volunteers would be a force that could be thus used, or whether it was to be a mere militia force. The amendment offered by the gentleman from the Mississippi Territory would have the same effect with the one offered by himself. The Constitution, said Mr. P., speaks of two kinds of force the Army and the Militia. The militia is considered the strength of the nation for defending and protecting the country. The militia, as was observed by the gentleman from the Mississippi Territory, is the shield of the nation-the Army, the sword. The militia may be called forth by Congress to suppress insurrection, enforce the laws, and repel invasion, and for these purposes only. He did not agree with the gentleman, that the militia could in no case be employed without the limits of the United States. He did not think their services were to be confined by geographical limits. If it became necessary for the Executive of the United States to cali out the militia to repel invasion, he thought they might pursue the enemy beyond the limits, until the invaders were effectually dispersed. There is nothing, said Mr. P., to prevent an agreement being entered into between militiamen and the Government of the United States for the performance of military service; but then, after such agreement, they would no longer be militiamen-they become a part of the Army. He should vote against the amendment, as he believed it to be unconstitutional; and then against the bill, as ineffectual. JANUARY, 1812. and thus leave the State without its natura! defence. These volunteers, called out under their State officers, would go to battle with the greatest alacrity; and he was astonished to hear it said that it would not be an effective force, except offi cered by the President-then, according to gentlemen, it would be all-sufficient. The President will have enough to do to appoint officers for the regular force; but he was afraid this volunteer corps was to be scouted, that the men who would compose it may be got to enter the Army. Have we come to this, said Mr. J., that a freeman of the United States cannot engage to serve his country in any way that he chooses? If so, we had better stop short and submit; thus verifying the prediction of the gentleman from Massachusetts, (Mr. QUINCY,) on a former occasion, that we could not be kicked into a war. The Committee rose and had leave to sit again. SATURDAY, January 11. On motion of Mr. POINDEXTER, Resolved, That the Committee on the Public Lands be instructed to inquire into the expediency of authorizing the Secretary of the Treasury to locate the thirty-six sections of land heretofore granted to Jefferson College, in the Mississippi Territory, on any land in said Territory to which the Indian title has been extinguished, and not otherwise appropriated; and that they have leave to report by bill, or otherwise. Mr. LITTLE moved the following resolution: Mr. WIDGERY hoped the bill would be so mod- Resolved, That the President be requested to cause ified as to be useful. When gentlemen talk about to be laid before this House, as far as may be practicamilitia, they talk about something very different ble, a list of the whole number of vessels and ships of from the force provided for by this bill. This is a the United States, captured, condemned, and detained, bill for accepting a corps of volunteers not ex- under the orders, and by the authority of the British ceeding 50,000 men, to be under the same regula-Government, their value, including also that of their tions and restrictions, when in service, as regular cargo, since the ratification of the treaty of amity, troops, which he thought might be marched any-jesty and the United States of America, of one thoucommerce, and navigation, between His Britannic Ma where. Mr. PORTER again explained the difference between regular soldiers and militia; and concluded with wishing the gentleman from the Mississippi Territory to withdraw his amendment, and he would move to strike out the three first sections of this bill with the view of inserting the four first sections of the bill originally reported. Mr. POINDEXTER withdrew his motion. Mr. PORTER then made his motion accordingly, Mr. JOHNSON said, when militia officers shall raise a volunteer corps, they will not be considered in the service of the United States until called upon to march. And is it supposed that a volunteer force, with an object before them, will not fight equal to any regular force of the United States? Shall we put aside the officers proposed to be appointed by the respective States, and give to the President the power of appointing these officers? He was opposed to this course. The militia was intended as the security of the States, and he would never consent to their being officered by any other than the State authority; for if one thousand men could be taken from Kentucky in this way, thirty thousand might be taken, amount of indemnification, if any have been made, sand seven hundred and ninety-four; and, also, the during the same period, to the citizens of the United States on account of any of the aforesaid captures, condemnations, or detentions. The resolution was read, and ordered to lie on the table. Mr. PITKIN called up for consideration two resultimo, calling upon the Secretary of the Treas olutions, which he laid on the table on the 22d ury for statements of the district tonnage of the United States within each State and Territory, for every year, since the 4th of March, 1789; and the gross amount of customs within each State and Territory for the same period; which was agreed to. The bill for altering the time of holding the District Courts of North Carolina, was read the third time, and passed. VOLUNTEER CORPS. The House resolved itself into a Committee of the Whole on the bill authorizing the President of the United States to accept and organize certain volunteer military corps; when Mr. PORTER moved to strike out the three first sections of the bill last reported by the Committee of Foreign Relations, which provide for the appointment of the officers, in the manner prescribed by law, in the several States and