Kneedler et al. v. Lane et al.

Citation45 Pa. 238
PartiesHenry S. Kneedler <I>versus</I> David M. Lane, Charles B. Barrett, J. Ralston Wells, and Isaac Ashmead, Jr. Francis B. Smith <I>versus</I> David M. Lane, Charles B. Barrett, J. Ralston Wells, and Christian Young. William Francis Nickels <I>versus</I> William E. Lehman, N. N. Marsellis, Charles Murphy, and Ebenezer Scanlan.
Decision Date09 November 1863
CourtUnited States State Supreme Court of Pennsylvania

These are three bills in equity, wherein the plaintiffs claim relief against the defendants, who, acting under the Act of Congress of the 3d March last, well known as the Conscription Act, claim to coerce the plaintiffs to enter the army of the United States as drafted soldiers. The claim of the plaintiffs is founded on the objection that that act is unconstitutional. The question is raised by a motion for a preliminary injunction, and might have been heard by a single judge. But at the request of our brother Woodward, who allowed the motion, and on account of the great importance of the question, we all agreed to sit together at the argument. But we are very sorry that we are left to consider the subject without the aid of an argument on behalf of the government, by the proper legal officers of the government having deemed it their duty not to appear.

For want of this assistance I cannot feel such an entire conviction of the truth of my conclusions as I would otherwise have, for I cannot be sure that I have not overlooked some grounds of argument that are of decisive importance. But the decision now to be made is only preliminary to the final hearing, and it is to be hoped the views of the law officers of the government will not then be withheld.

We have, however, a much greater difficulty in the decision of this question, and one that is quite inevitable. It is founded on the fact that the question has become a question of politics, and the great parties of the country have divided upon it. People have not awaited the decision of the courts on the subject, and could not be expected to do so; but have studied and decided it for themselves, or have rallied, in opposing ranks, in support of leaders who profess to have studied it, or have done so. Our own history shows that our courts have no moral authority adequate to bring such divisions into unity. That sort of authority requires a much larger degree of mutual confidence between the courts and the people than is usual in our experience, especially in times of popular excitement.

All men believe themselves impartial in the decision even of party questions, and therefore it is impossible for them to abandon their decisions on the mere authority of any one, unless when they feel that authority to be final. Partiality in such matters seldom proceeds from any dishonest purpose, and generally arises from giving undue prominence to some purpose or idea that is in itself quite proper, and, of course, this is usually done quite unconsciously. In times of excitement it is quite impossible to avoid this, and hence, in such times, moderate views are very sure to be condemned, and even government itself, in all its departments, is sure to be driven into measures which, in the course of a few years, are condemned and pass away. With a sort of moral polarity, the extremes of social excitement breed each other, and moderation falls, for awhile, powerless between them; and usually it is only by severe social trials that this condition of society is remedied, and then it is discovered what were the purposes and ideas to which undue prominence had been given, to the disturbance of the order and harmony of the state.

On this question we ought to be able to avoid this vice, which is so common in all moral and political reasoning; for our appeal is to the constitution, a written standard, adopted by us all, sworn to by many of us, and obligatory on all who exercise the rights of citizenship under it, until they can secure its alteration in a regular and peaceable way. By that standard alone can we try this act. Is it authorized by the federal constitution?

That constitution, adopting our historical experience, recognises two sorts of military land forces — the militia and the army, sometimes called the regular, and sometimes the standing army, and delegates to Congress power "to raise and support armies" and "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." But though this act of Congress is intended to provide means for suppressing the rebellion, yet it is apparent that it is not founded on the power of "calling forth the militia," for those who are drafted under it have not been armed, organized, and disciplined under the militia law, and are not called forth as militia under state officers, as the constitution requires: Art. 1, 8, 16.

It is therefore only upon the power to raise armies that this act can be founded, and as this power is undisputed, the question is made to turn on the ancillary power to pass "all laws which shall be necessary and proper" for that purpose: Art. 1, 8, 18. It is therefore a question of the mode of exercising the power of raising armies. Is it admissible to call forced recruiting a "necessary and proper" mode of exercising this power?

The fact of rebellion would not seem to make it so, because the inadequacy or insufficiency of the permanent and active forces of the government for such a case is expressly provided for by the power to call forth the usually dormant force, the militia; and that therefore is the only remedy allowed, at least until it has been fully tried and failed, according to the maxims expressio unius est exclusio alterius, and expressum facit cessare tacitum. No other mode can be necessary and proper so long as a provided mode remains untried; and the force of these maxims is increased by the express provision of the constitution, that powers not granted are reserved, and none shall be implied from the enumeration of those which are reserved: Amendments 9, 10. A granted remedy for a given case would therefore seem to exclude all ungranted ones. Or, to say the least, the militia not having been called forth, it does not and cannot appear that another mode is necessary for suppressing the rebellion.

