forth the militia under certain circumstances, are the means by which the common defence is to be provided for. Can the Legislature, by virtue of this grant of power, adopt the proposed plan of conscription, and place, by force, such part of the population of the United States, and for such periods as shall be deemed expedient, in the ranks of the regular Army? A power so transcendant and dangerous, must, to justify the exercise of it, be derived from plain principles, and depend on no doubtful construction or subtle reasoning. The power to raise and support armies must be construed according to the intentions and understanding of the people of the United States, who made the Constitution, consistently with all the well known and established rights of the States and of the people-and consistently with the general principles of civil liberty. The military power or force given by the Constitution to this Government, is of two sorts-a regular Army, and the militia of the States-the latter in certain emergencies, and with certain restrictions and limitations-the former without any restriction. It is unnecessary, for the present purpose, to point out with exact precision all the restrictions and limitations of the power over the militia. In three specified cases only, and for a service within the limits of the United States, and under the command of their own State officers, and as I think, for short periods of service, can this Government call on the States for their militia. From these restrictions, it is apparent, the power of the United States is of a very limited nature, and that the States still retain by far the greatest portion of authority over their own militia. Over the regular Army, the Government of the United States have an unlimited power. They may use it in all cases where military force is needed, in any part of the world, under such officers and for such periods as they please. There always have been in this country important distinctions between the militia and regular Army. These distinctions were always kept up, and in various instances exemplified in the war of the Revolution, and were well understood by the people of the United States at the time of forming the Constitution. There was known to be an essential difference between serving in the regular Army and performing a tour of duty in the militia. Regular armies were raised by enlistment of such as voluntarily consented to enter them. Such, for ages, had been the practice of the British Government, from which we originally derived most of our ideas on subjects of Government; and such was the practice of the Government of the United States, and of the several States during the Revolutionary war. There always has been, and I hope always will be, a jealousy of standing armies. At the time of the Revolution it was carried to an unreasonable height, and too strongly felt. When the Constitution was adopted, no power granted to the General Government was more severely criticised, than that over the military force of the country. Those opposed to the Constitution contended, that the power of the purse and of the sword were im NOVEMBER, 1814. properly united, and that not only the rights of the State Governments, but the freedom of the people would be endangered. If any such power as that contended for, could have been conceived to be granted by the Constitution, it would have been detected and pointed out by those so much alarmed. Yet it is believed, that such construction was not even suggested in any of the conventions, although the subject was there most ably discussed. Nor is it believed, that with this construction, the Constitution would have been adopted by a single State of the Union. If, then, voluntary enlistment was the only method by which a regular Army could be raised, according to the general opinion of the people, it follows that the power to raise armies is, by the very terms used in the Constitution, restricted to that method; for the words must be construed, as they were understood by the people who adopted the Constitution. And so the position of the honorable gentleman, that the grant of power to raise armies being general, and without any restriction of the method by which it shall be exercised, leaves the Government at liberty to adopt any method they please, is ill founded. That might be a just construction of the terms when used by a people accustomed to a despotic government, for they might so understand them. The power claimed is, doubtless, vastly greater and more dangerous, than any other possessed by the Government. It subjects the personal freedom of every citizen, in comparison with which the rights of property are insignificant, to arbitrary discretion. Had there been an intention of granting such power, would there not have been some attempt to guard against the unjust and oppressive exercise of it, as was done in the granting of powers of less importance? Yet, this power of raising armies, unless confined to voluntary enlistment, is without any guard or restriction whatever. The exercise of it must depend wholly on arbitrary discretion. All the recruits wanted for the Army might, if the Government should so please, be taken from one section of the Union. The power of raising money is not thus submitted to the discretion of the Government. All taxes, if indirect, must be uniform throughout the United States; if direct, they must be apportioned according to represen tation. No tax can be laid on exports. Why these guards where property was to be taken, and none where the owners of the property were to be taken? From the mere neglect of attempting in some way to limit the power, it may be strongly inferred that it was not intended to be granted. Were the Government at liberty to raise armies, by forcibly taking men at its discretion, it might, by a similar construction of the Constitution, support them, by taking property in like manner. The armies, when raised, might live at free quarters, on the people. In a similar way, a navy might be provided, by seizing the ships of individuals. The right in both cases is the same; the injury and distress in taking property the least. Has the Government a similar power to impress men for the Navy? The