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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 away 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 for. mer 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 authorizing 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. o - 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, 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 gentlemen give a satisfactory answer to this question? The Constitution o: 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 eontend that the militia cannot be sent out of the United States, to answer this question. . But gentlemen say, that the Government has not power to send the militia out of the United States, because the Constitution defines the pur.
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 w; 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 provinces, which adjoin us. - - 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 under the present Executive of the United States; but, as our Constitution declares that “a wellregulated militia is the best security of a free
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 opinion, but had also declared to the House, that he understood that this was the opinion of the President of the United States. Had the gentleman reflected for a moment, it is presumed he 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 communications. *
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 insurrections, and to repel invasions.” 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 portion 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. 2d. To suppress insurrections. 3d. To repel invasions. 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
its own laws—this is an essential requisite in 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 people of the several States have thus, sir, clearly defined the objects and purposes for which we can call forth the militia: and lest, by implication, Congress might, at some time, encroach upon the rights of the people or of the 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.” 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 ‘nation or Indian tribe, it shall be lawful for the * President of the United States to call forth * such number of the militia of the State or States ‘most convenient to the place of danger, or scene ‘ of action, as he may judge necessary, to repel ‘such invasion, and to issue his orders,” &c. By the same act, the President is also authorized to call forth the militia, to suppress insurrections, and to execute the laws of the Union. 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
follows that the United States have the power to dispose of the persons and property of the whole country for the purpose of carrying on that war; and that, if it should be an offensive war, they have power to march the militia out of the limits of the United States for the purpose of foreign conquest. The arguments of the gentleman are ingenious, but destitute of any solid foundation. Congress, it is true, have the power to declare war; but where, let me ask, is that part of the Constitution which says that the power of Congress over the militia, is greater or more extensive in time of war than in time of peace? It cannot be pretended that there is express provision to this effect. It can arise, then, only, by implication. It is a new and strange mode of construing this instrument to say, that where special and limited powers are given on any subject, that these powers may be extended or enlarged, merely by the exercise of other powers given by the same instrument. I cannot, sir, for a moment, admit the position, that, in consequence of a declaration of war, Congress have the power of disposing of the persons and property of the country to the extent j for. To enable the United States to carry on a war, Congress are authorized “to raise and support armies;” “to provide and maintain a Nayy.” . These are the instruments by which the United States are enabled to carry on a war, either offensive or defensive. And when the territory of the United States shall be invaded by a foreign nation, in addition to these, the militia can be called upon to take a part in this defensive war, to repel such invasion. The power, sir, which the States have retained over their militia is the surest, nay the only effectual, safeguard of their rights, against the encroachments of the General Government. If Congress, in consequence of a mere declaration of war, have the power to order the militia of the States out of the limits of the United States for the purpose of foreign conquests, the State governments may not only be weakened, but they may be aii. If they can be ordered to Canada, they can be ordered to Jamaica, to the East Indies, to China, to Japan: And in this way a State may at once be deprived of all its effective force. the consequences of this new construction given to the Constitution in another point of view. So jealous were the framers of the Constitution of the power conferred upon Congress to raise and support armies, that they thought it necessary to place a check upon the exercise of this power, by providing “that no appropriation of money to that use should be for a longer term than two years.” . . - If the doctrine now contended for is to prevail, what check is there against the appropriation of money to support the militia in service for as long a time as Congress may think proper ? It is only to declare war; it is only for us to create the necessity for calling forth the militia, and then, sir, we may call them forth to effect the objects of that war, whatever they may be, for as
But, sir, let us attend to
may also appropriate money for their support, for as long a term as we think proper. And here, sir, permit me to call the attention of the House to this important distinction between the purposes for calling forth the militia, provided in the Constitution, and that which, by this new construction, we are called upon to make. By the Constitution we are not empowered to call them forth in consequence of any act of our own, but in consequence of the acts of others. When the laws of the Union are violated; when domestic enemies are arrayed against the General Government, and when the territory of the United States is invaded by a foreign nation, we then call the militia to our aid. , - * But, sir, the Constitution says to us, when you yourselves, by your own acts, by a declaration of war, or in any way, undertake to create the purpose or necessity for calling them forth, you shall not have the power, to do it; or, in other words, you shall not have the power to employ the militia in foreign conquests. Sir, the King of Great Britain, with whom rests the power of peace and
war, cannot send the militia out of the kingdom.
