Will the U. 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
Press of
THE JEFFERSONIAN PUB. CO.
Thomson, Ga.
Soottetnp
Will the U. S. Judiciary Permit,
and the People Ratity, the
Congressional Overthroi/v
ol Our Constitutional
System ol Govern-
ment?
Mr. Watson's Argument Against the
Conscription Acts
Belore Judge Emory Speer, at Mt.
Airy, August IS, 1917
( C^^^ ^^^ '^^^^ ^^ August, 1917, Judge Emory
&yeer, of the United States District
Court, heard argument in the cases of two
negro men, jailed in Augusta, Georgia, for
failure to register, as per the Acts of Con-
gress, May 18, 1917.
The Judge held court under the trees in
front of the hotel, with a large crowd of peo-
I pie — many of whom were ladies — encircling
* the improvised open-air court.
Prohahly no Federal Judge ever presided
under circumstances so unique and informal;
and the inhom respect of our people for legal
authonty was never more heautifully illus-
^ trated than hy the perfect decorum of the
"l^assemhlage during the several hours of the
^^sultry day, xohen Judge Speer, without Mar-
f^shal or Deputies, or other official attendants,
held couxt as our Germanic ancestors did a
thousand years ago— under the spreading
hranches of a noble tree.
The District Attorney., Mr. Earl Donaldson.,
replied to Mr .Watson hy reading the decision
made by the Supreme Court of Georgia dur-
ing the Civil War, and the obiter of the U. S.
Supreme Court in the Tarble case, where a
STATE undertook to question an Act of Con-
gress.
Mr. Doncddson did not attempt any de-
fense of Section 6 of the Conscript law; nor
did he try to answer Mr. Watson's argument
on the 13th Amendment; and he appeared to
evade studiously the claim that the citizen
cannot lawfully be sent out of the country
against his will.
Indeed, the District Attorney did not seem
to realize that the President''s prodamation of
July 10, 1917, had already FUSED THE
STATE MILITIA WITH THE REGULAR
ARMY, IN VIOLATION OF THE CON-
STITUTION.
Judge Speer asked that the briefs of the
attorneys- be submitted to him, and he stated
his purpose to carefully consider them befo'^e
rendering his decision.)
May it please your Honor: '
We are here for no other purpose than to
discuss a question of law. We have nothing
whatever to do with the politics, or the senti-
mental aspects of the Great War. Those
matters have no place in this forum and this
case.
We are here with one issue only, and that
issue is, whether Cono^ress in exercising the
Constitutional grant of power to raise armies
has enlarged its own powers and those of
the Executive in a manner destructive to
other provisions of the Constitution.
Has Congress, wilfully or inadvertently,
adopted a method of raising armies which
overthrows the Constitutional scheme of
government ? Does the method of 1917 nullify
the system created in 1787? Does the present
plan of Arm}^ increase practically abolish the
militia System of the States, which system
was in existence when the present Federal
Government was formed, and whose contin-
ued existence, as a necessary part of State
machinery, is provided for in the Constitu-
tion? Is it within the power of Congress to
authorize the Executive, by his Proclamation,
to fuse the militia with the Eegular Army
and order it beyond seas for service in for-
eign lands?
Has Congress the power to disintegrate the
States, by abolishing the essential principles
of the States' Bills of Right, thus depriving
the States of the sovereign power to protect
their citizens in the exercise of immemorial
rights?
If the Constitution itself forbids a State
to deprive the citizen of liberty, save as a
punishment for crime, and if the State is
forbidden by its own Bill of Rights to do
this, from what source does Congress draw
the power to do it ?
If Congress can assume any one power
which was never delegated, but which was,
on the contrary, expressly loithheld^ what
would become of Constitutional government?
If Congress can legally make such a law
as Section 6 of the Act of May 18, 1917,
which places every State officer — from Gov-
ernor down to Constable — under the orders
of the President, with no definite limits to
the President's control of those State officers,
and with a penal threat suspended like the
sword of Damocles over the heads of those
State officers, what becomes of State rights,
sovereignty, and independent authority?