terms in the Con NOVEMBER, 1814. Militia of the United States. stitution to provide and maintain a Navy" are, at least, as proper for this construction, as those applied to the Army. The convenience and necessity in this instance, stronger than in the other. The British Government, before the Revolution, did attempt to exercise in this country the supposed right of impressment for the Navy, which it never did for the Army. Stronger reasons might be adduced for this method of manning the Navy, than for filling the Army. Yet the Government, in their instructions to our Envoys for treating of peace with Great Britain, say "impressment is not an American practice, but is utterly repugnant to our Constitution and laws." The honorable Secretary, when he draughted those instructions, knew not how soon he should be directed to contend for the contrary doctrine. The power in question is inconsistent with certain well-known rights of the States recognised by the Constitution. Such a construction of a power granted to the General Government as destroys rights reserved to the States by the Constitution cannot be admitted. Because it can never be presumed that rights were intended to be surrendered, which are expressly reserved or recognised as existing in the States. The same principle applies to all rights acknowledged to belong to the States, whether recognised by the Constitution or not. The Constitution declares "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." The States still retaining the principal power over the militia, as has been shown, the power given this Government to raise armies must not be so construed as will destroy that power of the States. The power claimed is to take by force, for the regular Army, all persons capable of bearing arms, including the whole militia of the States. This surely annihilates all State power over their militia. The whole or any part may, at the pleasure of this Government, be converted into a regular army, and the provision of the Constitution in this particular, together with the rights of the States, be destroyed. The right of the States, in time of war, to maintain regular troops, is recognised by the Constitution. Abandoned by the United States, it is well known that several of the States at the present time, keep considerable bodies of troops for their necessary defence. All these come within the description of persons claimed by this Government, and may be thus immediately transferred to the Army of the United States. Wretched would be the condition of such States, if this Government possessed the power contended for. Unprotected by the General Government, and deprived not only of their militia, but of the troops raised at their own expense, their sole remaining resource would be an application to the mercy of the enemy. It is impossible that these rights, thus secured to the States by the Constitution itself, should be destroyed by a power granted by the same instrument to the United States. The power of the United States to raise armies, if restricted SENATE. to voluntary enlistment, is consistent with the rights and safety of the States. Any other construction presents conflicting rights which cannot be reconciled. It has been contended that every well constituted Government has a right to the personal services of its citizens or subjects, which it may enforce by compelling as many as its occasions require to become soldiers; and that the Government of the United States, in common with others, may have this power without any special grant in the Constitution. It is unnecessary to examine the general position, though it is believed it would by no means be found so universal as stated. This Government has no powers except what are delegated. To this particular, the article of the Constitution which has been recited is express. All powers not delegated, are reserved to the States or people. If, therefore, this power exists in our country, it rests in the State Governments, and not in that of the United States. Without resorting to this principle of inherent power, most of the State Governments possess very ample authority to call for the military services of their citizens, in the provisions of their respective constitutions. Hence might be drawn an additional argument, were it necessary, against the present claim of power in the General Government. The Secretary of War admits, that the men cannot be taken from the militia as militiamen, by reason of the Constitutional restriction, but he says the same individuals may well be taken, in their capacity of citizens. This argument the honorable gentleman from Virginia has not seen fit to adopt. With all proper deference for the respectable authority whence it originates, I must confess my inability to comprehend its force. It would seem, that an individual, to be secure in his personal liberty, must produce a Constitutional protection for himself in each of his various capacities or relations in society. Will it afford much consolation to the miserable recruit, when driven in chains to the Army, to be told that he is taken, in his capacity as a citizen, and not as a militiaman? A prudent Government, at least, would be cautious not to insult the understanding of the nation, when attempting to outrage its rights. To that part of the Secretary's plan, which recommends a tax to be levied on all property within the precinct of the class, in order to raise the bounty for the recruits, objections occur which, in ordinary times, would seem insurmountable. The provision of the Constitution that direct taxes (of which sort that on land is) shall be apportioned among the States, according to representation, is wholly disregarded. This tax is to be apportioned according to the free male population, between the ages of eighteen and forty-five years. This relieves the slaveholding States from the increased tax which they are bound by the Constitution to pay, for their increased representation on account of their slaves. The difference between the sums to be paid by Virginia and Massachusetts, according to the proposed plan, and the Constitutional apportionment, exceeds four hundred thousand dollars. This is a violation of the Constitution too plain and