Territories, and insert, in lieu thereof, the four first sections of the bill first reported by the same committee, which gave authority to the President to appoint the officers. Mr. POINDEXTER hoped these sections would be struck out, in order to insert the sections originally reported, which give the power to the President of appointing the officers. The Constitution gives to Congress the power of arming and disciplining the militia, and of calling them out for the purposes already mentioned, but leaves to the States the appointment of officers. It would, therefore, be improper to retain the sections moved to be stricken out, as they would make this corps militia, to all intents and pur poses, Mr. SMILIE inquired if the House was ready to put into the hands of the President a regular force of eighty-five thousand men. You have already, said he, placed an army of thirty-five thousand at his disposal, provided they can be raised, and are you desirous of raising fifty thousand more? If het clauses in question are struck out, and those from the old bill inserted, these volunteers will be as much a regular force as those under the laws already passed. He be lieved that the whole of this force might be safely intrusted in the hands of the present President of the United States; but this will be setting a dan. gerous precedent, which a man of more ambitious views might abuse. Gentlemen will not deny, that if the volunteers be raised under the bill as it now stands, they may pass over the line by their own consent. which will answer every purpose. He could not agree that the officers in these corps should be appointed by the President, as he certainly could not be so well acquainted with the characters to be thus employed as the Executives or the Legislatures of the respective States. He was glad, however, that the question had come before the House in this shape, as it would distinctly mark who were in favor of relying upon the militia, and who were for relying altogether upon an army. Mr. PORTER was sorry to see so much jealousy exhibited on the present occasion, for the question was merely one of form, and not of substance. We have all, said he, the same object in view; we all wish to employ these volunteers in the support of the rights of our country. Because these men receive a commission from the President, will it change their character? Will they at once become traitors to their country? Certainly not; these volunteers will consist of men who have as high a regard for the rights and liberties of their country as we have. While they are militia, they cannot be employed efficiently, and he wanted an efficient force or none. Mr. CHEVES said he would not have risen had any other gentleman taken that view of the subject which he proposed to take; nor had not the H. OF R. amendment been submitted on a ground which went to renounce a great Constitutional power of the General Government. He was, however, entirely opposed to the amendment proposed by the gentleman from New York. The necessary force ought to be provided under its proper name. He was opposed to a regular army in disguise, and such he was obliged to consider that contained in this amendment. He knew that no deception was intended by the honorable mover, but it would afford a dangerous example. With the gentleman from Pennsylvania, (Mr. SMILIE.) he saw nothing in the state of the country, or the views of the Government, to justify or excuse the establishment of a regular army of eightyfive thousand men. If ever the liberties of the country should be endangered by a military force, it would probably be by an army raised under some indirect pretence to cover its real character or design, such perhaps as the one now suggested. The objection stated to the bill before the Committee, and which is said to render the amendment expedient, is, that the force proposed to be raised by the bill is incompetent to the object to be accomplished, because the General Government has no power to send the militia out of the limits of the United States; that they can only be employed under that provision of the Constitution which gives Congress power to call forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion, and that this did not give Congress the power to use the force proposed for the object contemplated. This is the statement of the objection, but it does not disclose the extent of its paralyzing effects on the powers of the General Government. - What, then, is the real extent of the question before the Committee? You cannot, in any case, use the militia in performing garrison duty. You cannot call them forth, even in time of war, to prepare for an expected invasion, or send them to the frontier, to the West or the East, until the enemy has entered your territory. An invasion is a hostile entry on your territory; and, according to the construction suggested, nothing else but a hostile entry on your territory will authorize you to call forth the militia. Nor can you, in case of actual invasion, employ them beyond. the boundary line of the United States-for though the gentleman from New York says the service of the militia is not to be bounded by geographical limits, I cannot, said Mr. C., discover the premises by which he comes to this conclusion, if the General Government has no other power over the militia than is given to it in this clause of the Constitution. If they may cross the line, why not go to the walls of Quebec? The principle is trampled upon the instant they pass beyond the territorial limits of the United States; nor, if this be a correct construction, can the consent of the individual add anything to the powers or the rights of the General Government while he remains a member of the militia of the State. It is the State which claims the right of a sovereign to retain the militia within the limits of the United States; and the individual who owes to the State allegiance and duty coextensive with the right of the State, can transfer no part of that allegiance or duty to the United States, which are a distinct sovereignty. The sovereign claims of the States are opposed to those of the United