land, shall become a subject of that country; so that while they make subjects of our citizens, they deny us the rights of making citizens of their subjects. Ordered to lie on the table.,

VOLUNTEER CORPS.

The House resumed the consideration of the bill to authorize the President of the United States to accept and organize certain volunteer military corps; and the question recurring on engrossing the bill for a third reading,

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question is, can Congress, by law, constitutionally authorize a company, battalion, regiment, brigade, or division of State militia, under the command of the Governor of the State to which they belong, without first applying to him, to transfer themselves from his command, and without his order or consent, and put themselves under the command of the President? He thought not. You may as well designate a particular company, regiment, &c., of State militia by name. You may as well, for instance, authorize the PresMr. 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 unwilling to detain the House by stating in full his objections to the constitutionality of the bill. He would now ask the indulgence of the House while he stated them more distinctly. He regretted that he was not better prepared; that he had not had more time to examine the subject in a point of view which had but recently occurred to his mind.

His objections, he said, were to that part of the bill, which provides, "That where any company, 'battalion, regiment, brigade, or division of militia 'already organized, shall tender their voluntary 'service to the United States, such company, bat'talion, regiment, brigade, or division, shall conti'nue to be commanded by the officers holding com'missions in the same;" that is to say, they shall act under State commissions.

the first brigade of the militia of Massachusetts, without the orders or consent of their commanderin-chief. the Governor of the Commonwealth. This bill, if passed as it now is, destroys all military order and subordination. A colonel of a regiment might as well issue his orders to the lieutenant, instead of the captain of a company.

He observed that he had heard it stated as a fact, that the Secretary of War, in a late case, issued general orders to an inferior officer of the army, and that officer, for communicating them, without consulting his superior officer, was ar rested, and if the fact were so, very properly arrested.

These principles, he said, were recognised by Congress in 1797 and 1798. In the act of June 24, 1797, authorizing a detachment of the militia from the several States, the President was emBy the Constitution, he said, but two 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 to 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 emphatically recognised as the militia of the sev-danger of such invasion discovered in his opinion eral States.

The troops, or, as they are termed, the volunteers, contemplated to be raised by this bill, must come within one of the above description of forces. They must either be part of the army of the United States, or of the militia of the several States, or they are not a description of force authorized by the Constitution.

Are they, then, an army or regular force of the United States? He trusted no gentleman would contend that a company, battalion, regiment, &c., commanded by officers holding State commissions, were a regular force of the United States. If they come within either of the descriptions, they must be considered as belonging to the militia of the several States, and, until called into actual service, under the command of the Executives of the States to which they respectively belong. Considering them, then, as militia, the

to exist, to accept of any company or companies of volunteers, either of artillery, cavalry, or infantry, and whose commissioned officers the President was authorized to appoint.

The fact is, said he, that there is no such description of force as volunteers; they are not known to the Constitution. All troops commanded by officers commissioned by the President, whether raised by individual enlistment, or by enlistments by companies, &c., are all regulars; they are the Army of the United States. If they are commanded by officers holding State commissions, they are the militia of the State, and, until called into actual service of the United States, under the command of the Executive of the State to which they belong. If you would call them into service, you must do it through the medium of the Governors of the several States: you can 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 Unigether 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 the authority of more attention to the subject, would investigate 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 which he had heard delivered, he would take the liberty of expressing it.

These clauses of the Constitution show how the disposition and government of the militia is divided between the General and State Governments; and this volunteer force would be partly under the direction of the State Governments, and partly under the General Government. Their officers will be appointed by the State Governments; but when embodied and in service, they might, in his opinion, be marched wherever the General Government thought proper, for the general defence of the country.

The bill has assumed a shape which makes the force to be raised under it, a militia force. The officers and soldiers will be State troops; but when embodied and in the field, they will be a component part of the Army of the United States. The bill, as first reported by the Committee of Foreign Relations, contemplated the appointment of the officers of this volunteer corps by the President of the United States. This, it was thought, There is, said Mr. L., an evident distinction bemight 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, the moment he enseveral 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 strangers.

But, it appears, we are met on the threshold with Constitutional objections. It is said, that when these troops are raised, it will not be in the power of the President to march them-out of the limits of the United States. He thought this a question proper to be determined by the President; rather than by this House. It is the duty of Congress to declare war, raise and support armies; and of the Executive to employ them: but, as gentlemen have offered opinions on this question,

he would declare his.

mention made of appropriations for the militia; of course, it must be presumed, that the militia are considered, when in service, as a part of the army, otherwise Congress would have no authority at all for supporting the militia.

country are to be placed? A militia which has always been considered as the great bulwark, and the best defence of the country? That they shall only act at home, in the petty business of "executing the laws, suppressing insurrections, and repelling invasions ?" He thought differently; he considered the militia our best reliance for defence both at home and abroad. And in proportion as you lower the consequence of the militia, you raise that of standing armies; because if the mili tia cannot be employed out of the United States, the larger army will be necessary.