obvious to require any reasoning to demonstrate. It is, however, in my opinion of less importance than the other which affects the rights of personal liberty, as this does the rights of property. Reduce the people to slavery, and you may take their property when and as you please. NOVEMBER, 1814. The honorable gentleman (Mr. GILES) has been pleased to understand those epithets as being applied to the Administration themselves; and to express his regret that they had been used. He seems to admit, however, the truth and justice of the two first, and denies only the last. He believes the Administration, though weak and violent, are honest and patriotic. I shall spare myself the labor of discussing that point. It is The honorable Secretary says, in relation to difficult to ascertain with certainty the motives this part of his plan, "should it appear that this of statesmen, and it matters little to the country, 'mode of raising recruits was justly objectiona- whether its rights and liberties are lost through 'ble, on account of the tax on property, from the the weakness, or wickedness, of its rulers. Public difficulties which may be apprehended in the men are to be judged by their measures. The 'execution, or from other causes, it may be ad- mere attempt to carry a measure, involving such 'visable to decline the tax." But why is a pro- principles, is just cause of alarm. The people ject, directly and plainly violating the Constitu- can never feel safe while they know the Governtion, brought forward at all? Is it to try the ment claims such a power, which may gradually, temper of the Legislature and of the people, and as opportunity shall favor, be brought into exerto lessen the horror at first excited by such at- cise. The present bill adopts it, in a small detempts by rendering them familiar? In my opin- gree; another reported by the same committee, ion this system of military conscription, thus re-authorizing forcible draughts from the militia, to commended by the Secretary of War, is not only serve for the term of two years, goes much furinconsistent with the provisions and spirit of the ther, with the same principle. In the mean time, Constitution, but also with all the principles of among men of desperate fortunes and unprincicivil liberty. In atrocity it exceeds that adopted pled ambition, the doctrine will gain friends. by the late Emperor of France, for the subjuga-Honest intention and well-meaning weakness give tion of Europe, which, after drenching a great no security, but increase the danger. They preportion of that Continent with blood, was de- vent alarm, and when men of such a character stroyed by the most powerful confederacy of na- shall have prepared the system for operation, othtions the world ever knew. He allowed exemp-ers of more talents and different character will tions to fathers of families, and those in certain drive them from their seats, and grasp the desprofessions and official stations. But the proposed potic power so unsuitable for weak hands. If this system exempts none, except the President of the proposal of the Executive, though at present, it United States, and the Governors of States. All should not be adopted by the Legislature in all its within the prescribed ages, whatever may be their most odious features, should still be treated with pursuits or condition of life, must submit to the good natured civility, it will hereafter, at some iron yoke; priests must be taken from the altar, unpropitious moment, be again urged, and perand judges from the bench. The highest officers, haps with fatal success. The attempt merits from both civil and military, must be ignominiously the nation, deep and full toned expressions of inforced into the ranks of the Army. The semina- dignation." ries of learning are to be robbed of their professors and scholars. Neither literature nor science, except what is subservient to the military art, will be held in estimation. The country will become military, and be involved in perpetual wars, often waged to gratify the ambition of rulers. History evinces that wars of ambition are not less the pests of republics than of monarchies. Such a measure cannot, it ought not to be snbmitted to. If it could in no other way be averted, I not only believe but I hope, it would be resisted. The most odious and cruel slavery would be the inevitable consequence of submission. On a former day, when this measure recommended by the Secretary of War, was mentioned by an honorable member, who in his place expressed his approbation (except so far as relates to the bounty tax) in terms not doubtful, I did not hesitate to give it my most decided disapprobation. I then called it weak, violent, and wicked. On more reflection, I see no reason to alter my opinion of its character. It is weak, for it is ill calculated to effect its object; violent, for it attempts to use force, without right; and wicked, for, if successful, it will destroy the Constitution and liberties of the country. After laboring to establish the right of the Government to exercise the dangerous power mentioned, the honorable gentleman (Mr. GILES) has attempted to show that the present bill does not necessarily involve that power. It is certain the bill does not follow the plan of the Secretary of War in its details, but I much doubt whether the provision authorizing the enlistment of minors without the consent of their parents, guardians, or masters, can be justified, without asserting the right to take the citizens for the Army by force. If the Government has not the right of taking persons for the Army by force, they must obtain them by voluntary enlistment. That is, they must contract with individuals to become soldiers of the regular Army, and to subject themselves to the duties of that condition. All persons competent to contract for themselves, may thus enlist into the Army. None who, for any reason whatever, are incompetent to contract for themselves, can enlist without the consent of those who have a legal right to control them and contract for them. As the very essence of a contract is the voluntary assent of the minds of the parties, it is sufficiently obvious that all are incompetent to NOVEMBER, 1814. Militia of the United