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vasion will be met and resisted at the water's edge, with success, by hundreds of thousands of Americans who will not be forced into your Army.

Mr. MASON, of New Hampshire, addressed the Chair as follows:

Mr. President: I am glad, sir, that the few observations, which I made on a former day, when this bill was under consideration, have induced the honorable chairman of the Committee on Military Affairs, (Mr. GILES,) to make such an ample exposition of the views and objects of that committee, and of the Administration. I deem it fortunate that, at the commencement of the discussion of the bills on military affairs, we are possessed of the ulterior intentions and designs. The Secretary of War, in his late report, has recommended for adoption by the Legislature, a plan of a forcible draught, or conscription, of the whole free male population of the United States, between the ages of eighteen and forty-five years, for the purpose of recruiting the regular Army. He proposes that all persons, within those ages, be formed into classes of one hundred each; and that if any class neglect to furnish four soldiers for the Army, to be delivered over to the recruiting officer within thirty days, that number be taken out of the class by force; that vacancies by casualty, be supplied in like manner from the class, and that the legal bounty of one hundred and twenty-four dollars to each recruit be assessed on all the taxable property within the precinct of each class. This plan must be presumed to have the approbation of the Administration; for it cannot be supposed the Secretary of War would adventure on a measure so important, without such support and countenance.

Although the present bill certainly does not adopt the plan of the Secretary in its full extent, and although the honorable chairman has said he can support the provisions of the bill without its aid, yet he has attempted, in a formal argument, to maintain, that this Government has the Constitutional power, to be exercised at discretion as occasion may require, of placing our citizeus, by force, and for an unlimited time, in the ranks of the regular Army. Till lately, such an opinion was entertained by few, if any. I believe it was expressed by none. Great and sudden changes in opinion on important political subjects are the usual forerunners of revolutions in States. This is emphatically the case, where the force of Government rests on common sentiment. Sincerely believing the doctrine contended for, to be unwarranted by the Constitution, and pregnant with consequences dangerous to the rights and liberties of the country, I cannot permit it to pass without attempting its refutation. The most monstrous opinions, when announced by high authority, and supported with plausibility, will, if permitted without contradiction to become familiar to the mind, in time lose much of their original deformity.

The honorable gentleman has been pleased, in a style somewhat monitory, to caution those opposed to his doctrine to consider the responsibil

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ity they must encounter in obstructing the measures of Government in the present state of affairs. I admit the distress of the nation exists to the full extent stated. We see and feel it, and have too much reason to believe it will soon become universal. The crisis demands all the wisdom and virtue of the country. I hold a stake in the fate of the nation in common with my fellow citizens, and do not feel inclined to shrink from doing what I think my duty requires. In times like these, no political situation is free from responsibility.

In return, I take the liberty of admonishing the friends of the Administration (and the honorable gentleman, if he includes himself in that number) to be cautious how they attempt to overleap the limits of the Constitution. Of all our dangers, I see none more alarming than the apparent dis position to exercise arbitrary power. Revolutionary measures can never, with safety, be resorted to by a regular Government. They place the magistrate and private citizen on the same level, and none can foresee into whose hands, during the boisterous commotion of the political elements, the tyrant's power will fall. A Government which should require such expedients would not be worth preserving. If sufficient powers are not granted by the people, apply to the people for their enlargement. In periods of alarm and terror, when present danger hushes all fears of that which is more remote and less obvious, inroads on the rights of the people are chiefly to be apprehended. In a case so deeply affecting the personal liberty of the whole body of the nation as the present, no extremity of danger would justify the exercise of illegal authority.

The inquiry is, whether the Constitution gives to this Government the power contended for?

The clause in the Constitution which declares that Congress shall provide for the common defence, has been cited, though very little reliance appears to be placed on it. The purpose of that clause seems to have been to impose a duty, or define an object to the attainment of which the powers granted are to be applied. The words, with others immediately connected, are, "to pay the debts and provide for the common defence and general welfare of the United States." The means or powers are afterwards prescribed, by which these great objects are to be attained. It has not been, and I trust will not be contended, that Congress is at liberty to resort to other means at their discretion. Should this be considered a grant of power, still the subsequent specification of the manner of exercising it, would limit and restrict it. Money raised to pay the debts of the United States, for instance, must be raised in the manner specially pointed out; and if it could not be obtained by taxes levied according to the Constitution, or by other methods therein directed, surely Congress could not levy taxes in any other way, or resort to other means not thereby authorized.

