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NOVEMBER, 1814.

Militia of the United States.

Senato.

vasion will be met and resisted at the water's ity they must encounter in obstructiog the meaedge, with success, by hundreds of thousands of sures of Government in the present state of Americans who will not be forced into your affairs. I admit the distress of the nation exists Army.

to the full extent stated. We see and feel it, and Mr. Mason, of New Hampshire, addressed the have too much reason to believe it will soon become Chair as follows :

universal. The crisis demands all the wisdom Mr. President: I am glad, sir, that the few ob- and virtue of the country. I hold a stake in the servations, which I made on a former day, when fate of the nation in common with my fellow citthis bill was under consideration, have induced izens, and do not feel inclined to shrink from dothe honorable chairman of the Committee on ing what I think my duty requires. In times like Military Affairs, (Mr. Giles,) to make such an these, no political situation is free from responsiample exposition of the views and objects of that bility. committee, and of the Administration. I deem In return, I take the liberty of admonishing the it fortunate that, at the commencement of the friends of the Administration (and the honorable discussion of the bills on military affairs, we are gentleman, if he includes himself in that number) possessed of the ulterior intentions and designs. io be cautious how they attempt to overleap the The Secretary of War, in his late report

, has limits of the Constitution. Of all our dangers, recommended for adoption by the Legislature, a I see pone more alarming than the apparent displan of a forcible draught, or conscription, of the position to exercise arbitrary power. Revoluwhole free male population of the United States, iionary measures can never, with safety, be rebetween the ages of eighteen and forty-five years, sorted to by a regular Government. They place for the purpose of recruiting the regular Ármy: the magistrate and private citizen on the same He proposes that all persons, within those ages, level

, and none can foresee into whose hands, be formed into classes of one hundred each; and during the boisterous commotion of the political that if any class neglect to furnish four soldiers elements, the tyrant's power will fall. A Govfor the Army, to be delivered over to the recruit- ernment which should require such expedients ing officer within thirty days, that number be would not be worth preserving. If sufficient taken out of the class by force; that vacancies powers are not granted by the people, apply to by casualty, be supplied in like manner from the ihe people for their enlargement. In periods of class, and that the legal bounty of one hundred alarm and terror, when present danger hushes all and iwenty-four dollars to each recruit be assess- fears of that which is more remote and less obed on all the taxable property within the precinct vious, inroads on the rights of the people are of each class. This plan must be presumed 10 chiefly to be apprehended. In a case so deeply have the approbation of the Administration ; for affecting the personal liberty of the whole body it cannot be supposed the Secretary of War would of the nation as the present, no extremity of danadventure on a measure so inportant, without ger would justify the exercise of illegal authority. such support and countenance.

The inquiry is, whether the Constitution gives Although the present bill certainly does not to this Government the power contended for ? adopt the plan of the Secretary in its full extent, The clause in the Constitution which declares and although the honorable chairman has said that Congress shall provide for the common dehe can support the provisions of the bill without fence, has been cited, though very little reliance its aid, yet he has attempted, in a formal argu- appears to be placed on it. The purpose of that ment, to maintain, that this Government has the clause seems to have been to impose a duty, or Constitutional power, to be exercised at discre- define an object to the attainment of which the tion as occasion may require, of placing our citi- powers granted are to be applied. The words, zeus, by force, and for an unlimited time, in the with others immediately connected, are," to pay ranks of the regular Army. Till lately, such an the debts and provide for the common defence opinion was entertained by sew, if any. I be- and general welfare of the United States.” The lieve it was expressed by none. Great and sud- means or powers are afterwards prescribed, by den changes in opinion on important political sub- which these great objects are to be attained. It jects are the usual forerunners of revolutions in has not been, and I irust will not be contended, States. This is emphatically the case, where the that Congress is at liberty to resort to other means force of Government rests on common sentiment. at their discretion. Should this be considered a Sincerely believing the doctrine contended for, to grant of power, still the subsequent specification be unwarranted by the Constitution, and preg- of the manner of exercising it, would limit and nant with consequences dangerous to the rights restrict it. Money raised to pay the debts of the and liberties of the country, I cannot permit it to United States, for instance, must be raised in the pass without attempting its resulation. The most manner specially pointed out; and if it could not monstrous opinions, when announced by high au- be obtained by taxes levied according to the Conthority, and supported with plausibility, will, if stitution, or by other methods therein directed, permitted without contradiction to become fa- surely Congress could not levy taxes in any other miliar to the mind, in time lose much of their way, or resort to other means not thereby authororiginal deformity.

