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DRAFT LAW PASSED.
Almost immediately after the Revolution the act of May 8, 1792, was passed, and, profiting by the advice of Washington and others, it compelled the service of his country by every citizen between the ages of 18 and 45 under penalty for failure so to do.
For reasons which it is unnecessary to discuss, this became later a dead letter.
In our school histories we read of one victory after another accomplished by our troops in the Revolutionary War; and when we laid our schoolbooks aside we had it thoroughly instilled in us that our armies in the Revolution were not only courageous and patriotic but they were absolutely invincible. We read about the victories, we read about the Minutemen at Lexington and the gallantry of our troops at Yorktown; but we did not see much, if anything, in the histories that we studied when we were children that reflected upon the lack of discipline, courage, and patriotism of our troops under the militia laws or the volunteer system. But let us look at the other side of the picture.
In his work, The Military Unpreparedness of the United States, Huidekoper has collected and published the instances in which the militia ran away or deserted in some of the wars of this country. He gives the sources of his information, and I am justified in assuming the entire correctness of his statements. The cases where the militia or part of them ran away or deserted are as follows:
MILITIA RAN AWAY.
Long Island, August 27, 1776; evacuation of New York, September 15, 1776; Brandywine, September 11, 1777; Guilford Court House, N. C., March 15, 1781; Burwells Ferry, Va., April 19, 1781; Williamsburg, Va., April 20, 1781; Indian village near Fort Wayne, Ind., October 22, 1790; Darke County, Ohio, November 4, 1791; Frenchtown and Raisin River, Mich., January 18-22, 1813, Sacketts Harbor, N. Y., May 29, 1813; French Creek, N. Y., November 1-2, 1813; Chrystlers Fields, Canada, November 11, 1813; burning of Buffalo, Lewistown, and other towns in northern New York, December 30, 1813; New Orleans, La., January 8, 1815; Lake Okeechobee, Fla., December 25, 1837; Bull Run, Va., July 21, 1861.
Following are instances where they or part of them mutinied:
Morristown, N. J., January 1, 1781; Pompton, N. J., January 24-28, 1781; Lancaster, Pa., June, 1783; on the march from Urbana, Ohio, to Detroit, Mich., June, 1812; Detroit, Mich., July, 1812; on the march from Fort Harrison, Ind., to the Wabash and Illinois Rivers, October 19, 1812; en route to the rapids of the Maumee River, October, 1812; Battle of Queenstown, Ontario, October 13, 1812; en route from Plattsburg, N. Y., to Canada, November, 1812; Fort Strother, Fla., November, 1813; retreat to Buffalo, N. Y., after the evacuation of Fort George, December, 1813; Withlacoochee River, Fla., December 31, 1835; Charlestown, W. Va., July 16-18, 1861.
Not only did Washington have to contend with these difficulties, but some of the States in this and in later wars defied Congress by refusing to furnish their quota of troops. Following are instances where that occurred.
Massachusetts, April, 1812; Connecticut, April, 1812; Vermont, November 10, 1813; Vermont, September, 1814; Virginia, April 16, 1861; North Carolina, April 15, 1861; Kentucky, April 15, 1861; Tennessee, April 17, 1861; Missouri, April 22, 1861; Arkansas, April 22, 1861.
It would be imposing upon the patience of this distinguished audience to go into details and to show the disasters which befell our armies in the wars of 1812 and 1845, and which, according to all historians, might have been averted if Congress had only enacted legislation to create a sane military establishment at the beginning of hostilities. The execution of the treaty of Ghent before the decisive Battle of New Orleans was fought and won under the gallant leadership of Gen. Jackson, is evidence that the then administration felt itself defeated by the British, for the treaty did not decide a single issue involved in the controversy between the two Governments which led to war.
AUTHORITY OF JEFFERSON. Jefferson ought to be pretty good authority with a southern audience, and I recall his views on the subject. He did not think the draft was violative of our traditional policy, un-American, or unnecessary.
