aside an act of Con*479gress as unconstitutional, and to grant the relief prayed,for, I refer myself to the views of the chief justice in the opinion he has just delivered in these cases, and I come at once to the constitutional question.
The act begins with a preamble which recites the existing insurrection and rebellion against the authority of the United States, the duty of the government to suppress insurrection and rebellion, to guarantee to each State a republican form of government, and to preserve the public tranquillity, and declares that for these high purposes a military force is indispensable, “to raise and support which all persons ought willingly to contribute,” and that no service can be more praiseworthy and honorable than the maintenance of the Constitution and Union; and then goes on to provide for the enrolling of all the able-bodied male citizens of the United States, and persons of foreign birth, who have declared their intention to become citizens, between the ages of twenty and forty-five years, and these able-bodied citizens and foreigners, with certain exceptions afterward enumerated, are declared to be 11 the national forces'' and made liable to perform military duty when called out by the President. The act divides the country into military districts corresponding with the congressional districts, provides for provost marshals and'enrolling boards, and regulates the details of such drafts as the President shall order to be made from the national forces so enrolled. The payment of $300 excuses any drafted person, so that it is, in effect, a law providing for a compulsory draft or conscription of such citizens as are unwilling or unable to purchase exemption at the stipulated price. It is the first instance in our history of legislation forcing a great public burthen on the poor. Our State legislation, which exempts men who are not worth more than $300 from the duty of paying their own debts, is in striking contrast with this conscription law, which devolves upon such men the burthen which belongs to the whole “national forces,” and to which “all persons ought willingly to contribute.” This, however, is an ebjection to the spirit of the enactment rather than to its constitutionality.
■ The description of persons to be enrolled, able-bodied citizens between twenty and forty-five years of age, is substantially the description of the militia as defined in our Pennsylvania statutes and probably in the statutes of all' the States. The national forces, then, mean the militia of the States — certainly include the militia of Pennsylvania. This expression, “national forces,” is modern language, when so applied. It is not found in our constitutions, either State or Federal, and if used in commentaries on the Constitution, and in history, it will generally be found to apply to our land and naval forces in actual service— *480to what may be called our standing army. It is a total misnomer when applied to the militia, for the militia is a State institution. The, general government has no militia. The State militia, always highly esteemed as one of the bulwarks of our liberties, are recognized in the Federal Constitution, and it is not in the power of Congress to obliterate them, or to merge them in “ national forces.”
. Unless there is more magic in a name than has ever been supposed, this conscript law was intended to act upon the State militia, and our question is, therefore, whether Congress has power to impress or draft the militia of the State. I cannot perceive what objection can be taken to this statement of the question, for surely it will not be argued that calling the militia national forces, makes them something else 'than the militia. If Congress did not mean to draft the militia under this law, where did they expect to find the national forces ? “All able-bodied male white citizens, between the ages of twenty-one and forty-five years, residing in this State, and not. exempted by the laws of the United States,” with certain exceptions, constitute our State militia. Will it be said that the conscript law was not intended for these ? I think it will not. Then if it does touch, and was framed and designed to draft this very class of citizens, no possible objection can be taken to the above statement of the question we have to decide.
I, therefore, repeat the question, with great confidence in its accuracy: has Congress the constitutional power to impress or draft into the military service of the United States, the militiamen of Pennsylvania ?
This question has to be answered by the Constitution of the United States, because that instrument, framed by deputies of the people of the States, and ratified and put into effect by the States themselves in their respective corporate capacities, delegates to Congress all the powers that body can exercise. These delegations are either express or such implications as are essential to the execution of expressly delegated powers.
There are but three provisions in the Constitution of the United States that can be appealed to in support of this legislation. In our ordinary editions they stand numbered a's clauses 13, 16 and 17 of the VIII. section of Art. 1 of the Constitution.
“ 13. Congress shall have power to raise and support armies, but no appropriations of money to that use shall be for a longer period than two years.
