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American Patriot Party News Letter - November, 2006
The Division of Power
To all State Chair Persons and Party Members:
Welcome to the American Patriot Party.
This is the first issue of the American Patriot Party National News Letter.
We
will try not to burden you with many throughout the year, but will try to
alert you to any new or notable issues, call attention to definitions
in the documents, or when necessary, clarify party stands on issues.
In this premiere issue we call attention to two updated pages on the national web site.
1.) Freedom, Public Opinion, Consent and Condemnation.
2.) Socialism as defined by the American Patriot Party
Below are listed three links from constitution.org
You
may want to "save page as" "Web page complete" to your desk top when you
find notable pages, as some times it is extremely hard to reacquire a page
after leaving the site as there are so many documents.
The subject
presented in this news letter is entitled "The Division of Power" I thought
it fitting for two reasons, one, I thought it would help define the Party's
stand on that division, and two, because the stirring discussion I had a
week ago with the Ohio party which had prompted me for a little discussion
and actual documentation on the subject of state powers and national powers
and the division line between the two.
Below I have copied a page
that presents one of the better debates that really exemplifies some core
problems of power, and voiced very clearly by Patrick Henery and others.
It would good for you to read the Rights of the Colonists 1772
first to understand the issues debated here, to see the solid foundation
of Patrick Henery's concerns as he had well experienced the abuse of national
powers only 12 years prior to this debate. He ends some of his with questions
meant to establish the obvious facts of recent history; and though serious
in nature are somewhat humorous in delivry. The fluidity of all the
speakers sets one in awe. There is finite reasonings presented for which
are explored where the powers should lay.
The issues range from Militias, Standing Armies and a very good debate on the Bill of Rights
which Patrick Henery defends quite artistically with words; against those
who would have omitted them. It is why we caution state chairs on which person's
they quote, as some founders of "federalism" were in fact not presenting
those long established foundations of freedom, but of the same vague easily
corrupted establishments found in tyrannical governments and subversive powers
with no safeguards.
Some of the founder's statements that are made
that need to be in context, as there is even one area that Patrick Henery
points out that the document states that the congress should control the
militia, but he is describing the "flaw" in the document; This, as he is
a tough critic on the new Constitution for good cause, and an ardent proponent
of the Bill of Rights; In reading, both at start and finish, he is opposed
to giving Congress sweeping powers of force, thereby you must read not only
the discussions in context to the many varied subjects (including understanding
the many varied levels of perceived definitions of militia which had changed
prior to this discussion; and they discuss may change in the future), but
relate them over all; and further read back to the history of which they
relate to, the Declaration of Independence, established common law as in the Rights of the Colonists, the Magna Carta and early state constitutions; As these were well known by them, and were in this knowledge taken for granted
as they spoke, expecting those around them to be in understanding of them.
The artistry of their speech (pointed out by George Mason in relation to
the federalist evasions as "artful sophistry and evasions could not satisfy him"
and some of Patrick Henery's facetious speech "parts" make it hard to tell
at times when he is taunting the opposing position with their stands and
optimism of the proposed national government and the "integrity" of the persons
that will weld power within it. This sometimes causes even those in the debate
to clarify.
You will find many of those debating the issue are actually
agreeing, but are found defining separate issues which they eventually clear
up to some extent.... (this is just one of many debates) make sure to read
clear through this one, as some times they are being facetious to make their
point.
Note that the federalists "dance around" the idea (as well
as attempt to disarm his concerns) that Patrick Henery and George Mason touch
upon; And that is, that should laws change, which they have, and new persons
in the government be disingenuous, what is to protect the states and or the
people when the federal government has corrupted the national government
and welds the greater power in which the state militias are obligated now
to serve.
The safeguards they mention here, besides the inclusion
of the Bill of Rights, is the state's ability to adequately control, arm
and defend themselves with adequate powers to repel.
This includes importing arms and arming themselves and their state militias outside the federal government.
These safeguards, in part, have been taken down or relinquished by corruptions they mention here;
What it does define clearly, is that the states can
arm and manage their own militias for just that protection; This protection
can extend out to protect other states; So there are these protections, if
the states would use them, or even understand the intent for which they exist.
Which is the reason that every free citizen and our state governments need to be educated in these rights.
