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JANUARY, 1812.

Volunteer Corps.

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land, shall become a subject of that country ;-so question is, can Congress, by law, constitutionthat while they make subjects of our citizens, they ally authorize a company, battalion, regiment, deny us the rights of making citizens of their sub. brigade, or division of Siate militia, under the jects.-Ordered to lie on the table.,

command of the Governor of the State to which VOLUNTEER CORPS.

they belong, without first applying to him, to

transfer themselves from his command, and withThe House resumed the consideration of the out his order or consent, and put themselves unbill to authorize'the President of the United States der the coinmand of the President ? He thought to accept and organize certain volunteer military not. You may as well designate a particular corps; and the question recurring on engrossing company, regiment, &c., of State militia by name. the bill sor a third reading,

You may as well, for instance, authorize the Pres. Mr. Bigelow observed, that when he rose yes-ident to call into the service of the United States, terday, it was at so late an hour, that he felt un- the first brigade of the militia of Massachusetts, willing to detain the House by stating in full his without the orders or consent of their commanderobjections to the constitutionality of the bill. He in-chief, the Governor of the Commonwealth. would now ask the indulgence of the House while This bill, if passed as it now is, destroys all milihe stated them more distinctly. He regretted that tary order and subordination. A colonel of a rehe was not better prepared ; that he had not bad giment might as well issue his orders to the lieu. more time to examine the subject in a point of tenant, instead of the captain of a company: view which had but recently occurred to his He observed that he had heard it stated as a mind.

fact, that the Secretary of War, in a late case, His objections, he said, were to that part of the issued general orders to an inferior officer of the bill, which provides, "That where any company, army, and that officer, for communicating them,

baitalion, regiment, brigade, or division of militia without consulting his superior officer, was aralready organized, shall tender their voluntary rested, and if the fact were so, very properly service to the United States, such company, baie arrested.

talion, regiment, brigade, or division, shall conti- These principles, he said, were recognised by inue to be commanded by the officers holding com Congress in 1797 and 1798. In the act of June 'missions in the same; that is to say, they shall 24, 1797, authorizing a detachment of the militia act under Siate commissions.

from the several States, the President was emBy the Constitution, he said, but iwo descrip- powered to authorize the Executives of the several tions of force are contemplated. It speaks of two States, if they judged it expedient, to accept as part only. One is an army, or regular force, which is of the quota of the State, any independent corps the only proper force of the United States, which of cavalry, artillery, or infantry, who might volunforce the Constitution authorizes Congress 10 teer their services. The Congress of that day did raise when necessary. The other is the militia not think of calling out the militia of the several of the several States, not of the United States. States, but through the medium of the ExecuThere is no such force as the militia of the Uni- tives thereof, who, by the constitutions of the seted States; they are the militia of the States to veral States, are their commanders-in-chief, until which they respectively' belong. As proof of this, they are called into the actual service of the Unihe read that clause in the Constitution, which ted States. By the act of May 28, 1798, for raissays, " The President shall be commander-in-ing a provisional army, the President was authorchief of the army and navy of the United States ized, in addition to the 10,000 troops to be raised and of the militia of the several States, when by that act, in the event of a declaration of war called into the actual service of the United States, against the United States, or of actual invasion of Thus, said he, the militia are by the Constitution their teirritory by a foreign Power, or of imminent ėmphatically recognised as the militia of the sev- danger of such invasion discovered in his opinion eral States.

to exist, to accept of any company or companies The troops, or, as they are termed, the volun- of volunteers, either of artillery, cavalry, or infanteers, contemplated to be raised by this bill, must try, and whose commissioned officers the Presicome within one of the above description of dent was authorized to appoint. forces. They must either be part of the army of The fact is, said he, ibat ihere is no such dethe United States, or of the militia of the several scription of force as volunteers; they are not States, or they are not a description of force known to the Constitution. All troops commandauthorized by the Constitution.

