justice, or rather injustice, which furnishes arms and equipments, rations and wages, to the unarmed soldiers of some of the States, while it refuses provisions and payment to soldiers, well armed and equipped, who are called forth to defend others, and afford that protection which the United States had expressly guarantied to them, but have totally neglected. An attempt is made to justify this refusal, on pretensions the most unfounded and illegitimate, on pretensions set up in violation of that principle in the Constitution which insures to the respective States the appointment of the officers of the militia. I have said that the authority of the United States to govern the militia exists only when the militia is in their service. The United States cannot govern the militia, cannot train them, until in their service, and even then the States, respectively, have the exclusive power of appointing their officers. The Constitution makes but one exception to this exclusive power, that is in favor of the President of the United States, who is declared to be Commanderin-Chief of the militia, when in the actual service of the United States. There is not a tittle of authority for any other officer of the United States to assume the command of the militia. Thus sacredly is the right of the several States to their militia guarded and secured. There is no power of the individual States, so positively and emphatically reserved. The other powers of the several States depend on the principle, that what is not granted is retained, confirmed by an express stipulation, that the powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people; but this authority of the respective States over their militia, recognised in the Constitution as "necessary to the security of a free State," over and above the force attached to it by this sound principle, is guarantied and hedged about by all the securities and guards that language could prescribe; and if it can be invaded, and by the honorable members of this Senate, the Constitutional guardians of the rights and sovereignties of the States, there is an end of all security from Constitutions on paper, and we may resign ourselves to the contempt and ridicule of the weakest as well as the wisest of men. All the other offspring of their sovereignty they had resigned, and have already attended them to that grave which has swallowed up much of the honor, most of the property, and all the public credit of the nation. This the States would not surrender, but in great emergency, and for very limited periods, always keeping them within their own sight, under their immediate and vigilant inspection, and under the peculiar care of officers in whom they had a special confidence, and who could look to them alone for patronage and support, that the affections of the men might not be alienated from their parent State. On this force do the States depend for protection and support, in every peril that can be imagined from domestic violence or foreign invasion, and in that dreaded event, which God grant may never happen, of 13th CoN. 3d SESS.-4 SENATE. the powers which they had surrendered being turned to the destruction of their own liberties. Every one, sir, who will attentively examine and consider the language of the Constitution; who will bring to his mind, either by recollection or reading, what passed in the several States when this instrument was presented to them for acceptance, will be satisfied that I have not misconceived nor misconstrued the views of those who framed, or of those who ratified, this grant of power to the United States. As there is no pretence that insurrections exist, or that the laws cannot be executed, and there is reason for expecting invasion, it is presumed that the bill is bottomed on that clause of the Constitution which authorizes Congress to provide for calling forth the militia to repel invasion. On this ground it is to be inferred, for the bill nowhere mentions this to be the object of the requisition which it authorizes the President to make for eighty thousand militia, to serve for two years. The service to which they are called, according to the title, is to protect the frontiers against invasion. Now, sir, I contend Congress has no authority to provide for calling forth the militia, to serve for two years, in protection of the frontiers. Congress shall have power to provide for calling forth the militia to repel invasion. What is the intent of the terms of the Constitution which grant this power, compared with the other provisions of the instrument, and the duties of the United States? To repel invasion, means to resist and drive back a sudden and hostile incursion. On an expected irruption, the militia might naturally be presumable to be the only force at command; and, from the interests they had at stake, might be expected to act with promptitude and vigor. Experience had shown that to such service, short in duration, sudden and urgent in emergency, they were well adapted; while for long campaigns, and extended times of service, they were altogether unfit. Unprepared by discipline, by regular and constant subordination, to support the fatigues and privations of a camp, such a force would be most incompetent to discharge the duties of protracted warfare. The militia consists of men of all professions and of all conditions. The enterprise of the merchant, the useful and indispensable labor of the agricul turist, the steady diligence of the mechanic, are all sacrificed by calling them to act the part of soldiers, for which most of them are singularly disqualified, and all their various branches of productive industry are ruined, to do that badly which a small portion of their earnings could procure to be well done. The Constitution never intended that the militia should prosecute the general purposes of war; it did not intend that this should be the force relied on for permanent defence and protection against invasion; for the instrument expressly guaranties to every State, that the United States would protect each of them against invasion. Such protection could be afforded only by ships of war, and fortresses, well armed and manned. This could not be