The authority given to Congress "to raise and support armies," comprises their whole power on this subject. This, and the authority of calling

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forth the militia under certain circumstances, are the means by which the common defence is to be provided for. Can the Legislature, by virtue of this grant of power, adopt the proposed plan of conscription, and place, by force, such part of the population of the United States, and for such periods as shall be deemed expedient, in the ranks of the regular Army? A power so transcendant and dangerous, must, to justify the exercise of it, be derived from plain principles, and depend on no doubtful construction or subtle reasoning.

The power to raise and support armies must be construed according to the intentions and understanding of the people of the United States, who made the Constitution, consistently with all the well known and established rights of the States and of the people-and consistently with the general principles of civil liberty.

The military power or force given by the Constitution to this Government, is of two sorts-a regular Army, and the militia of the States-the latter in certain emergencies, and with certain restrictions and limitations-the former without any restriction. It is unnecessary, for the present purpose, to point out with exact precision all the restrictions and limitations of the power over the militia. In three specified cases only, and for a service within the limits of the United States, and under the command of their own State officers, and as I think, for short periods of service, can this Government call on the States for their militia. From these restrictions, it is apparent, the power of the United States is of a very limited nature, and that the States still retain by far the greatest portion of authority over their own militia. Over the regular Army, the Government of the United States have an unlimited power. They may use it in all cases where military force is needed, in any part of the world, under such officers and for such periods as they please. There always have been in this country important distinctions between the militia and regular Army. These distinctions were always kept up, and in various instances exemplified in the war of the Revolution, and were well understood by the people of the United States at the time of forming the Constitution. There was known to be an essential difference between serving in the regular Army and performing a tour of duty in the militia. Regular armies were raised by enlistment of such as voluntarily consented to enter them. Such, for ages, had been the practice of the British Government, from which we originally derived most of our ideas on subjects of Government; and such was the practice of the Government of the United States, and of the several States during the Revolutionary war. There always has been, and I hope always will be, a jealousy of standing armies. At the time of the Revolution it was carried to an unreasonable height, and too strongly felt. When the Constitution was adopted, no power granted to the General Government was more severely criticised, than that over the military force of the country. Those opposed to the Constitution contended, that the power of the purse and of the sword were im

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properly united, and that not only the rights of the State Governments, but the freedom of the people would be endangered. If any such power as that contended for, could have been conceived to be granted by the Constitution, it would have been detected and pointed out by those so much alarmed. Yet it is believed, that such construction was not even suggested in any of the conventions, although the subject was there most ably discussed. Nor is it believed, that with this construction, the Constitution would have been adopted by a single State of the Union. If, then, voluntary enlistment was the only method by which a regular Army could be raised, according to the general opinion of the people, it follows that the power to raise armies is, by the very terms used in the Constitution, restricted to that method; for the words must be construed, as they were understood by the people who adopted the Constitution. And so the position of the honorable gentleman, that the grant of power to raise armies being general, and without any restriction of the method by which it shall be exercised, leaves the Government at liberty to adopt any method they please, is ill founded. That might be a just construction of the terms when used by a people accustomed to a despotic government, for they might so understand them.

The power claimed is, doubtless, vastly greater and more dangerous, than any other possessed by the Government. It subjects the personal freedom of every citizen, in comparison with which the rights of property are insignificant, to arbitrary discretion. Had there been an intention of granting such power, would there not have been some attempt to guard against the unjust and oppressive exercise of it, as was done in the granting of powers of less importance? Yet, this power of raising armies, unless confined to voluntary enlistment, is without any guard or restriction whatever. The exercise of it must depend wholly on arbitrary discretion.

All the recruits wanted for the Army might, if the Government should so please, be taken from one section of the Union. The power of raising money is not thus submitted to the discretion of the Government. All taxes, if indirect, must be uniform throughout the United States; if direct, they must be apportioned according to representation. No tax can be laid on exports. Why these guards where property was to be taken, and none where the owners of the property were to be taken? From the mere neglect of attempting in some way to limit the power, it may be strongly inferred that it was not intended to be granted.

Were the Government at liberty to raise armies, by forcibly taking men at its discretion, it might, by a similar construction of the Constitution, support them, by taking property in like manner. The armies, when raised, might live at free quarters, on the people. In a similar way, a navy might be provided, by seizing the ships of individuals. The right in both cases is the same; the injury and distress in taking property the least.