ed by officers commissioned by the President, Are they, then, an army or regular force of the whether raised by individual enlistment, or by United States ? He trusted no gentleman would enlistments by companies, &c. are all regulars; contend that a company, battalion, regiment, &c., they are the Army of the United States. If they commanded by, officers holding State commis- are commanded by officers holding State commissions, were a regular force of the United States. sions, they are the militia of the State, and, until If they come within either of the descriptions, called into actual service of the United States, they must be considered as belonging to the mili- under the command of the Executive of the State tia of the several States, and, until called into ac- to which they belong. If you would call them cual service, under the command of the Execu- into service, you must do it through the medium tives of the Siates to which they respectively be of the Governors of the several Siates: you can long. Considering them, then, as militia, the do it in no other way.

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Volunteer Corps.

JANUARY, 1812.

For these reasons, he said, he was strongly im- the militia, and for governing such part of them pressed with the opinion, that the bill was alto. as may be employed in the service of the Uni. gether unconstitutional, and expressed a wish ted States, reserving to the States, respectively, that others of more ability, and who had paid 'the appointment of officers, and tlie authority of more attention to the subject, would investigaie it. training the militia, according to the discipline

Mr. Lacock holding an opinion on the bill be prescribed by Congress." fore the Committee somewhat different from any These clauses of the Constitution show how which he had heard delivered, he would take the the disposition and government of the militia is liberty of expressing it.

divided between the General and State Govern. The bill has assumed a shape which makes the ments; and this volunteer force would be partly force to be raised under it, a militia force. The under the direction of the State Governments, officers and soldiers will be State troops ; but and partly under the General Government. Their when embodied and in the field, they will be a officers will be appointed by the State Governcomponent part of the Army of the United States. ments; but when embodied and in service, they

The bill, as first reported by the Committee of might, in his opinion, be marched wherever the Foreign Relations, contemplated the appointment General Government thought proper, for the gen. of the officers of this volunteer corps by the Pres- eral desence of the country. ident of the United States. This, it was thought, There is, said Mr. L., an evident distinction be. might prove a dangerous patronage placed in the tween a volunteer,and a regular soldier; the forPresident; the present bill had been therefore in-mer does not part with his civic character, until troduced, leaving the choice of the officers to the he takes the field; the latter, ihe moment he ea. several State Governments, or, to the people, lists into the service. agreeably to the practice of each. He thought Congress is prohibited from making any apthis the most desirable course; and it would cer- propriation of money for the support of armies tainly be more agreeable to the men to serve for a longer term than two years." There is no under officers whom they knew, than under mention made of appropriations for the militia ; strangers.

of course, it must be presumed, that the militia But, it appears, we are met on the threshold are considered, when in service, as a part of the with Constitutional objections. It is said, that army, otherwise Congress would have no authorwhen these troops are raised, it will not be in the ity at all for supporting the militia. power of the President to march them out of the Under any other construction of the Constitulimits of the United States. He thought this a lion, this force would, indeed, be of an anomalous question proper to be determined by the President; nature.' Figure to yourselves, said Mr. L., a vicrather than by this House. It is the duty of Con- torious' army, driving the enemy before it, comgress to declare war, raise and support armies; ing to the territorial lines of the United States! and of the Executive to employ ihem: but, as Shall the victors stop precisely at that spot? gentlemen have offered opinions on this question, Shall this line be a wall of fire to them? And he would declare his.