done by the militia of the several States, over which the United States have no control, except a very limited one, and in certain specified cases, which do not include that of protecting against invasion, but only that of repelling invasion which actually exists. The section that insures to each State protection against invasion, confirms the meaning I have given to the terms repel invasion. The United States are bound, not only to protect each of the States from invasion, but also to provide for the common defence. This cannot be done by the militia, but must be by regular armies, which they have power to raise for any length of time, on whatever conditions they may please to prescribe, and under whatever officers they may choose to appoint. The militia does not belong to the United States; they cannot even train them, nor appoint their officers. The militia belong to the several States. It is called the militia of the several States in the very clause of the Constitution which constitutes the President Commander-in-Chief of this force when in the actual service of the United States. NOVEMBER, 1814. the Constitution authorizes a call by the United States for the militia of the several States. Although the men may possibly be suffered to repel an invasion, this is nowhere mentioned as any part of their duty, or any portion of the service they are expected to perform. They are called out generally for the defence of the frontiers, that is, to protect against invasion, a duty specially imposed on the United States, by an express provision of the Constitution, and one very different from that, viz: to repel invasion, which the militia is bound to perform at the requisition of the United States. I therefore cannot refrain from pronouucing this bill unconstitutional, and in derogation of rights positively reserved to the several States. The second section provides for classing the men, and procuring the number wanted, by contract or compulsion. The United States have no authority to govern the militia, or even to train them, until they are in their service. This right is reserved to the States respectively. By this bill the United States undertake to govern the militia previously to their Nothing could be more strange than to suppose being brought into their service, and to direct the that the Constitution imposed a duty of this im-mode by which they shall be called forth, that is, portance on one power, and looked to the forces to distribute the whole militia of each State into of another for its performance, over which forces classes, and oblige each class, voluntarily raised the power on whom this obligation rested had by their order, to hire a man, or submit to a not so much control as to appoint their officers, draught. or even train them. It would be equally strange, and more unjust, to presume, after the several States had granted to the United States unlimited powers to raise armies, and resources competent to meet the expenses, in return for which the United States obliged themselves to provide for the common defence, and to protect each State against invasion, that the United States could rightfully call on the several States to make this common defence, and protect themselves respectively against invasion, with the very force which, in terms the most unequivocal, they had reserved for their own purposes. The language of the Constitution never can be tortured into such absurd contradictions, nor to effect such manifest injustice; yet this bill can be supported on no other construction. It authorizes a requisition on the several States for their militia to defend the frontiers, that is, for the common defence, and for the protection of each State against invasion. Duties the United States have solemnly contracted to perform for those States, on whom the call is now made to do it for themselves. Further, the bill authorizes the President to make this requisition of militia to serve for two years. There is not a particle of authority in the Constitution to justify a call for their service for two years. When the object contemplated in the Constitution is attained, the power of the United States ceases. Its authority over the militia is spent. If you can require them for two, you may for ten years, during the war, or for life. Neither in terms nor in fact, is this requisition made, to provide for any of the cases in which This is the first step on the odious ground of conscription; a plan, sir, which never will and never ought to be submitted to by this country, while it retains one idea of civil freedom-a plan, sir, which, if attempted, will be resisted by many States, and at every hazard. In my judgment, sir, it should be resisted by all who have any regard to public liberty or the rights of the several States. This provision to class the militia into divisions, and take from each an individual by compulsion, will appear to be introduced merely for the purpose of familiarizing this arbitrary and tyrannical process to the minds of men, by making the first motion, in a manner presumed to be the least disgusting, under the direction of State officers, and only on the militia, for purposes pretendedly legitimate, as respects that body, and for an object the most interesting to them, the defence of their own firesides. The people readily discern that the next step will be for a conscription. for any purpose, and by any individual designated by the General Government. The honey on the edges of the cup will not disguise the bitterness of the venomous drug at its bottom. The veil, sir, is too thin to conceal the hideous monster, which to be hated, to be avoided, to be destroyed, needs but to be seen. I know of no purpose, I can conceive of none for making this bill, but to introduce provisions as the ground-work for other schemes, which have been introduced a little prematurely, and before this deluded people can be brought to receive the last chain, which shall bind them to the unrelenting will of despotism. Laws are now in full force, which provide for bringing forth the militia, in all the cases authorized by the Constitution. These have been sanctioned by time and experience, and the provisions have