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Thursday, August 2a, 1917.
(8) To leave the citizen of the State in
complete possession of his immemorial rights,
as understood by the Fathers, and as set forth
in such State papers as the Great Charter, the
Act of Habeas Corpus, the Petition of Rights,
the Bill of Rights, and the Amendments to
the United States Constitution adopted prior
to the Civil War.
Whether an Act of Congress imposing com
pulsory military service upon citizens of a
selected age would have been held Constitu
tional prior to 1865, need not now be con
sidered. We know that the States, alone,
exercised that power, to some extent, during
the Revolutionary War: and that the efforts
of the Government in 1814 and 1833, to se
cure such an Act, were defeated.
At the time the Fathers invested Congress
with the power “to raise armies,” the small
Kingdom of Prussia was the only European
state that had been accustomed to raise them
by compulsion. The English system, since
Feudalism and its Knight-service of 40 days
a year, had consistently been voluntary.
Crimping and kidnapping were the abuses of
the system, but there was never a legalized
conscriptu n until the third year of the pres
ent war; and oven now, there is no compulsory
imprsul upon Ireland, Canada and—
I believe —Australia.
We earnestly submit to your Honor, that
no decision ipade prior to 1865 would adjudi
cate the issues we raise in favor of these two
complainants.
The 13th, 14th, and 15th Amendments
worked material changes in the pre-existing
Con st ituti on a 1 sy st em,
The negro and his civil status were the sub
jects matter: but the words c.f the law could
not measure the citizen's rights by the color
of his skin. What was law for the black, be
came law for the white; and what was law
for tlie natural person, became law for the
artificial.
I call your Honor's special attention to the
fact that the United States Courts have held
the 14th Amendment to annul the 11th.
The Eleventh Amendment denies to the
United States Courts jurisdiction over suits
commenced or prosecuted against one of the
United States by citizens of another State;
and that Amendment was adopted to protect
the sovereign States from being made defend
ants in United States Courts by private citi
zens of a State, or of a foreign country.
It is well known that Chisholm's c<ue
against the State of Georgia was the provoca
tive of that Amendment.
After the adoption of the 11 th Amendment,
it was universally respected by the United
States Courts, during ail the years preceding
the Civil War, and during the entire period
covered by that lamentable struggle.
But when the 14th Amendment was adopt
ed, after the IVar, a different course was pur
sued.
That change in the Supreme Law created,
for the first time, a citizenship of the Fed
eral Government, as distinguished from State
citizenship; and the States were forbidden by
the Federal Government, for the first time,
to make any law abridging the rights of these
newly-made United States citizens.
No State was thereafter to be allowed to de
prive any person of life, liberty, or property,
without due process of law; nor to deny to
any person within its jurisdiction the equal
protection of the laws.’’
How was it possible for the United States
Courts to give effect to the 14th Amendment
without ignoring the 11th?
If the citizen - corporation of New York
could not bring suit against the State of
Georgia, claiming that the Stale had made
a law violating the 14th Amendment, where
would redress be sought?
The long line of decisions in which the
United States Courts have set aside, or en
joined the enforcement of, State laws, upon
THE JEFFERSONIAN
the ground that they were confiscatory, and
therefore in violation of the 14th Amendment,
necessarily rest upon the idea that the later
Amendment prevails over its predecessor.
Now, with all the earnestness of my nature,
I appeal to your Honor to say whether the
14th Amendment, so effective to safeguard
property, does not equally protect life; and
whether the 13th Amendment, being a part
of the radical change made in the Constitu
tional system, after the Civil War, does not
override any preceding clause in the Supreme
Law and all decisions made thereunder!
The vast combinations of wealth, incorpo
rated for all manner of business enterprise,
have taken refuge in the broad provisions of
law, made particularly for the negro.
I was present, some 37 years ago, wdien the
Justices of the Supreme Court of Georgia
heckled and jeered at the late Frank 11. Mil
ler, when that able attorney invoked the 14th
Amendment in behalf of the Augusta Street
Railway.
Justice Blandford told Mr. Miller, laugh
ingly, that the 14th Amendment had noth
ing to do with railroads: “it was made for
niggers."’
With equal force, it could be said, that the
13th Amendment was made for niggers; and,
in this case, we would not care, because our
clients are niggers.
But the Congressional leaders who prepared
the general plan to safeguard the black man
in all of his newly-won freedom, made their
language as broad in the 13th Amendment, as
they did in the 14th.
Not only the white man, but the corpora
tions owned by the whites, can come into
Court and successfully plead against any
form of servitude to which they are opposed.
CW a corporation be made to serve the
Government against its will?