Has the Government a similar power to impress men for the Navy? The terms in the Con>

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stitution" to provide and maintain a Navy" are, at least, as proper for this construction, as those applied to the Army. The convenience and necessity in this instance, stronger than in the other. The British Government, before the Revolution, did attempt to exercise in this country the supposed right of impressment for the Navy, which it never did for the Army. Stronger reasons might be adduced for this method of manning the Navy, than for filling the Army. Yet the Government, in their instructions to our Envoys for treating of peace with Great Britain, say "impressment is not an American practice, but is utterly repugnant to our Constitution and laws." The honorable Secretary, when he draughted those instructions, knew not how soon he should be directed to contend for the contrary doctrine.

The power in question is inconsistent with certain well-known rights of the States recognised by the Constitution. Such a construction of a power granted to the General Government as destroys rights reserved to the States by the Constitution cannot be admitted. Because it can never be presumed that rights were intended to be surrendered, which are expressly reserved or recognised as existing in the States. The same principle applies to all rights acknowledged to belong to the States, whether recognised by the Constitution or not. The Constitution declares "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."

The States still retaining the principal power over the militia, as has been shown, the power given this Government to raise armies must not be so construed as will destroy that power of the States. The power claimed is to take by force, for the regular Army, all persons capable of bearing arms, including the whole militia of the States. This surely annihilates all State power over their militia. The whole or any part may, at the pleasure of this Government, be converted into a regular army, and the provision of the Constitution in this particular, together with the rights of the States, be destroyed.

The right of the States, in time of war, to maintain regular troops, is recognised by the Constitution. Abandoned by the United States, it is well known that several of the States at the present time, keep considerable bodies of troops for their necessary defence. All these come within the description of persons claimed by this Government, and may be thus immediately transferred to the Army of the United States. Wretched would be the condition of such States, if this Government possessed the power contended for. Unprotected by the General Government, and deprived not only of their militia, but of the troops raised at their own expense, their sole remaining resource would be an application to the mercy of the enemy. It is impossible that these rights, thus secured to the States by the Constitution itself, should be destroyed by a power granted by the same instrument to the United States. The power of the United States to raise armies, if restricted

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to voluntary enlistment, is consistent with the rights and safety of the States. Any other construction presents conflicting rights which cannot be reconciled.

It has been contended that every well constituted Government has a right to the personal services of its citizens or subjects, which it may enforce by compelling as many as its occasions require to become soldiers; and that the Government of the United States, in common with others, may have this power without any special grant in the Constitution. It is unnecessary to examine the general position, though it is believed it would by no means be found so universal as stated. This Government has no powers except what are delegated. To this particular, the article of the Constitution which has been recited is express. All powers not delegated, are reserved to the States or people. If, therefore, this power exists in our country, it rests in the State Governments, and not in that of the United States. Without resorting to this principle of inherent power, most of the State Governments possess very ample authority to call for the military services of their citizens, in the provisions of their respective constitutions. Hence might be drawn an additional argument, were it necessary, against the present claim of power in the General Government.

The Secretary of War admits, that the men cannot be taken from the militia as militiamen, by reason of the Constitutional restriction, but he says the same individuals may well be taken, in their capacity of citizens. This argument the honorable gentleman from Virginia has not seen fit to adopt. With all proper deference for the respectable authority whence it originates, I must confess my inability to comprehend its force. It would seem, that an individual, to be secure in his personal liberty, must produce a Constitutional protection for himself in each of his various capacities or relations in society. Will it afford much consolation to the miserable recruit, when driven in chains to the Army, to be told that he is taken, in his capacity as a citizen, and not as a militiaman? A prudent Government, at least, would be cautious not to insult the understanding of the nation, when attempting to outrage its rights.

To that part of the Secretary's plan, which recommends a tax to be levied on all property within the precinct of the class, in order to raise the bounty for the recruits, objections occur which, in ordinary times, would seem insurmountable. The provision of the Constitution that direct taxes (of which sort that on land is) shall be apportioned among the States, according to representation, is wholly disregarded. This tax is to be apportioned according to the free male population, between the ages of eighteen and forty-five years. This relieves the slaveholding States from the increased tax which they are bound by the Constitution to pay, for their increased representation on account of their slaves. The difference between the sums to be paid by Virginia and Massachusetts, according to the proposed plan, and the

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Constitutional apportionment, exceeds four hundred thousand dollars. This is a violation of the Constitution too plain and obvious to require any reasoning to demonstrate. It is, however, in my opinion of less importance than the other which affects the rights of personal liberty, as this does the rights of property. Reduce the people to slavery, and you may take their property when and as you please.

