JANUARY, 1812. Volunteer Corps. H. OF R. gress from the rest of the militia, for the purpose of giving to the President powers which 'the Constitution expressly denied, and an influence the most dangerous that can be conceived to the peace, liberty, and happiness of the United States."] of power, is only authorized to use them in the case expressed-a public and declared war. It was, therefore, deemed necessary or expedient to grant to the Government of the Union a power to require the services of the militia in certain other cases, and therefore was inserted the clause' giving power to Congress to call forth the mili- But, putting the Constitutional question as to tia, to execute the laws of the Union, suppress mere actual power out of view, the spirit of the insurrection, and repel invasion. Here, accord-Constitution, in this case perhaps of no less imingly, we see invasion coupled with cases which portance, would be essentially violated. The have no possible connexion with foreign or na-amendment proposed a force which would be, in tional war. This clause, then, is not a restrain-everything but name, a regular force. Such ing clause, but one giving further and other pow-armies, in any shape, were not congenial to a free ers than those contained in the general power to Government, but this was the most dangerous declare and make war. Without this power the possible shape in which an army could be estabGovernment of the Union would have no right lished. When you raise a regular army, do it by to call forth the militia of the United States to that name, and the danger of it will be greatly repel an invasion immediately on the emergency, diminished by that reasonable and salutary jealbefore war could be declared; which, should Con- ousy, which it will never fail to excite; but give gress not happen to be in session, would require it this equivocal form, and you lull to sleep this a previous call of that body, and a consequent best guardian of our Constitutional liberties. dangerous delay. But, it is said, that if the Gen- But, if there be any gentleman, who, feeling eral Government have a right to send the mili- the force of these objections, is yet desirous of tia whithersoever the objects of a war may relieving the Chief Magistrate from the embarlead them, it will diminish the rights of the rassment of any doubt that may exist of the power States, and oppress the citizens of the country. of the General Government to use the militia out The first of these evils must be unfounded in of the limits of the United States, Mr. C. would fact, for it is to substitute the peculiar force of say to him, that he believed the Chief Magistrate the States for a regular standing army of the had no difficulty on the subject. Mr. C. had United States; which must, consequently, in- been informed that he had no doubt of the power crease their security, and extend, not diminish, of the General Government to march the militia their power. The other of these evils is the without the limits of the United States. But, consequence of a power which must rest some whatever may be his opinion, it is not for this where in every Government, and which is little, House, by a legislative act, to declare his Constiif at all, to be feared in a free one. The volun- tutional duties. He must, and ought to be left to teer militia, then, proposed by the bill, can be act under that high responsibility which is atused in the contemplated war for the object in-tached to his office. No man in the United tended; they can be sent out of the United States, States understood the Constitution better, and and, therefore, the amendment is unnecessary. those who thought as highly of him as Mr. C. did, would be assured he would discharge his duty in this particular with firmness and with judgment.. Should it be determined that this force cannot be sent out of the United States, we may not be able so soon to conquer Canada, but we shall save the Constitution." Mr. C. had other objections to the proposed amendment. It provides that the officers shall be appointed by the President, and under them the volunteers must cease to be militia. But they are not to be called into service but on a contingency, and are, in the meantime, to continue in the mass of the citizens, where they will be Mr. C. said, it appeared to him very doubtful bound to do militia duty; yet this law proposes whether it would be good policy to take possesto exempt them from it. They are precisely like sion of the open country of Canada, with militia the exceptionable corps of 1798, which were then or volunteers, if we could not proceed immeloudly proclaimed to be unconstitutional; nor diately afterwards with a regular force to the was this said only in the fervor of debate, and attack of Quebec ; or, at least, substitute the miliunder the influence of party feelings. But the tia, with a competent number of regulars to keep same opinion has been declared by a grave and possession of the country. It would neither be learned judge, in the recess of his closet, as the safe nor economical to perform this service with result of unimpassioned deliberation. In a treat- militia. It would require a great increase of ise on the Constitution of the United States, by numbers, and, however brave, they would be unJudge Tucker, contained in his edition of Black-fit for the discharge of camp duty; they would stone's commentaries, written with learning and be peculiarly exposed in their quarters to surprise ability, he has declared the act of '98 to be uncon- and attack, by the active, rapid, and persevering stitutional. [Here Mr. C. read an extract from enterprise of regular, disciplined, and veteran Tucker's Blackstone, in which the writer de- troops; more would fall by the diseases of the clares, that as these corps were to be officered by camp than by the sword, and in every one would the President, but not called into service, "it be lost some valuable member of a family. Be'seems impossible to consider them in any other fore you enter Canada, said Mr. C., you ought to 'light than as a part of the militia of the States, have such a number of regular troops as will enseparated by an unconstitutional act of Con-able you to keep possession of the open country. 