H. of R. Volunteer Corps. JANUARY, 1812. these circumstances, he had a right to express | William R. King, Abner Lacock, Joseph Lefever, Pehimself of the Army as he felt. ter Little, Robert Le Roy Livingston, Wm. Lowndes, Mr. R. could not sit down, without again exAaron Lyle, Nathaniel Macon, George C. Maxwell, pressing his regret at the heat which had been Thomas Moore, William McCoy, Alexander Mcstruck out of this plain, reasonable proposition. Kim, Arunah Metcalf, James Milnor, Samuel L. Mit He would remind the gentleman from Tennessee, chill, James Morgan, Jeremiah Morrow, Jonathan O. that, if the resolution were agreed to, the details Moseley, Anthony New, Thomas Newbold, Thomas of the bill could be made conformable to the idea Newton Stephen Ormsby, William Paulding, jun., Johe had suggested. If he could have believed that seph Pearson, Israel Pickens, William Piper, Benjamin the House would have made so much opposition Samuel Ringgold, John Rhea, John Roane, Jonathan Pond, Peter B. Porter, Josiah Quincy, William Reed, to his resolution, he would not have brought it Roberts, William Rodman, Ebenezer Sage, Thomas forward; and he was prevented from withdraw-Sammons, Ebenezer Seaver, Adam Seybert, Samuel ing it at present, only from the nature of the reception it had met with. Mr. MILNOR was surprised that gentlemen were not ready to receive any proposition which was made to the House, with coolness, and to discuss it with moderation; he thought it better to take this course, than, in heat and passion, at once to reject a measure, which, in our opinion, may be improper. He thought it right that the question should be decided by yeas and nays, and he should vote against it. However much he respected the gentleman who brought forward the proposition-and he always listened to his eloquence with pleasure and benefit-he could not vote for it, because he had voted for the bill for raising an additional army; and he considered that this proposition was calculated to throw a damp upon the business of enlistment. He had considered it his duty to go along with the majority in putting the nation into a complete state of defence. He trusted we were assuming a new posture, which had been long recommended, and he considered this, disposition as auguring well for the prosperity of the country. Mr. M. observed, that one part of this resolution was very objectionable. It had never been considered as the duty of soldiers to make roads and dig canals, except such works became necessary for the accommodation of the army, as had been stated by the gentleman from Maryland. As to the other branch of the resolution, respecting fortifications, it is already the constant practice of commanders thus to employ their men, and therefore this provision is unnecessary. He hoped, therefore, the resolution would be rejected. Shaw, Daniel Sheffey, John Smilie, George Smith, VOLUNTEER CORPS. The House again resolved itself into a Committee of the Whole on the bill to authorize the President of the United States to accept and organize certain volunteer military corps. The amended bill being under consideration, which provides for the appointment of the officers by the several States Mr. PORTER moved to amend the second section of the bill, by adding to it the following words: "and shall be liable to be called upon to do duty at any time the President of the United States shall think proper." It might appear extraordinary, Mr. P. said, that he should propose an amendment to a bill which he believed to be Constitutional, which, if adopted, would make it unconstitutional. But, perhaps, when his motives were understood, he should stand acquitted of acting improperly. The object of the President of the United States and of the Committee of Foreign Relations, was to provide a volunteer force to act in conjunction with the regular troops, in such service as Government may direct them to perform. The committee, in conformity with this view, had directed him to draw a bill, which was first reported to the House. In that bill, he gave this volunteer corps the character of regular troops, or Federal troops, in distinction from regulars or militia, under the opinion that a militia corps could not be employed without the limits of the United States. The It was rejected-yeas 15, navs 102. as follows: YEAS-Harmanus Bleecker, Elijah Brigham, William Ely, James Emott, Asa Fitch, Richard Jackson, jr., Lyman Law, Joseph Lewis, jr., Hugh Nelson, Tim-Committee of Foreign Relations gave their consent othy Pitkin, jun., Elisha R. Potter, John Randolph, Rich. Stanford, Laban Wheaton, and Leonard White. NAYS-Willis Alston, jr., William Anderson, Stevenson Archer, Daniel Avery, Ezekiel Bacon, David Bard, Josiah Bartlett, Burwell Bassett, William W. Bibb, Thomas Blount, Adam Boyd, James Breckenridge, Robert Brown, William A. Burwell. William Butler, John C. Calhoun, Epaphroditus Champion, Langdon Cheves, Martin Chittenden, Matthew Clay, James Cochran, John Clopton, Lewis Condit, Roger Davis, John Dawson, Joseph Desha, Samuel Dinsmoor, Elias Earle, William Findley, James