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The power claimed subjects the citizen to be made a soldier without his consent, for any length of time. For, whether he shall serve one year-or two, or ten-or during a war, is admitted to be only a matter of sound discretion.
The power granted leaves him all his rights as a citizen--guards and protects him in the service requiredcalls him to arms to repel an invader, and as soon as he is repelled, returns the citizen to his family.
Mr. Speaker, I consider the claim now for the first time set up by the general government to the personal service of every citizen-subjecting him to be made a soldier, under the pretence of defending against invasion --and binding him to military service whether it happens or not, and after the enemy is expelled, as entirely unwarranted, whether we regard the words of the constitutional grant, or the manifest intention of its makers. The people have never vested such a power in Congress --they have reserved it to themselves or it is deposited, together with the general mass of sovereignty, in the state governments.
The noxious illegal character of this bill, is not at all taken away or altered by the amendment made in committee, requiring only a service of one year instead of two. It is true that it alleviates its harshness. It will be less oppressive. It may be more palatable, and for that reason it may be the more dangerous. When the oppressor assumes the form of a giant he creates alarm, and will be sure to meet with due opposition. When oppression comes like a mighty flood to overwhelm the privileges of the people, they will not fail to breast the torrent with firmness and spirit. But, when he assumes a reasonable shape-a common form-when the measure carries with it the imposing pretence of public wants, or public defence- and especially, when the original plan is softened and meliorated in its application ; then we are apt to comfort ourselves that it is no worse, and finally, to disregard the dangerous principle which lurks beneath.
The amendment leaves the objection to the principle of the hill in full force. Congress have it not in their power to call forth the militia for a year, a month, or a
day, except to repel invasion, execute the laws, and suppress insurrection.
It appears to me that the power now claimed, of using the militia of the several states, for the general purposes of war, under pretext of defending the frontier from invasion, is not only unfounded, in the fair interpretation of the constitution, by the words and evident meaning of the granting clause, but that it is inconsistent with other parts of the charter ; that it reverses the whole plan or scheme of government ; destroying its symmetry, and removing some of its most important balances and checks.
One principat and avowed object of the federal constitution was, to provide for the public defence, and to take that duty from the individual states, and impose it upon the general government. Experience, during the war of the revolution, had taught how little the state governments were to be relied on to perform this important task. It had been found that acting without obligatory union, oftentimes, under the inftuence of narrow, interested politics, they were not to be trusted for steady efforts, proportionate to their relative ability, or to the interests which they had at stake. The people had become tired of a government of requisitions, which could not be enforced. They called for one, which, acting immediately on the population, would possess the power of securing due respect to its own constitutional demands. Hence they imposed the great duty of public defence on the general governinent, and furnished it with most ample means to enable it to perform the service required. They endowed it, not only with the high powers of making war and peace, but with those also of raising regular armies, and of imposing taxes. Thus it became invested with the great powers of the sword and the purse, of raising men and money, without limitation, as to number or sum; having no bounds but the public wants, and the great principles of civil liberty. Having thus provided and vested in the federal government, all the means requisite to the great end in view, the state governments are absolved from the general duty, and are merely required to furnish their militia to aid in repelling an invader. It is evident, then, to me, that the constitution con
templated a regular army as the steady and proper means of public defence, in time of war; the militia as a temporary auxiliary force, to be called in aid, on emergency or sudden onset. But the plan of this bill reverses evė. ry thing. Instead of the federal government providing | for the public defence, by the means surrendered to it; instead of raising armies, to defend the states, in a war declared by itself-it calls on the states to defend the union. militia of the particular states must be called forth to defend the United States. The militia is converted into the principal force, the regulars into the auxiliary!
The experience of the revolution, and the paternal warnings of their illustrious chief had further taught the people, that militia were not to be relied on in a war with a foreign power; that they were a most expensive and ineffectual force ; that every principle of sound policy forbad their being called from their occupations and business, to be made soldiers ; nevertheless, their usefulness in aiding a regular army, on sudden emergency, had oftentimes been experienced, and was well known. The plan therefore, was to defend the country, in case of foreign war, by regulars--and to add the qualified authority, to call forth the militia, on the emergency contemplated. This was a wise and safe course, and it is folly and weakness in the extreme to attempt to alter it.