12th CoN. 1st SESS.-24 These you must increase till they are sufficiently numerous to enable you to sit down before Quebec. Until you take Quebec, you are not securely in possession of a foot of the country. Of what advantage would be a precarious possession of the open country? You do not go to plunder it, but to adopt the inhabitants as brethren and fellowcitizens. The injury done to the enemy will not be equivalent to the expense you will incur. For his part. Mr. C. said, while he thought the right of the General Government to use the militia for the general purposes of war vitally important to the Union, he never wished to see them used in offensive war, except in unexpected emergencies; and then, if possible, in aid of regular troops. JANUARY, 1812. President of the United States, and that the laws will be faithfully executed. Sir, I presume that there can be no doubt that any citizen can bind himself as a regular for five years, and if so, can there be a doubt that he can bind himself as a volunteer for one year. My logic has taught me that every greater power includes every lesser, and that to become a volunteer for one year is as positive a right as to become a regular for five years. Mr. TROUP said, it was evidently an object with the Convention who formed the Constitution to repress, as much as possible, in the new Government, the power of making conquests. History had informed them that conquests had always been injurious to every country which had engaged in making them; they, therefore, by their provisions, endeavored to repress this spirit. They say, in so many words, "If you will indulge in this spirit of conquest, which has been the bane of every nation which has indulged in it, you shall carry it on by an army, and an army only." And why? Because an army could only be raised by putting the country to great expense, and this was the limitation which the Convention thought proper to put to the spirit of conquest. A large army, maintained for this purpose, would be viewed with jealousy by the people of the United States; and of this the members of the Convention were well aware. There was, on Mr. WRIGHT.-Mr. Chairman, I will subjoin a few remarks to those so well made by the gentleman from South Carolina (Mr. CHEVES.) Sir, by the Constitution, section three, "the President shall take care that the laws be faithfully executed." By the second section, "the President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States." Thus we see that the President is, in the same section, made Commander-in-Chief of the Army and militia. The section which has just been urged by the gentleman from South Carolina, authorizes Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrec- the face of the Constitution, Mr. T. said, an obtions, and repel invasions." Sir, when the Con-vious distinction made between the Army and vention gave the President the power of com- militia. Power is given to Congress to raise manding the Army and Navy, and the militia of armies. For what purposes? For all military the United States, they intended him so to com- purposes. Congress shall have power to call out mand them, as in the best manner to execute the the militia. For what purposes? To suppress laws of the United States, to suppress insurrec-insurrections, execute the laws, and repel invations, and repel invasions, and submitted to his discretion the manner in which this can be best effected. Sir, there is another section by which Congress have a power "to declare war." This declaration sir, is, by an act of Congress, a law of the United States, which the President is solemnly bound to execute. How, sir, I will ask, is this law to be executed? War is the applying the force of the nation to the annoyance of their enemy. It has been well defined "an experiment which can do the other the most harm." It is well known that the force contemplated was declared publicly to be "for the invasion of Canada." There, then, can be no doubt with the President as to the object of the force, and the legislative authority of Congress to raise the force and direct its application. The question is, how shall this volunteer corps be commissioned? It would be violative of the Constitution to authorize the President to commission the officers. This patronage was thought dangerous, and was consequently vested in the State governments. I therefore, for myself, feel no difficulty in voting for this volunteer bill, which contemplates the appointment of its officers by the State governments; nor can I feel a doubt that the force raised by this bill for the express purpose of the invasion of Canada, will not be applied to that object. I have the utmost confidence in the sions. If it had been the design of the Convention to have given Congress the same power over the militia as over the Army, would they not have said so in express terms? But there was another good reason for withholding this power from Congress. The States relied upon the mili-, tia for their protection against any attempt at usurpation by the General Government. If gentlemen will turn to one of the amendments of the Constitution, they will find it declared, "that a well regulated militia is necessary to the security of a free State." But there is another wide distinction between the Army and militia, from the different characters of the persons who compose the two bodies. What are the militia? They are yeomanry; citizens of the country, called from their homes and their families, in cases of emergency, for the defence of their country. Would it be reasonable to vest the power in Congress to carry these men from their homes and their families, for for[eign