ized. The honorable gentleman has been pleased, in The authority given to Congress " to raise and a style somewhat monitory, to caution those op- support armies," comprises their whole power on posed to his doctrine to consider the responsibil. I this subject. This, and the authority of calling

SENATE.

Militia of the United States.

NOVEMBER, 1814.

forth the militia under certain circumstances, are properly united, and that not only the rights of the means by which the common defence is to be the State Governments, but the freedom of the provided for. Can the Legislature, by virtue of people would be endangered. If any such power this grant of power, adopt the proposed plan of as that contended for, could have been conceived conscription, and place, by force, such part of the to be granted by the Constitution, it would have population of the United States, and for such pe- been detected and pointed out by those so much ríods as shall be deemed expedient, in the ranks alarmed. Yet it is believed, that such construcof the regular Army? A power so transcendant tion was not even suggested in any of the conand dangerous, must, to justify the exercise of it, ventions, although the subject was there most be derived from plain principles, and depend on ably discussed. Nor is it believed, that with this no doubtful construction or subtle reasoning. construction, the Constitution would have been

The power to raise and support armies must be adopted by a single State of the Union. If, then, construed according to the intentions and under voluntary enlistment was the only method by standing of the people of the United States, who which a regular Arıny could be raised, according made the Constitution, consistently with all the to the general opinion of the people, it follows well known and established rights of the States that the power to raise armies is, by the very and of the people—and consistently with the gen- terms used in the Constitution, restricted to that eral principles of civil liberty.

method; for the words must be construed, as they The military power or force given by the Con. were understood by the people who adopted the stitution to this Government, is of two sorts-a Constitution. And so the position of the honorregular Army, and the militia of the States—the able gentleman, that the grant of power to raise laiter in certain emergencies, and with certain armies being general, and without any restriction restrictions and limitations—the former without of the method by which it shall be exercised, any restriction. It is unnecessary, for the present leaves the Government at liberty to adopt any purpose, to point out with exact precision all the method they please, is ill founded. That might restrictions and limitations of the power over the be a just construction of the terms when used by militia. In three specified cases only, and for a a people accustomed to a despotic government, service within the limits of the United States, and for they might so understand them. under the command of their own State officers, The power claimed is, doubtless, vastly greater and as I think, for short periods of service, can and more dangerous, than any other possessed by this Government call on the States for their mil- the Government. It subjects the personal freedom itia. From these restrictions, it is apparent, the of every citizen, in comparison with which the power of the United States is of a very limited rights of property are insignificant, to arbitrary Dature, and that the States still retain by far the discretion. Had there been an intention of granigreatest portion of authority over their own mil- ing such power, would there not have been some itia. Over the regular Army, the Government of attempt to guard against the unjust and oppressthe United States have an unlimited power. They ive exercise of it, as was done in the granting of may use it in all cases where military force is powers of less importance ? Yet, this power of needed, in any part of the world, under such offi- raising armies, unless confined to voluntary encers and for such periods as they please. There listment, is without any guard or restriction whatalways have been in this country important dis- ever. The exercise of it must depend wholly on tinctions between the militia and regular Army. arbitrary discretion. These distinctions were always kept up, and in All the recruits wanted for the Army mighi, if various instances exemplified in the war of the the Government should so please, be taken from Revolution, and were well understood by the peo- one section of the Union. The power of raising ple of the United States at the time of forming money is not thus submitted to the discretion of the Constitution. There was known to be an the Government. All taxes, if indirect, must be essential difference between serving in the regu- uniform throughout the United States ; if direct, lar Army and performing a tour of duty in the they must be apportioned according to represenmilitia. Regular armies were raised by enlist- tation. No tax can be laid on exports. Why ment of such as voluntarily consented io enter these guards where property was to be taken, and them. Such, for ages, had been the practice of none where the owners of the property were to the British Government, from which we origi- be taken ? From the mere neglect of attempting Dally derived most of our ideas on subjects of in some way to limit the power, it may be strongGovernment; and such was the practice of the ly inferred that it was not intended to be granted. Government of the United States, and of the sev Were the Government at liberty to raise armies, eral States during the Revolutionary war. There by forcibly taking men at its discretion, it might, always has been, and I hope always will be, a bý a similar construction of the Constitution, supjealousy of standing armies. At the time of the port them, by taking property in like manner. The Revolution it was carried to an unreasonable armies, when raised, might live at free quarters, height, and too strongly felt. When the Consti- on the people. In a similar way, a navy might tution was adopted, no power granted to the Gen- be provided, by seizing the ships of individuals. eral Government was more severely criticised, The right in both cases is the same; the injury than that over the military force of the country and distress in taking property the least. Those opposed to the Constitution contended, that Has the Government a similar power to im. the power of the purse and of the sword were im- press men for the Navy? The terms in the Con