States, and the consent of the individual can neither increase nor diminish the rights of either while he continues a member of the militia of the State. Such is the effect of the construction proposed, that you could not march a militiaman from Connecticut to Masschusetts, with or without the consent of the individual, to suppress insurrection, till it had actually taken place, or till your laws have been actually resisted, or till your territory has been actually invaded, or even send him to garrison a fortress in time of war within the State of which he is a member, until there has been a hostile entry, nor even then perhaps. This cannot possibly be all the power which Congress has over the militia of the Union. By such a construction of the Constitution you cut the best sinews of our national strength. But, said Mr. C.. the power of the General Government to use the militia in time of war is not given by the clause of the Constitution which has been mentioned. It is granted by a different clause of the Constitution-that which authorizes Congress "to declare war." To discover the true extent of this power, it is necessary to inquire into the nature of the Government of the United States, as it applies to the subject under consideration. Is it a Federative or a National Government? a Government in which the States as States are represented and bound, or one in which the people are represented and bound? For the purpose of making war, it is essentially a National Government, a Government of the people. The distinction between a Government of the people, and a Federative Government, will be best seen by a comparison of the present Government of the United States with that of the old Confederation. The last, unlike the former, was not in itself a sovereignty. It represented the sovereignty of the States as that of so many individual sovereignties. It could make no law immediately binding on the persons or the property of the citizens of the several States. The troops of the Confederacy were raised under acts of the Legislatures of the several States; the other supplies of the war were granted in the same manner. But, under the present Government, the laws of Congress act immediately on the persons and property of all the citizens of all the States. This, then, is a definition of a National Government, or a Government of the people. It acts immediately on the person and property of the citizen, and such, as to the power of declaring and making war, is the nature of the Government of the United States. The Government of the Union, then, possesses the power, and this power, too, is exclusive, of declaring and making war; and, for the purposes of declaring and making war, is a National Government. But the power of declaring and making war is a great sovereign power, whose limits JANUARY, 1812. and extent have been long understood and well established. It has its attributes and incidental powers, which are in the same degree less equivocal than those of other powers, as it exceeds those powers in its importance. Do you ask, then, said Mr. C., for the right of Congress to employ the militia in war? It is found among the attributes of the sovereign power which Congress has to make war. Do you ask for the limits to which this employment may extend? They are coextensive with the objects of the war. Those who think the General Government has no right to send the militia out of the United States, probably found this opinion on the clause of the Constitution already mentioned, which gives Congress a right to call forth the militia for the purposes of enforcing the laws of the Union, suppressing insurrection, and repelling invasion, and apply to it that rule of construction which declares that the expression of one case tacitly excludes all like cases, The argument, then, is this: though Congress might have had a right to use the militia for all the purposes of war, had not this clause been inserted in the Constitution; yet, as in it we see an express grant of a right to use the militia for a particular act of war, we necessarily infer that it was intended to grant no other like power; that is to say, no power to employ them in any other act of war. The fallacy lies in this: the cases are not like cases. The term invasion, as used in the Constitution, is well understood not to refer to a state of public and declared war, such as Congress has the right to declare and wage. It may be used to express a circumstance or an incident of such a war. But, when it is used without such dependence, it means, and it is so understood and used by writers on public and national law, a hostile entry into the territory of a sovereign Power, not growing out of a public and declared war. For example, if the Governor of either of the two Canadas were to make an inroad into the territory of the United States, this would be an invasion within the meaning of this clause of the Constitution. It would be an act of war, but would not necessarily involve the peace of the United States with Great Britain. Every act of war will not destroy the peaceful relations of Governments. Great Britain and France, for years past, have committed upon us acts of hostility, but they are still considered, politically, as at peace with us.” The attack on the Chesapeake was an act of war, but, to use the appropriate terms, it was an act of war de facto, not de jure. So, frequently, is also an invasion. The sovereign invaded may consider it as as destroying the peace which had previously subsisted between him and the aggressor, or not, as he pleases. These invasions are generally sudden and unexpected, and it was no doubt to repel such, that the power contained in this clause of the Constitution was given. We thus discover, said Mr. C., the objects of the Constitution. It had given the power of calling forth and using the militia for the purposes of war generally, under the power to declare and make war; but the Government, under this grant JANUARY, 1812. Volunteer Corps. H. OF R. gress from the rest of the militia, for the purpose of giving to the President powers which the Constitution expressly denied, and