FEBRUARY, 1812. Provisional Army. H. of R. fortifications which this lapse of time will have given them an opportunity to erect. During this interval, too, we should be exposed to the miseries of a savage war along our Western frontiers; and, on the North, to the predatory irruptions of the Canadians. bec, confined exclusively to the defence of that fortress. These they dare not march, in case of war, to any distance from Quebec, lest their retreat should be intercepted by a force, which could always be raised and sent in from the New England States, on a few days' notice. They could oppose no obstacle to the subjugation of the upper Mr. P. said, that he had never entertained any country. Independently of Quebec they had not doubts on this subject; and, although he professmore than two thousand or three thousand regu- ed no skill as a military man, he could not hesilar troops in both the Canadas, and these dispers- tate in giving an opinion as to the course we ed over a country as many miles in extent as ought to pursue. Let us, said he, raise fifteen or there were numbers of men. They had no form- twenty thousand volunteers in the Northern and idable fortifications. Most of the efficient force Eastern States. They may be easily obtained in they could oppose to us, consisted in a raw and companies, already associated, armed and discipundisciplined militia of about twenty thousand, lined, and ready to take the field by the middle of who were, in every respect, inferior to our own; May. To these let us add six or eight thousand inferior in arms and equipments, inferior in dis- regular troops, or whatever number of the twentycipline, and, he might well say, inferior in national five thousand that shall then have been imbodied. spirit. No reinforcement could be thrown in until With this army we may overrun Canada, with the St. Lawrence becomes navigable, which will the exception of Quebec, in a few weeks. Let be about the last day of May; and we might safely the army descend to some point on the St. Lawcalculate that no troops would reach the upper rence between Montreal and Quebec; there let country before the first of July. Would it not, a military post be established, and the regular then be wise, (if our object really were to occupy troops stationed; there the soldiers may have time the Canadas,) would it not be a saving of blood to become dexterous artillerists, and the officers and treasure to calculate on an invasion before practical engineers. And, when they shall have the time we had mentioned? We should all acquired a competent degree of skill and science agree that it would; but, he would ask whether in their profession, and have been joined by other we had made any effectual provision for enabling regular troops, they may proceed at their leisure, the President to take such a course? We must to the siege and reduction of Quebec. As reattack Canada, if at all, with regular troops or spects the injury to our enemy, Quebec were betvolunteers, or both. When he spoke of regular ter in their hands than in ours. When its comtroops in contradistinction to volunteers, he meant munication with the interior is cut off, the value by the former, men on long enlistments, who make of the Canadas will be lost to the British, and the profession of arms their regular business; and, Quebec can only be supported at the immense by the latter, men engaged for a short period and expense of sending provisions from Europe. In for a definite object, although, strictly speaking, the meantime, the volunteers may be detached they were both regular troops and both volun- from the Army, go into the New England States, teers. We had been told by some gentlemen, that be there reinforced, and proceed to the attack of the only proper force for this purpose was an army Halifax and the Eastern provinces. The danger of regular troops; that they were more effective suggested the other day by the honorable gentlethan volunteers; that it would be a wanton waste man from Georgia (Mr. TROUP) of proceeding to of the best blood of the country to send volunteers Halifax, before the reduction of Quebec, does not on such a service. He was ready to agree that reg- exist. The military maxim, that an enemy's ular troops were better than volunteers; but had post is not to be left in your rear, does not apply. we got them? We have passed law to raise The distance between those places is so great, the twenty-five thousand regular troops, but no rea-country so rugged, barren, and inhospitable, that sonable man would say that they could be all raised in time to effect any important service during the present year. The officers were not yet appointed. The men were to be recruited in every part of the United States, from Maine to Georgia and Tennessee, and it would require some months, after their enlistment, to collect them to gether, and march them to some common place of rendezvous, on the enemy's lines. The