NOVEMBER, 1814.

Militia of the United States.

SENATE,

stitution “ to provide and maintain a Navy" are, to voluntary enlistment, is consistent with the at least, as proper for this construction, as those rights and safety of the States. Any other conapplied to the Army. The convenience and ne struction presents conflicting rights which cannot cessity in this instance, stronger than in the other. be reconciled. The British Government, before the Revolution, It has been contended that every well constidid attempt to exercise in this country the sup- tuted Government has a right to the personal serposed right of impressment for the Navy, which vices of its citizens or subjects, which it may enit never did for the Army. Stronger reasons force by compelling as many as its occasions might be adduced for this method of manding require to become soldiers; and that the Governthe Navy, than for illing the Army. Yet the ment of the United States, in common with othGovernment, in their instructions to our Envoys ers, may bave this power without any special for treating of peace with Great Britain, say "im- grant in the Constitution. It is unnecessary to pressment is not an American practice, but is ut- examine the general position, though it is believed terly repugnant to our Constitution and laws.” it would by no means be found so universal as The honorable Secretary, when he draughted those stated. This Government has no powers except instructions, knew not how soon he should be di- what are delegated. To this particular, the ariirected to contend for the contrary doctrine. cle of the Constitution which has been recited is

The power in question is inconsistent with cer- express. All powers not delegated, are reserved tain well-known rights of the States recognised to the States or people. If, therefore, this power by the Constitution. Such a construction of a exists in our country, it rests in the State Govpower granted to the General Government as de- ernments, and not in that of the United States. stroys rights reserved to the States by the Con- Without resorting to this principle of inherent stitution cannot be admitted. Because it can powes, most of the State Governments possess never be presumed that rights were intended 10 very ample authority to call for the military serbe surrendered, which are expressly reserved or vices of their citizens, in the provisions of their recognised as existing in the States. The same respective constitutions. Hence might be drawn principle applies to all rights acknowledged to an additional argument, were it necessary, against belong to the States, whether recognised by the the present claim of power in the General Gore Coostitution or not. The Constitution declares ernment. "the powers not delegated to the United States The Secretary of War admits, that the men

by the Constitution, nor prohibited by it to the cannot be taken from the militia as militiamen, • States, are reserved to the States respectively or by reason of the Constitutional restriction, but to the people."