Under Section 6, of the Act, the entire civil
administration of the State is subjected to
military control and placed under the com-
mands of the President: how can it be con-
tended that such an innovation does not ef-
fect a revolution, reversing the relative posi-
tion of the civil and militar^^ power, and over-
throwing the State's control of its own in-
ternal civil administration?
These questions are respectfully suggested
in the case at bar; and there is no other
tribunal which can authoritatively answer
them.
In the very nature of things. Power is
grasping. Its innate tendency is, to grow.
The Constitutional monarch humanly in-
clines to personal absolutism. Every town
council is tempted to become a local Czar.
Our sage forefathers, knowing the weakness
and the vices of human nature, fixed the
bounds of the habitation of the Federal Gov-
ernment and of the States; and to each sj^stem
the Constitntion says, in a spirit of paternal
admonition, '"''Be content with the orbit as-
signed your
Bnt because no person can be trusted to
act as judge in his own case, and no estab-
lished authority can be allowed to define its
own limits, our forefathers created the Ju-
diciary.
Holding office for life, removed from the
accidents of politics, elevated above the
clamor of the hour, the Federal Judge is put
on guard to protect the Constitutional rights
of all — the Federal Government, the States,
and the humblest citizen who comes in the
hour of his extremity and lays his hand upon
the sacred 'altar of the Law,
In this case, your Honor, two poor negroes
are the applicants for protection ; and in their
behalf we say, that Congress has adopted a
method of raising armies which not only vio-
lates express provisions of the organic law,
but which destroys the immemorial rights of
the citizen, and revolutionizes the Constita-
tional scheme of mixed Federal and National
government.
We will not now discuss — for it is unneces-
sary^ — the various methods by which Congress
might legally raise armies, whether by boun-
ties, by employment of mercenaries, by oifer-
ing inducements to volunteers, by recourse
upon the States for the full number of their
militia, or other mode: the sole issue here is.
Did Congress^ in May^ 1917^ adopt a method
ivhich the Constitution ivill not tolerate.
The complainants in this case would
have no standing in court, were it not for
fact that our sj^stem of government is differ-
ent from any other, and that such questions
as are raised in this application for relief,
hinge upon those very peculiarities and com-
plexifies which distinguish our Republic from
any hitherto known.
Our illustrious statesmen have, exhausted
the resources of language in describing this
novel, this marvellous, this intricately com-
plex system — the One composed of Many, the
wheels within wheels, the indissoluble union
of indestructible States.
At the very outset of the discussion, we
must endeavor to realize fully the controlling
poAver of the fact, that no reasoning based
upon analogy, parallel, or precedent will be
worth the breath which gives it utterance,
if that reasoning does not conform to the Con-
stitution of the United States.
Nothing that any other nation has done, in
ancient times or modern, authorizes our Gov-
ernment to adopt the policy of imitation, if
this adopted policy conflicts with our Su-
preme Law, and Avith the perfect integrity of
the peculiar system of mixed Federal and
National sovereignty^ created by the Consti-
tution.
The bare fact of this case being here, illus-
trates the distinctive nature qf our Govern-
ment.
The vital fact that your Honor has taken
jurisdiction, to weigh and determine the va-
lidity of an Act of Congress approved by
the Chief Executive, advertises the tremen-
dous fact, that our Federal Union not only
depends upon the separate existence of the
three sovereign attributes of government, but
that the life-tenure Judiciary is the final ar-
biter, in cases where the citizen alleges that
Congress and the President have encroached
upon his Constitutional rights.
In no other country, does one department
of the government thus check and balance the
others.
In this country, there is no such doctrine
as Parliamentary omnipotence. In our Re-
public, the desires, the ambitions, the preju-
dices, the passions of the majority — no mat-
ter how numerous, rich, and powerful — can
never overbear and override the minority, de-
priving it of time-honored privileges, im-
munities and rights, unless the Judiciary
prove recreant to its high and sacred trust.