thus leave the enemy in perfect security? Is this The gentleman from North Carolina (Mr. Ma- to be the situation in which the militia of this con) had correctly stated what were the rights country are to be placed ? A militia which has vested in the State and General Governments; always been considered as the great bulwark, and but he, Mr. L., drew different conclusions from the best defence of the country? That they shall the facts which he had stated, from what that only act at home, in the petlý business of " exegentleman had done. He says, that wherever a cuting the laws, suppressing insurrections, and repower was placed, before the adoption of the Fed- pelling invasions ?" He thought differently; be eral Constitution, it still remained, unless it was considered the militia our best reliance for defence taken away by that instrument; and that before both at home and abroad. And in proportion as the formation of the General Government, each you lower the consequence of the militia, you State, being sovereign, bad a right to march their raise that of standing armies; because if the milimilitia wherever they pleased. But the question tia cannot be employed out of the United States, is, who has at this time this right? The Consti- the larger army will be necessary. tutiôn gives to Congress the power of declaring The celebrated George Mason, whose opinions war, raising and supporting armies. The war- had already been introduced into this debate, bas making power is expressly delegated in this sec. predicted, “ that the militia would be in danger of tion; and it is besides declared "that no State being destroyed from not being employed." He shall engage in war, unless actually invaded, or was fearful that we were about to realize his prein such imminent danger as will not admit of de- dictions; as the opinions now entertained respectlay.” The whole physical power of the nation is ing them are far from being calculated to foster thus placed under the control of the General Gov- their military pride. ernment; and the subsequent provisions of the But suppose, said Mr. L., this construction of Constitution are declaratory of the manner in the Constitution is not a correct one, and the milwhich minor powers are to be executed by Con-itia can be employed only for suppressing insurgress. Congress is to provide for calling forth rections, repelling invasions, &c. What is an inthe militia to execute ihe laws of the Union, vasion ? He believed this nation had been inva

suppřess insurrections, and repel invasions; to ded for many years past. He believed it was in' provide for organizing, arming, and disciplining vaded in the butchery of Pierce, in the destruction

JANUARY, 1812.

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committed on board the Chesa peake, in the slaugh. turn of that politeness. He was sorry he could ter of our citizens on the Wabash, &c. He looked not acknowledge the same obligation to the honupon all these acts of violence as invasions of our orable gentleman from Virginia, (Mr. Randolph.) country's rights; for he considered our vessels at That honorable gentleman had been pleased to sea as a part of our territory, and as an extension say, that the construction for which he, Mr. C., of it; and every citizen taken from these vessels. had contended, was supported by such arguments as só many invasions. Was it not an invasion as a lawyer would use in support of an indict. of Denmark, when the British so disgracefully de- ment. Mr. C. said, he did not know whether the stroyed the feet at Copenhagen ? Or, if the Brit- honorable gentleman meant this as argument or ish were to make an attack upon our vessels lying sarcasm. in the Chesapeake or Potomac, would not that be (Mr. RANDOLPH said he did not 'allude to Mr. considered as an invasion ? He believed it would; C.; he was not in the House when he delivered his and that, for every man taken from on board our argument.} vessels, we had a right to carry an army in the Mr. Cheves said he thanked the gentleman for enemy's territory, wherever we could assail it. the declaration, and proceeded. It was necessary

We have heard much of theory, said Mr. L., on briefly to state the argument which he had before this subject; let us look at the practical part of it. submitted to the House. He had urged that, in Seventy-five thousand men, in addition to our relation to the subject under consideration the present force, are deemed sufficient-for the ob- General Government was a National not a Fedeject in view, viz: twenty-five thousand regulars ral Government, and that it was such because it and fifty thousand volunteers. If the volunteers operated not on the States, but immediately on were to be considered in the light of a regu- the persons and property of the people. That a lar force, it would be draining the militia of ihis National Government which had the power to denumber of men; and the only difference between clare and make war, had, as an attribute of that them would be the expense. If you offer an ad- sovereign power, unless it were expressly taken ditional inducement io enter the service, you away, the power to call forth the people, the phythereby add to the expense. When gentlemen sical strength of the nation, to carry on the warspeak of this volunteer corps as regulars, they that this power was exclusively, vested in the seem not to consider that they are drawn from General Government, and that the Constitution the body of militia ; for he knew not where else contained no limitation of the power. That the they could come from, except in imitation of the clause relative to invasion was a further grant of British, we were to purchase them from some power, and applied to a state of things existing at German Prince.