he says the same individuals may well be taken, The States still retaining the principal power in their capacity of citizens. This argument the over the militia, as has been shown, ihe power honorable gentleman from Virginia has not seen given this Government to raise armies must not fit to adopt. With all proper deference for the be so construed as will destroy that power of the respectable authority whence it originales, I must States. The power claimed' is to take by force, confess my inability to comprehend its force. It for the regular Army, all persons capable of bear- would seem, that aa individual, to be secure in ing arms, including the whole militia of the his personal liberty, must produce a ConstituStates. This surely

annihilates all State power tional protection for himself in each of his various over their militia. The whole or any pari may, capacities or relations in society. Will it afford at the pleasure of this Government, be converted much consolation to the miserable recruil, when into a regular army, and the provision of the Con-driven in chains to the Army, to be told that he stitution in this particular, together with the rights is taken, in his capacity as a citizen, and not as a of the States, be destroyed.

militiaman? A prudent Government, at least, The right of the States, in time of war, lo would be cautious not to insult the understand. maintain regular troops, is recognised by the ing of the nation, when attempting to outrage its Constitution. Abandoned by the United States, rights. it is well known that several of the States at the To that part of the Secretary's plan, which represent time, keep considerable bodies of troops commends a tax to be levied on all property withfor their necessary defence. All these come with in the precinct of the class, in order io raise the in the description of persons claimed by this Gov- bounty for the recruits, objections occur which, ernment, and may be thus immediately transfer. in ordioary times, would seem insurmountable. red to the Army of the United States. Wretched The provision of the Constitution that direct laxes would be the condition of such States, if this Gov-(of which sort that on land is) shall be apportioned ernment possessed the power contended for. Un among the States, according to representation, is protected by the General Government, and de- wholly disregarded. This tax is to be apportioned prived not only of their militia, but of the troops according to the free male population, between raised at their own expense, their sole remaining the ages of eighteen and forty-five years. This resource would be an application to the mercy of relieves the slaveholding States from the increasthe enemy. It is impossible that these rights, ihus ed tax which they are bound by the Constitution secured to the States by the Constitution itself, pay, for their increased representation on acshould be destroyed by a power granted by the count of their slaves. The difference between same instrument to the United States. The power the sums to be paid by Virginia and Massachuof the United States to raise armies, if restricted setts, according to the proposed plan, and the

SENATE.

Militia of the United States.

NOVEMBER, 1814.

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Constitutional apportionment, exceeds four hun The honorable gentleman (Mr. Giles) has been dred thousand dollars. This is a violation of the pleased to understand those epithets as being apConstitution too plain and obvious to require any plied to the Administration themselves; and to reasoning to demonstrate. It is, however, in my express his regret that they had been used. He opinion of less importance than the other which seems to admit, however, the truth and justice of affects the rights of personal liberty, as this does the two first, and denies only the last. He bethe rights of property. Reduce the people to lieves the Administration, though weak and vioslavery, and you may take their property when lent, are honest and patriotic. I shall spare myand as you please.