Fisk, Meshack Franklin, Thomas Gholson, Thomas R. Gold, Isaiah L. Green, Felix Grundy, Bolling Hall, Obed Hall, John A. Harper, Aylett Hawes, Jacob Hufty, John M. Hyneman, Richard M. Johnson, Joseph Kent, Philip B. Key, to the bill; but some of the members of that com mittee, after reflection on the subject, thinking that the militia might be employed in carrying on an offensive war, and being desirous of so em. ploying them, they asked leave to have the bill recommitted, and the present amendatory bill was reported. If the opinion be correct, that the militia may be employed in foreign offensive war, then the bill, as it now stands, is a proper one; if not, it will be ineffectual and inapplicable to the object in view. He had introduced this amendment for the purpose of trying the sense of the committee on this point. If it be deemed Constitutional to employ the militia in any purposes of war, there can be no objection to this amend JANUARY, 1812. . Volunteer Corps. H. OF R. ment; but if, on the contrary. (which was his Constitution. To me, said Mr. P., it appears opinion.) it be thought the militia can only be evident that this force must be confined to the employed for the purposes mentioned in the Con- actual territorial limits of the United States, unstitution within the United States, this amend-less some provision is made, by which they may ment will be negatived, and we must have recourse to the original bill. be compelled to step over the national boundary to carry on offensive war. For that purpose, he said, if the honorable gentleman would withdraw his motion, he would, without further explanation at this time, move a new section to the bill, which, in his judgment, would render this volunteer force effective, both for internal and external purposes. Mr. PORTER then withdrew the motion to amend, and Mr. POINDEXTER proposed the following section, to come in between the first and second sections of the bill: the rules and articles of war, and may be called into the service of the United States, to any place without the jurisdiction thereof." Mr. POINDEXTER observed that the amendment proposed by the honorable gentleman from New York would not, if agreed to, obviate the Constitutional difficulty which had been raised on the present occasion. The President, said he, has already the power to call out the militia at any time he may think proper, to do military duty in the service of the United States; but that power is expressly directed to objects within the jurisdictional limits of the United States. If, then, the amendment be adopted, it will confer "And be it farther enacted, That each volunteer on the Executive no authority which he does not shall sign an engagement to serve the United States, already possess. He hoped, therefore, the hon- according to the provisions of this act, which shall be orable gentleman would withdraw the motion transmitted by the Executive of the respective States which he had made, that a more comprehensive and Territories to the President of the United States; amendment might be offered, declaring the use and when called into actual service, under the authorwhich should be made of this force when organ-ity of the United States, each volunteer shall be subject to ized. Sir, said Mr. P., I am one of those who believe that these volunteers will be composed of the purest and best materials of which our country can boast. The hardy and enterprising sous Mr. GRUNDY Would have voted against the of the planter and the farmer, whose occupations proposition of the gentleman from New York, as are peculiarly calculated to qualify them for the he should do against the one now offered. They fatigues and hardships incident to the camp, and amount to nothing. If the Constitution forbids whose minds, untutored in the school of vice and the President from sending the militia out of the immorality, inhale the holy flame of patriotism, United States, how can we authorize him so to by the influence of which they are animated to do by law? We cannot; we should legislate to brave every danger, to vindicate the rights, and no purpose. Whether he had the authority or redress the violated honor of their native coun- not, would depend upon the construction which try. I wish, said he, to give to the energies of the President himself shall give to the Constituthis corps such a direction, as to constitute it an tion. Nor could he see how this proposition gets efficient force for all the purposes of the war, over the difficulty. It provides that a militiaman which is about to grow out of the wrongs in- may authorize the President to send him beyond flicted on the nation by the tyranny and injus- the limits of the United States. He had always tice of Great Britain. Can we, then, constitu- understood that in framing the Constitution of tionally employ volunteer militia without the this Government, there was great jealousy exhibjurisdiction of the United States, in the prosecu-ited lest the General Government should swaltion of hostilities in the enemy's country? Mr. P. said he was of opinion