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W. H. Herndon on the Conscription Act.

The following speech of Mr. Herndon was delivered here at the Great Union Meeting on Wednesday, the 25th inst. We ask for a candid perusal by all loyal men in the land.

Citizens: A question of constitutional law has been raised in our midst, and decided by the authorities at Washington. The issue the question raises for our solution is most momentous. The case created a deep sensation in the public nerves, and no wonder. The public are excited. It is to be hoped that it will remain cool for reflection, as well as arguments. The facts of the case are shortly and substantially these: About the 18th of this month, the E. P. Dustan — a Lieutenant in the military of the United States, subject to the rules and regulations of the War Department at Washington — NOT executing a duty of the United States of America at the time, but at his own suggestion — killed one Wesley Pilcher, a private citizen of the State of Illinois. Lieut. Dustan was arrested and taken before two Justices of the Peace in the city of Springfield, tried on the facts and bound over for murder under the laws of the State of Illinois. The United States, by the military, at the command or order at Washington, took Lieut. Dustan out of the jail of this county, the Sheriff and Jailer protesting against the act at the time.

The facts of the case present this question for the people's thought and most mature deliberation: Did the Justices of the Peace, acting under the authority of the State of Illinois have jurisdiction? or did the Government of the United States, by virtue of its laws, have the sole and exclusive jurisdiction of the case — over Dustan and the offense? Or did the military of the United States have the legal and constitutional authority to seize and take Dustan out of the hands of the laws of the State of Illinois — away from its jurisdiction? This is the question, and now the friends of the State authority say that the State laws are supreme over Dustan and his offense. The friends of the National Government — of the Union and the laws — say that Congress had the authority to pass the laws, and that the jurisdiction of the United States, is sole and exclusive over Dustan and his offense. The issue is a plain one, and the facts as stated true and certain. The law itself — the clause under consideration — says, in substance, that if any person shall commit murder, who is in the military service of the United States, and subject to the articles of war shall be tried by a Court-martial or Military Commission.

This is substantially what the law says, and now the question which comes to us for solution is: Had Congress the right, under the Constitution, to enact such a law? The question can be partially solved by looking into and through the whole Constitution. What does it say? It holds, in Section 6, the following language: "The Constitution and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and the Judges in every State shall be bound thereby — anything in the constitution or laws of any State to the contrary notwithstanding." — One question is now fairly and legally settled, namely, that the laws of the United States, if constitutionally enacted, are the supreme law of the land; that the State laws are inferior — are, as it were, repealed when the Constitution in its sphere of power, through the act of Congress, tells the States to cease their acts. This must be the case from the very nature of our necessities, our condition, and form of Government. One Constitution must be supreme in its sphere. I say this is right, for it is absolutely necessary to our peace, our safety, our happiness and our right.

The next question which presents itself to the mind and which demands an explanation is this. Had Congress, under the Constitution of the United States, the legal power to enact the 30th section of the Conscription act? The friends of the Union say Congress had the power to pass the particular clause under consideration. The friends of the State authority — I shall call no hard names — say Congress had no such power to pass the 30th section, not denying the power to pass some kind of a conscription law. Be patient, citizens. What does the Constitution itself, say? It says in Article one (1), Sec. seven (7), this: "Congress shall have power to declare war — to raise and support armies — to make rules for the government of and regulation of the land and naval forces — to provide for the calling forth of the militia to execute the laws of the Union — suppress insurrection," etc. Congress has the undoubted power, under the Constitution, to pass some kind of a conscription act — militia act, or what-not, to preserve the Union.