That very issue may be sprung within the
next few weeks, and your Honor may have
to pass on it.
I am not speaking of martial law, duly
proclaimed; nor of military law embracing
camps, trenches, and troops in actual service:
I am speaking solely of the civilian, and the
civil status; and my contention is, that the
citizen can nd more be lawfully forced into
military service, than he can be drafted to
mine coal, smelt metals, build post-roads, and
dredge rivers and harbors.
And my contention further is, that while
the enlisted man. legally a soldier, is a sol
dier for all purposes, and from the very na
ture of the employment-, may be sent any
where and controlled absolutely by his offi
cers, 'hie civilian, standing flat-footed on his
rights under the Constitution, cannot be arbi
trarily deprived of his liberty, can not be sent
out of the United States, cannot be compelled
to undergo any form of servitude, and cannot
be legally controlled in his personal move
mends, W’HEN HE IS OUTSIDE OF THE TERRITORIAL
JURISDICTION OF THIS REPUBLIC.
To say that Congress can forfeit the Con
stitutional rights of millions of citizens, and
can authorize their despotic control in Eu
rope, is abhorrent to every idea of civil lib
erty, and repugnant to every principle of
sound law.
The Act of A fay 18, 1917, together with
other legislation constituting the general
Army plan, has been officially construed by
the President to mean, not only the incorpo
ration of the State militia into the Regular
Army—which w T e say is unconstitutional—but
to mean, that citizens may be “assigned” to
manual labor, in fields, mines, and factories.
The language of the President in his Ad
dress to his Fellow Countrymen is, that
“thousands, nay, hundreds of thousands of
men, otherwise liable to military service will
of right and necessity be excused from that
service, and assigned to the fundamental, sus
taining work of the fields and factories and
mines.”
Has Congress the power to authorize a sys
tem of industrial servitude?
The law under discussion is held to be
broad enough for that purpose, and the Pres
ident apparently so understands it.
What else could be meant when he speaks
of citizens being “assigned to manual labor?
Who will do the assigning? Who will send
a thousand black men to the fields, and a
thousand white men to the mines?
If they are unwilling to be assigned, and
must be coerced, what becomes of the 13111
Amendment ?
The liberty of one is the liberty of all: in
defending these two negroes, we defend every
body. If Congress can annihilate their civil
status, and “automatically" transform then
into soldiers, it can with equal legality trans
form them into peons, and slaves. No Alex
andrian sword can cut a cleavage between the
prohibition against slavery and the prohibi
tion against involuntary servitude. The bolt
which smites one. smites the other: the curse
of the Supreme Law is pronounced against
both.
How then, is Congress to raise armies?
The conscript has never yet played any
part in English history; anil very little in
ours.
There are 4.000.000 volunteers fight ing Eng
land's battles at this time; and nearly 1,000,-
000 Amer icans voluntarily enlisted in our
Army. Who knows* howr many would volun
teer, under conditions which convinced our
people that such service is needed for the de
fense of the country?
There is no limit to the number of able
bodied men that the States may enroll in the
militia, and the United States has ample con
stitutional power to appropriate every one
of these men, provided the service is needed
to repel invasion, suppress insurrection, or ex
ecute the laws of the Union.
Twelve million men will spring to arms, at
the call of the Government, to defend their
country.
It is the idea of being sent into foreign
lands, to fight for something not understood,
that agitates our people, deters enlistments,
and spreads consternation.
Not a line of the Supreme Law* indicates
the purpose of the Fathers to authorize the
use of the military for any other purposes
than those stated in the Preamble, and in
the body of the Constitution; and those pro
visions strictly limit the use of our troops
to tranquilizing our own country, upholding
our system of law’s, and repelling any invader
W’ho ventures to attack our frontiers.
That question, however, is not before the
Court. The only question here is, the Con
stitutionality of this Act of Congress.
If Congress has undertaken to raise armies
by a method which violates the Supreme Law,
then Congress must try some other method.
If the method hastily adopted by Congress
destroys the guaranteed liberties of the citi
zen, then Congress must choose some other
plan. To raise armies is a legitimateppo r er,
most necessary to preserve the Union; but
that power hiust not be abused, to the destruc
tion of our republican institutions.
If the destruction of the Temple of our
liberties is a condition precedent to raising
armies, "then it is a colossal instance of pay
ing too much for the whistle.
Liberties without armies, are preferable to
armies without liberties.
History presents but too many illustrations
of (he truism, that a great noise, concerning
imaginary foreign dangers, lias often cov
ered the designs of those who conspired
against domestic freedom.
May it please your Honor, I beg leave to
submit to your most thoughtfid consideration
these additional propositions—•
(1) The new Acts of Congress emasculate
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