“ 16. Congress shall have power to provide for the calling forth the militia to execute the laws of the Union, to suppress insurrections and repel invasions.
“ 17. Congress shall have power to provide for organizing, *481arming and disciplining the militia, and for governing ■such part of^them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
“To raise armies” — these are large words; what do they mean ? There could be no limitation upon the number or size of the armies to be raised, for all possible contingencies could not be foreseen, but our question has not reference to numbers or size, but to the mode of raising armies. The framers of the Constitution, and the States wh-idh adopted it, derived their ideas of government principally from the example of Great Britain — certainly not from any of the more imperial and despotic governments of the earth. What they meant to make was a more free Constitution than that of Great Britain— taking that as a model in some things — but enlarging the basis of popular rights in all respects that would be consistent with order and stability. They knew that the British army had generally been recruited by voluntary enlistments, ■ stimulated by wages and bounties, and that the few instances of impressment and forced conscription had 'met with the disfavor of the English nation and had led to .preventive statutes. Tn 1704 and.again in 1707 conscription bills were attempted in Parliament, but laid aside as unconstitutional. During the American revolution, a statute, 19 Geo. III. C. 10j permitted the impressment of “ idle and disorderly persons not following any lawful trade, or having some substance sufficient for their subsistence,” and this was as far as English legislation had gone when our Federal Constitution was planned. Assuredly the framers of our Constitution did not intend to subject the people of the States to a system of conscription which was applied in the mother country only to paupers and vagabonds. On the'contrary, I infer that the power conferred on Congress was the power to raise armies by the ordinary English mode of voluntary enlistments.
The people were justly jealous of standing armies. Hence they took away most of the war power from the Executive, where, under monarchical forms, it generally resides, and vested it in the legislative department, in one branch of which the States have equal representation, and in the other branch of which the people of the States are directly represented according to their numbers. To these representatives of the States and the people, this power of orginating war was com-mitted, 'but even in their hands it was restrained by the limitation of biennial appropriations for- the support of the armies they might raise. Of course, no army could be raised or supported which did not command popular approbation, and it was rightly considered that voluntary enlistments would never be *482wanting to recruit the ranks of such an army. The war power, existing only for the protection of the, people, and left, so far as it was possible to leave it, in their own hands, was incapable of being used without their consent, and, therefore, could never languish for enlistments. They would be ready enough to recruit the ranks of any army they deemed necessary to their safety. Thus the theory of the Constitution placed this great power, like all other governmental powers, directly upon the consent of the governed.
The theory itself was founded on free and fair elections — which are the fundamental postulate of the Constitution. If the patronage and power of the government shall ever be employed to control popular elections, the nominal representatives of the people may cease to be their real representatives, and then the armies which may be raised may not so command public confidence as to attract the necessary recruits, and then conscript laws and other extra constitutional expedients may- become necessary to fill the ranks. But governmental interference with popular elections will be a subversion of the Constitution, . and no constitutional argument can assume such a possibility.
Supposing, then, that the people are always to be fairly represented in thé halls of Congress, I maintain that it is grievous injustice to them to legislate on the assumption that any war, honestly wraged for constitutional objects, will not always have such sympathy and support from the people as will secure all necessary enlistments. Equally unjust to their intelligence is it to suppose that they meant to confer on their servants the power to impress them into a war which they could not approve.
When to these considerations we add the ability of a great country like ours to stimulate and reward enlistments both at home and abroad, by bounties, pensions, and homesteads as well as by political patronage in countless forms, we see how little necessity or warrant there is for implying a grant of the imperial power of conscription.
If the very improbable case be supposable, that enlistments into the Federal armies might become so numerous in a particular State as^sensibly to impair its own proper military power, is it not much more improbable that the States meant to confer upon the general government the power to deprive them, at its own pleasure, altogether of the militia, by forced levies? Yet this might easily happen if the power of conscription be conceded to Congress. There are no limitations expressed — nothing to compel Congress to observe quotas and proportions as among the several States — nothing to prevent their raising armies wholly from one State, taking every able-bodied citizen out of it, to the endangering, if not utter undoing of all its domestic interests.