In a letter to Secretary of War Dearborn September 21, 1805, inclosing a proposed law for compulsory military service for the Army and Navy, he said:
Considering that the important thing is to keep the militia classes so that we may get at the young for a year's service at a time, and that training may be supplied after they are called out, I think we may give up every part of the bill which repects training and arming. Let us once get possession of the principle, and future Congresses will train and arm. In this way we get rid of all those enemies to the bill to whom different details would be objectionable. I send to you the bill thus modified, and I have thrown in a few words in the clause beginning with the words, "The junior class shall be liable,” etc., in order that the law may execute itself without waiting for any legislature. Will you be so good as to communicate it to Gen. Varnum and Mr. Bidwell? The sooner the better,
In his annual message to Congress December 3, 1805, he said: In the meantime, you will consider whether it would not be expedient for a state of peace as well as of war so to organize or class the militia as would enable us on any sudden emergency to call for the services of the younger portions, unencumbered with the old and those having families. Upward of 300,000 able-bodied men between the ages of 18 and 26 years, which the last census shows we may now count within our limits, will furnish a competent number for offense or defense in any point where they may be wanted, and will give time for raising regular forces after the necessity of them shall become certain; and the reducing to the early period of life all its active service can not but be desirable to our younger citizens of the present as well as future times, inasmuch as it engages to them in more advanced age a quiet and undisturbed repose in the bosom of their families. I can not then but earnestly recommend to your early consideration the expediency of so modifying our militia system, as by a separation of the more active part from that which is less so we may draw from it when necessary an efficient corps fit for real and active service, and to be called to it in regular rotation.
JEFFERSON URGED DRAFT. On the 26th of February, 1810, explaining this part of his message, he wrote Gen. Kosciusko as follows:
Two measures have not been adopted which I pressed on Congress repeatedly at their meetings. The one to settle the whole ungranted territory of Orleans by donations of land to able-bodied young men, to be engaged and carried there at the public expense, who would constitute a force always ready on the spot to defend New Orleans. The other was to class the militia according to the years of their birth, and make all those from 20 to 25 liable to be trained and called into service at a moment's warning. This would have given us a force of 300,000 young men, prepared by proper training, for service in any part of the United States, while those who had passed through that period would remain at home, liable to be used in their own or adjacent States. These two measures would have completed what I deemed necessary for the entire security of our country. They would have given me, on my retirement from the Government of the Nation, the consolatory reflection that, having found, when I was called to it, not a single seaport town in a condition to repel a levy of contribution by a single privateer or pirate, I had left every harbor so prepared by works and gunboats as to be in a reasonable state of security against any probable attack; the territory of Orleans acquired and planted with an internal force sufficient for its protection; and the whole territory of the United States organized by such a classification of its male force as would give it the benefit of all its young population for active service, and that of middle and advanced age for stationary delense. But these measures will, I hope, be completed by my successors, who, to the purest principles of republican patriotism, adds a wisdom and foresight second to no man on earth.
SAME CONDITIONS EXISTED. The message of Jefferson from which I have quoted might very appropriately have been delivered by President Wilson to Congress at the outbreak of the pending war, because the conditions which he recited as existing in 1805 were practically the same conditions on land and sea which existed April 2, 1917. The parallel is so perfect that it would be interesting to read it in connection with President Wilson's message, and to see how the minds of the two greatest Presidents this country has ever had coincided as to the course that ought to be pursued in a dangerous crisis.
I might call attention to utterances of many distinguished statesmen and military leaders of the last century to sustain the proposition that the volunteer system has not been a part of the traditional policy of the country and that no country can defend itself in a prolonged struggle without some form of compulsory military service, hut I feel that it would be a trespass upon the time of this distinguished body. I satisfy myself with calling attention to the fact that the South during the Civil War resorted to the draft shortly after the commencement of hostilities, and the North followed a little later with the same plan for maintaining the constantly depleted ranks of both armies. One of the ablest papers ever written upon the subject was that prepared by President Lincoln sustaining the draft law of 1863 both from a constitutional standpoint as well as on the score of necessity and efficiency. Washington is authority for the sentiment that patriotism will not preserve the liberties of a people, and this finds verification in the fact that Great Britain was finally reduced to the necessity of resorting to conscription to fill the ranks of her armies on the battle front, and Canada is agitating the question to the north of us. Both reason and justice demand it, for why should the patriotic flower and chivalry of a country be permitted to offer themselves as a sacrifice, as was the case in Great Britain, while the slacker, who has as much at stake in his country's salvation, is permitted to remain behind to accumulate wealth, live in ease, and propagate his cowardly species. The first year of the pending struggle on the Continent saw the officer material of England destroyed, composed as it was of the educated patriotic young men in every walk of life. Such a catastrophe is not possible in our country, thank God, under our present law.