ques tion is not, then, the abstract one, whether regular troops are better than volunteers; but whether it is better to attack Canada with volunteers, while we have nothing to oppose us but militia, greatly inferior to our own; or whether it will be better to delay a year, and then make the invasion with regular troops, when we shall be met not only by regular, but by highly disciplined Veteran troops, every way superior to ours, and they, too, aided by an improved militia, and the it would be next to impossible to march an army from one place to the other. Beside, the garrison at Quebec would be always kept in check by our army stationed above it. During the whole of this time, the recruiting service would go on to supply the places of the volunteers, portions of whom would be successively dismissed, until the whole army would be converted into regular troops. If he was not greatly deceived as to the spirit and inclinations of the Northern people, there would be no difficulty in obtaining any number of volunteers that might be required, on the shortest notice. If the State of New York stood alone, unconnected with her sister States, and felt the same disposition to take Canada, which we profess to feel, she would have invited out her militia and reduced it in about half the time we have been talking about making preparations to do it New York and Vermont will furnish the requisite number of men, if you will fairly give them the invitation. They are ready to offer their patriotic services to the Government for this enterprise; but they will not become slaves to the Army for five years. But, said Mr. P., the question in this House was not so much whether volunteers were the proper force to commence the war, as it was how we were to avail ourselves of their services? Some gentlemen were of opinion that they could not be marched out of the United States, for the purposes of offensive war, in the character of mi litia, but that they must be organized as regular or federal troops. Other gentlemen were of opinion, that they might be marched out as militia. And those who held the latter opinion, were again divided as to the grounds upon which they supported it. FEBRUARY, 1812. erty of the citizens for the purpose of conducting the war; that, having a right to all the physical force of the nation for the purposes of war, we have, therefore, a right to the militia as a part of that physical force. Independently of the questionable propositions laid down in this argument, his friend would pardon him for saying that the argument itself was not logical, inasmuch as his conclusion did not follow his premises. If the propositions are true, that we have a right to the physical force of the nation for the purpose of carrying on the war, and that we act, in respect to the war, as a national Government without the agency of the States, the true conclusion must be, that the militia cannot be employed in war. He wished to be understood as using the term war in exactly the same sense in which it had been used by the gentleman from South Carolina, as denoting a His honorable friend from South Carolina, (Mr. state of avowed, open, offensive war, in contraCHEVES,) in his very ingenious argument on the distinction to the defensive operations assigned volunteer bill, had not only most skilfully, but, by the Constitution to the militia. Are the milhe was fearful, too successfully, contended that itia a part of the physical force of the national Congress have the right to coerce the militia into Government? No, the militia are the artificial foreign service. Others denied that they could force of the States. They are the political instibe legally compelled into service, but insisted tutions of the States. They are officered, comthat they might be employed under a voluntary manded, and trained by State authority. They contract. Mr. P. said, he had given his opinion live, move, and have their being by the political on this subject at an early stage of the debate on breath of State authority, and the very moment the volunteer bill; and all he had heard or seen that authority is withdrawn, they cease to exist. since had only tended to confirm his opinion, that It does not follow, then, that, because we have a militia cannot be employed under the Federal right to the physical force of the country for the Government in foreign war. After the able dis- purposes of war, we have, therefore, a right to cussion which the question had undergone, he the militia. But the converse of this conclusion could hardly hope to add anything to influence follows from the other proposition, namely, that the sentiments of the House. But, as the ques- in regard to all the operations of war we act as a tion was all-important in deciding on the proposi- national Government, and State authority is not tion he had just submitted-as the adequacy of known; inasmuch as the militia in their organthe forces already