the officers of the regular army. It was approved by the majority in the House of Representatives; but was lost in the Senate, after long and earnest debate, by a single vote. The objection to the bill was, that it was in violation of the rights of the militia, and wholly unauthorized by the Constitution. One section of the bill also provided for drafting the militia, when they did not voluntarily enlist. The most powerful argument against it, was its direct interference with the privileges of the citizens enrolled in the militia, who were considered as under the authority of a State, and recognized to be so, even by the federal Constitution. The opinion of some eminent statesmen on this subject are given in a note below.* The subject involved directly the great

*Gov. Strong of Massachusetts-"We have lately heard it observed, that the State legislatures have no right to express their opinions concerning the measures of the federal government. But this doctrine is opposed to the first principles of liberty; and cannot be approved by any one who has well considered the organization of our government, or the arguments used in favor of the federal constitution, when that system was adopted. The government of the United States is founded on the State governments, and must be supported by them. In the arrangements of the different powers, the State governments are, to many purposes, interposed between the government of the United States and the people. If the latter think they are oppressed, they will complain to their immediate Representatives; and the remonstrance of a State legislature will not often be slighted by a wise and just administration. The powers of the federal government are limited by the Constitution, which points out the extent of those powers, and the manner in which they are to be exercised.But the Constitution will be of little value, unless it is strictly observed. If, at any time the national administration should disregard its authority, either by violating its express provisions, or by the assumption of power not delegated to it, its commands would be unjust, and it would be chargeable with a dangerous abuse of confidence. The State legislatures are the guardians, not only of individuals, but of the sovereignty of their respective States: and while they are bound to support the general government in the exercise of its constitutional powers, it is their duty to protect the rights of the States and of their constituents. The security thus afforded to the people would be lost, if the State legislatures were implicitly devoted to the views of the federal government, or were deprived of their rights to inquire into its measures."

The views of a distinguished Senator of the United States from Massachusetts, (Mr. Gore,) were given in a debate in February, 1815, relating to the power of the federal government over the militia.-"A question has sometimes been suggested, whether the government of a State has a right to judge, if the requisition for the militia be within the provisions of the Constitution. A little reflection on the nature of the government of the United States and of a State, and of the relation in which the supreme executive of the latter stands to the United States, and to the citizens of his particular State, will show that he is obliged to examine, whether the case for which the requisition is made, be within the provisions of the Constitution; and if the purposes for which it is declared are clearly not within the powers delegated by that instrument, to withhold compliance. The federal government can exercise no powers, not granted by the Constitution; but so far as it can support such as it claims, on this charter, it is sovereign, and has no other control than its own discretion.The government of each State is equally sovereign, with respect to every power

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question of the extent of power in the federal government over the separate States, and in cases where the Constitution did not clearly grant it. The authority therein given to Congress, was for certain specific objects and purposes.And it was insisted that the power could not be extended except by usurpation.

of an independent State, which it has not delegated to the general government, or which is not prohibited to the separate States by the Constitution, whether the militia-the peculiar force of a State, and that which is to protect and defend it is called forth by the federal government according to the provisions which the States made, in delegating power to this government; must be a question between two sovereign and independent governments; and on which there is no tribunal authorized to judge between them. And if the governors, who are the Commanders-in-Chief of the militia of their respective States, should surrender this force to the general government, in a case not authorized in the Constitution, they would betray the trust confided to them by the people. They must, therefore, examine the case when called upon, and decide according as their duty, prescribed by the Constitution of the United States and that of their own State, shall demand."

Another eminent Senator from Massachusetts, (Mr. Lloyd,) expressed a similar opinion on this subject. "The admission of the doctrine, to the full extent, that the federal executive is to be the only judge of the emergencies, in which the militia is to be brought into the service of the United States at the time, and in the manner, which it may think expedient; that the militia can, by a junction of a large number to a few regular troops, be, in fact, officered by the President; and that the executives of the several States, contrary to their own belief in the existence of such emergency, should be obliged to submit to such authority, or such a tribunal, erected in the breast of a single person, and to yield implicit obedience to such an opinion, must place them at the mercy or disposition of any future tenant of power; strip the individual States of their physical as well as fiscal power; and scarcely leave them the remnant of that sovereignty and self-dependence, which some of them at least supposed they had retained."