invasion or foreign conquest? It could not have been the intention of the Convention that these men might be shipped off against Jamaica or Vera Cruz-for if, by any construction of the Constitution, the militia can be sent one foot beyond the limits of the United States, they might be sent to Chili or Paraguay. If, then, the militia cannot be sent out of the country, and these volunteers are militia, neither can they be so disposed of. But are they militia? He did not know how they could be distinguished from them. They now form a part of the militia, under the officers of the respective States, and they are so to remain. They are, therefore, volunteer militia, and nothing else. But gentlemen say, these volunteers can be marched out of the country by their own consent. Will consent make any difference? Will it make an act of Government Constitutional which, without it, would be unconstitutional? The Government of the United States and these volunteers are not the only parties concerned. The people of the United States were the makers of the Constitution, and not these individuals and the General Government; and the respective States cannot surrender their militia, which they have a right to hold for their own security. But the gentleman from the State of Maryland (Mr. WRIGHT) says, that the militia may be called out by the General Government to execute the laws; that the President may be authorized to take possession of Canada by law, and that the militia may be called upon to execute this law. This, he considered as an unfounded construction of the Constitutional provision. It was surely never meant that the militia should be called upon to execute the laws without the Union, but within it. The law alluded to by the gentleman would be a declaration of war, and not a law of the Union, for the execution of which the President has power given to him to call out the militia. If the militia can be called out to repel invasion, they can be called out to the seaboard or garrisons, for the purpose of repelling invasion, whenever well-founded apprehensions are entertained of such an event; and if they go beyond the territory, it would be no less an act of repelling invasion than was the first onset. If, said Mr. T., these volunteers are to be or ganized as regular troops, not for five years, like the other regulars, but for one year, then whatever men enter the service of the country, will go into this corps; and the army provided by law to be raised, would not be enlisted. H. OF R. be hereafter employed as emergencies may require. It is my duty in all cases to pursue the Constitution of the United States; and, relative to commissions, it will be seen that the President is authorized to commission officers of the United States, whose appointments are not thereby otherwise provided for, and which shall be established by law. By the Constitution, is reserved to the States, respectively, the appointment of the officers of the militia, employed in the service of the United States, and not only to commission the officers of such militia, but also to fill up vacancies which may be among the militia when in actual service. It may then be proper to omit, at the present moment, the future direction of the force contemplated, and go on with the bill as soon as possible. Every gentleman knows that Congress have power to provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions; and it may also be known, that the States have to themselves respectively reserved the power to commision the officers of militia so called out. The Constitution admits only two species of forces-a regular force and a militia. The President is empowered to commission, with consent of the Senate, all officers of regular forces; but to the States is reserved exclusively the right to commission officers of the militia. In this case, then, it is my duty to vote in pursuance of the Constitution, so that so far as that will go, the sovereignty of the respective States shall not be infringed nor impaired. Mr. FISK could not consent to raise any military force without having in view the object for its employment. It was an objection to the laws of 1798, for this purpose, that they had no definite object. We must always have an object in view when we propose to raise a military force, or our conduct would be absurd. We all know the object at present, and the inquiry is, whether or not the force contemplated by this bill will be effectual? He believed it would not. The gentleman from Georgia (Mr. TROUP) had taken a Constitutional view of this subject, to which he had nothing to add. With respect Mr. T. was willing to authorize the President to the danger which some gentlemen appeared to to accept of the service of fifty thousand volun-apprehend from placing these volunteers under teers for the defence of the country, under the bill as it now stands, which would leave the Government at liberty to send the regular troops abroad, if they found it necessary to do so. the President, it was certainly imaginary only; for the President has the power of calling out the whole of the militia, of which he is commander. Where, then, is the difference? But, if the bill remained as at present, there would be great difficulty in filling up vacant offices. By the laws of several of the States, the platoon officers are elected by the soldiers; and if any of these officers fall in Canada, how are their places to be supplied? In the bill, as proposed to be amended, there would be no difficulty on this score. Mr. RHEA.