The
difficulty, as presented above and by Patrick Henery, is when the "National"
(federal) government is disingenuous, what will be the procedure
of the states toward the national; The question comes up, but is not directly
answered but for the right of the states to control the militia when there
is no war against foreign invaders that requires attention by the national;
Or when the state is attacked, or in eminent danger, the "state" "can" engage in war without aproval from congress.
Insuring the right of the state to defend itself absolutely against any invader of their state constitutions and freedoms.
Early
law and debate, states that a free state can limit the forces that it will
offer to a national cause by establishing what the state believes it needs
to adequately protect its own state. This would be one safeguard to insuring
a free state; or states, which they have a right to defend each others freedoms
in the face of the rise of tyranny in the national government. Again is the
procedure or steps; and what clear issues must arise to enact that procedure and how
would a state withdraw it's militia from a standing army controlled by the
national of which it is attempting to defend against.
The issues are clearly written in the Declaration of independence within
the grievances. The procedures and steps are what is needed to complete and
establish this safeguard.
If you are of my view of this debate, you will find it both stirring and thoroughly enjoying.
What
I note the greatest achievement by Patrick Henery, is the way he draws out
the "intentions" and clarifications of the federalists and anti federalists
alike, which in fact establish our laws as defined in their intent;
As a judge looks back at the intentions set forth in the legislature which creates law to establish how he upholds the law in court; So is the intent of the Founders, who have created and established the Constitution, the law of the Constitution and prior rights even the Constitution is subject to, are to be upheld in every court.
All those prior known rights not expressly delegated, and those rights which either are established by engagements, oaths and known law, are reserved to the states and to the people. They are in full effect today as they were before the Constitution was ratified, as clearly presented.
In these the federal government has no power over, but only to defend, at request of the independent state.
It
is clear in these debates, that the intent of the founders is that the federal
government is only there as an additional protection at the beck and call
and control of the states; and not one of creator of "new powers",
a subjugator, or of internal improvements, and manipulations of state laws;
or of anything that has not been expressly delegated to it.
Sincerely,
Richard Taylor
Chair
American Patriot Party (.cc)
American Patriot Party of Oregon
I have highlighted some text for emphasis.
The
third link, which presents some intense exchanges, I have presented below
in full, as Patrick Henery and others presents many concerns that have today
have arisen.
The first link is a index of other indexes of many papers, letters and founders debates.
The second link are those relating to Patrick Henery.
http://www.constitution.org/afp.htm
http://www.constitution.org/afp/phenry00.htm
On the Bill of Rights (very good) http://www.constitution.org/rc/rat_va_13.htm#henry-12
----------------
MONDAY, June 16, 1788.[1] [Elliot misprinted this as Monday, June 14, 1788.]
The Convention,
according to the order of the day, again resolved itself into a committee
of the whole Convention, to take into further consideration the proposed
plan of government. Mr. WYTHE in the chair.
[The 8th section still under consideration. See page 378.]
Mr. HENRY thought it necessary
and proper that they should take a collective view of this whole section,
and revert again to the first clause. He adverted to the clause which gives
Congress the power of raising armies, and proceeded as follows: To me this
appears a very alarming power, when unlimited. They are not only to raise, but to support, armies; and this support is to go to the utmost abilities of the United States. If Congress shall say that the general welfare requires it, they may keep armies continually on foot. There is no control on Congress in raising or stationing them. They may billet them on the people at pleasure. This unlimited authority is a most dangerous power: its principles are despotic.
If it be unbounded, it must lead to despotism; for the power of a people
in a free government is supposed to be "paramount" to the existing power.
We shall be told that,
in England, the king, lords, and commons, have this power; that armies can
be raised by the prince alone, without the "consent" of the people. How does this apply here? Is this government to place us in the situation of the English?
Should we suppose this government to resemble king, lords, and commons, we
of this state {411} should be like an English county. An English county Cannot
control the government. Virginia cannot control the government of Congress
any more than the county of Kent can control that of England. Advert to the
power thoroughly. One of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons
for dissolving the connection with Great Britain. Here we may have troops
in time of peace. They may be billeted in any manner to tyrannize, oppress,
and crush us.