*483There is nothing in the history of the Constitution, nor in the debates upon it in the conventions, Federal and State, nor in those excellent contemporaneous papers known as the “Federalist,” to justify the suspicion that this vast and dangerous power lies wrapped up in the few plain words of the thirteenth clause, but, on the contrary, the most indubitable evidence is derivable from all those sources that the thought of subjecting State militia to Federal draft had no existence in the minds of that day. If such a construction had been anticipated, the objections which the Constitution encountered in the State conventions would doubtless have been found insurmountable. But what ought to be sufficient to settle the question is the language of clauses 16 and 17, which, if it have any meaning at all, absolutely forbids the interpretation on which the Conscription Act is founded. And these clauses must be taken in connection with the 13th in,fixing' the meaning of the words “to raise and support armies,” because the Constitution, like most other written documents, is its own best interpreter, and must be construed as a whole — by its four corners, as we sometimes say. Therefore, if we concede this dangerous power to the language of the 13th clause, we destroy the force and effect of the words of the 16th and 17th clauses. We make the instrument self-destructive, which is violative of all canons of construction. Congress shall have power to provide for calling forth the militia in the manner, and subject to the limitations prescribed in clauses 16 and 17, and, therefore, I argue Congress has not the power to draft them. Is an express rule of the Constitution to give way to an implied one ? If the 13th clause confers power to draft the militia, the words of the 16th and 17th clauses are the idlest that were ever written. - But if the 13th conferred only the power to enlist volunteers, then the subsequent clauses become very intelligible — stand well with the 13th, and add essentially to the martial faculties of the Federal government. Look at those clauses. The militia are to be called forth to execute the laws of the Union, suppress insurrections and repel invasions, to be organized, armed, and disciplined by the State, but according to the laws of Congress, and such part of them as may be employed in the service of the United States are to be governed by the President, but officered by the respective States. Now, this conscription law recites an “ existing insurrection and rebellion” as the ground and reason, not for calling forth the militia under the above -provisions, but for drafting them. The very case has occurred in which the Constitution says the militia shall be called out under State officers, but Congress says they shall be drafted, in contempt of State authority. This cannot be put on that clause of the *484Constitution which authorizes Congress to make all laws necessary and proper for carrying into execution 'the foregoing powers, because that is not a grant of any additional powers, but only of the legislative faculty to execute “the foregoing powers.” What those powers are is first to be ascertained, and then, in virtue of this provision, Congress may provide' the necessary and proper laws. The question we are dealing with has not reference to the mere forms of legislation, but to the essential powers of government. If any conscription law may be directed against State militia, for the suppression of rebellion and insurrection, this may be conceded to be a valid enactment, but whether a government of limited and expressly delegated powers may, for such a purpose, forcibly take away the militia of other governments, which are sovereign in their respective spheres, is a question which the instrument of delegation can alone answer. Congress have said in this act that the rights of States may be thus disregarded. Gen. Washington and the men of his day did not so read, the Constitution, when, in suppressing the whiskey insurrection in this State, they paid the most scrupulous regard to the rights and powers of the State. Under pressure of a foreign war, a conscript bill was reported in Congress in 1814, but it did not pass, and if it had it would have been no precedent for this law, because we are now dealing with an insurrection, and insurrections are specially provided for in the Constitution. If to support a foreign war, Congress may draft the militia, which I do not admit, the power of draft to suppress insurrections is not to be implied, since another mode of suppressing 'insurrections is expressly provided. When a State is called on for its quota of militia it may determine, by lot, who of the whole number of its enrolled militia shall answer the call, and thus State drafts are quite regular; but a congressional draft to suppress insurrection is an innovation that has no warrant in the history or text of the Constitution. Either such a law, or the Constitution must be set aside. They cannot stand together. ,
And, happily, no ill consequences can flow from adhering to the Constitution, for the standing army of the Federal government, recruited by enlistments in the ordinary mode, with the State militia, called forth according to the Constitution, are a force quite sufficient to subdue any rebellion that is capable of being subdued by force of arms. Such a formidable force, wisely wielded, in connection with a paternal and patriotic administration of all other constitutional powers, will never fail to put down refractory malcontents, and preserve peace and good order among the American people. This conscript law, therefore, not sanctioned by the Constitution, is not adapted to *485the exigencies of the times, nor likely to have success as a war measure.