that no legislative act of Congress could confer such a power on the President. The Constitution of the United States recognises two species of land force only-the Army, and the militia of the respective States; in relation to the former, there is no restriction on the discretion of the Government; with regard to the latter, the purposes for which they may be used are limited and defined. Congress may, by the Constitution, "provide for calling forth the militia to execute the laws of the United States, suppress insurrections, and repel invasions," and for " organizing, arming, and disciplining the militia, and for governing such part of them as may be in the service of the United States, reserving to the States, respectively, the appointment of the officers." The bill on your table contemplates a simple organization of fifty thousand volunteers, to be officered by the State authorities, leaving it to the Executive to make such a disposition of them, as, in his opinion, may be consistent with the literal import of the low up the powers of the State governments; and when the power of making war and raising armies was given to Congress, the militia was retained by the States, except in the cases mentioned in the Constitution. How, then, can you permit militiamen to engage in the service of the United States contrary to the provisions of the Constitution, and by that means leave the State unprotected? It was with this view that he should vote against this motion. He knew the corps proposed to be raised would be less effective as militia, than if considered in the light of regulars, but still they would be of great use If they could not be sent to Canada, they could be employed at home and liberate all the regulars for that service. Mr. PORTER knew that he offered to the Committee an unconstitutional provision; but, as he had before stated, it was for the purpose of ascertaining the sense of the House on the subject. His idea in raising a volunteer corps was to get a force for making an invasion of the British provinces; and he wanted to know whether these volunteers would be a force that could be thus used, or whether it was to be a mere militia force. The amendment offered by the gentleman from the Mississippi Territory would have the same effect with the one offered by himself. The Constitution, said Mr. P., speaks of two kinds of force the Army and the Militia. The militia is considered the strength of the nation for defending and protecting the country. The militia, as was observed by the gentleman from the Mississippi Territory, is the shield of the nation-the Army, the sword. The militia may be called forth by Congress to suppress insurrection, enforce the laws, and repel invasion, and for these purposes only. He did not agree with the gentleman, that the militia could in no case be employed without the limits of the United States. He did not think their services were to be confined by geographical limits. If it became necessary for the Executive of the United States to call out the militia to repel invasion, he thought they might pursue the enemy beyond the limits, until the invaders were effectually dispersed. There is nothing, said Mr. P., to prevent an agreement being entered into between militiamen and the Government of the United States for the performance of military service; but then, after such agreement, they would no longer be militiamen-they become a part of the Army. He should vote against the amendment, as he believed it to be unconstitutional; and then against the bill, as ineffectual. Mr. WIDGERY hoped the bill would be so modified as to be useful. When gentlemen talk about militia, they talk about something very different from the force provided for by this bill. This is a bill for accepting a corps of volunteers not exceeding 50,000 men, to be under the same regulations and restrictions, when in service, as regular troops, which he thought might be marched any where. Mr. PORTER again explained the difference between regular soldiers and militia; and concluded with wishing the gentleman from the Mississippi Territory to withdraw his amendment, and he would move to strike out the three first sections of this bill with the view of inserting the four first sections of the bill originally reported. JANUARY, 1812. and thus leave the State without its natural defence. These volunteers, called out under their State officers, would go to battle with the greatest alacrity; and he was astonished to hear it said that it would not be an effective force, except offi cered by the President-then, according to gen tlemen, it would be all-sufficient. The President will have enough to do to appoint officers for the regular force; but he was afraid this volunteer corps was to be scouted, that the men who would compose it may be got to enter the Army. Have we come to this, said Mr. J., that a freeman of the United States cannot engage to serve his country in any way that he chooses? If so, we had better stop short and submit; thus verifying the prediction of the gentleman from Massachusetts, (Mr. QUINCY,) on