Under any other construction of the Constitution, this force would, indeed, be of an anomalous nature. Figure to yourselves, said Mr. L., a victorious army, driving the enemy before it, coming to the territorial lines of the United States! Shall the victors stop precisely at that spot? Shall this line be a wall of fire to them? And 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 vested in the State and General Governments; but he, Mr. L., drew different conclusions from the facts which he had stated, from what that gentleman had done. He says, that wherever a power was placed, before the adoption of the Federal Constitution, it still remained, unless it was taken away by that instrument; and that before the formation of the General Government, each State, being sovereign, had a right to march their militia wherever they pleased. But the question is, who has at this time this right? The Constitution gives to Congress the power of declaring war, raising and supporting armies. The warmaking power is expressly delegated in this section; and it is besides declared "that no State shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." The whole physical power of the nation is thus placed under the control of the General Government; and the subsequent provisions of the Constitution are declaratory of the manner in which minor powers are to be executed by Congress. Congress is "to provide for calling forth the militia to execute the laws of the Union, 'suppress insurrections, and repel invasions; to ' provide for organizing, arming, and disciplining

The celebrated George Mason, whose opinions had already been introduced into this debate, has predicted," that the militia would be in danger of being destroyed from not being employed." He was fearful that we were about to realize his predictions; as the opinions now entertained respecting them are far from being calculated to foster their military pride.

But suppose, said Mr. L., this construction of the Constitution is not a correct one, and the militia can be employed only for suppressing insurrections, repelling invasions, &c. What is an invasion? He believed this nation had been invaded for many years past. He believed it was invaded in the butchery of Pierce, in the destruction

committed on board the Chesapeake, in the slaughter of our citizens on the Wabash, &c. He looked upon all these acts of violence as invasions of our country's rights; for he considered our vessels at sea as a part of our territory, and as an extension of it; and every citizen taken from these vessels. as so many invasions. Was it not an invasion of Denmark, when the British so disgracefully destroyed the fleet at Copenhagen? Or, if the British were to make an attack upon our vessels lying in the Chesapeake or Potomac, would not that be considered as an invasion? He believed it would; and that, for every man taken from on board our vessels, we had a right to carry an army in the enemy's territory, wherever we could assail it.

We have heard much of theory, said Mr. L., on this subject; let us look at the practical part of it. Seventy-five thousand men, in addition to our present force, are deemed sufficient for the object in view, viz: twenty-five thousand regulars and fifty thousand volunteers. If the volunteers were to be considered in the light of a regular force, it would be draining the militia of this number of men; and the only difference between them would be the expense. If you offer an additional inducement to enter the service, you thereby add to the expense. When gentlemen speak of this volunteer corps as regulars, they seem not to consider that they are drawn from the body of militia; for he knew not where else they could come from, except in imitation of the British, we were to purchase them from some German Prince.

Gentlemen who are prepared to vote for a large standing army, and thereby place in the hands of the President great patronage, will vote against this bill. They will also greatly increase the public debt, which some think a public blessing; they will also lay a foundation for direct taxes and excises of every kind., But, as he wished, as much as possible, to avoid all these things, he should vote for the bill.

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turn of that politeness. He was sorry he could not acknowledge the same obligation to the honorable gentleman from Virginia, (Mr. RANDOLPH.) That honorable gentleman had been pleased to say, that the construction for which he, Mr. C., had contended, was supported by such arguments as a lawyer would use in support of an indictment. Mr. C. said, he did not know whether the honorable gentleman meant this as argument or sarcasm.

(Mr. RANDOLPH said he did not allude to Mr. C.; he was not in the House when he delivered his argument.]