Your Honor! The place you fill today
towers in noble importance above that occu-
pied by any monarch on this troubled sphere.
You are humbly asked to uphold ancl pre-
serve the Ark of the Covenant of our
Fathers. We come reverently to the Tables
of the Law, and seek to have you tell us what
is there written.
No greater issue of life or death, of Con-
stitutional liberty or legalized servitude, has
ever been presented to your Honor, or to
any other Judge, since Moses came down from
Sinai.
The lives and fortunes of millions of men
are at stake. The inherited liberties of our
English forefathers are at stake.
In countless thousands of homes, your
Honor, strong men are suffering more than
words can tell, and good women go down
on their knees in prayer, while we are here
today presenting the case of two poor ne-
groes, whose fate involves that of millions of
blacks and whites.
In a general way, we all understand that
Anglo-Saxon liberties and institutions origi-
nated before there were such things as writ-
ten Charters and Constitutions. We all un-
derstand that our Colonial forefathers
claimed these immemorial rights, as a portion
of their heritage. We are all more or less
familiar with the historic tragedy which
caused the British-vSaxon laws to be overlaid
and smothered by the feudal tyrannies of
the Norman Conquest; and we yet drink in-
spiration from the glorious revolt of 1215,
which re-asserted the ancient liberties of the
realm.
It is, or has heen^ our boast and pride, that
these immemorial rights of free men came
clown to ourselves, Unimpaired, inalienable,
imperishable.
Addressing a District Judge of the United
States Court in Atlanta in 1873, the late mag-j
nificent lawyer and orator, Benj. H. Hill, re-
ferred reverently to "the sacred civil jewels,
. . * from an English ancestry, hallowed by
the blood of a thousand struggles."
Said Mr. Hill—
10
"It is infidelity to forget them. It is sac-
rilege to disregard them. It is despotism to
trample upon them."
I congratulate myself and the country that
my appeal for the Constitution is addressed
to one who learned law in part from the great
Georgia Senator, and who, like the Federal
Judge whom he addressed in 1873, amid the
turbulence and passions of Keconstruction,
"possesses the ability to discern, and the cour-
age to declare the law^ as it is."
What are those "sacred civil jewels" to
which Mr. Hill referred, and which are treat-
ed with such profound respect by English his-
torians, advocates, judges, and standard au-
thorities on Constitutional Law?
They form the very Primer of Democracy.
They are the Holy Scripture of Patriotism.
No intelligent person denies that these ele-
mentary principles embrace Life, liberty,
and propert}' — carrying protection as well
as security to one's person, to one's free
choice of vocation, to one's freedom from re-
straint, to one's acquirement and enjoyment
of property and the fruits of one's toil, unless
deprived thereof in some manner prescribed
by the e?tablished law of the land.
Necessarily incident to personal security, is
the sanctity of one's home, which is inviolate,
unless a warrant be sworn out against it:
Fair trial by jury, in the vicinity of one's
residence, when accused of crime, is also an
immemorial right:
Freedom to speak one's opinions, and to
publish them to the world, with a view to
11
winning to their support the opinions of one's
fellow-citizens :
Freedom of religious belief and worship :
Freedom to keep and bear arms, for the pro-
tection of one's life or property :
The right to representation in the laying
of taxes, and the making of laws.
Underneath the whole elaborate, and pow-
erful structure of our system of government
lies the principle which is the exact opposite
and irreconcilable enemy of the ancient royal
dogma of Absolutism, or the Divine Right
of Kings.
That fundamental democratic-republican
principle is, that the People are sovereign;
the j-^eople are the source of honor, privilege,
and power ; and all just government rests upon
the consent of the People.
Under our system, no Bourbon can say, "I
am the State," and act upon that monstrous
theor}^
The State is the people, and the people are
the State; and it necessarily follows that in
such a sj^stem there must be freedom of as-
semblage, freedom of discussion, and freedom
of petition.
