Moore, J.
The relator (Coupland) applied to the Chief Justice on the 16th of July, 1862, in vacation, for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by R. T. P. Allen, in Travis county, as he believed, “without any order or process whatever, or any color of either.” The writ issued, and Allen made return, that the relator was placed originally in his custody by order of R. J. Townes, Provost Marshal [389] of Travis county; but that before the service of the writ upon him, the relator had been enrolled as a soldier of the Confederate States, as a conscript, under the Act of the congress of the Confederate States, entitled “An Act to further provide for the public defence,” and had selected his company, been attached to it, and had been discharged from his original detention; and at the service of the writ was only detained as a soldier of the Confederate States, belonging to a regiment of which respondent was colonel. On the hearing, the relator was remanded into the custody of the respondent. From this judgment the relator prosecutes this appeal.
The first question for our decision arises upon a motion by the Attorney-General, who appeal’s on behalf of the respondent, Allen, that the application should for the present be continued, because, as he alleges, the relator, since he was remanded by the judgment of the Chief Justice into the custody of the respondent, as a soldier in the regiment of which he was in command, has deserted, and is no longer in the custody or under the control of the respondent. This motion is founded on an affidavit of á lieutenant belonging to said regiment, from which it appears that the relator, together with other members of said regiment, after his return to it, was furloughed until the 15th of September last, at the expiration of which time he was ordered to report for duty at Tyler, Smith county, Texas, where the regiment was ordered to rendezvous; but up to the 25th of September, when affiant left camp, he had not joined the regiment or been heard of by him.
This motion is urged upon two distinct grounds; first, that the court has no jurisdiction on the application, if the relator has escaped from the custody to which he was remanded by the judgment from which he appeals. Secondly, if the court has jurisdiction, it will not act upon his application while he is at large. There is no doubt that in answer to the writ the respondent must produce the body of the person alleged to be illegally obtained, if in his custody, or under his control at the service of the writ, unless excused from so doing by the circumstances indicated in art. 149 Code Criminal Procedure; and that a#return to the writ not accompanied, by the body will be scanned with great caution. [390] (Hurd on Hab. Corp., 244.) And although this is to prevent evasions of the writ, and to secure the liberty of the citizen, yet if the party has been released from custody previous to the service of the writ, its object and purpose has been accomplished, and the court will take no order on the subject. (Commonwealth v. Chandler, 11 Mass., 83; U. S. v. Davis, 5 Cr. C. C. Rep., 652.) | The only object of the writ is to relieve the party detained front the illegal restraint; if this is accomplished before the jurisdiction of the court attaches by the service of the writ, there is nothing upon which it can attach. It is not the object or intention of the writ to punish the respondent, or afford the party redress for his illegal detention. But the question occupies a different attitude after the jurisdiction of the court has been attached. It cannot then be defeated by the wrongful act of either ‘'of the parties. It is expressly provided by the Code of Criminal Procedure (art. 762) that upon the hearing of an appeal in cases of habeas corpus, the defendant (who undoubtedly must be understood to be the prisoner, or party detained,) need not be personally present.
fQie second ground of the motion, we think as a question of practice, is well taken, if the facts of this case called for its application; and were it not, also, that, from the character of the case, we think the public interest will be better subserved by hearing the appeal than by its continuance. The rule of the court not to hear appeals in criminal causes where the defendant has escaped, to which this case is claimed to be analogous, being merely a matter of practice, depending in its application to particular cases upon the discretion of the court; and, as the affidavit relied upon does not show conclusively that the relator has escaped from the custody to which he was committed, and may not, after but a temporary delay, have joined his regiment, the motion for a continuance will be overruled.
The questions arising upon the merits on this application, have-been argued with great interest and zeal. Several of the points, however, made by the counsel for the relator, and most elaborately-discussed, can have no influence in the decision of the case, as presented by the appeal, and doubtless had none in its determination [391] by the Chief Justice, though out of abundant caution, he permitted relator’s counsel to save by bills of exception, every question suggested by them, as having any possible bearing upon the rights of their client.