a former occasion, that we could not be kicked into a war. The Committee rose and had leave to sit again. SATURDAY, January 11. On motion of Mr. POINDEXTER, Resolved, That the Committee on the Public Lands be instructed to inquire into the expediency of authorizing the Secretary of the Treasury to locate the thirty-six sections of land heretofore granted to Jefferson College, in the Mississippi Territory, on any land in said Territory to which the Indian title has been extinguished, and not otherwise appropriated; and that they have leave to report by bill, or otherwise. Mr. LITTLE moved the following resolution: Resolved, That the President be requested to cause to be laid before this House, as far as may be practicable, a list of the whole number of vessels and ships of the United States, captured, condemned, and detained, under the orders, and by the authority of the British Government, their value, including also that of their cargo, since the ratification of the treaty of amity, jesty and the United States of America, of one thoucommerce, and navigation, between His Britannic Maamount of indemnification, if any have been made, sand seven hundred and ninety-four; and, also, the during the same period, to the citizens of the United States on account of any of the aforesaid captures, con demnations, or detentions. The resolution was read, and ordered to lie on the table. Mr. PITKIN called up for consideration two res ultimo, calling upon the Secretary of the Treas olutions, which he laid on the table on the 22d ury for statements of the district tonnage of the United States within each State and Territory, for every year, since the 4th of March, 1789; and the gross amount of customs within each State and Territory for the same period; which was agreed to. Mr. POINDEXTER withdrew his motion. Mr. PORTER then made his motion accordingly: Mr. JOHNSON said, when militia officers shall raise a volunteer corps, they will not be considered in the service of the United States until called upon to march. And is it supposed that a volunteer force, with an object before them, will not fight equal to any regular force of the United States? Shall we put aside the officers proposed to be appointed by the respective States, and give to the President the power of appointing these officers? He was opposed to this course. The militia was intended as the security of the States, and he would never consent to their being offi- The House.resolved itself into a Committee of cered by any other than the State authority; for the Whole on the bill authorizing the President if one thousand men could be taken from Ken- of the United States to accept and organize certucky in this way, thirty thousand might be taken,tain volunteer military corps; when Mr. PORTER District Courts of North Carolina, was read the The bill for altering the time of holding the third time, and passed. 'VOLUNTEER CORPS. moved to strike out the three first sections of the bill last reported by the Committee of Foreign Relations, which provide for the appointment of the officers, in the manner prescribed by law, in the several States and Territories, and insert, in lieu thereof, the four first sections of the bill first reported by the same committee, which gave authority to the President to appoint the officers. Mr. POINDEXTER hoped these sections would be struck out, in order to insert the sections originally reported, which give the power to the President of appointing the officers. The Constitution gives to Congress the power of arming and disciplining the militia, and of, calling them out for the purposes already mentioned, but leaves to the States the appointment of officers. It would, therefore, be improper to retain the sections moved to be stricken out, as they would make this corps militia, to all intents and pur poses. Mr. SMILIE inquired if the House was ready to put into the hands of the President a regular force of eighty-five thousand men, You have already, said he, placed an army of thirty-five thousand at his disposal, provided they can be raised, and are you desirous of raising fifty thousand more? If het clauses in question are struck out, and those from the old bill inserted, these volunteers will be as much a regular force as those under the laws already passed. He believed that the whole of this force might be safely intrusted in the hands of the present President of the United States; but this will be setting a daugerous precedent, which a man of more ambitious views might abuse. Gentlemen will not deny, that if the volunteers be raised under the bill as it now stands, they may pass over the line by their own consent, which will answer every purpose. He could not agree that the officers in these corps should be appointed by the President, as he certainly could not be so well acquainted with the characters to be thus employed as the Executives or the Legislatures of the respective States. He was glad, however, that the question had come before the House in this shape, as it would distinctly mark who were in favor of relying upon the