In his elaborate work, "The State," pub-
lished in revised form by Woodrow Wilson,
then Doctor of Law^s, and Professor of Juris-
prudence and Politics at Princeton — 1901 —
the learned author forcibly and most truly
says — •
"Discussion is the greatest of all reform-
ers.
It rationalizes everything it touches.
12
It robs principles of all false sanctity and
throws them back upon their reasonableness.
If they have no reasonableness, it ruthlessly
crushes them out of existence and sets up
its own conclusions in their stead."
("The State," page 139.)
These ancient rights were not first set forth
in the Charters of Henry and John: those
rights had been in existence "from time
Avhereof the memory of man runneth not to
the contrary,"
This fact, immensely important to the con-
sideration of the new laws of 1917, is well
stated by Dr. Woodrow Wilson, his then title,
in his yaluable book, "The State."
"Our own charters and constitutions have
. . . been little more than formaL statements
of rights and immunities which had come to
belong to Englishmen quite independently
of royal gifts or favor. . . . And so our own
Colonial charters . . . simply granted the
usual rights of English freemen.
Our constitutions have formulated our po-
litical progress, but the progress came, first."
{The State, p. 564.)
Chancellor Kent, Judge Cooley, Sir Wil-
liam Blax^kstone, and all other authorities with
whom I am acquainted, state the same great
truth— towit: that the Great Charter of 1215
and its succeeding legislation were nothing
but the re-assertion of ancient liberties. In-
deed, Blackstone says in his Commentaries,
if my memory is not at fault, that nearly all
of the remedial laws of modern times consist
13
of the abolition of abuses which were intro-
duced by tyrannical Kings'.
As everybody knows, our forefathers con-
tended that these ancient English liberties
came with the colonists to this country. A
seven years' war established that proposition.
The Mother Country acknowledged the In-
dependence of Thirteen American States, sep-
arately^ by name : the old Confederation never
issued a Declaration of Independence, and
was never recognized by Great Britain.
The old Confederation of the Thirteen
States had an Army and a Xavy of its own;
and this Army and Navy were independent
of the States.
Let us bear that in mind, for the fact has
its bearing on the issue now in Court.
The independent, sovereign States compos-
ing the Old Confederation select delegates to
a Constitutional Convention, commissioned to
amend the existing Articles of Union. In-
stead, the delegates create a ncAV Constitution,
and submit their work to the States, for ac-
ceptance or rejection.
The requisite number of the States separ-
ately ratify the new instrument of Union,
altliough North Carolina and Rhode Island
did not.
Before her accession to the new Union,
what was North Carolina ? "V^Tiat was Ehode
Island?
There can be but one answer : each of those
States was a separate, independent sover-
eignty, just as Sweden is today.
The new Union had its Army, and the two
separate States had theirs, consisting of their
militia : and the two States were just as fully
organized into political entities, as Holland
and Denmark are at this time.
AVhat surrender did those two States make
of their control over their militia, ^dien they
at length came into the Union?
They surrendered nothing of that supreme,
sovereign control, except that the Union
might use this militia for the general wel-
fare, in case it were menaced by invasion, re-
bellion, and resistance to the laws of the
United States.
That is all.
What Ehode Island and North Carolina
surrendered, the other eleven States yielded- -
that much and no more.
The first question —
^A^iat is the real character of our Govern-
ment i
Reasoning applicable to other nations fails
here. What Parliament may do in England,
is one thing: what Congress may do, in the
United States, another.
We lose our road before we get good started,
if we ignore the dual system of the United
States.
Gen. Logan, 1879, said of the United States
Constitution: "It cannot have the aspect of
both a sovereign nation and a collection of
sovereign States.
A paradox of insurmountable character is
involved in the very idea of such a thing."
15
In his reply, Mr. Hill said —
"It is a remarkable fact that, just what the
honorable Senator from Illinois calls an in-
surmountable paradox, is exactly the Consti-
tution of the United Statesy
Mr. Hill then proceeds to quote from Mr.