As we have already said, a party’s right to the writ does not depend upon the legality or illegality of his original caption, but upon the legality or illegality of his present detention. (Dew’s case, 18 Penn., 37; Ren, v. Gordon, 1 Barn. & Ald., 572 n; Hurd. on Hab. Corp., 255, 256.) The relator was not, when the writ was served, detained by virtue of the order of the Provost Marshal, by whose order he seems first to have been arrested. We will not, therefore, consume time by a discussion of the questions that have been raised, as to the right or authority of a military officer, in time of war to declare martial law, or the effect of such declaration when made; or upon whom martial law when declared can operate; or the nature and character of such law. Nor will it be at all necessary that we should inquire into the regularity of the proceedings of the enrolling officers by whom relator was enrolled as a soldier, for, if he is subject to conscription, this court is not the appropriate tribunal for correcting the errors, if any, into which these officers may have fallen in discharge of their appropriate military duties; but his application for redress must be made to their, superior officers, or other proper military authorities. (Art-756,. Code of Criminal Procedure.)
The only question in this case for our consideration, and upon which the determination of the case must turn, is, as to the legality of the relator’s detention as a soldier in the army of the Confederate States, and this depends entirely upon the question, whether the “ Act to further provide for the public defence,” commonly known as the “ Conscript Law,” is constitutional. We address ourselves to the consideration of the question, with a full appreciation of its magnitude and importance, in respect both to public interest, and private rights; the liberty of the citizens, and the power of the government.
The objections that have been made to the constitutionality of the law, are frequently vague, and at times rather contradictory, but when analyzed resolve themselves into one or the other of the [392] following general objections. 1st. That it violates the liberty of the citizen. 2nd. That it is in derogation of the reserved rights of the States. Both objections, however, are to be considered in subordination to the general proposition, that it is incumbent upon those who maintain its constitutionality, as is the case with any other act of the Confederate Government, to show that the authority assumed by the Confederate States is sanctioned by an expressly delegated power; or, that the act itself is necessary and proper for the carrying into effect an expressly delegated power.
In determining, however, the constitutionality of a law passed by the Confederate Government, it is always important to consider whether the act in question, is done in the exercise of a power expressly granted, or under the implied powers granted by the 18th paragraph of the 8th section of the 1st article of the constitution; if it is tl^e first, then the Confederate Government may use their discretion in the mode and manner of its exercise, unless it is limited or restrained in so doing by some other express provision, or clear and necessary implication, and the burden of showing this is upon those who assert the limitation. The authority given “to make all laws which shall be necessary and proper for carrying into execution” the expressly granted powers, was not intended merely to authorize congress to exercise by legislation the powers previously granted. And its right to do so depends in no manner upon this clause; but it is itself a direct grant of all such subsidiary and incidental powers as shall be “necessary and proper” to carry into effect the previously granted powers. And it is admitted that when authority to do an act is claimed under it, it is incumbent upon those who maintain it, to show, not merely that it is “a necessary” law, but that it is ua necessary and proper" one for carrying into effect the expressly granted power.
It can not for a moment be questioned, if there were no express grant of power to do so, that the right of the government of the Confederate States to raise and support armies could be sustained under the general granting clause of the constitution, to which we have referred. And we think it equally clear, that the law in question is in strict accordance with it, even when tested by the stringent rule of construction, that we have just recognized. The. [393] power, however, to raise and support armies, is expressly granted by the constitution to the congress of the Confederate States. Is-there then any limitation by other express provisions or necessary implication restraining it as to the manner of doing this? It has never been contended that there is any express provision to this effect. And if there is any such necessary implication, it must be, as we have said, by reason of the effect of the law upon the freedom and liberty of the citizen, or the political rights of the States.
Does this law violate any of the abstract or guaranteed rights-of the citizen, or assume over him a control not delegated by the constitution? It has not, of course, been questioned that the power to raise an army may be exercised by congress. But it is said, it can only do this by voluntary enlistments, and that the citizens can only be compelled to do compulsory military duty as militia, under the 15th and 16th clauses of the same section of the constitution which gives to congress the power to raise-armies.