Mr. CHEVES said he thanked the gentleman for the declaration, and proceeded. It was necessary briefly to state the argument which he had before submitted to the House. He had urged that, in relation to the subject under consideration the General Government was a National not a Federal Government, and that it was such because it operated not on the States, but immediately on the persons and property of the people. That a National Government which had the power to declare and make war, had, as an attribute of that sovereign power, unless it were expressly taken away, the power to call forth the people, the physical strength of the nation, to carry on the warthat this power was exclusively vested in the General Government, and that the Constitution contained no limitation of the power. That the clause relative to invasion was a further grant of power, and applied to a state of things existing at a time when Congress had not exercised the power, of declaring war. His argument was not. as it had been represented, an argument in favor of constructive powers. The power for which he contended was claimed as a power expressly. granted. It was expressed in the power to declare and make war. It might perhaps be called an incidental power, but it could not therefore be called a constructive power. There is not, said Mr. C., a power in the Constitution which can be renderMr. 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 remained. 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 other 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 exculated to increase State power and State securi- tinguish that attribute of sovereignity, 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 the citizen or the rights of the States. He, the General Government. 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 to oratory, and found in this a ready solution of his its objects, than which nothing 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. HAMILTON's arthanked them, and for which he owed them a re- gument on the constitutionality of the Bank of

"The circumstance that the powers of sovereignty are, in this country, divided between the National and State governments, does not afford the distinction required. It does not follow from this that each of the portions of power delegated to the one or to the other, is not sovereign with regard to its proper objects. It will only follow from it that each has sovereign power as to certain things, and not as to other things. To deny that the Government of the United States has sovereign power as to its declared purposes and trusts, because its power does not extend to all laws, would be equally to deny that the State Governments have sovereign power in any case, because their power does not extend to every case."

JANUARY, 1812.

the United States. Here Mr. C. read the follow-raise and support armies," or not; but, should ing extract from that work: they be embraced, the objection would be removed, and the like restraint would be imposed on appropriations for their support. If, on the contrary, they should not, the militia of the country, the citizens, the people themselves, while in the military service of the Union, would only be put on a footing with the Navy, in relation to which there is no restraint, as it was not supposed it could endanger the liberties of the country; so that, taken either way, the argument proves nothing. It is said that it is to be presumed the Constitution does not embrace this power, as the framers of it probably intended to prevent wars for foreign conquest, and, therefore, did not authorize Congress to send the militia out of the United States. Admit the premises, said Mr. C., and the conclusion will not follow. A contrary conclusion, it is contended, may be more fairly drawn. This question seems to depend on another: What force is best calculated for foreign con. quest, a regular army or the militia? For if you employ the militia, you so far render unnecessary a regular army; and if you preclude the use of the militia, you render necessary a regular army. But, it will not be denied that a regular army is best calculated to make foreign conquest; and it seems to follow, that, if the framers of the Constitution had intended to prevent foreign conquest, they would not have limited the use of militia. It is said that the silence of contemporaneous writers, and of the debates on the Constitution at the time of its adoption, proves it was not intended to grant this power; but, here again, it should seem the opposite conclusion is stronger and clearer. Let gentlemen reflect on the numberless imaginary objections which were urged at that time, for which there was not the shadow of foundation, and then ask themselves whether this construction (which appears to be admitted by some gentlemen in debate, and which has been distinctly denied by none, to be authorized by the power to declare and make war, unless restrained by other clauses of the Constitution) would have been passed over in silence had it not been clearly understood to be granted. Is it to be believed it would have escaped the "lynx-eyed Patrick Henry," to use an expression of the gentleman from Virginia, (Mr. RANDOLPH,) had he not considered it as necessarily and clearly granted. This silence, Mr. C. said, appeared to him to be an argument exceedingly strong in favor of that construction for which he contended.

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It was said by the same gentleman that the writers contemporaneous with the adoption, and the debates of the several conventions on the adoption of the Constitution, repelled the construction now contended for; but that gentleman had not produced, nor had any other gentleman produced a sentence to that effect, except the gentleman from Tennessee, (Mr. GRUNDY,) who read from the Virginia debates, in the argument of Mr. Nicholas, a detached sentence, in which, speaking of that article of the Constitution which gives power to Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," he says, "they cannot call them forth for any other purpose than to execute the laws, suppress insurrections, and repel invasions." But Mr. Madison, in the same debate, says "the most effectual way to guard against a standing army is, to render it unnecessary; the most effectual way to render it unnecessary is, to give the General Government full power to call forth the militia, and exert the whole natural strength of 'the Union when necessary." Now, if the one quotation be an authority against the power, the other is as strongly in favor of it. But both were used in reference to the matter then under consideration, and neither can fairly be applied to the question now before the House. That continues to stand on the ground on which all Constitutional questions ought exclusively to stand except so far as collateral circumstances may be admitted for purposes of elucidation-the terms of the Constitution itself. It had been said that Congress had no greater power over the militia in time of war than in time of peace; but it appears to me, said Mr. C., that it might almost as well be denied that there was any distinction between war and peace. It had been urged that Congress had no power under the Constitution to make appropriations for the support of an army for more than two years, and that, if Congress had power to use the militia in a foreign war, they might make appropriations for their support for an indefinite time, and the Constitution would be evaded. Mr. C. said he had formed no settled opinion whether the militia which might be called into the service of the United States in time of war, would be embraced under that clause of the Constitution which gives power to Congress "to