raised, and, of course, the ne- ized capacity cannot exist, even in imagination, cessity of an additional one, must depend wholly without supposing at the same time the continued on the question, whether the militia volunteers existence and co-operation of State authority. can be marched to Canada, he would make a few The fair conclusion from the gentleman's premremarks on some of the extraordinary proposi-ises is the true Constitutional doctrine for which tions that had been advanced on this subject as Constitutional doctrines. The positions advanced in the argument of the gentleman from South Carolina, if he had rightly understood them, were these: that the Government of the United States partakes of the twofold character of a federal and national government; that, in some of its features, it is federal, or a government of States, operating indirectly upon the persons and property of the citizens through the agency of the State authorities, and, in other features strictly national, operating directly upon the people; that the system of national defence against domestic insurrection and foreign invasion, intended to be attained by means of the militia, as provided by the Constitution, exhibits a federal view of our Government, and is a system confined exclusively to a time of peace; that, in time of war, the Government assumes a national character as to all the operations and purposes of the war; that Congress have the sole power to declare and wage war, and that this power involves a right to the persons and prop I contend, that, if you use militiamen, who are the physical force of the nation, you must form them into federal troops, and commission them by national authority, which, the gentleman bas correctly stated, is the only authority known in time of foreign war for the purposes of that war. Among the difficulties with which the gentleman had been obliged to contend in the course of his argument, he had been met at the threshold by the provision of the Constitution which declares the purposes for which Congress may call forth the militia. He had acknowledged that the Constitution was only a delegation of specific powers for particular purposes, and that all powers not expressly granted were retained. He had acknowledged, too, as a universal rule of construction, that, where there is an enumeration of particular powers in relation to any subject, the presumption is conclusive that all similar powers or all other powers in relation to the same subject, were intended to be withheld. He is obliged, therefore, to concede as a consequence, that the enumeration in the Constitution of the purposes FEBRUARY, 1812. Provisional Army. H. OF R. control of their militia, to be sent to any part of the world. If the militia are necessary to the protection of the State sovereignties in time of peace, they are emphatically so in time of war, when the States are surrounded by foreign and domestic armies. for which the militia are to be employed, excludes the idea of employing them for any other purpose. How does the gentleman avoid the force of this reasoning? Why, sir, he tells us that this provision of the Constitution is limited exclusively to a time of peace, and that he looks to a different part of the Constitution for a right to employ the militia in time of war. Whence is the idea of such a limitation inferred ? The phraseology of the Constitution is general, and is applicable equally to all times. Do the occasions on which the militia are to be called out denote exclusively a time of peace? They are to be called out to execute the laws, to suppress insurrections, and to repel invasions. An inva-istence, the other regarding only its policy. The sion, as well as an insurrection, or an opposition to the laws, may, according to the gentleman's idea, occur in time of peace, or at a time other than that of open and declared war; but he must acknowledge that they are all as likely, at least, to happen in time of war as peace. Our ideas of the militia system were derived from Great Britain, whence we received most of our political institutions. It was fair, in this case, as in others, where we adopt their terms and systems, to look for definitions and explanations of them to their laws, without which they are generally unintelligible. The distinction between the duties of militia and of an army, is simple and obvious. It is not only recognised in the Constitution, but in our bills of rights, and in public writers on the elementary principles of government-it exists in the nature of things. There are two distinct purposes to which the physical force of a nation is applicable-the one relating to its safety and exduties of militia are, to execute the laws, to suppress insurrections, and repel invasions. Without this power to effect these purposes, Government could not be maintained. These duties are not optional, but compulsory; for, without the power to command their services