It is said by Vattel, (p. 294,) that “the public: authority raises soldiers, distributes them into different bodies under the command of generals and other officers, and keeps them on foot as long as it thinks necessary. And as every citizen or subject is bound to serve the State, the sovereign has the right to enlist whom he pleases. But he ought to "choose such only as are fit for war; and it is highly proper that he should, as far as possible, confine Ms choice to volunteers, who enlist without compulsion. No person is naturally exempt from taking up arms in defence of the State—the obligation of every member of society is the same.” It is insisted, however, that while it cannot be deMed that this - power exists under monarchical governments, it is not applicable to a republic. Its language imports its applicability alike to citizens or subjects. And this must be apparent when we consider that the abstract rights of every nationality over the mhabitants of which it is composed are the same, whatever may be its social compact or the constitutional functions through which it exercises its powers. And each individual can in a republic, with the same propriety as under a monarchy, be required to perform [394] military duty without his consent, if the demand is made by a proper exercise of the national will. Has then the nationality of Texas, (we speak of it as an independent sovereign community, or State,) conferred the power of doing this upon the Confederate States? Referring again to Yattel, (p. 293,) we find it said, “As war cannot be carried on without soldiers, it is evident that whoever has the right of making war, has also naturally that of raising troops. The latter, therefore, belongs likewise to the sovereign, and is one of the prerogatives of majesty.” “Every citizen is bound to serve and defend the State as far as he is capable. Society cannot otherwise be maintained; and this concurrence for the common defence is one of the principal objects of every political association. Every man capable of carrying arms should take them up at the first order of him who has the poioer of making war." Again he says, (p. 14,) “ The prince'derives his authority from the nation; he possesses just so much of it as they have thought proper to entrust him with. If the nation has plainly and simply invested him with the sovereignty, without limitation or division, he is supposed to be invested with all the prerogatives, without which the sovereign command or authority could not be exerted in the manner most conducive to the public welfare. These are called royal prerogatives, or the prerogatives of majesty.”
These extracts show, that the grant of the power to make war, carries with it by necessary implication, unless expressly withheld, the right to demand compulsory military services from the citizens. If this right is an incident of the prerogative of making war in a.monarchy, where the people can exercise no control over the sovereign, how much more readily should we conclude that it •was “a necessary and proper” implied power with us; when the war making power is given directly to the agents of the people, who can only be supposed to act under their directions, and to speak their sentiments, even if there had been no express grant of power given to congress to raise and support armies.
The power of the general government to do so has been long and frequently admitted in the United States, both by standard elementary authorities and judicial decisions. (Hurd on Hab. Corp., 8.) In the case of the United States v. Bainbridge, 1 [395] Mass. R., 71, it is recognized as authorizing the practice established by the government, and sanctioned by numerous legislative enactments, of enlisting minors in the navy without the consent of their parents, and, also, in the army in the same manner, when the wants of the government required it. It was discussed and recognized while the constitution of the United States was before the people of the States for ratification; at which time we find Mr. Madison saying, in the Federalist, p. 187 : “ Is the power of declaring war necessary? No man will answer the question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. Is the power of raising armies and equipping fleets necessary ? This is involved in the foregoing power. It is involved in the power of self-defence. But was it necessary to give an indefinite power of raising troops, as well as in providing fleets, and maintaining both in peace as well as in war V “ With what color of propriety could the force necessary for defence be limited by those who cannot limit the force of offence ? If a federal constitution could chain the ambition, or set bounds to the exertions of other nations, then, indeed, might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.”
Upon the same general principle, also, rests the right to call out the militia, for this is also a compulsory service, and the grant of power to do this is no stronger than that to raise armies. But it is said that the power to call out the militia has been given, and as this is compulsory in its character, we are to presume that no other character of compulsory service was authorized, or intended to be granted. How the mere grant of one power, compulsory in its character, can limit or destroy another which had been previously given in equally express terms, we do not perceive. But, in connection with this objection, it is also insisted that the right' to raise armies must be taken in subordination to the power conferred over the militia, as otherwise the rights of the State in this particular, would be destroyed. And hence, the power conferred upon the Confederate government to raise armies, it is said by those who urge the objection, must be construed as only authorizing, when an army is to be raised from the arms-bearing [396] citizens of the States—that this shall be done either by their voluntary enlistment, or by calling forth the militia.