We are told, we are afraid to trust ourselves; that our own representatives Congress will not exercise their powers oppressively; that we shall not enslave ourselves; that the militia cannot enslave themselves, &c. Who has enslaved France, Spain, Germany, Turkey, and other countries which groan under tyranny? They have been enslaved by the hands of their own people. If it will be so in America, it will be only as it has been every where else. I am still persuaded that the power of calling forth the militia, to execute the laws of the Union, is dangerous. We requested the gentleman to show the cases where the militia would be wanting to execute the laws. Have we received a satisfactory answer? When we consider this part, and compare it to other parts, which declare that Congress may declare war, and that the President shall command the regular troops, militia, and navy, we shall find great danger. Under the order of Congress, they shall suppress insurrections. Under the order of Congress, they shall be called to execute the "laws". It will result, of course, that this is to be a government of force. Look at the part which speaks of excises, and you will recollect that those who are to collect excises and duties are to be aided by military force.
They have power to call them out, and to provide for arming, organizing,
disciplining, them. Consequently, they are to make militia laws for this
state.
The honorable gentleman said that the militia should be called forth to quell riots. Have we not seen this business go on very well to-day without
military force? It is a long-established principle of the common law of England,
that civil force is sufficient to quell riots. To
what length may it not be carried? A law may be made that, if twelve men
assemble, if they do not disperse, they may be fired upon. {412} I think it is so in England. Does not this part of the paper bear a strong aspect?
The honorable gentleman, from his knowledge, was called upon to show the
instances, and he told us the militia may be called out to quell riots. They
may make the militia travel, and act under a colonel, or perhaps under a
constable. Who are to determine whether it be a riot or not? Those who are to execute the laws of the Union? If they have power to execute their laws in this manner, in what situation are we placed!
Your men who go to Congress are not restrained by a bill of rights. They
are not restrained from inflicting unusual and severe punishments, though
the bill of rights of Virginia forbids it. What will be the consequence?
They may inflict the most cruel and ignominious punishments on the militia,
and they will tell you that it is necessary for their discipline.
Give me leave to ask another thing.
Suppose an exciseman will demand leave to enter your cellar, or house, by
virtue of his office; perhaps he may call on the militia to enable him to
go. If Congress be informed of it, will they give you redress? They
will tell you that he is executing the laws under the authority of the continent
at large, which must be obeyed, for that the government cannot be carried
on without exercising severity. It, without any reservation of rights or control, "you" are contented to give up "your" rights, "I am not".
There is no principle to guide the legislature to restrain them from inflicting
the utmost severity of punishment. Will gentlemen voluntarily
give up their liberty? With respect to calling the militia to enforce every
execution indiscriminately, it is unprecedented. Have we ever seen it done
in any free country? Was it ever so in the mother country? It never was so
in any well-regulated country. It is a government of force, and the genius of despotism expressly. It is not proved that this power is necessary, and if it be unnecessary, shall we give it up?
Mr. MADISON. Mr. Chairman,
I will endeavor to follow the rule of the house, but must pay due attention
to the observations which fell from the gentleman. I should conclude, from
abstracted reasoning, that they were ill founded I should think that, if
there were any object which the general government ought to command, it would
be the direction of the national forces. And as the force which lies in militia is most safe, the direction of that part ought to be {413} submitted to, in order to render another force unnecessary. The power objected to is necessary, because it is to be employed for national purposes.
It is necessary to be given to every government. This is not opinion, but
fact. The highest authority may be given, that the want of such authority
in the government protracted the late war, and prolonged its calamities.
He says that one ground
of complaint, at the beginning of the revolution, was, that a standing army
was quartered upon us. This was not the whole complaint. We complained because it was done without the >>>local<<< authority of this country without the consent of the people of America.
As to the exclusion of standing armies in the bill of rights of the states,
we shall find that though, in one or two of them, there is something like
a prohibition, yet, in most of them, it is only provided that no armies shall
be kept without the legislative authority; that is, without the consent of the community itself. Where is the impropriety of saying that we shall have all army, if necessary?
Does not the notoriety of this constitute security? If inimical nations were
to fall upon us when defenceless, what would be the consequence? Would it
be wise to say, that we should have no defence? Give me leave to say, that
the only possible way to provide against standing armies is to make them unnecessary.