Be it recollected that the laws of the United States are, when constitutionally enacted the supreme law of the land, and that all State laws, and constitutions are inferior when the United States Constitution has the power to command. The State Constitutions and laws are inferior when the Constitution of the United States has full, complete and ample power over the subject matter. The United States Constitution is clothed solely and exclusively with the power of making war — making treaties — coining money. This prohibits the States from acting or assuming jurisdiction over the same subject matter. Whoever in the United States heard of a State legally and constitutionally declaring war in the United States? Then Congress has the sole power of declaring war — making rules over the army of the United States. As it has the right to do these things, then it has the right to defend its agents — army — commanders and to say in what tribunal they shall be tried. Because if this were not so, then Congress would have no right to make rules regulating the army. The States would claim the right. The Constitution of the United States would be an inferior, controlled by every State, rebellion, revolutionary or otherwise, and there would be an end to the Union. I think this exercise of power by Congress to enact a conscription law is most undoubted. First, it is reasonable it should be so — and, secondly, it has a precedent. In 1833, South Carolina threatened to secede from the Union, or to nullify the laws of the United States. The State had passed laws interfering with the laws of the United States — had threatened to hang or imprison or fine any one who should execute the laws of Congress then in controversy, who was a citizen of South Carolina. All Union men then in Congress — Democrats or Whigs — knew that justice to an officer of the United States could not be had at the hands of South Carolina. Hence Congress substantially declared, "that if any officer of the United States in the execution of his duties, should do an act for which he was to be tried the Judges of the Federal Courts should grant the man — the defendant — the officer — a writ of habeas corpus, and whose case should be investigated in the Federal Court," etc. Any one may find this law and the decisions of the Supreme Court of the United States, and the Circuit Courts of the same, on this subject, in Brightly's Statutes, page 102, and notes. This law of Congress in 1822 was passed to save the Union — so was the law in 1863 — the Conscription act. The law of 1833 was passed by a Union Congress; so was the act of 1863. The bill of 1833 was sustained by all true Whigs and Democrats — so will be the act of 1863. Gen. Jackson signed the bill in 1863, to save the Union — President Lincoln signed the bill of 1863, to save the Union. All truly loyal men will obey both laws. So much for law precedents and purposes. I know it may be said that the law of 1833 is a little different from he law of 1863. In the first case the law said, if any one in executing the law did an act, he should be tried by the federal court. That if any one in the military, under the law of 1863, did an act, not acting under the duties of his office at the time, should be tried by a military commission. This is a difference it is true, but it does not reach the question. Under both laws Congress took full jurisdiction of its officers, and took them out of State jurisdiction. That is the substantial point of agreement between the two laws. Congress exercised jurisdiction in 1833 over its officers and agents, — so the Congress of 1863 did.

Grant all this argument, say the friends of State authority, and still Congress did not intend to use so broad language in the act of 1863 as they did. How is that to be known? Did not Congress know the use of language? Let us appeal to the law itself, and see what it says. I quote the whole section, as I find it, and is as follows:

SEC. 30. And be it further enacted. That in time of war, insurrection, or rebellion, murder, assault and battery with an intent to kill, manslaughter, mayhem, wounding by shooting or stabbing, with an intent to commit murder, robbery, arson, burglary, rape, assault and battery, with an intent to commit rape, and larceny, shall be punishable by the sentence of a general Court Martial or Military Commission, when committed by persons who are in the military service of the United States, and subject to the articles of war; and the punishments for such offenses shall never be less than those inflicted by the laws of the State, Territory, or district in which they may have been committed.

It most emphatically says that if anyone in the military service of the United States, owing duty — or subject to the articles of war, who shall commit murder, rape etc., shall be tried by a military commission. The court to try the offence and offender under the act of 1863, and the Constitution is a court martial or military court. The language is plain and unmistakable. Dustan has the right to be tried by a military commission. The United States Government has the sole, exclusive and only right to try such cases. This is the words of the law. But the friends of the State authority say that it was not the intention of Congress to include the Dustan case, or to cover such a case as his by the law of 1863: That Congress intended when an officer in the line of his particular duty and the law, being thus commanded by the United States to do this particular thing, that then the offence should be tried by a military commission under the act of 1863: That the officer must be in the line of his duty and commanded by the United States somehow to do an act; to take the crime and criminal out of State authority and hand over to the military commission. This is the intent of Congress as interpreted by many good men in this city — lawyers too, some included. But let me, if I am able, show in a few words the absurdity of such a feeble construction. The position they take is that the offender must be in the line of his duty, commanded so to do, in the particular matter by the Government somehow. What does the 30th section of the Conscription Act say? it says: if any person in the military, subject to the rules of war, shall commit rape, he shall be tried by a military commission. Could the Government command that — would such a crime as that fall in the line of the officer's duty somehow ordered by the United States? Rape committed by the United States! Men in haste, or through ignorance or malice, construe this law most absurdly.