To maintain this position with some degree of plausibility, its supporters are forced to assume that the militia, which the constitution says is necessary to the security of a free State, and which congress may provide for calling forth, subject to the right of the State to appoint the officers, is synonymous with the arms-bearing citizens of the State. And they, therefore, say, if an army is raised from these citizens, except by their voluntary enlistment, that in fact, whether it is so in name or not, the militia have been called forth, and the right of the State to appoint the officers to command them, cannot be disregarded.
The fallacy of the position seems to be manifest from the qualification which they are forced to give it. For, as we have shown, the citizen has no right to exercise volition, with regard to the performance of military duty, • so as to impair, or qualify the power of congress to raise armies, and, if the qualification exists by reason of the rights of the State over the arms-bearing citizens as its militia, and to appoint their officers when in the service of the Confederate States, these rights could not surely be affected by the voluntary action of the citizen. Nor can the difficulty be gotten over by saying that it is further to be assumed that the State must be presumed to have consented to his voluntary enlistment; for it is as impotent as the citizen to destroy in this manner a constitutional right conferred upon congress, or thus to confer one not otherwise given. The question goes to the right of the State to appoint officers to command its arms-bearing citizens, when in the service of the Confederate States, because they are militiamen. But the individual is equally an arms-bearing citizen, whether he has gone into the service voluntarily, or otherwise. For surely the doctrine is not to be advanced that individuals, companies or regiments of the “ well regulated” arms-bearing citizens, “necessary to the security of a free State,” which has been organized, armed and disciplined as provided for by congress, and for whom a call is made by the Confederate States, in pursuance with the constitution, cease to be integral parts of the arms-bearing citizens oí the State, because they pre[397] fer to volunteer their services directly to the Confederate government, and it is willing thus to accept them. Can they in this manner evade or annul the constitutional right of the State, if it is such, to appoint the officers to command its arms-bearing citizens when in the service of the Confederate States? It is said, however, that unless this qualification is placed upon the power of congress to raise armies, the control of the State over its militia may be entirely destroyed; but would not the result be the same if an equal number of its militia were to volunteer into the service of the Confederate States ? The truth of the matter is, that when the citizen goes into the army raised by Congress, either voluntarily or in obedience to the law requiring him to do so, he does this as a citizen, and not as a militiaman. Congress has not the right to raise armies in either mode, beyond the necessities of the Confederate government, for carrying into effect its granted powers. But in either case the citizen, when placed in its service, is temporarily withdrawn from the control of the State as a militiaman. For the time being, the right of the State, or, more properly speaking, the right of the State government over him, must yield to the more pressing and important demand for his services by the Confederate government, to enable it to discharge the duties for .which it has been authorized to raise and support armies.
The construction contended for would destroy one of the grants of power conferred upon congress by the constitution, and would reduce its authority merely to that of raising and supporting armies, by calling forth the militia, instead of authorizing it, as it does, to raise and support armies, and under certain circumstances to call forth the militia. For, if you remit congress to the voluntary consent of the individual citizen to enable it to raise an army, you have destroyed its power, and conferred upon it simply the privilege of doing so. But the strong language of the constitution is, that “congress shall have the power,” &c. The imperative duties imposed upon congress would alone have been sufficient to authorize it to have exercised this power as the necessary and proper means for their performance; and it would not probably have been thought important to have conferred it by an [398] express grant, but that, from its absolute necessity for the discharge of those duties, it was deemed essential to place it beyond question that it had been conferred.