for these purposes, society would be dissolved. The business of foreign war is a totally distinct thing-it is a matter of policy, and it can never be good policy to prosecute a war which has become so unpopular, that the whole pecuniary resources of the country will not enable you to hire men to carry it on. The services of the army are therefore voluntary. The militia system in Great Britain was, placing But we are told, that the right to employ the arms in the hands of all the independent yeoman- militia is incidental to the power of declaring ry of the country; organizing them into military war. This power to declare war, aided by the corps; training and preparing them for efficient magical delusion produced by calling it a soverservice. The objects were, to defend the country eign power, is made to include a right to the peragainst foreign invasion; and to protect the lib- sons and purses of our citizens, for the purpose erties of the subject against domestic tyranny. of conducting the war. The idea of deducting The functions of the militia are regulated by the powers from our sovereignty, was, I believe, quoacts of Parliament. They are to be employed to ted from the works of General Hamilton-a man, execute the laws, to suppress rebellions, and re- the unceasing labor of whose political life was pel invasions. These are the only purposes for employed in attempts to break down the State which they can be employed, and to these they governments and to establish a monarchial one are equally applicable in time of war and time of in their stead. His favorite argument, when he peace. They cannot be used in foreign war; wished to extend the powers of the General Govthey cannot be taken out of the kingdom. The ernment, was, that the Government was sovereign provisions of our Constitution in relation to the as to all the purposes for which it was established employment of the militia were, undoubtedly, that war, for instance, was one of these purposes, suggested by those in the British statutes, of which and therefore, we are sovereign, or have discretionthey seem to be a transcript, only that we substi-ary powers as to all the operations and incidents tute the term "insurrection" for "rebellion," which means the same thing. We have one peculiarity in respect to the organization of our militia. They are officered and trained by State authority, instead of that of the General Government, to which is committed the power of peace or war. Why this precaution? Not, assuredly, to make them a more efficient military force, by dividing the command among the seventeen independent authorities, but for the obvious purpose of providing a protection to the State governments against the encroachments of the General Government. It is not to be supposed, then, that the framers of the Constitution, after showing such extreme jealousy towards the powers of the General Government as is exhibited in every part of it, and especially on the subject of the militia, would commit to this Government the sole power to declare war, and with it, the entire of war. The argument meant nothing, or it meant too much. If it only meant that there were certain powers delegated to us by the Constitution, and that these were sovereign, it meant nothing as an argument to ascertain our powers, because the Constitution itself would always be the best and the only criterion to determine the nature and extent of those powers. If it was meant to confer powers which are not delegated, it was in direct violation of an express article of the Constitution. Sovereignty is the power to do as we please. It is a property which, strictly speaking, exists no where but with the Almighty. As to political sovereignty, whatever of it exists in this country rests with the people, who alone have a right to direct the powers of the Government. The essence of sovereignty consists in the exercise of an undefined latitude of discretion. The Federal Government is perhaps the last in the world which can be called sovereign, because there is none whose discretion is more limited and circumscribed. If we are sovereign, this quality is the effect and not the cause of our powers. If I wished to show that we were sovereign as to any subject, I would show the broad and plenary power which the Constitution had committed to us in relation to that subject; and hence I would infer that we were sovereign. But I would never resort to our sovereignty to prove the existence of powers which are not delegated by the Constitution. What are our powers in relation to war? We have the right to declare war; but does this involve a right to the persons and purses of the people to carry it on? The terms do not import it; and I have never understood it to be so considered. The King of England has the sole power to declare war; but he has not therefore a right to the persons and property of his subjects for the purpose of conducting it. He has not the