There was also a further reason for leaving the general authority over the militia in the state governments, and denying it to the general government; that it might be a check upon the great powers of war and peace, sword and purse, thus surrendered to the general government. The federal government is not only a limited government, but it is furnished with its balances and checks. It was framed upon the principle, that no set of men can be safely trusted with power, without some means, left elsewhere, to keep it within proper bounds. It was this proud principle of jealousy of power, wherever it might be deposited, that produced the revolution. That great event was not so much brought about by actual oppression, as by the assertion of principles which were derogatory to the rights of freemen. So thought the great men who formed and adopted this constitution. They
were high-minded republicans indeed, and not merely in name, Their political creed was, that no set of men were to be trusted with discretionary powers. They knew that paper limitations were useless, unless accompanied by the means of defence. Hence they denied some powers to the general, and some to the state governments. They limited others, and when they bestowed general powers on the federal head, the means of a wholesome control was left with the people, and the state governments. But these salutary principles are now out of fashion. They are either unknown, forgotten or disregarded. The plan of the republican administration has been evidently to accumulate power in the executive branch of the government, from the president down to the lowest collector or tax-gatherer. Scarcely is a bill reported upon any subject, relating either to war or revenue, which does not contain some covert attack on the unquestionable rights of a free people.
It is manifest to me that the constitution contains no grant of the militia to the federal government, for the general purpose of even defensive war. When this instrument was before the people, such a power as is now contended for was never attributed to it, either by its enemies or its friends. On the other hand, when the great and dangerous powers actually granted by it, such as those of making war and peace, raising armies, and imposing taxes, were objected to by honest and enlightened opposers, the answer was (and it is a sound one if the constitution is executed in its true sense and spirit) that there was a sufficient security against abuses in the habits of the people, their aversion from war, and their spirit of liberty ; but especially in the state governments, and their militia. And I might, with perfect safety, hazard the assertion, that if the power, now contended for, to call forth the whole militia for the general purposes of war, without any regard to the constitutional limitation, or to time, or place of service, had been inserted, in plain terms in the charter, it would have been rejected.
But, Mr. Speaker, perhaps it may be demanded of me whether the militia may not be called forth until an invasion actually takes place. It may be asked, must the government wait until the enemy lands upon our shores,
before it can resort to this force ? Upon this point I would answer, that the act of Congress passed in 1795 to carry into effect that part of the constitution, now under consideration, places this subject on its proper footing: That act authorises the president to call forth the militia in case of invasion or imminent danger of invasion. This in terms is an extension of the provisions of the instrument, and it certainly goes to the very verge of the constitutional limit; but I am disposed to think that it is a sound exposition of its true intent and meaning. The words of this law, not to be found in the constitution, are these-"imminent danger of invasion,” and they seem to have been carefully selected for their accuracy and precision. By imminent danger is meant-impending, threatening danger-danger at hand. It does not include danger only expected, or probable, resulting from a general state of war. For instance; it is no such emergency as is provided for in the constitution, that we are engaged in a war with a powerful nation, and that there is a moral certainty that she will invade some part of our territory. This would induce a provident administration to have a good army in the field, but does not authorize ordering the militia into actual service. But if the president were now in possession of information that a large expedition had been prepared for and was on its way to attack New Orleans (as we have reason to believe he is) he need not delay his call on the militia, until the enemy shall arrive, but he may lawfully call out those of the contiguous states, to meet and repel that invasion, whenever the enemy shall make his appearance. So, if a fleet should arrive at Sandy Hook, or at the capes of the Delaware ; it might require a long time to enable them to get up and land their troops ; still the president need not wait until they have landed ; because these are cases of invasionor of imminent danger of invasion within the fair meaning of the words of the constitution.
This statute of 1795 asserts no power to call forth the militia for the general purposes of war, or to defend the frontiers ; but only to repel invasion actually made or depending. Yet this statute was drawn with the utmost care, and was doubtless intended to occupy all the ground given to the general government by the constitution, as