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PAGE FOUR
TElje eff ersxmian
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Will the V. S. Judiciary Permit,
and the People Ratify, the
Congressional Overthrow
of Our Constitutional
System of Govern
ment ?
Mr. Watson’s Argument Against the
Conscription Acts
Before Judge Emory Speer, at Mt.
Airy, August 18, 1917
(CONTINUED FROM PAGE THREE.)
served sovereignty of the States: Congress
•as no authority to change them, and the
President cannot legally overbear them.
Consequently, the issue before this Court is
narrowed to a conflict between the plain let
ter of the Supreme Law, upon the one hand,
and, on the other, the Acts of Congress, fol
lowed by the President's proclamation, which
virtually destroy the existence of the State
militia.
Another provision of the Constitution was
adopted for the declared purpose of safe
guarding the States and the inherited liber
ties of the people; and that provision checks
the Congressional power to raise a Federal
Army, />// the two-year limit put on appro
priations.
As all the Representatives and one-third of
the Senators were to be chosen biennially, it
was thought that the Federal Government
could never maintain a military establish
ment dangerous to the States and to popular
rights.
The recent Acts of Congress spread these
military appropriations over a period of 30
years; and therefore we say that the whole
scheme, composed of these various recent acts,
is absolutely violative of the Constitutional
mandate which forbids that sort of appro
priation foi- a term of more than two years.
It is claimed that “the power to raise
armies" vests Congress with plenary powers,
and that our Government can raise armies by
any method it thinks best.
This argument might have weight in Eng
land, where Parliament is untrammelled by a
written Constitution, and where the Govern
ment does not have to lean on sovereign
States; but it cannot have any force -in this
country, before a capable and fearless Judge,
who knows that Congress, alone, cannot
THE JEFFERSONIAN
breathe a soul into statutes: it is the Consti
tution which breathes the breath of life into
statutes.
There is here no question of what the Court
thinks Congress should be competent to do: it
is simply and solely a question of what the
Constitution authorizes.
Every house-top in America might be
turned into a rostrum and resound with clam
orous demands for this law, 77m£ law, and the
other; but an upright Judge, thoroughly
versed in the Supreme Law, will heed noth
ing save the lines in that Golden 800k —that
casket of the Constitution, which as Senator
Ben Hill said, keeps for us the sacred jewels
of our own English ancestry.
Your Honor is requested to take judicial
cognizance of the published Acts of Congress
and the Proclamation of the President, July
10, 1917: we respectfully contend that these
must all be construed together, as forming
one inseparable military plan, system, and
policy.
These published Acts and the President's
proclamation not only abolish the independ
ent State militia, and contravene the clause
of the Constitution which prohibits Congress
from making appropriations of this charac
ter for a longer term than two years, but they
destroy the ancient Common Law principle
of ne exeat, and they violate the 13th Amend
ment.
No English principle was more firmly
fixed, than that the subject could not be sent
out of the realm without his consent. So
long as he was innocent of crime, it was his
right to abide in his native land. Sir William
Blackstone is most emphatic or that point.
The King could forbid his subjects to go
abroad, but he could not banish them: they
had as much right as he, to stay at home.
Your Honor will remember that, when
Richard 11. arbitrarily expelled Henry of
Bolingbroke from England, there was great
dissatisfaction; and when Bolingbroke re
turned, the people rallied to him and de
throned the King.
lion. Hannis Taylor calls attention to the
historic fact that, for a thousand years prior
to 1776, the law of England had exempted
the militia from service abroad, and he cites
the statutes I Edw. HI., 26 Geo. 111.