militia, and who were for relying altogether upon an army. Mr. PORTER was sorry to see so much jealousy exhibited on the present occasion, for the question was merely one of form, and not of substance. We have all, said he, the same object in view; we all wish to employ these volunteers in the support of the rights of our country. Because these men receive a commission from the President, will it change their character? Will they at once become traitors to their country? Certainly not; these volunteers will consist of men who have as high a regard for the rights and liberties of their country as we have. While they are militia, they cannot be employed efficiently, and he wanted an efficient force or none. Mr. CHEVES said he would not have risen had any other gentleman taken that view of the subject which he proposed to take; nor had not the H. OF R. amendment been submitted on a ground which went to renounce a great Constitutional power of the General Government. He was, however, entirely opposed to the amendment proposed by the gentleman from New York. The necessary force ought to be provided under its proper name. He was opposed to a regular army in disguise, and such he was obliged to consider that contained in this amendment. He knew that no deception was intended by the honorable mover, but it would afford a dangerous example. With the gentleman from Pennsylvania, (Mr. SMILIE.) he saw nothing in the state of the country, or the views of the Government, to justify or excuse the establishment of a regular army of eightyfive thousand men. If ever the liberties of the country should be endangered by a military force, it would probably be by an army raised under some indirect pretence to cover its real character or design, such perhaps as the one now suggested. The objection stated to the bill before the Committee, and which is said to render the amendment expedient, is, that the force proposed to be raised by the bill is incompetent to the object to be accomplished, because the General Government has no power to send the militia out of the limits of the United States; that they can only be employed under that provision of the Constitution which gives Congress power to call forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion, and that this did not give Congress the power to use the force proposed for the object contemplated. This is the statement of the objection, but it does not disclose the extent of its paralyzing effects on the powers of the General Government. What, then, is the real extent of the question before the Committee? You cannot, in any case, use the militia in performing garrison duty. You cannot call them forth, even in time of war, to prepare for an expected invasion, or send them to the frontier, to the West or the East, until the enemy has entered your territory. An invasion is a hostile entry on your territory; and, according to the construction suggested, nothing else but a hostile entry on your territory will authorize you to call forth the militia. Nor can you, in case of actual invasion, employ them beyond the boundary line of the United States-for though the gentleman from New York says the service of the militia is not to be bounded by geographical limits, I cannot, said Mr. C., disa cover the premises by which he comes to this conclusion, if the General Government has no other power over the militia than is given to it in this clause of the Constitution. If they may cross the line, why not go to the walls of Quebec? The principle is trampled upon the instant they pass beyond the territorial limits of the United States; nor, if this be a correct construction, can the consent of the individual add anything to the powers or the rights of the General Gov ernment while he remains a member of the militia of the State. It is the State which claims the right of a sovereign to retain the militia within the limits of the United States; and the individual who owes to the State allegiance and duty coextensive with the right of the State, can transfer no part of that allegiance or duty to the United States, which are a distinct sovereignty, The sovereign claims of the States are opposed to those of the United States, and the consent of the individual can neither increase nor diminish the rights of either while he continues a member of the militia of the State. Such is the effect of the construction proposed, that you could not march a militiaman from Connecticut to Masschusetts, with or without the consent of the individual, to suppress insurrection, till it had actually taken place, or tilt your laws have been actually resisted, or till your territory has been actually invaded, or even send him to garrison a fortress in time of war within the State of which he is a member, until there has been a hostile entry, nor even then perhaps. This cannot possibly be all the power which Congress has over the militia of the Union. By such a construction of the Constitution you cut the best sinews of our na tional strength. But, said Mr. C.. the power of the General Government to use the militia in