The way to do this is to organize and discipline our militia,
so as to render them capable of defending the country against external invasions
and internal insurrections. But it is urged that abuses may happen. How is
it possible to answer objections against the possibility of abuses? It must
strike every logical reasoner, that these cannot be entirely provided against.
I really thought that the objection in the militia was at an end. Was there ever a constitution, in which if authority was vested, it must not have been executed by force, if resisted?
Was it not in the contemplation of this state, when contemptuous proceedings
were expected, to recur to something of this kind? How is it possible to
have a more proper resource than this? That the laws of every country ought
to be executed, cannot be denied. That force must be used if necessary, cannot
be denied. Can any government be established, that will answer any put, pose
whatever, unless force be provided for executing its {414} laws? The Constitution does not say that a standing army shall be called out to execute the laws. Is not this a more proper way? The militia ought to be called forth to suppress smugglers. Will this be denied?
The case actually happened at Alexandria. There were a number of smugglers,
who were too formidable for the civil power to overcome. The military quelled
the sailors, who otherwise would have perpetrated their intentions. Should
a number of smugglers have a number of ships, the militia ought to be called forth to quell them.
We do not know but what there may be a combination of smugglers in Virginia
hereafter. We all know the use made of the Isle of Man. It was a general
depository of contraband goods. The Parliament found the evil so great, as to render it necessary to wrest it out of the hands of its possessor.
The honorable gentleman says that it is a government of force. If he means military force, the clause under consideration proves the contrary. There never was a government without force. What is the meaning of government? An institution to make people do their duty (APP warning note
of how this founder perceived government - note the differences of the two
Patrick Henery presents government only by consent, James Madison, an institution
once established to make people do their "duty"... defined by who?). A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government (APP note,
which in the end we have in the Constitution and Bill of Rights as the division
of powers are defined, and both fears even the following are resolved for
the greater part from the debates),
or rather no government at all. The ingenuity of the gentleman is remarkable
in introducing the riot act of Great Britain. That act has no connection,
or analogy, to any regulation of the militia; nor is there any thing in the Constitution to warrant the general government to make such an act. It
never was a complaint, in Great Britain, that the militia could be called
forth. If riots should happen, the militia are proper to quell it, to prevent
a resort to another mode. As to the infliction of ignominious punishments,
we have no ground of alarm, if we consider the circumstances of the people
at large. There will be no punishments so ignominious as have been inflicted
already. The militia law of every state to the north of Maryland is less
rigorous than the particular law of this state. If a change be necessary
to be made by the general government, it will be in our favor. I think that
the people of those states would not agree to be subjected to a more harsh
punishment than their own militia laws inflict. An observation fell from a gentleman, on the same side with myself, which deserves to be attended to.***
If we be dissatisfied with the national government, if we "should choose
to renounce {415} it", "this is an additional safeguard to our defence". I conceive that we are peculiarly interested in giving the general government as extensive means as possible to protect us.
If there be a particular discrimination between places in America, the Southern
States are, from their situation and circumstances, most interested in giving
the national government the power of protecting its members.
[Here Mr. Madison made some other observations, but spoke so very low, that his meaning could not be comprehended.]
----------------------------------------------------
APP Study Note on Madison's statement: "What is the meaning of government? An institution to make people do their duty".
This illustrates one of the major differences between federalism by a federalist, and true freedom as defined.
Madison on "this point" is wholly incorrect
in regards to the Absolute Rights of the Colonists 1772, (however correct
in all tyrannical governments) and is proven by long standing documents regarding
laws on freedom and liberty. The closing statement on this page shows the
dismay regarding these past rights by Mr. NICHOLAS in that such Rights "had been frequently violated with impunity." A
condition that had been the aim of correcting by the Declaration of Independence,
and the purpose of defending the retainment of such protections by the Anti
Federalists when debating the Constitution - resulting in the Bill of Rights,
which in fact made us a new species of government, as spoke of by
Madison, that now protects freedoms throughout the world because those Rights
are not violated with impunity; and such care needs be taken to make sure
that they are never treated in such a way.
1.) The Absolute Rights of the Colonists:
"The Legislative has no right to absolute arbitrary power over the lives and fortunes of the people"
"The Legislative cannot Justly assume to itself a power to rule by extempore arbitrary decrees; but it is bound to see that Justice is dispensed, and that the rights of the subjects be decided, by promulgated, standing and known laws, and authorized independent Judges;" that is independent as far as possible of Prince or People.
