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tom of this subject-In a limited government, such as that established
by the Constitution of the United States, : they may truly be called fundamental. By some they
may be considered as familiar and trite—and by others as scarcely worthy of attention in these enlightened days. But the great men to whom we are indebted for our independence and civil institutions, thought differently. They supposed that they were all important. They believed that it was always necessary to bear them in mind --and advisable frequently to recur to them, to keep this government within its proper sphere, and to defend the rights and liberties of the people. One of these general principles is that the militia of the several states belongs to
the people and government of the states--and not to the : government of the United States. I consider this, sir, as
a proposition too clear to require illustration, or to admit of doubt. The militia consists of the whole people
of a state, or rather of the whole male population capa3 ble of bearing arms; including all, of every description,
avocation or age. Exemption from militia duty is a mere matter of grace. This militia, being the very people, belongs to the people, or to the state governments, for their use and protection. It was their's at the time of the revolution, under the old confederation--and when the present form of government was adopted. Neither the people nor their state governments have ever surrendered this their property in the militia to the general government, but have carefully kept and preserved their general dominion or control, for their own use, protection and defence. They have, it is true, granted or lent (if I may use such an expression) to Congress a special concurrent authority or power over the militia in certain cases; which cases are particularly set down-guarded limited and restricted, as fully as the most scrupulous caution, and the use of the most apt and significant words
affords could limit and restrict them. The people have granted to Congress a right to call forth the inilitia in certain cases of necessity and emergency-a right to arm and organize them--and to prescribe a plan, upon which they shall be disciplined and trained. When they are called into the service of the United States (and they cannot be called unless upon the happening of one of
the contingencies enumerated) they are to be under the *** command of the President. Hence, it follows, that the chi general power, authority or jurisdiction, remains in the state governments. A special, qualified, limited and concurrent power is vested in Congress, to be exercised when the event happens, and in the manner pointed out, prescribed and limited in the constitution. And hence M. it also follows, that this delegated power cannot be exe kete cuted upon any other occasions, nor in any other way's than those prescribed by the constitution. There is another general rule or principle of construction to which I must allude. It is, that all particular, special, limited to powers, taken from or carved out of the general power, must be construed strictly. The general power remains in full force, unimpaired, except where it is expressly; granted away, and the construction must be on the words onlyof the grant, and not by recurring to the doctrine of ana logy or parity of reason. This is a rule applicable to all the grants of power, public or private, but it is particularly to these be attended to in grants of public authority; and most of all in those solemn grants denominated constitutions. que These grants being from the people to their rulers, are always deliberately framed. They are penned with the utmost accuracy and precision of language. All powers Ild intended to be granted are granted—and those
not included in the terms made use of, are withheld. This is not a mere technical rule of the schoolsmen or the forum. It is founded in reason, good sense, and justice; and is all-important in the construction of constitutions. If the words of such grants are departed from, upon any pretence, what safety do they afford? If reasoning by analogy is once permitted, so that cases not enumerated but supposed to stand upon a footing in point of reason and expediency, are by liberal construction, held to be inclu. Jib
. ded in it, what security is there but the discretion of those moj who undertake to expound it? A constitution should be med considered as a pillar of marble, not as a figure of it must remain as it comes from the hand of the argist, and not be moulded by officious hands, into a more con venient shape. The rule I have laid down, has been . sidered of sufficient importance to be engrafted into constitution itself . The tenth amendment, in ordair
that “all powers not delegated by the constitution, nor
prohibited by it to the states, are reserved to the states
respectively and to the people,” declares in the spirit of the rule I have stated, that all powers not granted to the Congress by the constitutional charter, remain with the people or the state governments.
Mr. Speaker, the special, limited, concurrent power over the militia, is given by the states to the Congress only in three cases" To enforce the laws-suppress insurrections, and repel invasion.” I call it a special concurrent power, and it is clearly no more ; for the states, notwithstanding this grant, retain the power to call forth their militia for the same or any other lawful purposes. There is, then, no grant of absolute power even in these cases ; and the people and the state governments have not only the right of insisting upon a strict observance of the limitation, but the corresponding right to resist all encroachments upon what they have reserved unto themselves—for as it is of the very essence of a limited go vernment to be kept within its proper orbit, so it is the unquestionable right and duty of the people to oblige those who administer it, to preserve the boundary, and to resist and repel illegal encroachments.