time when Congress had not exercised the Gentlemen who are prepared to vote for a large power, of declaring war. His argument was not. standing army, and thereby place in the hands of as it had been represented, an argument in favor, the President great patronage, will vote against of constructive powers. The power for which he this bill. They will also greatly increase the contended was claimed as a power expressly. public debt, which some think a public blessing; granted. It was expressed in the power to declare they will also lay a foundation for direct taxes and and make war. It might perhaps be called an inexcises of every kind., But, as he wished, as cidental power, but it could not therefore be called much as possible, to avoid all these things, he a constructive power. There is not, said Mr. C., should vote for the bill.

a power in the Constitution which can be render: Mr. Cheves said, he rose with great reluctance ed practical without incidental powers. It has to throw himself again upon the attention of the been said, that by one of the amendments of the House, but every one who had heard the discus- Constitution, it is provided, that powers not delesion and observed the misconceptions which had gated to the United States are reserved to the been entertained on the subject of his argument States, but this amendment is not correctly quotthe other day, would see that he could not remain ed. It declares that powers not delegated to the silent. He was at first astonished at the alarm United States by the Constitution, nor prohibited which appeared to be excited on the dther side of by it to the States, are reserved to the States. the House. He was quite unable to conceive why Now the right of declaring and making war, is a doctrine altogether popular; why a doctrine cal- prohibited to the States, and unless you can ex. culated to increase State power and State securi- iinguish that attribute of sovereigniiy, by which ty; why a doctrine calculated to supply the place the sovereign of a country is not only authorized, of standing armies by the militia of the country, but, when necessary, required to call out the peoshould excite alarm for the safety of the liberties ple for the purpose of making war, it must be in of tbe citizen or the rights of the States. He, ihe General Goveroment. It has been said that however, recollected that the gentlemen were all the powers of the General Government were not eloquent gentlemen, accustomed to debate-he sovereign, but limited. This was to deny the eximmediately perceived that it was an art of their istence of any sovereignity which is limited as 10 oratory, and found in this a ready solution of his its objects, than which noihing is, however, more difficulty. There was, indeed, a little too much of common. But there is an authority on this point mock heroic in this apparent excitement and which, Mr. C. supposed, would not be controvertalarm; but the gentlemen had treated the argued by the gentleman, (Mr. Pitkin,) who urged ment and the speaker with respect, for which he this argument. He meant Mr. HÄMilton's arthanked them, and for which he owed them a re- gument on the constitutionality of the Bank of

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the United States. Here Mr. C. read the follow- raise and support armies," or not; but, should !ng extract from that work:

they be embraced, the objection would be remor. “ The circumstance that the powers of sovereignty ed, and the like restraint would be imposed og are, in this country, divided between the National and appropriations for their support. If, on the conState governments, does not afford the distinction re- trary, they should not, the militia of the country, quired. It does not follow from this that each of the the citizens, the people themselves, while in the portions of power delegated to the one or to the other, military service of the Union, would only be put is not sovereign with regard to its proper objects. It on a footing with the Navy, in relation to which will only follow from it that each has sovereign power there is no restraint, as it was not supposed it as to certain things, and not as to other things. To could endanger the liberties of the country; so deny that the Government of the United States has that, taken either way, the argument proves nothsovereign power as to its declared purposes and trusts, ing. It is said that it is to be presumed the Con. because its power does not extend to all laws, would stitution does not embrace this power, as the be equally to deny that the State Governments have framers of it probably intended to prevent wars sovereign power in any case, because their power does for foreign conquest, and, therefore, did not aunot extend to every case.".