2.) Declaration of Independence:
That
all men are created equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, and the pursuit of
happiness.
That, to secure these rights, governments are instituted
among men, deriving their just powers from the consent of the governed;
3.) The Constitution:
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X: 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.
Amendment XIII:
Section 1. Neither slavery nor involuntary servitude, "except" as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
4.) Declaration of Independence:
that,
whenever any form of government becomes destructive of these ends, it is
the right of the people to alter or to abolish it, and to institute a new
government, laying its foundation on such principles, and organizing its
powers in such form, as to them shall seem most likely to effect their safety and happiness.
Prudence,
indeed, will dictate that governments long established should not be changed
for light and transient causes; and accordingly all experience hath shown
that mankind are more disposed to suffer, while evils are sufferable, than
to right themselves by abolishing the forms to which they are accustomed.
But
when a long train of abuses and usurpations, pursuing invariably the same
object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.
APP: Here we have the purpose of a Free government is: (numbers corresponding)
1.) Not to make anyone do anything, but only to see that "Justice" is dispenced. "Justice" keeps one from doing something to another, or punishes one when he does do something to another, without his consent.
Note: Do not confuse this "duty" mentioned here of arbitrary state or federal law to force service to the country, with enforcing laws on persons who infringe against just and necessary civil law; This is a separate issue in the second part, when one is found taking "inalienable" rights, property and liberty from another, as this has to do with crime; In the first part, forcing someone to do their duty at the beck and call of the state is a crime, as clearly defined in the second part..
Justice has nothing to do with making someone do something, or do something to someone else, without their consent. That type of action is defined as "Tyranny".
2.)
If you can be made to do anything, you have no liberty and without the ability
to consent you have no freedom. And I guarantee if someone is "made" or forced
to do "their duty" by any government, they will not be pursuing happiness....
Which is an inalienable right.
3.) Any Type of slavery (voluntary
or involuntary); or Involuntary Servitude is strictly prohibited. i.e. the
Draft or other forced service.
4.) There is the "Duty", and it is absolutely opposite of Madison's statement.
It is the duty of any free man or free state to throw out any government
that attempts to "make" someone "do" anything without their "consent".
Forcing someone to do something that he does not want to do, only seems reasonable
or of great reason to the one that is doing the forcing, (whether a government
or person); And by his (anyone's) actions he defines himself as a Tyrant.
A
few years later James Madison had to defend an attack on his great optimisms,
when he came to realize the dangers spoke of by Patrick Henry and George
Mason were quite real; To his credit, Madison left the federalists to join
Thomas Jefferson not long after the Constitution was ratified; This was to
write with Jefferson the Virginia and Kentucky Resolutions
(which see) in response and opposition to the Alien and Sedition Act. These
resolutions clarified the powers of the states over the federal government,
and the very limited delegated power of the federal government.
(end APP)
------------------
Madison continues:
An
act passed, a few years ago, in this state, to enable the government to call
forth the militia to enforce the laws when a powerful combination should
take place to oppose them. This is the same power which the Constitution
is to have. There is a great deal of difference between calling forth the
militia, when a combination is formed to prevent the execution of the laws,
and the sheriff or constable carrying with him a body of militia to execute
them in the first instance; which is a construction not warranted by the clause.
There is an act, also, in this state, empowering the officers of the customs
to summon any persons to assist them when they meet with obstruction in executing
their duty. This shows the necessity of giving the government power to call
forth the militia when the laws are resisted. It is a power vested in every
legislature in the Union, and which is necessary to every government. He
then moved that the clerk should read those acts which were accordingly read.
Mr. GEORGE MASON asked to what purpose the laws were read. The objection was, that too
much power was given to Congress power that would finally destroy the state
governments more effectually by insidious, underhanded means, than such as
could be openly practised. This, said he, is the opinion of many worthy men, not only in this Convention, but in all parts of America.
These laws could only show that the legislature of this state could pass
such acts. He thought they militated against the cession of this power to
Congress, because the state governments could call forth the militia when
necessary, so as to compel a submission to the laws; and as they were competent
to it, Congress ought not to have the power. The meeting of three or four persons might be called an insurrection, and the militia might be called out to disperse them. He was not satisfied with {416} the explanation of the word "organization" by the gentleman in the military line, (Mr. Lee.)