an influence the most dangerous that can be conceived to the peace, liberty, and happiness of the United States."] of power, is only authorized to use them in the case expressed-a public and declared war. It was, therefore, deemed necessary or expedient to grant to the Government of the Union a power to require the services of the militia in certain other cases, and therefore was inserted the clause' giving power to Congress to call forth the mili- But, putting the Constitutional question as to tia, to execute the laws of the Union, suppress mere actual power out of view, the spirit of the insurrection, and repel invasion. Here, accord- Constitution, in this case perhaps of no less imingly, we see invasion coupled with cases which portance, would be essentially violated. The have no possible connexion with foreign or na-amendment proposed a force which would be, in tional war. This clause, then, is not a restrain- everything but name, a regular force. Such ing clause, but one giving further and other pow- armies, in any shape, were not congenial to a free ers than those contained in the general power to Government, but this was the most dangerous declare and make war. Without this power the possible shape in which an army could be estabGovernment of the Union would have no right|lished. When you raise a regular army, do it by to call forth the militia of the United States to that name, and the danger of it will be greatly repel an invasion immediately on the emergency, diminished by that reasonable and salutary jealbefore war could be declared; which, should Con-ousy, which it will never fail to excite; but give gress not happen to be in session, would require it this equivocal form, and you lull to sleep this a previous call of that body, and a consequent best guardian of our Constitutional liberties. dangerous delay. But, it is said, that if the Gen- But, if there be any gentleman, who, feeling eral Government have a right to send the mili- the force of these objections, is yet desirous of tia whithersoever the objects of a war may relieving the Chief Magistrate from the embarlead them, it will diminish the rights of the rassment of any doubt that may exist of the power States, and oppress the citizens of the country. of the General Government to use the militia out The first of these evils must be unfounded in [of the limits of the United States, Mr. C. would fact, for it is to substitute the peculiar force of say to him, that he believed the Chief Magistrate the States for a regular standing army of the had no difficulty on the subject. Mr. C. had United States; which must, consequently, in- been informed that he had no doubt of the power crease their security, and extend, not diminish, of the General Government to march the militia their power. The other of these evils is the without the limits of the United States. But, consequence of a power which must rest some- whatever may be his opinion, it is not for this where in every Government, and which is little, House, by a legislative act, to declare his Constiif at all, to be feared in a free one. The volun- tutional duties. He must, and ought to be left to teer militia, then, proposed by the bill, can be act under that high responsibility which is atused in the contemplated war for the object in-tached to his office. No man in the United tended; they can be sent out of the United States, and, therefore, the amendment is unnecessary. States understood the Constitution better, and those who thought as highly of him as Mr. C. did, would be assured he would discharge his duty in this particular with firmness and with judg ment. Should it be determined that this force cannot be sent out of the United States, we may not be able so soon to conquer Canada, but we shall save the Constitution. Mr. C. had other objections to the proposed amendment. It provides that the officers shall be appointed by the President, and under them the volunteers must cease to be militia. But they are not to be called into service but on a contingency, and are, in the meantime, to continue in the mass of the citizens, where they will be Mr. C. said, it appeared to him very doubtful bound to do militia duty; yet this law proposes whether it would be good policy to take possesto exempt them from it. They are precisely like sion of the open country of Canada, with militia the exceptionable corps of 1798, which were then or volunteers, if we could not proceed immeloudly proclaimed to be unconstitutional; nor diately afterwards with a regular force to the was this said only in the fervor of debate, and attack of Quebec ; or, at least, substitute the mili under the influence of party feelings. But the tia, with a competent number of regulars to keep same opinion has been declared by a grave and possession of the country. It would neither be learned judge, in the recess of his closet, as the safe nor economical to perform this service with result of unimpassioned deliberation. In a treat- militia. It would require a great increase of ise on the Constitution of the United States, by numbers, and, however brave, they would be unJudge Tucker, contained in his edition of Black-fit for the discharge of camp duty; they would stone's commentaries, written with learning and be peculiarly exposed in their quarters to surprise ability, he has declared the act of '98 to be uncon- and attack, by the active, rapid, and persevering stitutional. [Here Mr. C. read an extract from enterprise of regular, disciplined, and veteran Tucker's Blackstone, in which the writer de- troops; more would fall by the diseases of the clares, that as these corps were to be officered by camp than by the sword, and in every one would the President, but not called into service, "it be lost some valuable member of a family. Be'seems impossible to consider them in any other fore you enter Canada, said Mr. C., you ought to light than as a part of the militia of the States, have such a number of regular troops as will en'separated by an unconstitutional act of Con-able you to keep possession of the open country. 12th CoN. 1st SESS.