thorize Congress to send the militia out of the It was said by the same gentleman that the United States. Admit the premises, said Mr. C., writers.contemporaneous with the adoption, and and the conclusion will not follow. A contrary ihe debates of the several conventions on the conclusion, it is contended, may be more fairly adoption of the Constitution, repelled the con- drawn. This question seems to depend on anothstruction now contended for ; but that gentleman er: What force is best calculated for foreigo coa. had not produced, nor had any other gentleman quest, a regular army or the militia ? For if you produced a sentence to that effect, except the employ the militia, you so far render unnecessary gentleman from Tennessee, (Mr. GRUNDY,) who a regular army; and if you preclude the use of read from the Virginia debates, in the argu- the militia, you render necessary a regular army. ment of Mr. Nicholas, a detached sentence, in But, it will not be denied that a regular army is which, speaking of that article of the Constitu- best calculated to make foreign conquest; and it tion which gives power to Congress " to provide seems to follow, that, if the framers of the Confor calling forth the militia to execute the laws of stitution had intended to prevent foreign conquest, the Union, suppress insurrections, and repel in va- they would not have limited the use of militia. sions," he says, " they cannot call them forth for It is said that the silence of contemporaneous any other purpose than to execute the laws, sup-writers, and of the debates on the Constilution af press insurrections, and repel invasions." But the time of its adoption, proves it was not inMr. Madison, in the same debate, says " the most tended to grant this power; but, here again, it effectual way to guard against a standing army should seem the opposite conclusion is stronger is, to render it unnecessary; the most effectual and clearer. Let gentlemen reflect on the num. way to render it unnecessary is, to give the Gen- berless imaginary objections which were urged eral Government full power io call forth the at that time, for which there was not the shadow

and exert the whole natural strength of of foundation, and then ask themselves whether "ibe Union when necessary.” Now, if the one this construction (which appears to be admitted quotation be an authority against the power, ibe by some gentlemen in debate, and which has been other is as strongly in favor of it. But both distinctly denied by none, to be authorized by the were used in reference to the matter then under power to declare and make war, unless restrained consideration, and neither can fairly be applied by other clauses of the Constitution) would have to the question now before the House. That con- been passed over in silence bad it not been clearly Linues to stand on the ground on which all Con- understood to be granted. Is it to be beliered it stitutional questions ought exclusively to stand would have escaped the "lynx-eyed Patrick Henexcept so far as collateral circumstances may be ry,'' to use an expression of the gentleman from admined for purposes of elucidation-the terms Virginia, (Mr. RANDOLPH,) had he not considered of the Constitution itself. It had been said that it as necessarily and clearly granted. This silence, Congress had no greater power over the militia Mr. C. said, appeared to bim to be an argumeni in time of war than in time of peace; but it ap. exceedingly strong in favor of that construction pears to me, said Mr. C., that it might almost as for which he contended. well be denied that there was any distinction be- But the argument, said Mr. C., which gentletween war and peace. It had been urged that nien 'urge with most zeal is, the danger of this Congress had no power under the Constitution construction to personal liberty and the indepento make appropriations for the support of an army dence of the States; and this argument, as far as for more than iwo years, and that, if Congress he could consider gentlemen serious, he viewed had power to use the militia in a foreign war, with astonishment. His construction was so obThey might make appropriations for their support viously calculated to increase, and not to diminfor an indefinite time, and the Constitution would ish the security of the States ; to secure, and not be evaded. Mr. C. said he had formed no settled to endanger the liberties of the people, that it did, opinion whether the militia which might be called indeed, seem extraordinary that gentlemen should into the service of the United States in time of have fallen upon the idea of danger to the liberwar, would be embraced under that clause of the ties of the States and the people as an argument Constitution which gives power to Congress "10 against it. He contended that the militia acting


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JANUARY, 1812.

Volunteer Corps.


under commissions from the States, should be Mr. Nelson observed that from the general used, instead of regular troops acting under com- scope of the remarks of the gentleman from South missions from the United States, and gentlemen, Carolina, (Mr. Cheves,) it appeared as if he conby a kind of inverse logic, infer ihat this will eo- sidered those who differed from him in opinion, danger the independence of the States. Again, as hostile to the militia. It was because he, Mr. Mr. C. said, he contended that the people them- N., was a friend of the militia and an advocate selves should constitute the military strength of of State rights, that he maintained the opinion the Union in time of war, and gecilemen had that the United States has no right to send this concluded that this endangered the liberties of species of troops out of the limits of the United the people. But it was feared if the General States. Government had power to march any part of the