Fellow citizens: The "true intent and meaning" of the law were and are this: To try the offender Dustin, and all such cases, where a private citizen has been injured by one in the military, subject to the rules and regulations of war, by a court-martial; and when a private citizen injures a soldier, that he should be tried by the civil law. The thing is mutual — is right, under our present condition, in all human probability. Give the law time to show and prove its wisdom. That it was the intention of Congress to try military offenders by a military commission, I have not much doubt. One or more grounds, as suggested by our experience, for such a construction, intention and purpose in Congress is apparent — was made apparent in the Dustan trial, before the Justices who tried Dustan. Congress looked over the country and say, from the mob at Baltimore down to the time when the act passed, probably sweeping in the march of all human history, saw that a rank prejudice existed between the soldier and the citizen — between the military and the civil authority; which had its quick, angry and hot outbursts in civil war. To avoid this, Congress said, to secure to all justice — "The military shall be tried by military, and the civilian by the civil law." The wisdom of this law was made manifest in the Dustan trial. Either prejudice or extreme ignorance, or haste or fear, governed this trial. I shall say no more on this point just now. There is a day after to-day — a time after to-morrow. Time, I hope, will fully and completely develop many facts in reference to this trial. The mob threatened to hang Lieut. Dustan in the street. What — justice be done now in this nation, under our war — excitement — anger — madness — fury — before a civil tribunal to a military man, or vice versa! Go and see! Go and try, and learn by experience what the passions and prejudices can do in moments of madness and revolution.

Again. There is another reason why this law is right and correct in itself. What dictated its enactment? The safety and preservation of the Union, the Constitution and the laws. How so? If every petty, little, ignorant, narrow, malicious Justice of the Peace — who hates the Union by force of party ties — could arrest, try, and bind over the military force of the United States, then perjury or fictitious complaints of base and disloyal men would be as thick as sands on the sea-shore, and such men as Hooker on the Potomac, Rosecrans on the Mississippi, Burnside East, Grant West — just at the critical moment that Richmond was to be stormed — Vicksburg bombarded and taken, or New Orleans or Charleston, or rebeldom generally, then perjury would have full play — then jurisdiction, stolen and assumed, would be rife — then would Traitors and Treason have ample sway, and then woe to the Union, the Constitution and the laws. The Fedderal laws and jurisdiction of necessity — absolute necessity — must be suppreme. Public safety, our existence, our Nationality demanded the law, and Loyalty and Patriotism gave us the act. Appoint a Napoleon for your armies and give a Justice jurisdiction to try him!

Fellow-citizens: Loyal men here and now — everywhere and at all times — let us obey the supreme law of the land. Without obedience to law there can be no safety for us individually — in person or property — no safety for the Constitution or the Union. Without Union and law there can be no liberty. Obedience to these is man's highest duty under the throne of God. Our duty and allegiance must not fall in this hour of our nation's trial. This Union must not perish. Will it? Shall it? No! Never! Then loyal men, Republicans and Democrats, Union men take this Constitution and the Stars and the Stripes, and carry them over every ocean — over every land — up every line of longitude — every line of latitude — up every bay and creek — on every house top in this broad land — nay, into every heart, and there sink them and buttress then with loyalty, a love of this Union and human liberty throughout the world; and keep them there until this round, pendant, swinging globle shall hear the tread of a Christian Democracy, a higher civilization around the equator, and from pole to pole, ending alone with the great law of gravitation that binds worlds to worlds.