Mr. Taylor not only quotes the official
opinion which Attorney-General Wickersham
gave to President Taft, Feb. 17, 1912, but
quotes the recent statements of President
Wilson, who for so many years was Doctor
of Laws, and Professor of Law at Princeton:
In an address delivered at New York, Jan
uary 27, 1916, he said: “I believe that it is
the duty of Congress to do very much more
for the National Guard than it lias ever done
heretofore. I believe that that great arm
of our national defense should be built up
and encouraged to the utmost; but. you know,
gentlemen, that under the Constitution of
the United States the National Guard is un
der the direction of more than twoscore
States; that it is not permitted to the Na
tional Government directly to have a voice
in its development and organization; and that
only upon occasion of actual invasion 7ms
the President of the United States the right
to ask those men to leave their respective
States.”
Tn an address delivered at Cleveland, Ohio,
January 29, 1916, he said: “The President
of the United States has not the right to call
on these men | the National Guard j except in
the case of actual Invasion, and, therefore, no
matter how-skillful they are, no matter how
ready they are, they are not the instruments
for immediate National use.”
In an address delivered at Milwaukee, Jan
uary 31.1916, he said: “The National Guard,
line as it is, is not subject to the orders of the
President of the United States. It is sub
ject to the orders of the governors of the
several States, and the Constitution itself says
that the President has no right to withdraw
them from their States even, except in the
case of actual invasion of the soil of the
United States.” _
In an address delivered at Topeka, Kan
sas, February 2, 1916, he said: “The Con
stitution of the United States puts them [the
National Guard) under the direct command
and control of the governors of the States,
not of the President of the United States,
and the national authority has no right to
call upon them for any service outside their
States unless the territory of the Nation is
Actually invaded.”
Our militia law’s recognize this funda
mental personal right, by virtually providing
that the Federal Government shall never send
the State troops out of the country. To de
fend our own soil from the invader, the Fed
eral Government may employ the State mili
tia: to suppress a domestic rebellion; and to
enforce the United States laws within the
Republic these are the only purposes for
which the State troops may be lawfully used.
Every one of those emergencies, contem
plates services at home.
The ancient Common Law is a part of our
system, so recognized in all the standard au
thorities and leading decisions. The Consti
tution did not supersede it, but left it in full
force by express provision. IX.
and X. of the Amendments.)
Common law marriage still exists, and so
do many other common law’ customs and prin
ciples, never specifically repealed. In fact,
it is to the Common Law’ w T e must look, if we
would learn wdiat are those “rights . . . re
tained by the people,” in addition to those
wdiich they had delegated to the United States
and those “reserved to the States.”
That there are pow’ers and rights inherent
in the people, and not surrendered to the
States, or to the United States, the Supreme
Law emphatically asserts in the Ninth and
Tenth Amendments.
What are those powers and rights?
Whatever they are, the people are still the
possessors, since they never delegated them,
expressly, or by necessary- implication.
Among those retained rights, is that of
marriage without license, minister, or cere
monial formality: the highest New York
Court has recently re-affirmed that doctrine.
To the same heritage of Common Law
rights, belongs the principle that the citizen
cannot be forcibly sent out of his native land.
To sum up the whole matter, w’e respect
fully submit to your Honor, that our Consti
tutional system, prior to the adoption of the
post-bellum Amendments, was intended and
designed—•
(1) To form a more perfect union of sov
ereign States than the Old Confederation had
brought into effect;
(2) To establish justice, in accordance with
English ideals and institutions;
(3) To insure domestic tranquility by
placing under central control the militia of all
the Stales, when internal tumults broke out;
(4) To promote the general welfare by a
uniform system of law’s and administration,
on matters affecting all the States in com
mon ;
(5) To provide for the common defence
of all the States, by using for each the power
of all;
(6) To secure the blessings of liberty to
ourselves and our posterity—those liberties
which were so well understood at the time,
that the Fathers thought it unnecessary to
enumerate them in a Bill of Rights;
(7) Io leave the States in full possession
of all sovereign powers not ceded, including
the right to prescribe the qualifications of vot
ers, and of jurors: also the right to maintain
a State militia, and govern the same, ex
cept when it was constitutionally called forth
in the service of the United States for one of
the three purposes named;
Thursday, August 23, 1917.