States. SENATE. though not expressly prohibited by any statute, the instructions to recruiting officers directed them not to enlist minors, without such consent; and whenever it was improperly done, they could obtain discharges by applying to the courts of law. When an attempt was made at the commencement of the present war to authorize such make contracts, who are incapable for want of ship wholly destroys the rights of masters to the understanding to give such assent. Thus idiots services of their apprentices. The power of this and insane persons, and children in early child- Government to destroy a right so secured by a hood, being unable to understand the subject-mat-legal contract has been questioned. The Contiter and give their assent, are clearly incompetent nental Congress, in the year 1776, though sorely to make contracts. No legislative power can re- pressed by the war they were then engaged in, move the disability. You may, by a legislative and in great want of recruits for their Army, act, dispose of their persons and property, but it were so deeply impressed with the illegality and cannot be said to be done by their consent. injustice of such a practice, that they ordered all In every civilized country a certain age has apprentices enlisted without the consent of their been fixed on, as to the period when the disability masters to be immediately discharged. The Conof youth shall cease. For plain reasons this pe- gress was too wise to attempt to maintain their riod must be uniform, and applied to all. It would cause by violence and injustice. By a statute of be impossible to inquire into the degree of capaci- the United States of the 16th of March, 1802, the ty of each individual. The feudal system, which enlisting of minors without the consent of their once prevailed in most of the States of Europe, parents, guardians, or masters, is expressly profixed this period at the age of twenty-one years.hibited, under a heavy penalty. Before that time, What would seem to render this regulation peculiarly apposite to the present purpose, that system, established by warriors, chiefly with a view to military strength, fixed on this age as a time when a man was supposed to be fit to bear arms, and render the military services by which his lands were held. This rule of the feudal was adopted by the common law, and universally pre-enlistments, it was rejected by the Legislature. vails where that law is followed. In each of the Certain sections of a British statute of March, United States there is, and it is believed always 1812, have been read by the honorable gentleman, has been, an entire uniformity on this subject. (Mr. GILES) for the purpose of showing that the The disability of minority continues till the age British Government enlists minors into its army of twenty-one years. No one rule of the com- without the consent of their parents or guardians. mon law is more universally known. It is one By that statute, it appears that apprentices, bound of the first a child learns. Till the age of twen- by legal indentures, when enlisted without the ty-one the parent has a power over the child, for consent of their masters, are on their request to government and education, and has a right to his be discharged. Hence it is inferred that minors, services. Founded on this acknowledged rule of other than apprentices, though enlisted without the common law, in most of the States, statutes the consent of their parents or guardians, would from early times have been enacted, regulating not be discharged. If so, it can avail nothing, the subject of binding to apprenticeship, and also unless it be shown that our Government possesses of guardianship, in case of the parent's death. a power over its citizens equal to that of the BritAll these, either directly or by necessary infer-ish Government. As well may we justify the ence, recognise the disability of the minor to contract for himself, and the right of the parent or guardian. Under the existence of these laws, thus universally known, the people of the United States, by the Constitution, gave to this Government the right to raise armies by voluntary enlistment. With whom may the Government, by virtue of the authority thus granted, make this contract? Surely, with such only as have a capacity to contract. The power cannot extend to enlisting minors under the age of twenty-one years, except with the consent of their parents or guardians; because in that way only can valid contracts affecting such persons be made. If the power of enlisting be not limited to that age, nothing would prevent Government from taking from their parents children of more tender years, if idly consenting, and placing them in military schools till prepared for the Army. Would it be contended that Government has power to do this? If not, to what age are they restricted? Of necessity, there must be a general rule as to the age of disability of minors, it being impossible to in- But, sir, were it certain this Government had vestigate and determine the capacity of each the right of enlisting into the Army improvident individual. youth, without the consent of those to whom the The enlisting of minors bound to apprentice-policy of the law has intrusted the care and con exercise of any other arbitrary power, by showing that the British Government exercises the same. It is apparent that that Government respects the contracts of apprenticeship, which by this bill are to be violated. The British statute provides that if any person shall, within four days after enlisting, declare before a magistrate that he enlisted hastily and incautiously, he shall, on refunding the money received as bounty, be discharged. It is to be regretted, that the honorable gentleman who produced this statute of a foreign Government as an example for imitation, had not introduced into this bill that humane provision, so well calculated to guard the unwary against the improper arts and enticements too often practised by recruiting officers. The better opinion seems to be, that this Government has not a right to enlist minors without the consent of their parents or guardians, and it is probable, if such enlistments are directed, the courts of law will, on application, be