May I express the hope that the leaders of thought in the South, the descendants of the valiant soldiers who fought under the standards of Robert E. Lee and Stonewall Jackson, will take a positive stand on this subject and teach those of the Southland who have only given the subject casual consideration that in this the greatest crisis of history the spirit of opposition to a safe and sane military policy as advocated by our distinguished President and as just crystallized into law by the Congress of the United States should be crushed before it is too late and before America is permitted to become a vassal nation.
SITUATION IS SERIOUS.
The situation arising out of this spirit of opposition is serious and taken in connection with the unrest amongst the civilian population growing out of commercial and industrial conditions, stimulated by pro-German sympathizers and propagandists, places our country in a situation of extreme peril at a time when all should be united in a common cause.
Another danger which threatens us in this emergency is the narrow view taken by many distinguished lawyers and publicists as to the war power of Congress under the Constitution. On the one hand there are those who insist, and I think properly, that under the Constitution Congress has almost unlimited power to legislate upon any subject that has to do with the maintenance and support of the Army and Navy in time of war, and that that power follows by necessary implication from those granted in specific terms. Opposed to this view are those who insist that Congress has no other or greater power in war time than it has in times of peace and that a limitation which would be effectual to control legislation in time of peace prescribes to the same extent the power of Congress in time of war. If this last view is to be the controlling one in matters of legislation then indeed is our country doomed.
POWERS OF CONGRESS.
Let us see what the Constitution provides with reference to the subject under discussion. Section 8, Article I, clauses 1, 11, 12, 13, 14, 15, 16, and 18, provide in substance that the Congress shall have power:
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for longer term than two years;
To provide and maintain a Navy;
To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; To provide for organizing, arming, and disciplining the militia,
* *; and To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.
In a discussion of this subject it is not necessary to go to the extent that some do and claim that during the period of the war any provision of the Constitution is abrogated or suspended. My insistence is that the war power of Congress is to be found within the limits of the Constitution itself and that no power can be exercised that is not therein authorized and sustained; in other words, that no power can be exercised either in time of war or in peace that does not find authority for its exercise within the limits of the Constitution itself. But with the expressly granted powers there goes by necessary implication the right to exercise certain implied powers without the exercise of which the express powers would be futile.
In McCormick et al v. Humphrey (27 Ind., 144) the idea I have in mind is happily expressed in the following language of the court:
When Congress declares war, by that declaration it puts in force the laws of war, and the war powers of the Government, which are not to be exercised, under the Constitution, in time of peace, now come into full force, by virtue of the Constitution, and are to be exerted by the President and Congress. After the declaration of war, every act done in carrying on the war is an act done by virtue of the Constitution, which authorizes the war to be commenced. Every measure of Congress, and every executive act performed by the President, intended and calculated to carry the war to a successful issue, are acts done under the Constitution; whether the act or the measure be for the raising of money to support armies, or a declaration of freedom to fill their ranks and weaken the enemy; whether it be the organization of military tribunals to try traitors, or the destruction of their property by the advancing army, without due process of law, and the validity of such acts must be determined by the Constitution.
JUSTICE MARSHALL'S OPINION. Chief Justice Marshall, in the early case of McCulloch v. Maryland (4 Wheat., 316), laid down a canon of constitutional construction which has been followed by every distinguished judge since. In express terms he spoke of the solemnity of the duty he was performing in rendering the decision and with masterly ability he covered the whole subject from every angle. He said:
But we think the sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.
Following the logic of that decision, Congress having the power to declare war, to raise and support armies, provide and maintain a Navy, and to make all laws which shall be necessary and proper for carrying into execution these powers and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof, wherein is there lacking the slightest element of constitutional power to do any and everything essential to the preservation of our country's civilization and the liberties of our people ?
In the first legal tender case of Hepburn v. Griswold (8 Wall., 603) the court, although nullifying as unconstitutional an act of Congress, affirmed the principles laid down by Chief Justice Marshall, as they did in both the majority and minority opinions in the second legal tender case of Knox v. Lee (12 Wall., 457) sustaining the same act of Congress, the court saying:
Even in Hepburn v. Griswold both the majority and minority of the court concurred in accepting the doctrines of McCulloch v. Maryland as sound expositions of the Constitution, though disagreeing in their application. With these rules of constitutional construction before us, settled at an early period in the history of the Government, hitherto universally accepted, and not even doubted, we have a safe guide to a right decision of the questions before us.
In Juillard v. Greenman (110 U. S., 421) the court say: A constitution establishing a frame of government, declaring fundamental principles, and creating a national sovereignty, and intended to endure for ages and to be adapted to the various crises of human affairs, is not to be interpreted with the strictDess of a private contract.