been found competent to their object. There never has been, as I can learn, the smallest objection in a single State to rendering prompt obedience to any call for the militia, deemed legitimate by those on whom it was made, and whenever the requisition has been assented to, there has been no delay, no tardiness, no inability in the uncontrolled and unassisted power of the States to bring forth the militia demanded. They need neither your direction nor advice how to comply with Constitutional requisition. And they will not suffer your interference in a business which they consider, and rightly consider, their own. There is a section, sir, which after all the pretence to provide a local force, for the defence of the homes of the militia, shows the whole to be a delusion. A large porch is made, and fine scaffolding erected, merely to introduce the General Government to the private purses of individuals to aid them in filling the ranks of the regular Army; leaving the several States, as they always have been, to take care of themselves, while the force on which they depended is marched off to perish in the wilds of Canada. Finally, the several States, previously to the Confederation, held their respective militias in undiminished sovereignty; under the Confederation, the several States were bound to keep up a regulated and disciplined militia, sufficiently armed and accoutred; but the supreme control over this force remained with them, respectively, and unaltered. In this condition they were, when the existing Constitution was adopted. SENATE. purposes, and apply it to uses which the United States are bound to provide for by other means? All the articles of a league, or confederacy, have the force and nature of reciprocal promises and of conditions, which, by a default, are rendered null With a deep sense of the importance of this Union to the happiness and prosperity of all its members, I am bound to resist any infraction of the ties which unite them together, in order to render perpetual that, which seems to be dissolving under us. In such motives, and in support of the dearest interests of the nation, the House will find the grounds of my opposition to this bill. The only thing wanted from Congress in relation to the militia, under the existing laws, is a provision for receiving into the employment and pay of the United States, at the discretion of the President, such bodies of State troops, for such terms and under such conditions as any of them may consent to raise. An honorable friend of mine, from the State of New York, now detained from this House by indisposition, anxious to afford his aid in providing for the defence of the country by all Constitutional means, on Saturday last offered a motion, with this view. The honorable chairman of the committee which introduced the bill, declined to receive it at that time, and preferred to consider it on the third reading of the bill. He being unable, for the reason assigned, now to submit the motion, I take the liberty to offer the same, which is in the following words: "That the committee be instructed so to modify the bill that it shall provide for calling into the service of the United States, from time to time, in execution of "Every right, power, or authority, not delega- the provisions of the Constitution, and according to ted by the Constitution to the General Govern- the mode heretofore practised, thousand militia, ment, nor prohibited by it to the States, is re- to serve for terms not exceeding nine months; with 'served to the States respectively." No general an option to the several States, in lieu of such detachpower over the militia was delegated to the Uni- ments of militia, to raise and furnish, for the service ted States. The only power delegated in this re- of the United States, for the term of two years, unless spect was a limited authority, in three cases. The sooner discharged, bodies of State troops equal in United States can exercise no other. If they atnumber to their respective quotas of militia; such tempt to extend an authority beyond the grant, according to law; their officers to be appointed by the State troops to be organized, armed, and equipped, the several States have a right, and are bound by respective States; their services to be limited within duty to their own citizens, to resist the usurpation. the States in which they shall be raised, or within an The measure and manner of resistance are alto-adjoining State; to be subject to the rules and articles gether within their own discretion. The surrender of such rights of sovereignty, and of other inferior rights, by the several States, as the Constitution contains, was with a view of attaining compensation in the reciprocal engagements of the United States. The several States granted to the United States power to raise armies, to provide and maintain a navy, and resources sufficient to support them. In consideration for parting with rights so essential to their preservation, they received a solemn promise from the United States that they would provide for the common defence, and protect each State against invasion. Have the United States done either? Does not this bill attempt to take from the several States that force which they had respectively reserved to themselves for their own of war, and to receive the same pay, clothing, rations, and forage, and to be entitled to the same privileges and immunities as the troops of the United States." On the call of Mr. DANA, the question was divided, and taken on recommitting the bill; and it was determined in the negative-yeas 13, nays 19, as follows: YEAS-Messrs. Anderson, Daggett, Dana, Gaillard, German, Goldsborough, Gore, Horsey, Hunter, Lambert, Mason, Thompson, and Varnum. Condit, Fromentin, Giles, Lacock, Morrow, Roberts, NAYS-Messrs Bibb, Bledsoe, Brent, Brown, Chace, Mr. GOLDSBOROUGH then rose and addressed the Chair as follows: Mr. President: When the subject was first brought before the Committee, I was so unfortunate as to be absent, and have therefore only had an opportunity of passing upon some of its provisions. As the bill has now arrived at that stage of its progress when it is permitted to review it throughout, I