In its political bearings, even more than in its military aspects, it is subversive of the Constitution and of the rights of citizens that depend upon State authority. A few thoughts will make this plain.
It is impossible to study our State and Federal Constitutions without seeing how manifestly the one was designed to guard and maintain the personal and social rights of the citizen — the other to take care of his external relations. Nurture, education, property, home, wife and children, servants, administration of goods and chattels after death, and a graveyard in which to sleep the sleep of death, these are among the objects of State solicitude, for the protection of which the State provides civil authorities, and back of them the posse comiiafcis, and the militia, to make the civil administration effectual. Now, if the principle be admitted that Congress may take away the State militia, who does not see that the ultimate and final security of every man’s domestic and personal rights is endangered? To the extent delegated in the Constitution, nobody questions the right of Congress to control the State militia, but if to the extent to which this enactment goes, the States will be reduced to the condition of mere counties of a great commonwealth, and the' citizen of the State must look to the Federal government for the enforcement of all his domestic rights as well as for the regulation of his external relations.
The Citizens of the State need protection from foreign foes and Indian tribes — peaceful intercourse and commerce with all the world — a standard of values, and of weights and measures that, shall be common to all the States, and a postal system that shall be co-extensive with interstate trade and commerce. To adjust and maintain these external relations of the citizen are high duties which the Constitution has committed to the Federal government, and has furnished it with all necessary civil functionaries, and with power to levy and collect taxes from the people of the States, to raise and support armies, to provide a navy, and to call forth the militia to execute the laws.
Thus is the American citizen amply provided, by means of constitutions that are written, with protection for all his rights natural and artificial, domestic and foreign, but, as the war power of the general government is his ultimate security for his external, so is the militia his ultimate security for his internal or domestic rights.
Could the State government strike at the war power of the Federal government without endangering every man’s rights? In view of the existing rebellion, no man would hesitate how to answer this question, and yet is it not equally apparent that *486when the Federal government usurps a power over the State militia which was never delegated, every man’s domestic rights (and they are those which touch him most closely) are equally endangered ?
The great vice of the conscript law is, that it is founded on an assumption that Congress may take away, not the State rights of the citizen, but the security and foundation of his State rights. And how long is civil liberty expected to last after the securities of civil liberty are destroyed' ? The Constitution of the United States committed the liberties of the citizen in part to the Federal government, but expressly reserved to the States, and the people of the States, all it did not delegate. It gave the general government a standing army, but left to the States their militia. Its purpose in all this balancing of powers was wise and good, but this legislation disregards these distinctions, and upturns the whole system of government, when it converts the State militia into “national forces,” and claims to use and' govern them as such.
Times of rebellion, above all others, are the times when we should stick to our fundamental law, lest we drift into anarchy on one hand, or into despotism on the other. The. great sin of the present rebellion consists in violating the Constitution, whereby every man’s civil rights are exposed to sacrifice. Unless the government be kept on the foundation of the Constitution, we imitate the sin of the rebels, and thereby encourage them, whilst we weaken and dishearten the friends of constitutional order and government. The plaintiffs in these bills have goo'd right, I think, as citizens of Pennsylvania, to complain of the act in question, not -only on the ground I have indicated, but on another to which I will briefly allude.