But the argument, said Mr. C., which gentlemen urge with most zeal is, the danger of this construction to personal liberty and the independence of the States; and this argument, as far as he could consider gentlemen serious, he viewed with astonishment. His construction was so obviously calculated to increase, and not to diminish the security of the States; to secure, and not to endanger the liberties of the people, that it did, indeed, seem extraordinary that gentlemen should have fallen upon the idea of danger to the liberties of the States and the people as an argument against it. He contended that the militia acting

JANUARY, 1812.

Volunteer Corps.

H. OF R.

Mr. NELSON observed that from the general scope of the remarks of the gentleman from South Carolina, (Mr. CHEVES,) it appeared as if he considered those who differed from him in opinion, as hostile to the militia. It was because he, Mr. N., was a friend of the militia and an advocate of State rights, that he maintained the opinion that the United States has no right to send this species of troops out of the limits of the United States.

under commissions from the States, should be used, instead of regular troops acting under commissions from the United States, and gentlemen, by a kind of inverse logic, infer that this will endanger the independence of the States. Again, Mr. C. said, he contended that the people themselves should constitute the military strength of the Union in time of war, and gentlemen had concluded that this endangered the liberties of the people. But it was feared if the General 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. eign war. If he might be permitted to form an But 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 any 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 not then taken place-the senequip and qualify for war the whole of that very timent 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 fired with vengeance to expel the usurper. What regular army could resist such assailants, urged by such motives?

But, it is said, this power might be abused, and the people oppressed by a grievous and burdensome service. That if they can be sent out of the United States, they may be sent to Jamaica or the East Indies, to China or Japan.. No, said Mr. C., no free Government dare practise such an abuse of such a power. You have the security of a free Government, and it is the best and only security you can have. The possible abuse of the power cannot be fairly urged against its use. Were you thus to reason, you would proscribe as wicked and dangerous our holy religion itself. Have not its abuses lit up the flames of persecution? Have they not fattened the soil with innocent blood? But am I, therefore, said Mr. C., to cease to be a Christian? It is said that, in England, under a monarchy, the militia cannot be marched out of the Kingdom. This is a mistake. The Government has the power, and it is by statute that the King is restrained from the exercise of a power which he would otherwise have. Every Government has this power, and has exercised it. Was not Rome free? Yet, were not the Roman legions marched out of the Roman territory? Was Athens-were any of the Grecian States free? Yet, were not their citizens marched out of their own territories? Is there an instance in history of a Government which, in time of war, could not march its citizens beyond its territorial limits? This power, it will be admitted, must rest either in the Union or in the States, and, as they are equally and fairly represented in the General Government, their danger is not increased by placing it there. As it respected State rights, Mr. C. said, he would only add that he did not expect these zealous exertions in their defence from his honorable friends over

But if the people of the United States are to be engaged in a war, for foreign conquest, the Constitution gives them no power to use the militia for this purpose. They must make use of an army for obtaining their end. He was no foe of the militia, when he considered them as the natural defence of the United States, when he contended that the people of the United States never contemplated that the General Government should draw them out of the limits of the Union. He protested against the grant of sovereign powers to that Government. He denied the authority of the writers, upon whom the gentleman from South Carolina had founded his opinions-they are doctrines calculated for despotic Governments or limited monarchies, where the people possess no power but what they derive from the Government, and not for this country. The people of this country made their own governments; and in establishing the General Government, they gave it no more power than is expressed in the Constitution; those powers which are not expressly given, or are not necessary to carry those powers into execution, being reserved to the States or the people.

If the power given to Congress to declare war, carries with it all the consequences, whether direct or indirect, he asked why the power to raise and support armies was given in the next section? Congress could not carry on war without armies. To his mind, it appeared clear, that the framers of the Constitution meant that nothing should be left for construction. They first give the power to declare war, and then the power to raise and support armies.

But the argument of the gentleman in relation to the militia is still more extraordinary. He says the power given to Congress to declare war, gives them the right of using the whole physical force of the country; and that if nothing had been said respecting the militia, it would, of course, have been used as a part of that physical force. But Mr. N. contended that if the Consti