-24 These you must increase till they are sufficiently numerous to enable you to sit down before Quebec. Until you take Quebec, you are not securely in possession of a foot of the country. Of what advantage would be a precarious possession of the open country? You do not go to plunder it, but to adopt the inhabitants as brethren and fellowcitizens. The injury done to the enemy will not be equivalent to the expense you will incur. For his part. Mr. C. said, while he thought the right of the General Government to use the militia for the general purposes of war vitally important to the Union, he never wished to see them used in offensive war, except in unexpected emergencies; and then, if possible, in aid of regular troops. JANUARY, 1812. President of the United States, and that the laws will be faithfully executed. Sir, I presume that there can be no doubt that any citizen can bind himself as a regular for five years, and if so, can there be a doubt that he can bind himself as a volunteer for one year. My logic has taught me that every greater power includes every lesser, and that to become a volunteer for one year is as positive a right as to become a regular for five years. Mr. TROUP said, it was evidently an object with the Convention who formed the Constitution to repress, as much as possible, in the new Government, the power of making conquests. History had informed them that conquests had Mr. WRIGHT.-Mr. Chairman, I will subjoin a always been injurious to every country which had few remarks to those so well made by the gentle- engaged in making them; they, therefore, by man from South Carolina (Mr. CHEVES.) Sir, their provisions, endeavored to repress this spirit. by the Constitution, section three, "the President They say, in so many words, "If you will inshall take care that the laws be faithfully exe-dulge in this spirit of conquest, which has been cuted." By the second section, "the President the bane of every nation which has indulged in it, shall be Commander-in-Chief of the Army and you shall carry it on by an army, and an army Navy of the United States, and of the militia of only." And why? Because an army could only the several States, when called into the actual be raised by putting the country to great expense, service of the United States." Thus we see that and this was the limitation which the Convention the President is, in the same section, made Com-thought proper to put to the spirit of conquest. mander-in-Chief of the Army and militia. The A large army, maintained for this purpose, would section which has just been urged by the gentle- be viewed with jealousy by the people of the man from South Carolina, authorizes Congress United States; and of this the members of the "to provide for calling forth the militia to exe- Convention were well aware. There was, on cute the laws of the Union, suppress insurrec- the face of the Constitution, Mr. T. said, an obtions, and repel invasions." Sir, when the Con-vious distinction made between the Army and vention gave the President the power of com- militia. Power is given to Congress to raise manding the Army and Navy, and the militia of armies. For what purposes? For all military the United States, they intended him so to com- purposes. Congress shall have power to call out mand them, as in the best manner to execute the the militia. For what purposes? To suppress laws of the United States, to suppress insurrec- insurrections, execute the laws, and repel invations, and repel invasions, and submitted to his sions. If it had been the design of the Convendiscretion the manner in which this can be best tion to have given Congress the same power over effected. Sir, there is another section by which the militia as over the Army, would they not Congress have a power "to declare war." This have said so in express terms? But there was declaration sir, is, by an act of Congress, a law of another good reason for withholding this power the United States, which the President is sol- from Congress. The States relied upon the miliemnly bound to execute. How, sir, I will ask, is tia for their protection against any attempt at this law to be executed? War is the applying usurpation by the General Government. If genthe force of the nation to the annoyance of their tlemen will turn to one of the amendments of the enemy. It has been well defined an experi- Constitution, they will find it declared, "that a ment which can do the other the most harm." well regulated militia is necessary to the security It is well known that the force contemplated was of a free State." declared publicly to be "for the invasion of Can- But there is another wide distinction between ada." There, then, can be no doubt with the the Army and militia, from the different charPresident as to the object of the force, and the acters of the persons who compose the two bodlegislative authority of Congress to raise the ies. What are the militia? They are yeomanry; force and direct its application. The question is, citizens of the country, called from their homes how shall this volunteer corps be commissioned? and their families, in cases of emergency, for the It would be violative of the Constitution to au-defence of their country. Would it be reasonathorize the President to commission the officers. ble to vest the power in Congress to carry these This patronage was thought dangerous, and was consequently vested in the State governments. I therefore, for myself, feel no difficulty in voting for this volunteer bill, which contemplates the appointment of its officers by the State governments; nor can I feel a doubt that the force raised by this bill for the express purpose of the invasion of Canada, will not be applied to that object. I have the utmost confidence in the men from their homes and their families, for foreign invasion or foreign conquest? It could not have been the intention of the Convention that these men might be shipped off against Jamaica or Vera Cruz-for if, by any construction of the Constitution, the militia can be sent one foot beyond the limits of the United States, they might be sent to Chili or Paraguay. If, then, the militia cannot be sent out of the |