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The honorable gentleman (Mr. GILES) has been pleased to understand those epithets as being applied to the Administration themselves; and to express his regret that they had been used. He seems to admit, however, the truth and justice of the two first, and denies only the last. He believes the Administration, though weak and violent, are honest and patriotic. I shall spare myself the labor of discussing that point. It is difficult to ascertain with certainty the motives of statesmen, and it matters little to the country, whether its rights and liberties are lost through the weakness, or wickedness, of its rulers. Public men are to be judged by their measures. The mere attempt to carry a measure, involving such principles, is just cause of alarm. The people can never feel safe while they know the Government claims such a power, which may gradually, as opportunity shall favor, be brought into exercise. The present bill adopts it, in a small degree; another reported by the same committee, serve for the term of two years, goes much further, with the same principle. In the mean time, among men of desperate fortunes and unprincipled ambition, the doctrine will gain friends. Honest intention and well-meaning weakness give no security, but increase the danger. They prevent alarm, and when men of such a character shall have prepared the system for operation, othdrive them from their seats, and grasp the despotic power so unsuitable for weak hands. If this proposal of the Executive, though at present, it should not be adopted by the Legislature in all its most odious features, should still be treated with good natured civility, it will hereafter, at some unpropitious moment, be again urged, and perhaps with fatal success. The attempt merits from the nation, deep and full toned expressions of indignation.

The honorable Secretary says, in relation to this part of his plan, "should it appear that this 'mode of raising recruits was justly objectiona'ble, on account of the tax on property, from the 'difficulties which may be apprehended in the 'execution, or from other causes, it may be ad'visable to decline the tax." But why is a project, directly and plainly violating the Constitution, brought forward at all? Is it to try the temper of the Legislature and of the people, and to lessen the horror at first excited by such attempts by rendering them familiar? In my opinion this system of military conscription, thus re-authorizing forcible draughts from the militia, to commended by the Secretary of War, is not only inconsistent with the provisions and spirit of the Constitution, but also with all the principles of civil liberty. In atrocity it exceeds that adopted by the late Emperor of France, for the subjugation of Europe, which, after drenching a great portion of that Continent with blood, was destroyed by the most powerful confederacy of nations the world ever knew. He allowed exemp-ers of more talents and different character will tions to fathers of families, and those in certain professions and official stations. But the proposed system exempts none, except the President of the United States, and the Governors of States. All within the prescribed ages, whatever may be their pursuits or condition of life, must submit to the iron yoke; priests must be taken from the altar, and judges from the bench. The highest officers, both civil and military, must be ignominiously forced into the ranks of the Army. The seminaries of learning are to be robbed of their professors and scholars. Neither literature nor science, except what is subservient to the military art, will be held in estimation. The country will become military, and be involved in perpetual wars, often waged to gratify the ambition of rulers. History evinces that wars of ambition are not less the pests of republics than of monarchies.

Such a measure cannot, it ought not to be snbmitted to. If it could in no other way be averted, I not only believe but I hope, it would be resisted. The most odious and cruel slavery would be the inevitable consequence of submission.

On a former day, when this measure recommended by the Secretary of War, was mentioned by an honorable member, who in his place expressed his approbation (except so far as relates to the bounty tax) in terms not doubtful, I did not hesitate to give it my most decided disapprobation. I then called it weak, violent, and wicked. On more reflection, I see no reason to alter my opinion of its character. It is weak, for it is ill calculated to effect its object; violent, for it attempts to use force, without right; and wicked, for, if successful, it will destroy the Constitution and liberties of the country.

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After laboring to establish the right of the Government to exercise the dangerous power mentioned, the honorable gentleman (Mr. GILES) has attempted to show that the present bill does not necessarily involve that power. It is certain the bill does not follow the plan of the Secretary of War in its details, but I much doubt whether the provision authorizing the enlistment of minors without the consent of their parents, guardians, or masters, can be justified, without asserting the right to take the citizens for the Army by force. If the Government has not the right of taking persons for the Army by force, they must obtain them by voluntary enlistment. That is, they must contract with individuals to become soldiers of the regular Army, and to subject themselves to the duties of that condition. All persons competent to contract for themselves, may thus enlist into the Army. None who, for any reason whatever, are incompetent to contract for themselves, can enlist without the consent of those who have a legal right to control them and contract for them. As the very essence of a contract is the voluntary assent of the minds of the parties, it is sufficiently obvious that all are incompetent to

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Militia of the United States.