power to employ a man, but by his voluntary contract, and he has no means of paying his soldiers, but by the aid of Parliament. They hold the power of the purse. The effect of a declaration of war, is to confer certain powers on the Executive and to change the exterior relations of the country; but it has nothing to do with the means of conducting war. These means are given in another part of the Constitution. They are given in the powers to raise armies, and to levy taxes to support them. The idea of coercing men into foreign service, is so utterly repugnant to the genius of a free Government, that it should never have entered into the imaginations of the framers of the Constitution. It is an infringement of the personal liberty of the citizens, which no political necessity can justify. There is not a more detestable feature in the tyranny of Bonaparte than his power of conscription-the power which he exercises of compelling his subjects to fight the battles of his ambition against their will. There is not a more odious practice under the British Government, than that of impressing seamen into their navy. I call it a practice, because even in the military Government of Great Britain they dare not avow the principle-they dare not assert the right of taking men without their consent. And shall we, in this Republican Government, in this land of liberty, assert the doctrine that our citizens may be forced from their families, their occupations, their homes, their country, to carry on foreign war? I feel no apprehensions of the practical enforcement of this principle. When the people agree tamely to submit to it, they will have ceased to deserve to be free. Mr. P. said, that he would make only one or two remarks in reply, particularly to the gentlemen who contend for the more palatable doctrine, that militia may be employed in offensive war with their own consent; as many of the observations he had already made, would apply equally in refutation of this doctrine. Our notions of liberty in this country are so extended, that we are some times apt to set them in array against the law and the Constitution, or FEBRUARY, 1812 rather to take them for the law and the Constitu tion. Gentlemen seemed indignant at the idea, that the militia, for whom we never fail to express our just attachment in this House, could not go where and when they pleased. His friend from Kentucky (Mr. JOHNSON) had asked, the other day, with great emphasis and feeling: "What! shall not a freeman be permitted to serve his country ?" He would answer: Yes; a freeman might be permitted to serve his country; but the very essence of that freedom consisted in the circumstance that he could not serve in the manner he might choose, but in the mode only which has been prescribed by law. Our liberty was that of the law, and not the unrestrained indulgence of our own wills. The laws have assigned certain duties to militia, and certain other and distinct duties to the army. A militiaman might join the armya whole company, or even a whole regiment of militia might turn out together, and agree with the Government to go and fight in Canada. But, by this very agreement, they would cease to be militia; having abandoned the proper business of militia and undertaken that of the army, they must be converted into Federal troops. The difference between him and the gentleman was rather a difference of legal form than of substance. It arose from not attending to the peculiar and complex structure of our Government. If our Government, like that of Great Britain, were an integral one, and the army and militia under the exclusive control of Congress, there would be no difficulty-a simple agreement by the militia with the Government to go into foreign service, would, in that case, convert them into regular troops. But the militia and army are commissioned by, and act under distinct authorities; and if the militia engage in foreign war, they must put off their State liveries and assume those of the Genral Government. Mr. P. said, that when he heard it publicly asserted that the President was disposed to carry on a national war with militia, and when he reflected on the tendency of a proposi tion submitted yesterday in the report of the Committee of Ways and Means, to support this war by State contributions; by making requisitions on the States for money, instead of raising it by the Constitutional mode of taxation, he began to be alarmed for the fate of the Federal Government. He feared that we were going back at least to the old principles of the Confederation. Mr. P. said, that nothing but his sense of the importance of the proposition he had submitted, and of the importance of a fair understanding of this Constitutional question, to its success, could have induced him to try their patience on this dry and exhausted subject. He had not expected to convert gentlemen to his opinion. He had only hoped to satisfy them that he