And this leads us to the inquiry, whether the construction contended for will clothe the Confederate government with the ability and resources necessary for the discharge of the duties imposed upon it. If congress has only the power of raising an army by a call for the militia, it follows, as a necessary consequence, that it can do so only for the purposes for which it is authorized to call forth the militia by the constitution. It cannot, therefore, raise an army except to enforce the execution of the laws to suppress insurrections or repel invasions. It is consequently powerless to protect the country from sudden assaults from without, or unexpected commotions from within. It is impotent either to enforce private rights, or maintain national honor against foreign powers. But it is said that it is contrary to the spirit and genius of our institutions that we should engage in foreign or aggressive war, unless absolutely necessary; that it is against the theory of our government that we should make war merely for conquest or dominion; and as congress has the privilege of raising armies by voluntary enlistments, we may safely rely upon the patriotism and martial spirit of the people to raise armies amply sufficient to prosecute all necessary and proper foreign war; that the fact that the government is forced thus to rely upon voluntary eslistments for its soldiers to maintain foreign wars, operates, and was doubtless so intended, as a salutary check in restraining it from engaging in them unnecessarily. And as was said by counsel at the bar, “ where war is made, it is the people’s war; and if they are not willing to fight to carry it on, the government ought to stop it.” But if the individual citizen may determine for himself whether he will aid the country in the field, why may he not also elect whether he will withhold his quota of the revenue that is collected to prosecute it ? It is not to be questioned, that the spirit of - our government, as is said, does not encourage wars for conquest ór dominion. And for this reason, among others, the war making power was conferred upon the representatives of the people. It is, therefore, unquestionably true, that war, when declared by their [399] representatives, is their war, and they can, at any time they desire to do so, withdraw from the government all means of prosecuting or maintaining it, or can limit and control it in the manner of its prosecution, or in the mode of raising armies to carry it on, as to them may seem fit. It may he true, also, that the patriotism of our people may at all times he relied upon to furnish, by voluntary enlistments, sufficient forces to prosecute any war in which the nation should engage. But still this does not go to the merits of the question, which is, whether the people, through their representatives, have not the power, if they see fit to exert it, of making the burthens of the war fall equally upon the willing and the unwilling. It is not denied, however, that the Confederate States may be required to engage in a foreign war. If this is so, it is the duty of its citizens to sustain it in its prosecution. But why Should the government he forced to rely upon the individual assent or voluntary aid of the citizens in this more than in the discharge of any other duty, or the exercise of any other power with which it is clothed ? Why should not the citizen, if in this case he is left to individual volition, have the same privilege, if called upon as a militia man to aid in a defensive war ? ■ If patriotism is a sufficient guaranty for the ability of the government in carrying on the war in one case, why is it not so in the other ? Will the citizen be less ready to respond to the call of the government for the defence, “pro aris et focis,” than he would be when we are prosecuting a foreign war ? Certainly, the very reverse is the fact; and, therefore, when the militia are needed, the same stringent power over them is not given by the constitution as is given over them as citizens by the power to raise armies. In the latter case, congress acts immediately upon them as individuals, while in the former it must reach them by a call upon the State executive ; and if this is disregarded, it has no power to enforce obedience.
The origin of this grant of power to raise armies shows most conclusively that it was not intended to leave the government dependent upon the will either of the citizen or the State to carry it into effect. It is given in our constitution, as it was originally in the constitution of the United States, and was placed in that [400] for the purpose of correcting one of the leading defects in the articles of confederation, experience having proved it absolutely essential, not only to the safety, but to the very existence of the •Confederacy. The following striking language was used at that time in reference to the want of this power in the articles of confederation, and the necessity of its grant to the general government in the then new union about being formed: “ They may make war, and determine what number of troops are necessary; but cannot raise a single soldier.” Again—-“A government authorized to •declare war, but relying on independent States for the means of prosecuting it, capable of contracting debts, and pledging the public faith for their payment, but depending on thirteen distinct sovereignties for the preservation of that faith, could only be rescued from ignominy and contempt by finding these sovereignties administered by men exempt from the passions incident to human nature.” (1 Story’s Const., 168-9.) And in the Federalist, (p. 98,) written, as it is well known, to secure the adoption of the constitution of the United States, we find the necessity for this grant of power boldly expressed, and the ruinous effects of attempting to rely upon calls upon the States for troops to- prosecute a defensive war clearly and strikingly portrayed. “ The power,” says the writer, “ of raising armies, by the obvious construction of the articles of the confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war was found replete with obstructions to a vigorous and to an economical system of defence. It gave birth to a competition between the States, which created a kind of auction for men. In order to famish the quotas required of them, they outbid each other, till bounties grew to an enormous and insupportable size. The hope of still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs—-short enlistments, at an unparalleled expense —-continual fluctuations in the troops, ruinous to their discipline, and subjecting the public safety frequently to the perilous crisis of u disbanded army.” How far like evils may'have threatened [401] us, and induced a change of policy by the enactment of the present law, it is unnecessary to enquire. Nor need we comment upon the' unavoidable and disastrous effects that must have resulted from conflicts aiid jealousies among the officers of militia—the right to whose appointment is so zealously insisted upon. If the State must appoint, it must also fill vacancies and “give promotions, leading to inevitable and unending disputes about rank—that sacred and never to be infringed right of the officer—producing jarring and discordant elements in command, more disastrous in all military enterprise than even a want of discipline in troops.