obliged to discharge the persons so enlisted. SENATE. Militia of the United States. NOVEMBER, 1814. trol of them, it would be highly inexpedient to resort to such a measure. It is forbidden by all the considerations which have subjected the improvidence of youth to the guide and direction of age and experience. If minors are wanted for the Army, why not address yourself to their parents and guardians? They surely can best judge whether it is suitable and proper for their children and wards to enlist. If there should be no reasonable objections, it must be presumed, they would consent. You will, then, without consent, obtain those only whom you ought not to obtain. It is to be hoped the number will not be great. This measure will tend to weaken the sacred re-cretion to the most unprincipled and profligate lation between parents and children, and to lessen the power for the discipline and education of youth, the best and safest foundation of all GovIt is a direct invitation for rebellion against parental authority. ernments. Our infant manufactures, still requiring the fostering aid of Government, and which, in the Northern and Eastern States, are in a considerable degree carried on by the labor of apprentices, will be greatly injured. Without instructing children in manufactures, a sufficient supply of laborers can never be expected. The labor of a skilful mechanic in the line of his business is more important to the community than his services can be in the Army. All these objects will be injured in proportion as this attempt is attended with success. And after all the exertions which can be made, it is not probable any great number of recruits can, in this way, be provided. Can a wise Government hazard such valuable interests for the sake of a miserable project of enlisting unwary youth into the Army? a regiment of London apprentices. Has the hon. orable gentleman forgotten the artful address, used by that hypocritical tyrant, to entice into his army the youth of the country; and then to insinuate himself, by all methods in his power, into their confidence and affections? The same troops who put down the royal power accompanied their ambitious leader to the House of Parliament, and drove from their seats the very men who had raised him to power. They enabled Cromwell to establish a tyranny so odious and oppressive, that the English nation to avoid it, in a short time, surrendered themselves at dismonarch that ever sat on their throne, and under him patiently bore injuries more grievous than those for which they had brought his father to the block. The people of this country are not more strongly attached to liberty than the English were at the time of Cromwell. The army now recommended will be in number three-fold what he ever possessed. We also may hereafter find a Cromwell in some military demagogue who is now flattering the people with professions of affection and devotion to their cause. After painting, in strong colors, the distress and danger of the nation, the honorable gentleman has said that strong and energetic measures are necessary to preserve it from ruin; and that light objections ought not to be made. It seems to be supposed that those who shall oppose measures, declared to be brought forward for that purpose, will have the appearance of opposing the necessary defence of the country. But, however unpopular that course may be, it is surely our duty to examine the character and tendency of a measure before we assent to it. In my opinion, The circumstances of the country being such what have been called the strong and energetic as to render a standing army of considerable mag-measures of the Government, have caused our nitude necessary, I do not wish to excite any present distress, and nothing but a change can unreasonable jealousy against such an establish- give relief. The various acts composing the sysment. The plan of the Secretary of War con- tem of commercial restrictions, and also the detemplates an army of more than one hundred claration of war, were, in their respective periods, and forty thousand men, at the disposal of Gov- demoninated strong and energetic measures. All ernment. It may be worthy of consideration objections against them were deemed light and whether such an army, in certain events, which trivial. Is there an honest man in the nation may occur, instead of defending, may not endan- who does not now lament that those objections ger the liberties of the country. On one occasion, were not heard with proper attention? All the at least, it required all the influence and address disastrous consequences which have ensued were of their great and good commander to restrain, then foretold. What was then prophecy is now within the bounds of their duty, the army of the history. To the ill-judged measures of GovernRevolution; than which there is no reason to hope ment may be traced all our misfortunes. They the present will be more patriotic. Surely, it is arose from a war unnecessarily waged, and badly not to be desired that an unusual proportion of conducted; and have been increased by a profuse young men, of such early years as not to have waste of the treasure, and by a destruction of the become acquainted with the relations and duties credit of the nation. Whether the war was deof civil life, should be drawn into the Army.clared through an erroneous estimation of injuries, Persons educated from childhood in a camp become soldiers of fortune, indifferent in what cause they employ their arms. From a numerous and veteran army danger is mostly to be apprehended, when the civil power rests in feeble hands. suffered from a foreign nation, or for the purpose of gratifying a lust for power and patronage, makes little difference to the country. The Administration and their friends are united in opinion that the terms of peace which they have The honorable gentleman (Mr. GILES) has re-offered to the enemy, provide sufficiently for both lated, that Oliver Cromwell, in the war between the King and Parliament of England, defeated the royalists at the battle of Naseby, by means of the honor and safety of the country. By these terms the pretended causes of the war are abandoned. If, then, without obtaining satisfaction |