had reasonable grounds to doubt the correctness of theirs; and, if the subject were doubtful, to persuade them that it would be better to raise a force, of the efficiency of which there could be no question, rather than to depend upon the militia volunteers. What would be the situation of the President, if he were to send the militia, even by their own consent into Canada, and they should there refuse to continue in service, and to obey the orders of their officers? Would he willingly execute upon them the high and capital penalties of the martial law? He presumed not. He would not undertake to say what the President's opinion was on the Constitutional question. He had heard it was both ways. As no man, however, had more confidence in the correctness of the views of the President in respect to the powers of the Government, or, in his disposition to execute with integrity what he believed to be his official duties, than he had, he would pledge his reputation that the President would never march a militiaman into Canada with a view to its conquest. If he were correct then in this conjecture, what force had we given the President? We had made a parade in passing laws to raise twenty-five thousand regular troops, and fifty thousand volunteers, but, in truth and in fact, we had not given him a single man; and yet some gentlemen were complaining that the Committee of Foreign Relations had not reported a declaration of war. Should they insult the President by telling him to go to war, when he had not a man to fight with? Let us give him an efficient force, and then it will be time to authorize him to employ it. The question was taken without further debate, and the resolution was negatived-yeas 49, nays 58, as follows: YEAS-William Anderson, Stevenson Archer, David Bard, William Blackledge, William A. Burwell, Matthew Clay, James Cochran, Lewis Condit, William Crawford, Roger Davis, Samuel Dinsmoor, Elias Earle, William Findley, James Fisk, Thos. Gholson, Bolling Hall, Aylett Hawes, Joseph Kent, Wm. R. King, Abner Lacock, Joseph Lefever, Peter Little, Aaron Lyle, Thomas Moore, William McCoy, Samuel McKee, Alexander McKim, Arunah Metcalf, Jeremiah Morrow, Hugh Nelson, Thomas Newton, Stephen Ormsby, Israel Pickens, William Piper, James Pleasants, jun., Benjamin Pond, Peter B. Porter, Wm. M. Richardson, John Rhea, Ebenezer Sage, Thomas Sammons, John Sevier, Adam Seybert, Samuel Shaw, George Smith, Silas Stow, Uri Tracy, Charles Turner, jun., and Robert Whitehill. ARMING THE MILITIA. H. of R. The House resumed the consideration of the bill for arming the militia; when Mr. B. HALL'S The motion was negatived-yeas 35, nays 62, as follows: Harmanus Bleecker, Epaphroditus Champion, John NAYS-Willis Alston, jr., William Anderson, Stevenson Archer, John Baker, Burwell Bassett, William Blackledge, James Breckenridge, William A. Burwell, William Butler, John C. Calhoun, Martin Chittenden, Matthew Clay, James Cochran, Lewis Condit, Roger Davis, Elias Earle, James Fisk, Meshack Franklin, Thomas Gholson, Charles Goldsborough, Peterson Goodwyn, Edwin Gray, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, Aylett Hawes, Jacob Hufty, Joseph Kent, William R. King, Abner Lacock, Joseph Lefever, Joseph Lewis, jr., Peter Little, Wm. Lowndes, Aaron Lyle, Nathaniel Macon, George C. Maxwell, Thomas Moore, William McCoy, Samuel McKee, James Morgan, Jeremiah Morrow, Hugh Nelson, Thomas Newton, Stephen Ormsby, Joseph PearNAYS-Willis Alston, jun., John Baker, Burwell son, Israel Pickens, James Pleasants, jr., Henry M. Bassett, William W. Bibb, Abijah Bigelow, Harma- Ridgely, Samuel Ringgold, John Rhea, John Roane, nus Bleecker, Adam Boyd, James Breckenridge, Eli- Ebenezer Sage, Daniel Sheffey, George Smith, John jah Brigham, William Butler, Epaphroditas Cham-Smith, Richard Stanford, Philip Stuart, George M. pion, Langdon Cheves, Martin Chittenden, John Da- Troup, Thomas Wilson, and Robert Wright. venport, jr., Joseph Desha, William Ely, James Emott, Asa Fitch, Meshack Franklin, Thomas R. Gold, Edwin Gray, Isaiah L. Green, Felix Grundy, Obed Hall, Jacob Hufty, Richard Jackson, jr., Lyman Law, Joseph Lewis, jr., Robert Le Roy Livingston, William Lowndes, Nathaniel Macon, Geo. C. Maxwell, Archibald McBryde, James Milnor, James Morgan, Jonathan O. Moseley, Anthony New, Thomas Newbold, Joseph Pearson, Timothy Pitkin, jun., Elisha R. Pot-lin, Thomas Gholson, Peterson Goodwyn, I. L. Green, ter, Josiah Quincy, Henry M. Ridgely, John Roane, Jonathan Roberts, William Rodman, John Smilie, John Smith, Richard Stanford, Philip Stuart, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, George M. Troup, Leonard White, William Widgery, Thomas Wilson, and Robert Wright. So the resolution was rejected. The question was then taken on Mr. B. HALL'S amendment, which was negatived—yeas 51, nays 55, as follows: YEAS-Willis Alston, jr., William Anderson, Bur- Felix Grundy, Bolling Hall, Obed Hall, Aylett Hawes, |