He thought they were not
confined to the technical explanation, but that Congress could inflict severe
and ignominious punishments on the militia, as a necessary incident
to the power of organizing and disciplining them. The gentleman had said
there was no danger, because the laws respecting the militia were less rigid
in the other states than this. This was no conclusive argument. His fears, as he had before expressed, were, that grievous punishments would be inflicted, in order to render the service disagreeable to the militia themselves, and induce them to wish its abolition, which would afford a pretence for establishing a standing army. (APP Note: This has already happened) He was convinced the state governments ought to have the control of the militia, except when they were absolutely necessary for general purposes. The gentleman had said that they would be only subject to martial law when in actual service. He demanded what was to hinder Congress from inflicting it always, and making a general law for the purpose.
If so, said he, it must finally produce, most infallibly, the annihilation
of the state governments. These were his apprehensions; but he prayed God they might be groundless.
Mr. MADISON replied, that the obvious explanation was, that the states were to appoint the officers, and govern all the militia except that part which was called into the actual service of the United States. He asked, if power were given to the general government, if we must not give it executive power to use it. The vice of the old system was, that Congress could not execute the powers nominally vested in them. If the contested clause were expunged, this system would have nearly the same defect.
Mr. HENRY wished to know what authority the state governments had over the militia.
Mr. MADISON answered, that the
state governments might do what they thought proper with the militia, when
they were not in the actual service of the United States. They might make use of them to suppress insurrections, quell riots, and call on the general government for the militia of any other state, to aid them, if necessary.
Mr. HENRY replied that,
as the clause expressly vested the general government with power to call
them out to suppress {417} insurrections, it appeared to him, most decidedly,
that the power of suppressing insurrections was exclusively given to Congress.
If it remained in the states, it was by implication.
Mr. CORBIN, after a short
address to the chair, in which he expressed extreme reluctance to get up,
said, that all contentions on this subject might be ended, by adverting to
the 4th section of the 4th article, which provides, "that the
United States shall guaranty to every state in the Union a republican form
of government, and shall protect each of them against invasion, and, on application
of the legislature, or of the executive, (when the legislature cannot be
convened,) against domestic violence. "He thought this section gave the states power to use their own militia, and call on Congress for the militia of other states.
He observed that our representatives were to return every second year to
mingle with their fellow-citizens. He asked, then, how, in the name of God,
they would make laws to destroy themselves. The gentleman had told us that nothing could be more humiliating than that the state governments
could not control the general government. He thought the gentleman might
as well have complained that one county could not control the state at large. Mr. Corbin then said that all confederate governments had the care of the national defence,
and that Congress ought to have it. Animadverting on Mr. Henry's observations,
that the French had been the instruments of their own slavery, that the Germans
had enslaved the Germans, and the Spaniards the Spaniards, &c., he asked
if those nations knew any thing of representation. The want of "this knowledge" was the "principal" cause of their bondage. He concluded by observing that the general government had no power but such as the state government had, and that arguments against the one held against the other.
Mr. GRAYSON, in reply to Mr. Corbin, said he
was mistaken when he produced the 4th section of the 4th article, to prove
that the state governments had a right to intermeddle with the militia. He was of opinion that a previous application must be made to the federal head, by the legislature when in session, or otherwise
by the executive of any state, before they could interfere with the militia.
In his opinion, no instance could be adduced where the states could employ
the militia; for, in all the cases wherein they could be {418} employed,
Congress had the exclusive direction and control of them. Disputes, he
observed, had happened in many countries, where this power should be lodged.
In England, there was a dispute between the Parliament and King Charles who
should have power over the militia. Were this government well organized,
he would not object to giving it power over the militia. But as it appeared to him to be without checks, and to tend to the formation of an aristocratic body, he could not agree to it. Thus organized, his imagination did not reach so far as to know where this power should be lodged. He conceived the state governments to be at the mercy of the generality. He wished to be open to conviction, but he could see no case where the states could command the militia. He
did not believe that it corresponded with the intentions of those who formed
it, and it was altogether without an equilibrium.