A gentleman from Maryland (Mr. WRIGHT) says that he is restrained by an act of Parliament. Agreed, sir; he is restrained from doing it by a superior power, by the power of the Parliament, which, in this respect, is superior to his. In this country, sir, the Constitution, which is the act of the people, restrains us from doing the same thing. - - ... I ask, sir, to address you, merely for the purpose of entering my protest against the principles and doctrines this day advanced by the gentleman from South Carolina; a olo, whose talents I respect; and whose opinions are entitled to no small share of weight in this House and elsewhere. The remarks. I have made flowed from the impulse of the moment, and were made without, premeditation and, without method, and I have been led, from the nature of the subject, to proceed further than I had intended. When we are, as many gentlemen have often said, during the present session, on the eve of a war, the avowed object of which is to take possession of Canada, I could not but feel alarmed, that such sentiments were entertained, not only by the gentleman from South Carolina, but, as he informs us, by the President of the United States, to whom the Constitution has committed the power of carrying on the war. Indeed, sir, my mind recoils at the idea, that my constituents, living, as they do, along an extensive seacoast, with their towns and villages exposed to the ravages of the first invader, might soon be liable to be called upon to leave their families and their firesides, and to risk their lives under the walls of Quebec. I could not, sir, refrain from expressing my opinion, that, by the Constitution, they could not thus be compelled, to march into a foreign country without their consent. But, sir, whatever acts we may pass on this subject, we cannot alter the Constitution; the people of the United States will judge whether they are in conformity
long a time as we may judge necessary; and wel with the powers which are delegated to us or not;
Monday, January 13. Mr. MilNor presented a petition of John Bioren, W. J. Duane, and R. C. Weightman, pray. ing the patronage and aid of Congress, in printing
a new and complete edition of the laws of the
United States.—Referred to a select committee. Mr. Milnor, Mr. CHEves, and Mr. GRUNDy, were appointed the committee. The Speaker laid before the House a letter covering a protest by James Dill and Peter Jones, two of the members of the House of Representatives of the Indiana Territory, against the memorial of that body praying Congress to admit the said Territory into the Union as a State, on an equal footing with the original States.—Referred to the committee to whom the said memorial has been referred. . - The SPEAKER also laid before the House a letter from the Secretary of the Treasury, transmitting a statement of public moneys now deposited in banks, and in what banks deposited, and showing the greatest amount in each bank, at any period, since the fourth of March last; and, also, the amount deposited in each bank, on the thirtieth of September last.—Ordered to lie on the table. Mr. Williams, from the Committee on the Military Establishment, to whom was referred the bill from the Senate, “for the establishment of a quartermaster's department,” reported the same with amendments; which were read, and, together with the bill, committed to a Committee, of the Whole to-morrow. On motion of Mr. SEYBERT, , , Resolved, That the Secretary of State be directed to lay before this House a list of the names of persons who have invented any new or useful art, machine, manufacture, or composition of matter, or any improvement thereon, and to whom patents have issued for the same from that of fice, subsequent to the twenty-eighth day of December, one thousand eight hundred and ten, with the dates and general objects of such patents; and also that the Secretary of State be directed to lay an annual report before this House, embracing the above objects. On motion of Mir. PITKIN, a committee was appointed to inquire whether any, and, if any, what alterations are necessary to be made in the actor acts. “concerning Consuls and Vice Consuls;” with leave to report by bill, or otherwise. .
Mr. Pitkin, Mr. BRecKENRIDGE, and Mr. Mit
chill, were appointed the committee. On motion of Mr. JENNINGs,
Resolved, That the Committee on the Public Lands be directed to inquire into the expediency of vesting in the Legislature of the Indiana Ter
ritory, such portion of the township of land lying
in the District of Vincennes, which was located by the Secretary of the Treasury for the use of a Seminary of Learning, as may be considered sufficient for the establishment of a Seat of Justice, in a contemplated new county, in the said Territory, by a division of the county of Knox.