Madison's papers in The Federalist, and from
Mr. Webster's replies to Hayne and Calhoun,
demonstrating the mixed character of our sys-
tem, the Federal Government being national
in some respects and federal in others — for
instance, the House of Representatives is na-
tional and the Senate, federal; while. the Elec-
toral College is fartly hoth.
Mr. Hill rose in one of his flights of ora-
torical splendor as he described our complex
system, evolved from the wisdom and experi-
ence of struggling centuries, a system whose
model had never existed. He said, ""V^'lien you
hear about a man going to Eome or to Greece
or to Switzerland, or anywhere, to find mod-
els by which to understand the Constitution
of the United States, he is going in dark
places to gather light."
Tracing briefly the contest between the two
conflicting theories concerning the Constitu-
tion, Mr. Hill denounced the extremists of
both theories, and he is asked this memorable
question — '"If he is a traitor who would di-
vide the States, how can he be less a traitor
who would destroy the States?"
Within its orbit, the national government
is supreme: within their spheres, the States.
For example, the State is sovereign over
the jury-box, and the qualifications of vot-
ers: the national Government has no author-
ity except to prevent racial discrimination.
Thus the sovereign States have to supply
the Federal Government with jurors for its
own courts, and with electors for its own elec-
tions.
In fact, the national Government has no
electorate at all: the State not only furnishes
the voters, but holds the elections.
If the national Government were deprived
of State voters and jurors, it would be emas-
culated; but if the States were deprived of
everything coming to them from the Federal
Government, they would still be separate, in-
dependent, completely organized, and self-
sufficient sovereignties.
Unless this undeniable fact is kept in mind,
we miss the true understanding of our com-
plex system of government, the like of which
was never before seen in this world.
Students of government have said that our
system was not a demonstrated success: they
say it is still an experiment.
Perhaps tljey are right. And it may be
that the supreme crisis of the experiment is
upon us,
God help us to recognize the old landmarks,
and to go by them.
I lay down this proposition as the basis
of the argument against the new Acts:
The Fathers who framed the organic law
of our Union were men who were loyal
supporters of sovereign States, and who were
careful to safeguard the States in the preser-
vation of those sovereign powers not dele-
gated to the P^ederal Government.
Not only does the organic law of the Union
say this, in express terms, but that Supreme
Law also recognizes the existence, in the peo-
ple themselves, of powers which even the
States could not lawfully impair.
If I may use the simile — the jjeople are the
great reservoir of sovereignty^ from which the
States draw for their needs. Afterwards, the
States expressly gave to the Federal Govern-
ment a specified portion of this power, so
drawn from the reservoir; hut neither the
Federal Government nor the States have ex-
hausted the source from which their powers
were drawn.
Always, the people remain the rightful
heirs of the English liberties which the writ-
ers call "immemorial"; and, if some of these
inherited rights are not stated in the organic
laws, they nevertheless exist, and can be as-
serted whenever the people see fit.
State or Federal Constitutions, subject to
amendment at the popular will, have recently
undergone great changes; and it is not im-
probable that the people will draw from the
reservoir the power to enfranchise the
women, and to prohibit the manufacture of
intoxicating liquors.
In dividing sovereign powers between the
States and the Federal Government which
they were creating, our Fathers took particu-
18
lar pains to protect the States from military
encroachment.
A student of the Convention Debates, of
The Federalist^ and of the Constitution itself,
is struck by that.
In the Philadelphia Convention, the dread
of military agg-ression found frequent utter-
ance: and in The Federalist^ the best efforts
of Hamilton and Madison were put forth to
allay those fears.
Again and again, Hamilton and Madison
reminded their countrymen, that the Federal
Government could never deprive the States
of their power to withstand Federal en-
croachments, Tjeoause the States Avould always
have control of their militia, except when the
Federal Government needed it, to repel
invasion, &c., and that, even then^ the
State's own officers would remain in command.