He humbly apprehended that the power of providing for organizing and disciplining
the militia, enabled the government to make laws for regulating them, and
inflicting punishments for disobedience, neglect, &c. Whether it would
be the spirit of the generality to lay unusual punishments, he knew not;
but he thought they had the power, if they thought proper to exercise it.
He thought that, if there was a constructive implied power left in the states, yet, as the line was not clearly marked between the two governments, it would create differences. He
complained of the uncertainty of the expression, and wished it to be so clearly
expressed that the people might see where the states could interfere.
As the exclusive power of arming, organizing, was given to Congress, they might entirely neglect them; or they might be armed in one part of the Union, and totally neglected in another. This he apprehended to be a probable circumstance. In this he might be thought suspicious; but he was justified by what bad happened in other countries.
He wished to know what attention had been paid to the militia of Scotland
and Ireland since the union, and what laws had been made to regulate them.
There is, says Mr. Grayson, an excellent militia law in England, and such
as I wish to be established by the general government. They have thirty thousand
select militia in England. But the militia of Scotland and Ireland are neglected.
I see the necessity of the concentration of the forces of the Union. {419}
I acknowledge that militia are the best means of quelling insurrections,
and that we have an advantage over the English government, for their regular
forces answer the purpose. But I object to the want of checks, and a line of discrimination between the state governments and the generality.
Mr. JOHN MARSHALL asked
if gentlemen were serious when they asserted that, if the state governments
had power to interfere with the militia, it was by implication. If they were,
he asked the committee whether the least attention would not show that they
were mistaken. The
state governments did not derive their powers from the general government;
but each government derived its powers from the people, and each was to act
according to the powers given it. Would any gentleman deny this? He demanded if
powers not given were retained by implication. Could any man say so? Could
any man say that this power was not retained by the states, as they had not given it away? For, says he, does not a power remain till it is given away? The state legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away.
For Continental purposes Congress may call forth the militia, as to suppress insurrections and repel invasions. But the power given to the states by the people is "not taken away"; for the Constitution does not say so. In the Confederation Congress had this power; but the state legislatures had it "also". The power of legislating given them within the ten miles square is exclusive of the states, because it is expressed to be exclusive.
The truth is, that when power is given to the general legislature, if it
was in the state legislature before, both shall exercise it; unless there
be an incompatibility in the exercise by one to that by the other, or negative
words precluding the state governments from it. But there are no negative words here. It rests, therefore, with the states. To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption.
Gentlemen have said that the states cannot defend themselves without an application
to Congress, because Congress can interpose! Does not every man feel a refutation of the argument in his own breast? I will show {420} that there could not be a combination, between those who formed the Constitution, to take away this power. All
the restraints intended to be laid on the state governments (besides where
an exclusive power is expressly given to Congress) are contained in the 10th
section of the 1st article. This power is not included in the restrictions
in that section. But what excludes every possibility of doubt, is the last
part of it that "no state shall engage in war, unless actually invaded, or
in such imminent danger as will not admit of delay." When invaded, they "can" engage in war, as also when in "imminent danger". This clearly proves that the states can use the militia when they find it necessary. The worthy member last up objects to the Continental government's possessing the power of disciplining the militia, because, though all its branches be derived from the people, he says they will form an aristocratic government, unsafe and unfit to be trusted.
Mr. GRAYSON answered, that he only said it was so constructed as to form a great aristocratic body.
Mr. MARSHALL replied, that
he was not certain whether he understood him; but he thought he had said
so. He conceived that, as the government was drawn from the people, the feelings and interests of the people would be attended to,
and that we should be safe in granting them power to regulate the militia.
When the government is drawn from the people, continued Mr. Marshall, and
depending on the people for its continuance, oppressive measures will not be attempted, as they will certainly draw on their authors the resentment of those on whom they depend. On this government, thus depending on ourselves for its existence, I will rest my safety, notwithstanding the danger depicted by the honorable gentleman.
I cannot help being surprised that the worthy member thought this power so
dangerous. What government is able to protect you in time of war? Will any
state depend on its own exertions? The consequence of such dependence, and
withholding this power from Congress, will be, that state will fall after
state, and be a sacrifice to the want of power in the general government.