must offer my former absence as an apology for detaining the Senate a few moments, and will limit myself, in the course of my remarks, to two points only, viz: the length of the time the militia are intended to be kept out, and the mode of classing them to force them out. NOVEMBER, 1814. plined regulars, which, in a war like this, ought to be stationed at eligible points, and in considerable bodies, from one end of the continent to the other, could be brought to their relief. If, to remedy the defects of want of discipline in the mili tia, it is contemplated to confine them to a camp for two years, it is this unusual period of service, it is the mode that is intended to be used to force them out, and the conversion of the militia into regular troops that I complain of, and which, in my judgment, constitutes a palpable and flagrant violation of the Constitution. I had hoped, sir, though vainly, that, among the In the general enumeration of the powers of innumerable amendments which this bill was Congress, sir, we shall find that part of the Condestined to suffer, it would have been so radically stitution which bears upon this subject. Congress reformed in principle and so ameliorated in its shall have power "to provide for calling forth provisions, that I could have voted for it. The the militia to execute the laws of the Union, supprofessed object of this bill, the defence of the press insurrections, and repel invasions." These States, is particularly dear to me, and, if pursued are the three objects for which Congress can in a Constitutional mode, would command my alone provide for calling out the militia, and when hearty concurrence; but I have to lament that these, or either of these objects, cease to exist, the the measure, which now seems likely to be adopt-militia are no longer subject to duty. It is impossible ed for that purpose, is such, that I cannot partici- for Congress to decide how long the militia shall pate in it. Notwithstanding the unrelaxing ex- be held to service, because they cannot determine ertions which have been made to bring the pro- how long the emergency will exist for which visions of this bill within the fair limits of Con- they are called. It is, therefore, that we are to stitutional jurisdiction, and to temper its severity understand the language of the Constitution as to the feelings of the people, its greatest deform-confining the power of Congress entirely to proity still exists, the most hideous feature in its whole composition remains unsoftened, and I am therefore bound by a solemn sense of duty to the country, and acting under the awful responsibility of an oath, to oppose its passage. There has been a marked and studied distinction preserved between the army and the militia of the country. The one is a permanent, the other a temporary force, intended for temporary purposes. In time of peace, no force is more competent, none more adapted "to repress insurrections, or to execute the laws," than the militia; but, surely, sir, it can never be intended to be exclusively relied on for defence, during a period of war. There can be little doubt, when the Constitution speaks of the militia "to repel invasion," it rather regarded the occasional irruptions of the Indians upon our back frontiers, than the disembarking of large bodies of finely trained European troops upon our shores. Those who are practically skilled in the art of war will tell you, that nothing but the system and discipline of regulars, can meet regulars with effect; and although occasions may be presented when militia have merited every honor which can be due to victory and good conduct, yet an exclusive reliance on them, in times like these, threatened, as we are, with formidable fleets and armies, would be to discard the best lessons of experience, and to jeopardize the fate of the country. That the militia, as such, would be a good auxiliary force, I am prepared to admit. Dispersed through every part of the country and formed into convenient corps, they might be made to fall upon and harass the enemy at his landing, and from their superior knowledge of the country, under brave and enterprising officers, they would gall him, impede and obstruct his progress, until the disci viding how and by whom the call upon the militia is to be made, leaving the responsibility both of the call and of the decision on the continuance of the service upon that power to which Congress shall think proper to assign it; and leaving it also exclusively to the States, to whom alone it rightfully belongs, to furnish the troops in their own way. So far from Congress having any Constitutional power to retain the militia in service for a fixed and determinate period of time, the Constitution has itself given another standard by which their term of service shall be measured, and that is, the continuance of the exigence they are called to meet. After Congress have provided for calling out the militia, by vesting the power, as it usually has done, in the President of the United States, it has discharged all its duties, and the President will then decide upon his responsibility to the nation, when it is necessary to exercise the power, and when the exigence for which the call was authorized ceases to exist. As Congress cannot calculate the length of time during which either insurrection, or opposition to the laws, or invasion, may continue, and as the power thus vested in the President to make the call and judge of the period of service, might, in certain events, impose a long, and painful, and ruinous duty, upon one body of the militia, the general power given to Congress to provide for calling them forth, clearly enables them to provide a succession of militia at easy intervals, to take the place of those who are on duty; so as to prevent the whole burden from falling too severely upon any one portion of the people. It was in this view of the Constitution, and with this intention, that the law of February, 1795, was passed, to provide for calling forth the militia. The fourth section of the law is, "that the militia NOVEMBER, 1814. Militia of the United States. ' employed in the service of the United States, 'shall be subject to the