sell the labor of discussing that point. It is The honorable Secretary says, in relation to difficult to ascertain with certainty the motives this part of his plan, “should it appear that this of statesmen, and it matters little to the country, mode of raising recruits was justly objectiona- whether its rights and liberties are lost through .ble, on account of the tax on property, from the the weakness, or wickedness, of its rulers. Public 'difficulties which may be apprehended in the men are to be judged by their measures. The "execution, or from other causes, it may be ad- mere attempt to carry a measure, involving such · visable to decline the tax." But why is a pro- principles, is just cause of alarm. The people ject, directly and plainly violating the Constitu can never feel safe while they know the Governijon, brought forward at all? Is it to try the ment claims such a power, which may gradually, temper of the Legislature and of the people, and as opportunity shall savor, be brought into exerto lessen the horror at first excited by such at- cise. The present bill adopts it, in a small detempts by rendering them familiar? In my opin- gree; another reported by ihe same committee, ion ihis system of military conscription, thus re- authorizing forcible draughts from the militia, to commended by the Secretary of War, is not only serve for the term of two years, goes much furinconsistent with the provisions and spirit of the ther, with the same principle. In the mean time, Constitution, but also with all the principles of among men of desperate fortunes and unprinci: civil liberty. In atrocity it exceeds that adopted pled ambition, the doctrine will gain friends. by the late Emperor of France, for the subjuga- | Honest intention and well-meaning weakness give tion of Europe, which, after drenching a great i no security, but increase the danger. They preportion of that' Continent with blood, was de vent alarm, and when men of such a character stroyed by the most powerful confederacy of na- shall have prepared the system for operation, othtion's the world ever knew. He allowed exemp- ers of more talents and different character will tions 10 fathers of families, and those in certain drive thern from their seats, and grasp the desprofessions and official stations. But the proposed potic power so unsuitable for weak hands. If this system exempts none, except the President of the proposal of the Executive, though at present, it United States, and the Governors of States. All should not be adopted by the Legislature in all its within the prescribed ages, whatever may be their most odious features, should still be treated with pursuits or condition of life, must submit to the good natured civiliiy, it will hereafter, at some iron yoke; priests must be taken from the altar, unpropitious moment, be again urged, and perand judges from the bench. The highest officers, haps with fatal success. The attempt merits from both civil and military, must be ignominiously the nation, deep and full toned expressions of inforced into the ranks of the Army. The semina- dignation. ries of learning are to be robbed of their profes After laboring to establish the right of the Govsors and scholars. Neither literature nor science, eroment to exercise the dangerous power menexcept what is subservient to the military art, will tioned, the honorable gentleman (Mr. Giles) has be held in estimation. The country will become attempted to show that the present bill does not military, and be involved in perpetual wars, often necessarily involve that power. It is certain the waged to gratify the ambition of rulers. History bill does not follow the plan of the Secretary of evinces that wars of ambition are not less the pesis War in its details, but I much doubt whether the of republics than of monarchies.

provision authorizing the enlistment of minors Such a measure cannot, it ought not to be snb- without the consent of their parents, guardians, mitted to. If it could in no other way be averted, or masters, can be justified, without asserting the I not only believe but I hope, it would be resisted. right to take the citizens for the Army by force. The most odious and cruel slavery would be the If the Government has not the right of taking inevitable consequence of submission.

persons for the Army by force, they must obtain On a former day, when this measure recom- ihem by voluntary enlistment. That is, they mended by the Secretary of War, was mentioned must contract with individuals to become soldiers by an honorable member, who in his place ex- of the regular Army, and to subject themselves pressed his approbation (except so far as relates to the duties of that condition. All persons com. to the bounty tax) in terms not doubtful, I did petent to contract for themselves, may thus enlist pot hesitate io give it my most decided disappro- into the Army. None who, for any reason what. bation. I then called it weak, violent, and wick- ever, are incompetent to contract for themselves, ed. On more reflection, I see no reason to alter can enlist without the consent of those who have my opinion of its character. It is weak, for it is a legal right to control them and contract for ill calculated to effect its object; violent, for it them. As the very essence of a contract is the attempts to use force, without right; and wicked, voluntary assent of the minds of the parties, it is for, if successful, it will destroy the Constitution sufficiently obvious that all are incompetent to and liberties of the country.

SENATE.

NOVEMBER, 1814.

Militia of the United States. 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 righe 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 nental Congress, in the year 1776, though sorely to make contracts. No legislative power can re- pressed by the war they were then engaged in, move the disability. You may, by a legislative and in great want of recruits for their Army, act, dispose of their persons and property, but it were so deeply impressed with the illegality and cannot be said to be done by their consent. injustice of such a practice, that they ordered all

In every civilized couniry a certain age has apprentices enlisted without the consent of their been fixed op, 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 koown. It 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 governmeni 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 ihe BritAll these, either directly or by necessary inser- 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 Govero- 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 thús 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 (wenty-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 ihing 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 enlisi 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 io But, sir, were it certain this Government had vestigate and determine the capacity of each the right of enlisting into the Army improvident individual.

youth, without the consent of those to whom the The enlisting of minors bound to apprentice- policy of the law has intrusted the care and con

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