When the bill, called the militia conscription bill, was before Congress, in December, 1814, a Representative from Massachusetts, (Mr. Ward,) said"I cannot suppress my astonishment, when I hear gentlemen quote the preamble of the Constitution, as an authority to exercise power not given in that instrument, and proposed to give the executive by this bill. It appears to me to make directly against them. Under a Constitution formed for the express purpose of securing the blessings of civil liberty, they claim the right of exercising a power inconsistent with the first principles of civil liberty, and repugnant to the genius and nature of our government. If Congress have such a power, we are not freemen. The preamble states the objects which the people had in view, in giving the powers which they granted, and not as a designation of powers which were to be given. But there is no express provision in the Constitution, that Congress shall have power to provide for the common defence and promote the general welfare." And to say, that Congress have all the powers which they may deem necessary and choose to exercise, to accomplish these objects, and that they are not restrained by the powers expressly given, is, in effect, to say that there is no limit to their powers. But if powers were given in the general terms before mentioned-which however is not admitted-and afterwards particular powers were expressed, the general powers must be controlled and restrained by the special.

Though the federal government cannot claim any power by implication; yet

It is evident that the framers of the federal compact intended carefully to guard the rights and liberties of the people; to maintain the natural and essential distinction between the militia and regular troops, and to give authority to the national rulers over the militia only for purposes of defence in cases of sudden invasion. And the people, and

this cannot be said of the State governments. It is fair to infer what they meant to reserve in one case, by what they refused to give in another. That the people and the States did not intend to give Congress power, to compel the citizens by force, or their children, to enter the regular army, destined for foreign conquest, under United States officers, is clearly to be inferred from their refusing to place the militia under United States officers, when forced into the service in the case of invasion.

When the Constitution was formed and adopted, a jealousy of the military power, and a caution as to what they should part with, were predominant feelings in the people of all the States. A consolidated military government was the object of fearful apprehension. The State governments had been tried; and a more general confidence was placed in them than in that of the United States. The blessings of civil liberty were thought more secure, without giving to the federal government an unlimited power of the sword. And had the people of Massachusetts been told, that Congress would have power to raise regular armies, by the new Constitution, against the opinion of their State legislature, for foreign conquest, or any other purpose, and their sons or themselves thrust into the ranks under command of United States officers, and be subject to martial law, and the discipline and severity of a camp, they would have given it no consideration, but rejected it at once. They would have said, as the people of Virginia did, on a less warrantable occasion, "we will secede from the Union, and be under the protection and government of a hundred thousand free and independent citizens."

The following paragraph is from a report, made by another distinguished statesman of Massachusetts, (Mr. Otis,) on this difficult subject." The authority of the national government over the militia, is derived from the clauses in the Constitution, which give power to Congress to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions." Also "to provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." Again, "the President shall be Commander-in-Chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." In these specified cases only has the nation power over the militia. And it follows conclusively, that, for all general and ordinary purposes, this power belongs to the States respectively; and to them alone. It is perceived not only with astonishment, but regret, that, under color of an authority conferred with such plain and precise limitations, a power is arrogated by the federal executive, and in some cases sanctioned by Congress, of a control over the militia, which if conceded, will render nugatory the rightful authority of the individual States over that class of men; and, by placing at the disposal of the national government, the lives and services of the great body of the people, enable it at pleasure to destroy their liberties and erect a military despotism on its ruins. It will not be denied, that by the terms used in the federal compact, the power of the general government to call out the militia, is expressly limited to three cases. One of these must exist as a condition precedent to the exercise

their State representatives for them, have a right to insist, that the power be exercised only in the exigencies specified. Had not an attempt been made to call out and to command the militia in circumstances, other than those plainly within the meaning of the Constitution, no dispute probably would have arisen on the subject; and the citizens would have been promptly called out by the Governors of the several States, on the requisition of the federal executive, to defend the country against an invading foe.