same rules and articles of war as the troops of the United States; and that no officer, non-commissioned officer, or pri'vate, of the militia, shall be compelled to serve 'more than three months after his arrival at the place of rendezvous, in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to ' which he belongs." This early exposition of this part of the Constitution is unquestionably the surest and the safest guide of construction; and as the powers here granted were both to be vested in and exercised by the illustrious President of the Convention which formed that Constitution, and the act itself received his sanction, I am at a loss to conjecture how the true intent and meaning of any part of that instrument could be more clearly and more satisfactorily ascertained. By this law, the President of the United States is authorized to call out the militia, but they cannot be kept in service longer than three months after their arrival at the place of rendezvous, nor can they be made to serve longer than a due rotation with every other member of the same rank in the battalion from which they are taken. Here, then, I derive the distinction between Congress undertaking to provide, by law, that the militia shall be kept in camp for two years, unless sooner discharged, and their providing by law that the militia shall not be kept out more than three months. In the first case, Congress are made to prescribe the time for which they shall be kept in camp, which they have no power to do. In the last, so far from designating the time they shall serve, they only mean to prescribe the period of rotation, beyond which the same body of militia shall not serve. If the emergency continues beyond three months, new calls of militiamen are to be made to relieve those who perform the first tour of duty; and it is not and never was intended, by the language of the Constitution, that Congress should say how long the militia shall serve, but merely judging of the condition of the country, and the necessities and conveniences of the people, they govern themselves by such considerations in exercising their powers "to provide for calling forth the militia" in such numbers, and in such rotation, as the public emergency may require. The distinction, to my view, is neither subtle nor nice, but founded in a just discretion, and exerted for a correct and benevolent purpose, to rescue the great body of the people from a painful and unjust oppression. SENATE. have been anticipated that the power thus reluctantly and jealously yielded up and guarded by strict limitation, would ever have been used, by this or any other Congress, to drag the people of this country from their homes, their families, and their occupations, to consign them to the toils and deprivations of a camp for two years, those celebrated champions in that great cause, who have been justly styled the fathers of our Constitution, would never have prevailed to have procured this power to the General Government. But, sir, the unconstitutionality of this measure, though defect enough to justify my opposition to it, is not the only defect. There is a rigor and severity in the provisions of this bill never before practised, which will stir up a feeling of uneasiness and restless displeasure, and which the condition of the people of this country will not endure. On whom, let me ask, sir, will this grievous oppression principally fall? It will fall upon the middling ranks in society, upon your tenantry, your mechanics, your manufacturers-men who constitute the very bone and muscle of your population. Men of wealth will procure substitutes-the poorest and humblest in rank will be compelled by their necessities, during a period of war, to enlist with recruiting sergeants, or to be absorbed by the provisions in the ninth section of this bill; whilst the chief burden of this odious conscription will fall upon those whose circumstances in life are too humble to afford extravagant bounties for substitutes, but whose feelings are too proud, and habits too reputable, to suffer them to become the corrupted hirelings of others. This class of men, thus marked out for destruction by this bill, is infinitely the most numerous, as well as the most useful in society. Their ser vices, in their respective avocations, are essential to the interest as well as to the convenience of the community in which they live, and their personal labor and daily attention to their own affairs are indispensably necessary to the support of themselves and their families. To tear these men away from home to serve in the militia for only three months at a time, is to impose a serious evil on them, but if you drag them off, as you here contemplate by this bill, and keep them in camp for two years, you complete their ruin, you entail distress and misery upon their families, perhaps starvation and death. During their absence, and an absence, too, under a system of coercion before unheard of in our country, their former habitations will become the abodes of wretchedness. Sir, I want language to depict the sufferings that will flow from this tyrannical system. Those So far, sir, from vesting the Congress of the whom the industry of a father or a husband may United States with power to call the militia into have once clad in simple neatness, and fed with camp for two years, you well know, Mr. Presi- comfortable fare, will be left disconsolate in pendent, that the great contest of the Convention ury, to wrap their chilled limbs in the tattered was, whether this power, "to provide for calling remnants of his former bounty. Deprived, by forth the militia," should be given to Congress at this your act, of their only source of comfort, their all. And it was a question of long, dubious, and protector and support, many who have been bred animated debate, whether it should be left exclu- in all the decencies of life, will be thrown, like sively to the States, or whether it should be given common mendicants, upon the world, to subsist in certain specified cases, to be exercised by the upon its precarious charity. Should it be ordainFederal Government. If, at that time, it coulded that the wretched father is to be restored to |