-Mr. Chairman, it is my sincere wish that we could get on with this bill in some mode. The only question arising on this subject and giving cause to this debate is, by whom shall the forces, contemplated to be raised by this bill, be commissioned? Whether by the respective States, or by the President of the United States? In making up my opinion on this subject, I will It was an easy matter to discriminate between not take into view to what object the contem- volunteers and militia. It is the character of a plated force may be directed. Let that be a sub-militiaman to remain at home, under his officers, ject of future consideration. There appears no necessity to consider that question now. Let the force be put in the power of the President, and except called upon for some particular service; but a volunteer, of his own choice, throws off the character of a militiaman, and assumes that of a H. of R. away Volunteer Corps. volunteer, to serve under officers to be appointed by the President, and to march wherever he is commanded. This would be certain ground. clear of Constitutional objections. As to taking the defence of the States, the States are not privileged to any particular number of militia; many of our regulars are always enlisted from militiamen. It was not likely that so many of the militia of any State would volunteer their services as to leave the State destitute of sufficient for its own defence. Mr. CLAY (the Speaker) observed, that he had stated to the Committee of the Whole, on a former occasion, that he was in favor of an exertion of the national energies in every form, in prosecution of the war in which we are about to engage. He was consequently in favor of author, izing the President to accept of the service of a volunteer corps. The difference of opinion on this subject arises from the structure of this force, or rather as to the manner of commissioning its officers. Mr. C. acknowledged he had not fully investigated the subject; but his present impressions were, that, in cases of emergency, the nation is at liberty to use the best security of the people, whether in the form of ordinary militia or volunteers, in any manner that may appear best calculated to preserve the public interest. He did not think full justice had been done to the able view taken of this subject by his intelligent friend from South Carolina (Mr. CHEVES.) The power of declaring war, of making war, would seem to carry with it all the attributes of making war. The gentleman from Georgia, (Mr. TROUP,) to whom he always listened with pleasure, objected to the power contended for, because it might possibly be abused by sending the militia to a distant foreign country. What the Government had the power to do, and what might be deemed expedient, were very different. JANUARY, 1812. poses for which alone they shall be used, viz: "to execute the laws of the Union, suppress insurrections, and repel invasions." Mr. C. said he would call the attention of the Committee to two clauses in the Constitution already noticed, but not for the same purpose. Congress is "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." What service? For repelling invasion? Does not "the service of the United States" mean any service to which that particular force is applicable? If not, the language would have been, "as may be employed in executing the laws of the Union, suppressing insurrections, and repelling invasions." Again, the Constitution says: "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States." What service? The service is spoken of generally, and means, no doubt, any service to which physical force is applicable. If intended only to apply to the three cases above specified, why were they not enumerated, instead of speaking of the service generally? In one of the amendments to the Constitution it is declared, That a well-regulated militia is necessary to the security of a free State." But if you limit the use of the militia to executing the laws, suppressing insurrections, and repelling invasions; if you deny the use of the militia to make war, can you say that they are "the security of a State?" He thought not. Gentlemen ask, will you carry the militia out of the United States, for the purpose of making foreign conquest? That is not the purpose for which this volunteer force is wanted. They are wanted in a war of defence. In making the war effective, conquest may become necessary; but this does not change the character of the war; there may be no other way of operating upon our enemy but by taking possession of her prov What is the argument? The militia cannot be sent out of the United States, because there is no power given in the Constitution of the General Government for this purpose. Will gentle-inces, which adjoin us. men give a satisfactory answer to this question? The Constitution declares Congress shall have power to raise armies and navies; but there is no power given to the Government to send them beyond the jurisdiction of the United States; yet no one will say that it was the intention of the framers of the Constitution to restrict the Government in the use of the Army and Navy. Whence, then, is the power derived but from the general power of making war, and, of course, effective war? And, if the general power of making war gives to Government the right of using the Army and Navy without the limits of the United States, why may not the same general power give the same authority with respect to the militia? He desired those gentlemen who contend that the militia cannot be sent out of the United States, to answer this question. The single difference between the two bills is, who shall have the power of making the officers. The proposition for vesting the power of appointing the officers in the President, considering the volunteers as militia, is unconstitutional, as the power is vested in the several States. But gentlemen say, call the force what you will; call it a militia force, or a regular force; let the officers be appointed by the respective States or the President, it matters but little. No man, Mr. C. said, had a higher opinion of the exalted virtues and eminent patriotism of the President than he had. But we ought to be cautious in setting precedents; bad precedents are always imposed in good times. Though the power might not be abused at present, it might hereafter be made use of for