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it was then understood. It is entitled to the utmost respect and weight, as a legislative declaration, how far this right extends, and what are its just limits.
It is not necessary to detain the house in remarking on the circumstance that the enemy are in possession of some part of the territory of the United States, as that circumstance can afford no aid to this bill; and indeed does not seem to be much relied on. None of the provisions of -this bill are adapted to that case. It is not designed to enable the president to call forth the militia to expel them. The existing laws are already fully competent to this end. He may call forth the militia to repel this invasion. But the object of this bill is to form a militia armament, not to expel those invaders, but to serve for one year. The enemy is left in quiet possession of what he has taken, and this army is to be raised to carry on the war as the president shall direct. It may be marched into Canada, leaving the invaders behind. But more of this hereafter.
As to the second object of this bill, which is to induce this corps of 80,000 militia to furnish 40,000 regulars ; to be sure it does not figure in the title of the act, yet it has been avowed by many gentlemen, to be the real object which this bill is to attain.
I cannot avoid remarking how admirably the title of this act has been contrived, to give notice of a matter which is not to be found in the bill that is, a plan to defend the frontiers against invasion, and to conceal what it does contain-an illegal device to compel the militia to furnish recruits for the regular army: But surely those gentlemen who excuse themselves in voting for it, although they acknowledge that it is no militia bill, because it affords a prospect of supplying the ranks of the regular army ; surely such gentlemen have not considered, that if Congress have no right to call for the militia as this bill does call for them, neither can it possess even a pretence of right to require them to furnish
regular soldiers. The furnishing half the number of regulars is the commutation proposed for the militia service. But if there is no right to require the principal duty, there can be none to require the substitute. If the obligation to serve in the militia, as this bill requires, does not exist,
the alternative ought not to exist.' This need only be stated to receive the assent of every just man in the community. Then, to demand by law what we have no right to demand-to impose on the people a burthen which we have no right to impose, and oblige them to perform it, or to provide a substitute, will at once give to the whole process the character of illegal compulsion. To class the militia for purposes not within our control ; to require of them a service which they are not bound to perform, and then to excuse them if they will furnish half the number of regular soldiers-what is this but coercion? What is this but classing the militia, and drafting them, to furnish recruits for the regular army? It becomes conscription, which is nothing more than obliging men to serve in the army, or to furnish others to serve, without their consent, and without the authority of constitutional law.
It is conscription of the most odious character-the form and shape given to it are the most offensive that could be proposed to a free people it is concealed and covert—it is injustice perpetrated under the pretence and colour of rightful authority.
The friends of the bill are then reduced to this dilemma. If the bill is really a militia bill, it is unconstitutional and should be rejected. If it is not a militia bill (as some of the majority have contended) but the real object is to obtain recruits, it is still more objectionable, and should receive no countenance in this house.
Mr. Speaker, I shall now proceed to consider the provisions of this bill. My observations will be general. I shall not trouble the house with descending to particulars. And I cannot refrain from again remarking on the title of this bill--its deceptive form and character. It affects to inform the reader that he may within expect to find a plan for calling forth the militia to defend the frontiers against invasion, and yet there is not a single provision to be found in the enacting clauses adapted to such an object. The plan which the bill developes, is, to class the militia under the directions and authority of the president. They are then to be drafted. Those selected are to be organized into regiments and brigades and are to pass at once into the United States' service. There is no provision regulating the particular service upon which they are to be employed there is nothing to confine the service to the constitutional emergencies to repel invasions—* to execute the laws or suppress insurrections. But the men are put under martial law, and must serve as they shall be ordered. The bill pursues no pian of a militia law heretofore passed. It has not a militia feature in it, but on the contrary prostrates at once all their rights and privileges. It may, sir, be laid down as a general proposition, that a bill professing to be a militia bill, but which disregards and destroys all the essential qualities of the militia armament, which deprives the militia-man of inherent fundamental rights rights always acknowledged and possessed, cannot be consistent with the constitutional powers of this government. The rights of the militia were long known and universally acquiesced in, before this government acquired its qualified jurisdiction over them. They claimed and exercised these rights during the war of the revolution, and at the time of the adoption of the constitution. Congress received the powers it possesses subject to these privileges. They are founded in justice, and in the intrinsic nature of a force, composed of the whole body of the people. They are supported by prescription or constant usage. When I speak of militia rights, I mean these : to be called out for short periods on emergency to be taken from places contiguous, and not to be compelled to serve elsewhere: to serve only in just rotation with others. An act which violates all these principles may be safely called no militia law, but an unconstitutional requisition.