I consider these principles to be unquestionable. They will, I should hope, receive the assent of every gentleman of this house. Be this as it may, I flatter myself that they will stand the test of the severest scrutiny--and being established, the only question must be, whether the act now under consideration is a proper execution of the limited authority vested in Congress, to “call forth the militia to repel invasion.”
In examining this question, I shall not follow the example which has been set by some of the advocates for the bill. I shall spend no time in ransacking ancient and modern history for precedents or examples of government's asserting the right of making every man a soldier. In my opinion, it is nothing to the purpose to examine what was the law in Greece or Rome, or what has been the practice of George the third or of Buonaparte—the question is exclusively an American question. I shall keep it in mind, that I am in the American Congress, considering an American act, to be tested by the American Constitution, and shall not trouble the house in going uver matters so entirely useless and inapplicable.
The bill before us is curiously framed. There is little or no coincidence between the title and the provisions of the bill; between the pretended and the real objects. But its best friends can discover only two objects apparent on its face : 1st. To call out 80,000 militia for the defence of the frontiers against invasion-or, 2ndly. To compel these 80,000 militia to furnish 40,000 regular soldiers.
Supposing these to be the real objects, and that the provisions of the bill were adapted to them, it can be easily proved that they are unauthorised by the constitution. Let me ask, sir, what section of the constitution empow. ers Congress to call forth the militia to defend the frontiers from invasion ? None can be produced. And it never was the intention of the people to grant such a power. A power to call forth the militia to “ defend the frontiers against invasion," would be a general power to make use of the militia during a war-it would be destitute of all substantial limitation, and might be exercised without control. Such a power, not depending upon notorious fact, would include in it a right to order out the militia for the common purposes of war-when, and where, and for as long a time, as Congress should see fit. If Congress may call them forth for the general purpose of defence, who is to judge—who but itself can judge of the necessity and propriety of the call? Such a power would necessarily destroy those limitations so carefully provided, and place the whole militia of the United States under the control of the general government, for the general purposes of war. They might be marched from the seaboard to the north western frontier, and there be kept during a war, doing duty as garrison soldiers-or, in other words, as regular soldiers, under the pretext, that they were called forth to defend the frontiers. Indeed I can see no reason why, if this construction is correct, they may not be marched to those remote regions before the war is actually declared : or why they may not be kept there until it ended.
If the power be that of employing the militia for the GENERAL purposes of defence, where is the necessity of waiting until the war is actually declared ? Surely, a prudent government would not wait till that event took place, before it provided the means of defence. A wise government, intending to wage a war, would be so provident as at least to place its frontiers in a state of defence, before it drew the sword : and as the duty of defending the frontiers would exist as long as the war, it is manifest that if the militia could be called forth for this general purpose, they might be detained there, as long as the occasion existed ; or, in other words, during the war.
But no such power is given, or was intended to be given. The power actually given to Congress is to call forth the militia to repel invasion—not to defend the frontiers from invasion. The power claimed by this bill is, that whenever Congress think an invasion probable, they may call forth the militia to defend against it.
The power granted by the constitution is, that when invasion takes place, Congress may call forth the militia to repel it.
These powers are not the same, but essentially and substantially different. The one is general, depending for its just exercise on will and discretion. The other is limited, guarded by express words, and defended against perversion, by the requirement of a notorious fact, of the existence of which, the state governments are as competent to judge and decide, as the government of the United States.
The power claimed, in its practical operation, places the militia of the states, without limitation, as to number or time of service, in the power of Congress.
The power granted only authorises calling them forth on a particular emergency, which carries with it its own limitation, both as to numbers and time of service.
The power claimed subjects the militia to the general duty and service of the war. It makes them, in truth, regulars, though they are called militia ; for the president may command them to perform every service without restriction, and at any place.
The power granted preserves the essential quality of being called out in aid of a regular army, upon the contemplated emergency happening, and of returning to their homes as soon as the emergency has ceased.