the worst purposes. He should have no fear from placing one hundred thousand men But gentlemen say, that the Government has under the present Executive of the United States; not power to send the militia out of the United but, as our Constitution declares that "a wellStates, because the Constitution defines the pur-regulated militia is the best security of a free JANUARY, 1812. Volunteer Corps. H. OF R. State," he should choose rather to leave the ap-its own laws-this is an essential requisite in pointment of the officers of these volunteers in the States respectively. every Government-it was proper, therefore, that Congress should be authorized to call forth the militia in aid of the civil power to execute the laws of the Union. It was equally important, also, that the United States should have the power of preserving peace and tranquillity within their limits, and of securing themselves against domestic enemies. Very wisely, therefore, were Congress empowered to call forth the militia, or the whole force of the country, for the purpose of suppressing insurrections. And, sir, the United States might require the aid of the militia, not only to execute their laws and to secure themselves against domestic faction, but also for the purpose of defence against an invading foreign enemy. In this last case, therefore, Congress are equally authorized to call upon the militia for assistance. The difficulty which the gentleman from Ver mont had suggested, as to the appointment of officers to fill the places of such as may become vacant, might be provided for by an amendment. Mr. PITKIN said, that he rose to express his astonishment at some of the doctrines which have just been advanced on this floor, and particularly by the gentleman from South Carolina, (Mr. CHEVES ;) doctrines, to him, not less strange than novel. That he could not but feel alarmed when he heard it declared that the President of the United States, under the sanction of a law of Congress, has the power to send the militia of the several States beyond the limits of the United States for the purposes of offensive war; and that alarm was increased when the same gentleman had not only said, that this was his own The people of the several States have thus, opinion, but had also declared to the House, that sir, clearly defined the objects and purposes for he understood that this was the opinion of the which we can call forth the militia: and lest, by President of the United States. Had the gentle- implication, Congress might, at some time, enman reflected for a moment, it is presumed hecroach upon the rights of the people or of the never would have mentioned in debate, that such was the opinion of the President, on this or any other subject before the House, as, according to the known rules of order, we are not to be informed of the opinions or wishes of the President of the United States, except by his official com munications. States, it is provided by an amendment to the Constitution, as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It will be observed, that Congress have power "to provide for calling forth the militia," &c. In pursuance of this authority, acts were passed in 1792 and 1795. The title of the last act is in the very words of the Constitution: "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." But, sir, whatever may be the opinion of the President, or any other person, on this subject, I cannot refrain from expressing my most unqualified dissent from such a construction of the Constitution. The power of the General Government over the militia of the several States is clearly and precisely defined in the Constitution itself. Thus: Section 8-"Congress shall have power to provide for calling forth the militia, to execute the laws of the Union, to suppress insur-nation or Indian tribe, it shall be lawful for the rections, and to repel invasions." By this act provision is made, "that whenever the United States shall be invaded, or be in im'minent danger of invasion, from any foreign 'President of the United States to call forth tions, and to execute the laws of the Union. The Convention had many difficulties to encounter in the formation of the Constitution. Thirteen distinct and independent States, or sovereignties, by their delegates, had met for the purpose of forming a more perfect Union, and of giving up a part of their State rights, and a por-ized to call forth the militia, to suppress insurrection of their sovereignty, to the General Government. It cannot, for a moment, be supposed, that when they were granting to this General Government extensive and important powers, they should be inattentive as to the extent of the power with which they should invest the Government over their militia. They would leave nothing for construction on the subject. They, therefore, agreed, that in three cases, and in three cases only, Congress should have any power or control over the militia of the States: 1st. To execute the laws of the Union. The reasons for vesting the United States with power over the militia, to this extent, were obvious. It was important that the General Government should have the power of executing Neither the framers of the Constitution, nor the statesmen who passed this law, have ever entertained the idea that Congress had the power to employ the militia of the States in foreign conquest; that no such power was ever granted to the United States, I have been taught to believe ever since I have had any knowledge of the Constitution or its principles; and certain I am, that such an idea has never, until this day, been advanced on this floor. But, Mr. Chairman, it is said by the gentleman from South Carolina, if I rightly understood him, that this provision of the Constitution refers solely to a state of peace; that a new state of things arises from the moment that Congress declares war; that, after a declaration of war, which is one of the highest acts of national sovereignty, it |