When the bill came to us from the Senate, the term of service required by it was two years. We have reduced it to one. The principle however is not changed. The obligation to serve is absolute, peremptory, unconditional. There is no provision limiting the service by any contingency. If the enemy in one month after this force
After this speech was delivered, Mr. Baylies of Mass. offered an amendment providing that the force to be raised by this act, should not be called into actual service, but for the purpose of executing the laws, suppressing insurrections or repelling invasions--but it was rejected by the majority.
shall be organized, should be driven to the walls of Quebec, or be besieged in Halifax, still the militia-man must be a soldier. What section of the constitution, let me ask, authorises this? What letter of that instrument enables Congress to fix any absolute time of service? There is none. The legal call is to repel invasion. It carries with it its own limitation. The obligation to serve lasts so long and no longer as the particular invasion for which the service is required exists. It is to be remarked that the act of 1795, before alluded to, contains no provision ascertaining how long the militia called forth to serve in the cases stated in the constitution shall serve ; it leaves it in this respect as it ought to be left, to the intrinsic limitation of the granting clause. But it ordains that they shall not he required to serve more than three months in any one year; thereby guarding and protecting this essential quality of militia service. This is a correct exposition of the limited constitutional grant. The words of that charter carried with them the intended limitation, and therefore it was unnecessary to insert another. But as it might so happen that invasion or one of the other exigencies might endure longer than a militia-man ought to be compelled to serve, care was taken that they should not on any pretence be required to serve for more than three months out of twelve.
There appears to me to exist no right to fix the time of service but for the purpose of establishing a day beyond which they shall not be required to serve. The period of service which the government may rightfully demand is quite another thing, and depends entirely on the exigency out of which the right to call them forth, may arise. If the call is to enforce the laws, the right to service ceases when the empire of the laws is restored. If to suppress insurrections, when the insurgents are quelled. If to repel invasion, when the invader is driven back. If prudence, if reasons of state, or alleged necessity require a longer period of service, recourse must be had to the state legislatures. The state governments are absolute, except where they are controlled by their own constitutions. They may safely be trusted ; they would co-operate with the general government in all necessary measures of defence as long as that government respected their rights and performed its relative duties.
The next characteristic privilege of the militia is to be taken from places contiguous to that where the service is required; and how is this to be secured? There is but one method of effecting it; adhere to the constitution ; construe it according to its words and plain intent; consider the power of Congress as a limited authority; confine the power of Congress to call forth the militia to the enumerated cases; do this, and this important privilege is secured. These are all cases of emergency. If the militia cannot be called forth until the emergency exists, then they must necessarily be taken from the contiguous neighbourhoods or states. But, as I have before stated, this bill contains no provision that the militia shall not be called into actual service until the exigencies occur; nor that they shall be called from the adjacent parts or neighbouring states; but they are left in these important respects altogether in the power of the president. The rules of martial law will oblige them to obey. They may be marched from Maine to Louisiana. There is no limitation in regard to the place where the service is to be performed. In the bill, as it came to us, there was a section restraining the right of service to the state from whence the militia came, or to the next adjoining, but this we have stricken out, thereby declaring our opinions to be, that the power is unlimited in this particular ! and that they may rightfully be sent any where. As the bill now stands, under the specious pretext of defending the frontiers, the militia of New Jersey may be marched to Detroit or to Maine ; acting on the favourite maxim of the administration, that the United States must be defended in Canada ; that the invasion of that country is a ineasure purely defensive, these troops may be ordered to Quebec and Montreal. And if they refuse to pass the frontiers they are called forth to defend, they may be shot as mutinecrs. It is nothing to the purpose to say that the president will exercise a sound discretion, and will not order these men to serve at a great distance from their homes. If the constitution has not subjected the militia to the discretion of the president, we have no right to do so by law. What a freeman may claim as an