The scheme of the organic law of the
Union, as shown in the very language used,
was that the Federal Government should have
an Army of its own, and that each State
should have a militia system capable of main-
taining order, enforcing law, and safeguard-
ing the people from any sudden invasion.
The Federal Government has no authority
whatever over the State's troops, save in the
three emergencies mentioned in the Constitu-
tion.
It follows, therefore, that if the new laws
of 191 T obliterate this clearly-drawn distinc-
tion, and lump the State troops with the Na-
tional Army, they violate one of the most
19
vital parts of the organic law, and destroy an
integral part of the Constitutional scheme.
To merge the militia with the regular Na-
tional Army, is to revolutionize our system of
government, and to set up another, totally dis-
similar.
Under the Constitution, as plainly written,
(and as put into operation by President
Washington during the Pennsylvania Whis-
key Eebellion,) no Act of Congress is valid if
it deprives the State Governors of their pre-
rogative of naming all the officers and issuing
the call for the troops^ when the President de-
clares, officially, his need of them to repel in-
vasion, suppress insurrection, and execute the
laws. ♦
These provisions were placed in the organic
law, out of wisely jealous regard for the re-
served sovereignty of the States: Congress
has 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 proAdsion checks
the Congressional power to raise a Federal
20
Army, hy the two-year limit put on appro-
priations.
As all the Eepresentatives 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 wnole
scheme, composed of these various recent acts,
is absolutely violative of the Constitutional
mandate which forbids that sort of appro-
priation for 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
breathe a soul into statutes: it is the Consti-
tution wMcTi hreathes the hreath of life into
statutes.
There is here no question of what the Court
thinks Congress should he 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, that law, and the
other; but an upright Judge, thoroughly
versed in the Supreme Law, will heed noth-
ing* save the lines in that Golden Book — that
casket of the Constitution, which as Senator
Ben Hill said, keeps for us the sacred jewels
of our own English ancestr3^
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 3'ears, but thoy
destroy the ancient Common Law principle
of ne exeat^ and they violate the 13th Amend-
ment.
Xo 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 on 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
Eichard II. arbitrarily expelled Henry of
22
Bolinjrbroko from England, there was great
dissatisfaction; and when Bolingbroke re-
turned, the people rallied to him and de-
throned the King.
Hon. 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. III., 26 Geo. III.
Mr. Tajdor 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 has ever done
heretofore. I believe that that great arm
of our national clef ense 'shovUdi be built up
and encouraged to the utmost ; hut, you knoto,
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 has
the President of the United States the right
to ask those men to leave their respective
States.'"'
In an address delivered at Cleveland, Ohio,
January 29, 1916, he said: "The President
of the United States has not the right to call
23
on these men [the National Guard] 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,
fine 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 th^ 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 laws recognize this funda-
mental personal right, b}" 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
24
Eepublic — these are the only purposes for
which the State troops may be lawfully used.
Every one of those emergencies^ contem-
pJates SERVICES at home.
The ancient Common Law is a part of our
SA'stem, 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. (Articles 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 we must look, if we
would learn what are those "rights . . . re-
tained by the people," in addition to those
which they had delegated to the LTnited States
and those "reserved to the States."
That there are powers 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 recentl}^ 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.
25
To sum up the whole matter, we 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 States, when internal tumults broke out;
(4) To promote the general welfare by a
uniform system of laws and administration,
on matters affecting all the States in com-
mon;
(5) To provide for the common defence
of all the Stated, 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 Eights;
(7) To 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;
(8) To leave the citizen of the State in
complete possession of his immemorial rights,
26
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 consist en tlj'' been voluntary.
Crimping and kidnapping were the abuses of
the system, but there was never a legalized
conscription until the third year of the pres-
ent war ; and even now, there is no compulsory
service imposed upon Ireland, Canada and —
I believe — Australia.
We earnestly submit to your Honor, that
no decision made prior to 1865 would adjudi-
cate the issues we raise in favor of these two
complainants.