There is a disposition in all governments to accumulate power, and not infrequently to assume that which is not granted. And the great consideration, which shows the importance of contending for the just rights of the separate States, and therefore, for the rights of people thereof, is the unfavorable effect which would follow the abandonment of them. The power granted to the federal government is not to be opposed nor resumed; and no friend of the Union of the States can wish to lessen it. It was granted for great national and general purposes, by the people, or their immediate representatives. But it is highly important to remember, that it is a delegated power; and that what is not expressly or clearly vested in the federal government by the Constitution, remains with the States, or the people of the States respectively.

A consolidation of all political power in the federal government, as has been sometimes urged, and perhaps assumed, or a great increase of it, so as to leave little authority to the individual States, would serve to lessen the

of that power. Unless the laws shall be opposed, or an insurrection exist, or an invasion made, neither the President nor Congress has any power whatever over the militia. And, if the declaration of the President be admitted as an unerring test of the existence of these cases, this important power would depend, not on the truth of the fact, but on executive infallibility: and the limitation of the power would be nothing more than merely nominal, as it might always be eluded. It follows, therefore, that the decision of the President, in this particular, cannot be conclusive. It is as much the duty of the State governments to watch over the rights reserved, as of the United States to exercise the powers which are delegated."

In 1793, when Georgia was exposed to an attack from the Indians, the governor applied to the President of the United States for aid-who authorized him to call out the militia for the defence of the State. He was cautioned against all offensive measures; and informed, that in case of invasion, or imminent danger of it, to call out the militia, who in such case would be remunerated by the general government. He was also told, that he was to judge of the degree of danger and of its duration—and that the men were to be called out in conformity to the militia laws. The Governor of South Carolina was at that time requested by the President, if Georgia were invaded and needed aid, to grant it, by marching the militia of his State, as he himself might judge necessary, and the case require assistance."

liberties of the people in the end, and gradually tend to an encroachment on their civil and social rights. The executive of the Union, which was early supposed not sufficiently powerful, has sometimes manifested a disposition to extend its authority. Its discretion has been claimed to be the only limit of its powers. And the citizens, who are seeking for the smiles and favor of the Chief Magistrate, have been ready and forward, to support such a dangerous doctrine. The certain, though gradual effect of the concentration of all the political power of the nation in the federal government, would be the multiplication of its agents and officers, and the comparative increase and superiority of their influence. Not being immediately dependent on their fellow-citizens, over whom they have authority, they will not be desirous to secure their good opinion, nor to consult for their best interests. They will often be strangers, and in all cases will lose that identity with the people, which it is essential to cherish in a republican government, founded by the people themselves, and for their good.

It is in the distant provinces of a great empire or nation, and under the authority of subordinate officers, that oppression, in its worst forms, is found to exist. And a very extensive republic will not long preserve the liberties of the people, unless divided into small districts or States; in which the citizens reserve and possess a large portion of power for self-government. The government may, indeed, be powerful; but the people will enjoy less freedom. So it was in the Roman provinces; and so it was in the English colonies of North America before the Revolution of 1775. There was far more security and liberty for the subject in Great Britain, before that event, than in some of the colonies. For the preservation of the rights and the liberties of the people in the United States, it is important that the assumption of power by the general government be vigilantly watched and guarded against; and the authority of the individual States, not clearly granted, be strenuously maintained. Except in certain enumerated instances and respects, the separate States are sovereign and independent governments; representative, elective, republican. As long as they so remain, the people have the best security for personal freedom, and for the enjoyment of their social rights. But whenever the States lose their individuality, or are known only by territorial limits, and all power is assumed and exercised by the general government, whether given or not by the Constitution of the United States, then