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make contracts, who are incapable for want of ship wholly destroys the rights of masters to the understanding to give such assent. Thus idiots services of their apprentices. The power of this and insane persons, and children in early child- Government to destroy a right so secured by a hood, being unable to understand the subject-mat-legal contract has been questioned. The Contiter and give their assent, are clearly incompetent to make contracts. No legislative power can remove the disability. You may, by a legislative act, dispose of their persons and property, but it cannot be said to be done by their consent.

nental Congress, in the year 1776, though sorely pressed by the war they were then engaged in, and in great want of recruits for their Army, were so deeply impressed with the illegality and injustice of such a practice, that they ordered all In every civilized country a certain age has apprentices enlisted without the consent of their been fixed on, as to the period when the disability masters to be immediately discharged. The Conof youth shall cease. For plain reasons this pe- gress was too wise to attempt to maintain their riod must be uniform, and applied to all. It would cause by violence and injustice. By a statute of be impossible to inquire into the degree of capaci- the United States of the 16th of March, 1802, the ty of each individual. The feudal system, which enlisting of minors without the consent of their once prevailed in most of the States of Europe, parents, guardians, or masters, is expressly profixed this period at the age of twenty-one years. hibited, under a heavy penalty. Before that time, What would seem to render this regulation pe- though not expressly prohibited by any statute, culiarly apposite to the present purpose, that sys- the instructions to recruiting officers directed tem, established by warriors, chiefly with a view them not to enlist minors, without such consent; to military strength, fixed on this age as a time and whenever it was improperly done, they could when a man was supposed to be fit to bear arms, obtain discharges by applying to the courts of and render the military services by which his law. When an attempt was made at the comlands were held. This rule of the feudal was mencement of the present war to authorize such adopted by the common law, and universally pre-enlistments, it was rejected by the Legislature. vails where that law is followed. In each of the Certain sections of a British statute of March, United States there is, and it is believed always 1812, have been read by the honorable gentleman, has been, an entire uniformity on this subject. (Mr. GILES) for the purpose of showing that the The disability of minority continues till the age British Government enlists minors into its army of twenty-one years. No one rule of the com-without the consent of their parents or guardians. mon law is more universally known. It is one By that statute, it appears that apprentices, bound of the first a child learns. Till the age of twen- by legal indentures, when enlisted without the ty-one the parent has a power over the child, for consent of their masters, are on their request to government and education, and has a right to his be discharged. Hence it is inferred that minors, services. Founded on this acknowledged rule of other than apprentices, though enlisted without the common law, in most of the States, statutes the consent of their parents or guardians, would from early times have been enacted, regulating not be discharged. If so, it can avail nothing, the subject of binding to apprenticeship, and also unless it be shown that our Government possesses of guardianship, in case of the parent's death. a power over its citizens equal to that of the BritAll these, either directly or by necessary infer-ish Government. As well may we justify the ence, recognise the disability of the minor to con- exercise of any other arbitrary power, by showtract for himself, and the right of the parent or ing that the British Government exercises the guardian. Under the existence of these laws, same. It is apparent that that Government rethus universally known, the people of the United spects the contracts of apprenticeship, which by States, by the Constitution, gave to this Govern- this bill are to be violated. The British statute ment the right to raise armies by voluntary en- provides that if any person shall, within four days listment. With whom may the Government, by after enlisting, declare before a magistrate that he virtue of the authority thus granted, make this enlisted hastily and incautiously, he shall, on recontract? Surely, with such only as have a ca- funding the money received as bounty, be dispacity to contract. The power cannot extend to charged. It is to be regretted, that the honorable enlisting minors under the age of twenty-one gentleman who produced this statute of a foreign years, except with the consent of their parents Government as an example for imitation, had or guardians; because in that way only can valid not introduced into this bill that humane provicontracts affecting such persons be made. If the sion, so well calculated to guard the unwary power of enlisting be not limited to that age, no- against the improper arts and enticements too thing would prevent Government from taking often practised by recruiting officers. The better from their parents children of more tender years, opinion seems to be, that this Government has if idly consenting, and placing them in military not a right to enlist minors without the consent schools till prepared for the Army. Would it be of their parents or guardians, and it is probable, contended that Government has power to do this? if such enlistments are directed, the courts of If not, to what age are they restricted? Of ne- law will, on application, be obliged to discharge cessity, there must be a general rule as to the age the persons so enlisted. of disability of minors, it being impossible to investigate and determine the capacity of each individual.

The enlisting of minors bound to apprentice

But, sir, were it certain this Government had the right of enlisting into the Army improvident youth, without the consent of those to whom the policy of the law has intrusted the care and con

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