The 13th, 14th, and 15th Amendments
27
worked material changes in the pre-existing
Constitutional s^'stem.
' The negro and his civil statns were the sub-
jects matter: but the words of the law could
not measure the citizen's rights by the color
of his sldn. What was law for the black, be-
came law for the white; and what was law
for the 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 case
against the State of Georgia was the provoca-
tive of that Amendment.
After the adoption of the 11th Amendment,
it was universally respected by the United
States Courts, during all the j'ears preceding
the Civil War, and during the entire period
covered by that lamentable struggle.
But when the 14th Amendment was adopt-
ed, after the War, 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
28
the Federal Government, for the first time,
to make any law abridging the rights of these
newly-made United States citizens.
Xo 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 iDossible for the United States
Courts to give etfect 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 State had made
; a law violating the 14th Amendment, where
■ would redress be sought?
\ The long line of decisions in which the
I United States Courts have set aside, or en-
joined the enforcement of, State laws, upon
the ground that they were confiscatory, and
therefore in violation of the 14th x^mendment,
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,
29
have taken refuge in the broad provisions of
law, made particularly for the negro,
I was i^resent, some 37 years ago, when the
Justices of the Supreme Court of Georgia
heckled and jeered at the late Frank H. Mil-
ler, when that able attorney invoked the l4th
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: ''Ht 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.
Can a cot'poratwn be made to serve the
Government against its ivillf
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 soleh" of the civilian, and the
civil status; and nry contention is, that the
30
citizen can no 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, THE CIVILIAN, standing flat-footed on his
rights under the Constitution, cannot he arbi-
tranly deprived of his liberty^ cannot 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-
ments^ AVHEN HE IS OUTSIDE OF THE TERKITORIAL
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 May 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
Arnw — which we 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
31
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 wdien he speaks
of citizens being "assigned" to manual labor ?
Who will do the assigning? Who will send
a thousand black men to the fields, find a
thousand white men to the mines?
If they are unwilling , to be assigned, and
must be coerced, what becomes of the 13th
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 them
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; and very little in
ours.
32
There are 4,000,000 volunteers fighting Eng-
hind's battles at this time; and nearly 1,000,-
000 Americans voluntarily enlisted in our
Army. Who knows how 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 ins,urrection, or ex-
ecute the laws of the Union.
TAvelve 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 spreiads 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 laws, and repelling any invader
who 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
33
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 eiti
zen, then Congress must choose some other
plan. To raise armies is a legitimate power,
most necessary to preserve the Union; but
that power must 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 the truism, that a great noise, concerning
imaginary foreign dangers, has 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 thoughtful consideration
these additional propositions —
(1) The new Acts of Congress emasculate
the States, deprive them of powers necessary
to preserve a republican form of government,
and make it impossible for the States to pro-
tect their citizens in the enjoyment of those
rights guaranteed to them by the Constitu-
tions of the States:
(2) That the new laws usurp. Federal con-
trol over the State militia, and render the sov-
ereign State powerless, in case of any unfore-
seen and sudden riot, invasion, or other emer-
34
gency which puts the State upon the defen-
sive, to uphold its authority and defend its
soil:
(3) That the new Acts disintegrate the
States, disorganizing and revolutionizing
their internal titfairs, penalizing freedom jf
speech and of press; and rendering ineffec-
tive the State's Constitutional guarantee of
life, Uberty, property, and pursuit of happi-
ness.
In other words, the Acts complained of
amount to a repeal of the most important of
the civil liberties set forth in every State Bill
of Eights.
(4) They violate both the letter and the
spirit of the organic act of the Union, totally
subvert the scheme of divided and balanced
sovereigntv, reduce the States to the helpless-
ness of subject provinces, and are therefore
null and void.
(5) Section 6 of the Act (May 18, 1917)
places under Presidential conscription every
officer of the State. The new duties of the offi-
cials thus conscripted, are left undefined.