But suppose the theory of those who oppose the constitutionality of this law is correct, and the new levies had been called into the field, not as troops of the Confederate States under the power to raise armies, but as militia, what might be the consequences ? The theatre of the war, if at present confined to our own territory, may, before its close, be necessarily shifted to that of the enemy. If the proper occasion should present itself for carrying the war into the enemy’s country, shall our commanders be impotent to„ avail themselves of it, because of the character of the forces under their command ? If they are militia they have no constitutional authority to march them beyond our own frontier, because the constitution has limited the right of the government to demand their services for the purpose of repelling invasion. This doctrine was expressly recognized and maintained in congress, in 1812, by all the strict constructionists and State-rights politicians. It may be said there would, under such circumstances, be no fear that the States would not' sanction this use of its militia, and the patriotism of the citizen soldiers could be relied on with equal confidence, to sustain their country in this, as well as in every other emergency. It was said by Mr. Cheves, than whom we could obtain no better authority, in response to this character of reasoning: “ Though the gentleman from New York says the service of the militia is not to be bounded by geographical limits, I cannot discover the premises by which he comes to this conclusion, if the general government has no other power over the militia than is given to it in this clause of the constitution. If they may cross the line, why not go to the walls of Quebec ? The principle is [402] trampled upon the instant they pass beyond the territorial limits of the United States; nor, if this be a correct construction, can the consent of the individual add anything to the powers or rights-of the general government, while he remains a member of the militia of the State.” z (4 vol. Elliot’s Debates, 459.) And however patriotic the soldiery may be, it takes but little knowledge ef armies or of men to teach us that war cannot be conducted under a system by which the right of the general to command depends from day to day upon the consent of his soldiers. But if this were not the case, can we assent to such a limitation of a power of congress by mere construction, as- leaves the government impotent to discharge its constitutional duties-, unless the States, or their militia? shall consent to the violation of the constitution. If so, it may truly be said of the Confederate States, as it was of this old corn-federation, it may declare war, but it is impotent to prosecute it.
The theory of our government, when properly understood, does not militate against the constitutionality of the law. On the contrary, it clearly tends to sustain it. The difficulty in the minds of many seems to grow out of a failure to discriminate in the use of the word “State.” Whether it imports merely the local or State government, or the political community, the nationality, the. people of the State in the aggregate, as a nation or political community, or as it is frequently expressed, the “Sovereign State,” and in this way they come to think of the local (or, so to call it? domestic,) government, as the government of the sovereign States? having some undefined imaginary grant of powers, possessing itself, as the representative of the sovereign State, some degree of sovereignty. Especially so, with reference to the Confederate government, which they seem to think should he regarded as a creature of its creation, and subordinate to it. And hence that its powers should be construed in subordination to those of this immediate representative of the sovereign State. In fact, however, nothing is better established than that neither of these governments is inferior or superior to the other. While both possess some of the powers which are called by law writers, in distinguishing different forms of government, “ sovereign powers,” neither of them are themselves sovereign, but each of thorn represents the sovereign? [403] and loth have within their mutual spheres of action just such powers and functions as have been conferred upon them by the constitution creating them.