time of war is not given by the clause of the Constitution which has been mentioned. It is granted by a different clause of the Constitution-that which authorizes Congress to declare war." To discover the true extent of this power, it is necessary to inquire into the nature of the Government of the United States, as it applies to the subject under consideration. Is it a Federative or a National Government? a Government in which the States as States are represented and bound, or one in which the people are represented and bound? For the purpose of making war, it is essentially a National Government, a Government of the people. The distinction between a Government of the people, and a Federative Government, will be best seen by a comparison of the present Government of the United States with that of the old Confederation. The last, unlike the former, was not in itself a sovereignty. It represented the sovereignty of the States as that of so many individual sovereignties. It could make no law immediately binding on the persons or the property of the citizens of the several States. The troops of the Confederacy were raised under acts of the Legislatures of the several States; the other supplies of the war were granted in the same manner. But, under the present Government, the laws of Congress act immediately on the persons and property of all the citizens of all the States. This, then, is a definition of a National Government, or a Government of the people. It acts immediately on the person and property of the citizen, and such, as to the power of declaring and making war, is the nature of the Government of the United States. The Government of the Union, then, possesses the power, and this power, too, is exclusive, of declaring and making war; and, for the purposes of declaring and making war, is a National Government. But the power of declaring and making war is a great sovereign power, whose limits JANUARY, 1812. and extent have been long understood and well established. It has its attributes and incidental powers, which are in the same degree less equiv ocal than those of other powers, as it exceeds those powers in its importance. Do you ask, then. said Mr. C., for the right of Congress to employ the militia in war? It is found among the attributes of the sovereign power which Cogress has to make war. Do you ask for the limits to which this employment may extend? They are coextensive with the objects of the war. Those who think the General Government has no right to send the militia out of the United States, probably found this opinion on the clause of the Constitution already mentioned, which gives Congress a right to call forth the militia for the purposes of enforcing the laws of the Union, suppressing insurrection, and repelling invasion, and apply to it that rule of construction which declares that the expression of one case tacitly excludes all like cases. The argument, then, is this: though Congress might have had a right to use the militia for all the purposes of war, had not this clause been inserted in the Constitution; yet, as in it we see an express grant of a right to use the militia for a particular act of war, we neces sarily infer that it was intended to grant no other like power; that is to say, no power to employ them in any other aet of war. The fallacy lies in this: the cases are not like cases. The term invasion, as used in the Constitution, is well understood not to refer to a state of public and declared war, such as Congress has the right to declare and wage. It may be used to express a circumstance or an incident of such a war. But, when it is used without such dependence, it means, and it is so understood and used by writers on public and national law, a hostile entry into the territory of a sovereign Power, not growing out of a public and declared war. For example, if the Governor of either of the two Canadas were to make an inroad into the territory of the United States, this would be an invasion within the meaning of this clause of the Constitution. It would be an act of war, but would not neces sarily involve the peace of the United States with Great Britain. Every act of war will not destroy the peaceful relations of Governments. Great Britain and France, for years past, have committed upon us acts of hostility, but they are still considered, politically, as at peace with us. The attack on the Chesapeake was an act of war, but, to use the appropriate terms, it was an act of war de facto, not de jure. So, frequently, is also an invasion. The sovereign invaded may consider it as as destroying the peace which had previously subsisted between him and the aggressor. or not, as he pleases. These invasions are gener ally sudden and unexpected, and it was no doubt to repel such, that the power contained in this clause of the Constitution was given. We thus discover, said Mr. C., the objects of the Constitution. It had given the power of calling forth and using the militia for the purposes of war generally, under the power to declare and make war; but the Government, under this grant |