The twelfth section provides that the drafted person shall receive notice of the rendezvous at which he is to report' for duty, and the thirteenth section enacts “ that if he fails to report himself in pursuance of such notice without furnishing a substitute or paying the required sum therefor, he shall be deemed a deserter, and shall be arrested by the provost marshal, and sent to the nearest military post for trial by court marshal,” The only qualification to which this provision is subject is, that upon proper showing that he is not able to do military duty, the board, of enrolment may relieve him from the draft.
One of the complainants, Kneedler, has set forth the notice that was served on him in pursuance of this section, and by which he was informed that “unless he appeared on a certain day he would be deemed a deserter, and be subject to the penalty prescribed therefor by the rules and articles of war.” I believe the penalty of desertion by the military code is any *487corporeal punishment a court martial may choose to inflict, even to that of being put to death.
Gan a citizen be made a deserter before he has become a soldier ? Has Congress the constitutional power to authorize provost marshals, after drawing the name of a freeman from a wheel and serving him with a ten days’ notice, to seize and drag him before a court martial for trial under military law ? This question touches the foundations of personal liberty.
In June, 1215, the barons of England and their retainers, a “ numerous host encamped upon the grassy plain of Runnymede,” wrung from King John that great charter which declared, among other securities of the rights and liberties of Englishmen, that “ no freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or ybe outlawed or exiled, or in any manner harmed, nor will we (the King) proceed against him, nor send any one against him by force of arms unless according to the sentence of his peers (which includes trial by jury) or the common law of England.” Here was laid the strong foundation of the liberties of the race to which we belong. And yet not here, for Magna Charta created no rights, but only re-asserted those which existed long before at common law. It was for the most part, says Lord Coke, merely declaratory of the principal grounds of the fundamental laws of England. ' Far back of Magna Charta, in the customs and maxims of our Saxon ancestry, those principles of liberty lay scattered which were gathered together in that ^immortal document, which, four hundred years afterwards, were again re-asserted in two other great declaratory statutes, “ The Petition of Right” and “ The Bill of Rights,” and which were transplanted into our Declaration of Independence, the bill of rights to our State Constitution, and the amendments to our Federal Constitution, and which have thus become the . heritage of these plaintiffs. Says the fifth article of the amendments: “No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger.” What is the scope of this exception ? The land or naval forces mean the regular militaryorganization of the government, the standing army and navy, into which citizens are introduced by military education from boyhood or by enlistments, and become, by their own consent, subject to the military code, and liable to be tried and punished without any of the forms or safeguardsof the’common law. In likemanner the militia, when duly called out and placed “in actual service,” are subject to the rules and articles of war, all their common law rights of personal freedom being for the time suspended. *488But when are militia men in actual service ? When they have been notified of a draft? Judge Story, in speaking of the authority of Congress over the militia, says: “The question when the authority of Congress over the militia becomes exclusive, must essentially depend upon the fact when they are to be deemed in the actual service of the United States. There is a clear distinction between calling forth the militia and their being in actual service. These are not contemporaneous acts nor necessarily identical in their constitutional bearings. The President is not commander-in-chief of the militia, except when in actual service; and not merely when they are ordered into service. They are subjected, to martial law only when in actual service, and not merely when called forth before they have obeyed the call. The acts of 1795 and other acts on the subject manifestly contemplate and recognize this distinction. To bring the militia within the meaning of being in actual service, there must be obedience to the cadi, and some acts of organization, mustering, rendezvous, or marching done in obedience to the call in the public serviced' Story’s Con. Law, vol. 8, sec. 1208.