When we enquire, then, what disposition the sovereign State has made of its right to military service from its citizens, between these two agencies, by which it proposes to administer its government, we find that it has given to its Confederate Agency, so to call it, the sole power to determine upon the questions of war and peace, and that it has consequently made it the duty of that agent to protect the State itself, and its local agency from attacks from both domestic and foreign foes, and that it has clothed it with the power to do this, by authorizing it to raise and support armies, and to provide and maintain a navy, to the extent that in its judgment it should deem necessary. And lest it should not have provided amply for those purposes, or should be overtaken by a sudden emergency, it is further authorized to call upon the other agency to bring to its aid, if necessary, all of the arms-bearing population it had left still under the control of the local agent, for whose organization it was required to provide, that the local agency might be thus prepared to meet the call that these sudden emergencies might occasion. But as these calls would be rare, and the armies which the Confederate government would require to prosecute and carry on the war in which it would become involved, except under extraordinary circumstances, which would hardly happen more than once in the life time of a nation, vrould compose but a small part of the population of the State, and the local agency might,, also, be called upon by sudden emergencies to defend itself and the State before a call could be made upon the other agent, and as that was intended, more especially, to represent the foreign, and this the domestic affairs of the State; the militia or citizens not required in the armies raised by the Confederate agency were left under the control of the local agency, with the right of appointing their officers, when it should be required to furnish them in these cases of emergency for the services of the Confederacy. These agencies, though possessing distinct powers, have to look for their performance to the citizens, and, consequently, as in many other grants of power to them, their action is concurrent over the same [404] subject matter, and at times may thus present seemingly conflicting grants of power. What then is to be their construction ? The answer is plain. The limited and subordinate must yield to the general and superior. Consequently, such as usually pertain to, or are indices of sovereign power must control, and be regarded as superior to those of a local and domestic character. Ordinarily there would be no appreciable conflict between these grants of power, as the number of citizens the Confederate government Would require for its armies would be so inconsiderable with reference to the bulk of militia, left under control of the local government, as to be, for practicable purposes, unimportant to the latter. But great emergencies like that which now exist, will sometimes arise when the Confederate government is forced to exercise the entire military power that has been granted it; and there is consequently a call of the great bulk of the arms-bearing citizens into its armies, and a corresponding diminution of those under the immediate control of the State government, under the laws governing the militia. The natural result of which is to arouse fearful apprehensions of coming danger in the over zealous advocates of State rights; or those who have been accustomed to look with apprehension upon any expansion of the military power of the general government. It must be borne in mind, however, that the denial of the power to raise such an army as the necessities of the government may require, is a denial of the right to raise a single man. While, if the power exist, it does so only to the extent of authorizing the Confederate government to raise and support such armies as are absolutely essential, to enable it to carry into effect the powers granted to it. ’. And though a necessity exists to-day, and the law is, therefore, constitutional—if to-morrow that necessity should cease, its continuance would be as clearly unconstitutional.
It is also urged that this law introduces a novel practice in this country for raising armies. If, however, it is within congressional discretion, in the exercise of the power granted, this does not ■affect its constitutionality. And if the practice of conscription is novel with us, so are the circumstances which now surround the country. Engaged in a contest that involves our existence as a [405] nation, our liberties as a people, our lives, and the honor of our homes; all that we can desire in life or hope for in our posterity; with enemies who boast that they will soon have in the field an army far exceeding in numbers our entire arms-bearing population, who, baffled in an unholy lust of gain, and maddened by revenge, have buried, at home, the once cherished principles of republican liberty in a concentrated military despotism, that they might the better hope, if not to conquer, then to destroy us; who have shown themselves as treacherous and false in the cabinet as cruel and wanton in the camp; who have waged a war almost of extermination upon all classes and sexes of unoffending citizens who have fallen in their power, regarding neither the helplessness of infancy nor the feebleness of age, save as furnishing them a more certain victim; who, though accustomed to boast of their morality and virtue, with the self-righteousness of the Pharisee, have shown themselves as devoid of either, as they have been wanting in every ennobling principle of chivalrous and civilized warfare; who in two short campaigns have paralleled every atrocity of war for the last two hundred years. Engaged in such a war, if our government had failed to avail itself of every resource at its command for its most efficient prosecution, it would have shown itself derelict in duty, and unworthy of the high confidence with which the country has so generously trusted it.
Though this is the first occasion, in this country, that an army has been raised by conscription, it does not come before the country without the sanction of high authority. The principle upon which it is based was sanctioned and approved by General Washington in 1790; and it was maintained in 1812 by Mr. Monroe, then Secretary of War, in an argument of convincing clearness and cogency—(7 vol. Niles’ Register, 137, 294; vol. 8, Id., 281)—and Mr. Troupe, and other distinguished strict constructionists of that day gave it their sanction.
The judgment is affirmed.