Mr. N. did not believe that the framers of our militia out of the United States, it might march Constitution had any idea of providing the means the whole of the militia of a State out of the of extending the territory of this country by fore State, and place a standing army in their stead. eigo war. If he might be permitted to form an Bur the same danger to the State would exist un- opinion from the debates which took place about der the acknowledged powers of Congress. But the time of the adoption of the Constitution, and is it possible, said Mr. C., that apy Government, the practice contemporary with those debates, he or any man, intending to assail the independence should suppose a thirst for extending our territory of a State, or the liberties of a people, would and dominion had pot then taken place-the senequip and qualify for war the whole of that very timeat had never entered into the minds of the people? Though sent beyond their own territo-patriots of those days—their leading object evirial limits, their homes and their families would dently was, to secure the happiness of the people remain behind, and urge them, by, these strong within the then United States. ties, to return, armed with greater power, and But if the people of the United States are to be fired with vengeance to expel the usurper. What. engaged in a war, for foreign conquest, the Conregular army could resist such assailants, urged stitution gives them to power to use the militia by such motives?

for this purpose. They must make use of an army But, it is said, this power might be abused, and for obtaining their end. He was no foe of the the people oppressed by a grievous and burden- militia, when he considered them as the natural some service. That if they can be sent out of defence of the United States, when he contendthe United States, they may be sent to Jamaica ed that the people of the United States never conor the East Indies, 10 China or Japan. No, said templated that the General Government should Mr. C., no free Government dare practise such an draw them out of the limits of the Union. He abuse of such a power. You have the security protested against the grant of sovereign powers of a free Government, and it is the best and only to that Government. He denied the auihority security you can have. The possible abuse of of the writers, upon whom the gentleman from the power cannot be fairly urged against its use. South Carolina had founded his opinions-they Were you thus to reason, you would proscribe are doctrines calculated for despotic Governments as wicked and dangerous our holy religion itself. or limited monarchies, where the people possess Have not its abuses lit up the flames of persecu- no power but what they derive from the Governtion ? Have they not fattened the soil with in- ment, and pot for this country. The people of nocent blood ? But am Itherefore, said Mr. C., this country made their own goveroments; and to cease to be a Christian? It is said that, in in establishing the General Government, they England, under a monarchy: the militia .cannot gave it no more power than is expressed in the be marched out of the Kingdom. This is a mis- Constitution ; those powers which are not extake. The Government has the power, and it is pressly given, or are not necessary to carry those by statute that the King is restrained from the powers into execution; being reserved to the exercise of a power which he would otherwise States or the people. have. Every Government has this power, and - If the power given to Congress to declare war, has exercised it. Was pot Rome free ? Yet, carries with it all the consequences, whether diwere not the Roman legions marched out of the rect or indirect, he asked why the power to raise Roman territory? Was Athens-were any of and support armies was given in the next secthe Grecian States free ? Yet, were not their tion ? Congress could not carry on war without citizens marched out of their own territories ?. armies. To his mind, it appeared clear, that the Is there an instance in history of a Government framers of the Constitution meant that nothing which, in time of war, could not march its citi- should be left for construction. They first give zeps beyond its territorial limits? This power, the power to declare war, and then the power to it will be admitted, must rest either in the Union raise and support armies. or in the States, and, as they are equally and fair- But the argument of the gentleman in relation ly represented in the General Government, their to the militia is still more extraordinary. He danger is not increased by placing it there. As it says the power given to Congress to declare war, respected State rights, Mr. C. said, he would only gives them the righi of using the whole physical add that he did not expect these zealous exertions force of the country; and that if nothing had in their defence from his honorable friends over been said respecting the militia, it would, of the way:

course, have been used as a part of that physical Mr. Key spoke in reply 10 Mr. Cheves. force. But Mr, N. contended that if the Consti

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