Those State officers must obej^ such orders as
the President chooses to issue. In case the
Governor of a State fails or refuses to do what
the President tells him to do, the Governor
becomes guilty of a misdemeanor. If he
should be unable to give bond when arrested,
he must go to jail. He may then continue
to act as Governor, the best he can, from the
prison to which the President commits him.
If found guilty at his trial, he may be pun-
ished by a year's imprisonment; or if held
35
to be a part of the military establishment, —
and therefore subject to military law — he
may be summarily court-martialed and in-
continently "shot.
No other construction can be put upon
Section 6, if it is admitted that the Governor
is one of the officers of a State.
To every State-officer the same section ap-
plies; and no matter how pressing might be
the needs of the State for the diligent service
of her officials, she is compelled to sacrifice
the interests of the State to the demands of
the President.
In other words, the State government is
paralyzed, and the various organs of State
administration must cease to perform their
functions, if the President exercises the enor-
mous powers conferred by this Act.
Such powers are not democratic, or repub-
lican ; they are imperial, belonging to systems
Avhere Divine Eight and One-man Power are
supreme, and wdiere the personal will of the
sovereign is not limited by charter or kept
in check by independent, incorruptible courts.
You may ransack your law-libraries, read
every paper of Hamilton and Madison,. scan
every speech of Webster and John Quincy
Adams, study every decision of John Mar-
shall, Joseph Story, and Roger Taney — but
you will search in vain for the germ of the
revolutionary doctrine, that Congress may,
through the Executive, transform State Gov-
ernors into Presidential satellites, lesser State
officers into Federal officials, and suspend the
36
sovereignty of the State, by sending the
entire State establishment to jail, for non-
performance of Federal duties, suddenly
thrust upon it bj" Congress.
If this kind of thing can be done, anything
can be done.
It comes dangerously near to abolishing the
, State's form of republican government, if
it does not, in fact, do that very thing.
"What's left of the State's form of repub-
lican government, when her entire establish-
ment is placed under conscription by the Fed-
■ eral Government ?
i What could be a more ruinous blow at the
I separate, sovereign existence of the State,
within its Constitutional orbit, than an Act
of Congress which fuses all State establish-
ments into one federal mass, and makes the
; whole mass criminal, if it fails to obe}^ such
I commands as the President may see fit to
' issue?
It is almost a mocl^ery to talk of. the Con-
stitution and the laws, and of our unprece-
dented mixed system of government, when
such a revolutionary Act of Congress is be-
ing enforced.
i Has any statesman in this Union ever con-
tended tliat the President can be legally vest-
ed with authority to prescribe duties to any
and all State officers? Has any Court done
so?
Does the power to raise armies carrj'^ powcjr
to subjugate peaceful, lo5^al States?
37
Cannot we raise armies "without burying the
Constitution? Must we build our military
system in the cemetery where we have first
entombed the States?
V
It has been many years since I appeared
in any court — except where compelled to go in
my own behalf — and had not expected to
ever argue another case. But th€ vital and
lasting results that depend upon the recent
Acts of Congress, caused me to volunteer my
services, and I am here, without fee or other
reward, and with no other interest than that
of a lover of liberty and of country.
As well as possible, under the shadow and
handicap of a terrible domestic affliction, I
have done my duty by those who trusted me.
The issue is with your Honor.
Let me conclude, in the words with Avhich
Mr. Hill ended the great argument already
quoted :
"Sir, m disunion through the disintegration
of the States, I have never been able to see
anything but anarchy icith its endless horrors.
In disunion through the destruction of ~ the
States, I have never been able to see anything
but rigid, hopeless despotism, with all its end-
less oppression. In disunion by any means,
in any form, for any cause, I have never been
able to see anj'thing but hlood, and icaste, and
niin to all races and colors and conditions of
men.
"But in the preservation of our Union of
States, this confederate nation, I have never
38
been able to see anything but a grandeur and
a glory such as no people ever enjoyed, I
prav God that every arm that shall be raised
to destroy that Union may be withered before
it can strike the blow."
39
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