If it be suggested that this plain rule of common sense and constitutional law is not violated by the conscription act, because it applies to the “ national forces,” I reply, as before, that this is only a new name for the militia, and that the constitutional rights of a citizen are not to be sacrificed to an unconstitutional name. When Judge Story was endeavoring to mark with such distinctness the time at which the common law rights of the citizen ceased and his liability to military rule began — the time, in a word, when he became a soldier — why did it not occur to his fertile mind that Congress could render this distinction valueless and unmeaning by a new nomenclature — by calling the militia “national forces”? It is not difficult to conceive how such a suggestion would have fared had it occurred or been made to him. But it is difficult, in the presence of the grave issues of the present day, to treat so frivolous a suggestion with the dignity and forbearance the occasion demands. I have shown what rights of personal liberty these plaintiffs inherited from a remote ancestry, and how they are guaranteed to them by our constitutions, and at what time they are to give place to martial law, and surely if a wheel set in motion by Congress .can crush and grind those rights out of existence, without regard to the limitations of the Constitution, some weightier reason should be found for it-than the misnomer which the act so studiously applies to the militia — some reason that deserves to stand instead of Magna Charta, our Constitutions, and all our traditional freedom.
The only one that I have ever heard suggested, and which is applicable against all the views advanced in this opinion, is *489called military necessity. The country is involved in a great civil war which can be brought to an honorable close only by an energetic use of all our resources, and no restraints should be tolerated, in such circumstances, save only those which Christian civilization has imposed on all warfare. Whatever is according to the Constitution, the argument claims, may be done, of course; whatever is over and beyond the Constitution is justified as military necessity, and of that the President and Congress are exclusive and final judges.
The amount of the argument is that the exigencies of the times justify the substitution of martial law for the Constitution. But what is martial law ?' Blackstone and Sir Mathew Hale tell us “ it is built upon no settled principles, but is entirely arbitrary in its decisions, is, in truth and reality, no law, but something indulged rather than allowed as law.” The unrestrained will of one or a number of men, then, is the rule which the argument substitutes for the Constitution. It is of no consequence that the will thus set up for supreme law is that of men whom a majority of the people have chosen, because, according to our system, the majority can only choose ■men to administer the Constitution.as it is written. Majorities, as a power recognized by law, have no more right to establish a despotism than a minority would have. But may majorities or minorities set aside the Constitution under pressure of rebellion and insurrection? *
As the Constitution anticipates and provides for such calamities, it is a reproach to its wisdom to say that it is inadequate to such emergencies. No .man has any historical right to cast this reproach upon it. No current experience proves it. It never can be proved except T>y an unsuccessful use of the legitimate powers of the Constitution against rebellion, and then the thing proved will be that the instrument needs amendment, which its machinery is flexible enough to allow. Even such a melancholy demonstration would do no more than point out necessary amendments — it would not surrender the people to the arbitrary will of anybody. Presidents and congressmen are only servants of the people, to do their will, not as that will may be expressed under passion or excitement, but as it stands recorded in the Constitution. It is the Constitution, indeed, which makes them presidents and congressmen. They have no more power to set up their will against the Constitution than so many private citizens would have. Outside of the Constitution they are only private citizens.
I do not, therefore, feel the force of the argument drawn from the distressing circumstances of the times. Bad as they are, we make them worse by substituting arbitrary power for constitutional rule; but if we made them better and not worse, *490the judicial mind ought not to be expected to approve the substitution, for it can recognize no violation of the Constitution as a legitimate mode of vindicating the Constitution. To place ourselves under despotic sway, in order to bring back rebels to the Constitution we have given up, is a procedure that perplexes the student of political science, and will quite confound the future historian of our times.
■ There are other features of the conscript law that deserve criticism, but, not to extend my opinion farther, I rest my objections to its constitutionality upon these grounds:—
1st. That the power of Congress to raise and support armies does not include the power to draft the militia of the States.
2d. That the power of Congress to call forth the militia cannot be exercised in the forms of this enactment.
3d. That a citizen of Pennsylvania cannot be subjected to the rules and articles of war, until he is in actual military service.
4th. That he is not placed in such actual service when his name has been drawn from a wheel, and notice thereof has been served upon him.
For these reasons I am for granting the injunction.