And it seems very obvious that a departure from the constitutional mode cannot be considered necessary because of any defect in the organization of the militia, for Congress has always had authority to correct this, and it cannot possibly found new powers in its own neglect of duty. Most of the presidents have repeatedly called the attention of Congress to this subject, and yet it has never been adequately attended to. I do not know why it might not have been performed since this rebellion commenced, and yet I do not know that it could.

Though, therefore, this act was passed to provide means for suppressing the rebellion, yet the authority to pass it does not depend on the fact of rebellion. That fact authorizes forced levies of the militia under their own state officers, but not for the regular army.

But it is not important that Congress may have assigned an insufficient reason for the law. If it may pass such a law for any reason, we must sustain it for that reason. The question, then, is, may Congress, independent of the fact of rebellion or invasion, make forced levies in order to recruit the regular army?

If it may, it may do so even when no war exists or threatens, and make this the regular mode of recruiting; it may disregard all considerations of age, occupation, profession, and official station; it may take our governors, legislators, heads of state departments, judges, sheriffs, and all inferior officers, and all our clergy and public teachers, and leave the state entirely disorganized; it may admit no binding rule of equality or proportion for the protection of individuals, states, and sections. In all other matters of allowed forced contribution to the Union, duties, imposts, excises, and direct taxes, and organizing and training the militia, the rule of uniformity, equality, or proportion is fixed in the constitution. It could not be so in calling out the militia, because the emergency of rebellion or invasion does not always allow of this.

But for the recruiting of the army no such reason exists, and yet, contrary to the rule of other cases, if it may be recruited by force, we find no regulation or limitation of the exercise of the power, so as to prevent it from being arbitrary and partial, and hence we infer that such a mode of raising armies was not thought of, and was not granted. If any such mode had been in the intention of the fathers of the constitution, they would certainly have subjected it to some rule of equality or proportion, and to some restriction in favour of state rights, as they have done in other cases of compulsory contributions to federal necessities. We are forbidden by the constitution from inferring the grant of this power from its not being enumerated as reserved; and the rule that what is not granted is reserved, operates in the same way, and is equivalent to the largest bill of rights.

No doubt it would be unreasonable to suppose that Congress would so disregard natural rights as to take such an advantage of this want of regulation of their power as that above indicated; but the fathers of the constitution did presume that some such things are possible, and therefore they would have regulated the mode, if such a mode had been intended. It needed no regulation, if all recruits were to be obtained in the ordinary way, by voluntary enlistments.

Our jealousy of the usurpation of dominant parties is quite natural, and has been inherited through...

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17 cases
  • United States v. Richmond
    • United States
    • U.S. District Court — Central District of California
    • 21 Agosto 1967
    ... ... Upon inspection, it was found to contain an article entitled: ... CONSCRIPTION AND THE CONSTITUTION: THE AMAZING (sic) CASE OF KNEEDLER V. LANE (pp. 708 to 712 inclusive) by J. L. Bernstein, Esq. of the New Jersey Bar ...         Upon its perusal, it has been observed that ... ...
  • Rowland v. Tarr
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 27 Abril 1972
    ... ... The Federal Enrollment Act of 3 Mar. 1863, ch. 75, 12 Stat. 731, was upheld in Kneedler v. Lane, 45 Pa. 238, 295 (1863). The Confederate Conscription Act of 16 Apr. 1862 (Const.Stats. CSA, 1st Cong., 1st Sess., ch. 31 (1862) was upheld ... ...
  • United States v. Sugar
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 10 Julio 1917
    ... ... I do not deem it necessary to discuss the subject further ... The language, however, of the court in the case of ... Kneedler v. Lane, 45 Pa. 238, ... [243 F. 436] ... where in an exhaustive and able opinion the constitutionality ... of the Civil War Conscription Act ... ...
  • State v. Adams
    • United States
    • North Carolina Supreme Court
    • 23 Marzo 1938
    ... ... immunity must show his authority. Poindexter v ... Greenhow, 114 U.S. 270, 5 S.Ct. 903, 962, 29 L.Ed. 185; ... Kneedler v. Lane, 45 Pa. 238 ...          The ... practice is now so firmly established as to admit of no ... questioning that, on a motion to ... ...
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