Mr. Little called up his resolution respecting captures made by Great Britain of American vessels and property; but an amendment being moved to add “and any other Government,” some debate ensued, which was interrupted by Mr. Porter, who said, though the information which this resolution called for was desirable, he thought a discussion upon it ought not to prevent a progress with more important public business. He hoped, therefore, the resolution would be suffered to lie upon the table for the present, and that the House would take up the bill authorizing the President to accept of a volunteer corps. The motion was carried, and the House accordingly resolved itself into a Committee of the hole on said bill. Mr. Nelson rose and observed that he had caught so violent a cold since Saturday, that he feared he should not be able to make himself heard; and then proceeded for a few minutes with his remarks, but his hoarseness was so great that he was unable to proceed. Mr. Milnor said, that an opinion had been advanced and maintained in the debate upon this bill on Saturday last, by an honorable gentleman from South Carolina, (Mr. Cheves,) of so novel and extraordinary a nature, that he felt it his duty to oppose it; that he entered upon this duty reluctantly and unexpectedly, having hoped that during the remarks of the honorable gentleman from Virginia, (Mr. Nelson,) he would have been enabled further to arrange his ideas, or (what was to him still more desirable) have been prevented, by the lucid exposition of that gentleman, whose views on this subject Mr. M. understood to be congenial with his own, from at all troubling the Committee. The indisposition which prevented Mr. Nelson from proceeding, and which was much to be regretted, rendered it necessary that some other member should take his place upon the floor; which Mr. M. said he had ventured to do, although unprepared, and laboring under the disadvantage of having been unavoidably prevented from hearing a part of the argument of the gentleman from South Carolina. The opinion advanced by that gentleman was, that the President of the United States had a right to order the militia of the United States beyond the limits of the nation, for the purpose of foreign offensive hostilities. Had this singular sentiment been thrown out as a mere casual suggestion in the course of an animated debate, or proceeded from the wild and heated declamation of some of the actors on this floor, I would not, said Mr. M., have been at
all surprised. But, sir, I am alarmed by the respectability of the source from which this dangerous principle comes. It is given to us as the deliberate result of the reasonings of the cultivated and philosophical mind of a gentleman ranking high in the general estimation of his fellow members for political knowledge and personal integrity. It is propounded to us with great solemnity of language and of manner, and it is said to be supported by the sanction of Executive opinion. The President of the United States, we are told, feels no difficulty on the subject. . . " Mr. CHEves said, that his allusion to the opinion of the President was not from any personal conversation with that gentleman ; that it had
been mentioned to him on the floor, and he merely.
ve it as he would that of any other gentleman well able to construe the Constitution.
Mr. MilNor proceeded.—Putting out of the scale the weight of Presidential authority, that of the honorable gentleman himself, on a Constitutional question, is sufficient to induce an attentive examination of its soundness and propriety. It had been intimated by an honorable member from Kentucky, (Mr. Johnson,) that this discussion - was irrelevant to the subject before the Committee. The suggestion was not very complimentary to the member by whom the subject was introduced. But, said tant that the President, if this bill passes, should be under no mistake as to the views of this. House, with respect to the employment of the forces placed under his direction, and especially of that part of them which consists of militia. I am, for one, not willing to confide wholly to the President the decision of this important question. I am not apt, Mr. Chairman, to sound alarms, but I have always thought there was great safety in constantly watching for the preservation of the great charter of our liberties, and in maintaining an extreme sensibility to the slightest proposed infraction of its valuable provisions. The gen
tleman from Virginia, (Mr. Nelson,) in his pref
atory remarks, noticed the variety of opinion which has been entertained, as to the mode of construing the provisions of the Constitution, imputing to the Federalists a disposition to favor an enlarged construction, with a view to the increase of the powers of the General Government, and the contrary inclination to the party with which he generally acts, There are, certainly, extremes upon this as upon every other subject. It was manifested in the debate on the question of granting a charter to the Bank of the United States, where Congress refused to exercise a power, in my opinion, necessary for carrying into effect those expressly delegated. There may have been too much liberality of construction, on the other hand, sometimes applied. The true medium lies in not
granting to the Government any powers but those
expressly detailed in the Constitution, or una
voidably incident, and, in the language of the in
strument itself, “necessary and proper for carry
‘ing into execution the powers vested by it in the
* Government of the United States, or in some
‘department or officer thereof.” . This is the prin*
r. M., I consider it all-impor
still rests with themselves. The powers referred
to are limited and restricted, both with respect to their operation on the people and upon the governments of the particular States; and the peculiarity of the provisions of the Constitution inparting these powers, as well as the known jealousy as to their extent, which existed at the time of its adoption, clearly prove that the Convention never intended to bestow, by implication, upon the General Government, powers greater than those expressly given. In reference to the enormous one suggested by the gentleman from South Carolina, it is too much to suppose that that wise and patriotic body intended covertly to give an implied power, which, if only done, would have hazarded the adoption of their great work by the several States of the Union. Sir, I can scarcely think that the Federalists, who exerted themselves at that time of day in its favor, would have done so, had they believed it to include in its grant of powers the dangerous one contended for by the honorable member from South Carolina. Do I improperly term it a dangerous power? Is it too strong a term for a prerogative supposed to be vested in the President of sending the freemen of this country—as it was correctly stated by my honorable friend from Connecticut on Saturdaynot only to the Northern and Southern limits of this Continent, but to any part of the immense regions of Europe, Asia, or Africa? If, from the nature of our Government, founded as it is in compact, and restricted in the exercise of its power, both as regards the independence and rights of the State governments, and the liberties of the people, it be—as I contend it is—a violation of its principles to invest those who administer its concerns with powers not expressly granted, or necessary to carry into execution those that are, then it becomes us to examine the Constitution itself, to ascertain whether it contains any provision to which a construction favorable to this doctrine can fairly be given. On all subjects which actually engaged the attention of the Convention, on which they unquestionably delib; erated and acted, and have given us the result of