United we are strong, divided we fall. Will you prevent the general
government from drawing the militia of one state to another, when the consequence
would be, that every state must depend on itself? The enemy, possessing {421}
the water, can quickly go from one state to another. No state will spare
to another its militia, which it conceives necessary for itself. It requires
a Superintending power, in order to call forth the resources of all to protect
all. If this be not done, each state will fall a sacrifice. This system merits
the highest applause in this respect. The honorable gentleman
said that a general regulation may be made to inflict punishments. Does he
imagine that a militia law is to be ingrafted on the scheme of government,
so as to render it incapable of being changed? The idea of the worthy member
supposes that men renounce their own interests. This would produce general
inconveniences throughout the Union, and would be equally opposed by all
the states. But the worthy member fears, that in one part of the Union they
will be regulated and disciplined, and in another neglected. This danger
is enhanced by leaving this power to each state; for some states may attend
to their militia, and others may neglect them. If Congress neglect our militia, "we can arm them ourselves".>>>>Cannot
Virginia "import arms?<<<< >>>>Cannot she put
them into the hands of >>> "her"<<< >>> militia-men?<<<
He then concluded by observing, that the power of governing the militia was not vested in the states by implication, because, being >>>possessed of it<<< antecedent to the adoption of the government, and >>>not being divested of it<<< by any grant or restriction in the Constitution, they must necessarily be as >>>fully possessed of it as ever they had been.<<< And
it could not be said that the states derived any powers from that system,
>>>but retained them,<<< >>>though not acknowledged
in any part of it<<<.
Mr. GRAYSON acknowledged that all power was drawn from the people. But
he could see none of those checks which ought to characterize a free government.
It had not such checks as even the British government had. He thought it so organized as to form an aristocratic body.
If we looked at the democratic branch, and the great extent of country, he
said, it must be considered, in a great degree, to be an aristocratic representation.
As they were elected with craving appetites, and wishing for emoluments,
they might unite with the other two branches. They might give reciprocally
good offices to one another, and mutually protect each other; for he considered
them all as united in interest, and as but one branch. There was no
check to prevent such {422} a combination; nor, in cases of concurrent powers,
was there a line drawn to prevent interference between the state governments
and the generality.
Mr. HENRY still retained his opinion, that the states had no right to call forth the militia to suppress insurrections, (APP note: This statement is in reference to the document)
But the right interpretation (and such as the nations of the earth had put
upon the concession of power) was that, when power was given, it was given
exclusively. He appealed to the committee, if power was not confined in the
hands of a few in almost all countries of the world. He referred to their candor,
if the construction of conceded power was not an exclusive concession, in
nineteen twentieth parts of the world. The nations which retained their liberty
were comparatively few. America would add to the number of the oppressed nations, if she depended on constructive rights and argumentative implication. That the powers given to Congress were exclusively given, was very obvious to him. The rights which the states had must be founded on the restrictions on Congress. He asked, if the doctrine which had been so often circulated, that rights not given were retained, was true, why there were negative clauses to restrain Congress. He told gentlemen that
these clauses were sufficient to shake all their implication; for, says he,
if Congress had no power but that given to them, why restrict them by negative
words? Is not the clear implication this that, if these restrictions were not inserted, they could have performed what they prohibit?
The worthy member had said
that Congress ought to have power to protect all, and had given this system
the highest encomium. But he insisted that the power over the militia was
concurrent. To obviate the futility of this doctrine, Mr. Henry alleged that it was not reducible to practice.
Examine it, says he; reduce it to practice. Suppose an insurrection in Virginia,
and suppose there be danger apprehended of an insurrection in another state,
from the exercise of the government; or suppose a national war, and there
be discontents among the people of this state, that produce, or threaten,
an insurrection; suppose Congress, in either case, demands a number of militia,
will they not be obliged to go? Where are your reserved rights, when your militia go to a neighboring state? Which call is to be obeyed, the congressional call, or the call of the state legislature? The call of Congress must be obeyed. I need not remind this {423} committee that the sweeping clause will cause their demands to be submitted to. This clause enables them "to
make all laws which shall be necessary and proper to carry into execution
all the powers vested by this Constitution in the government of the United
States, or in any department or officer thereof." Mr. Chairman, I will turn to another clause, which relates to the same subject, and tends to show the fallacy of their argument.
The 10th section of the 1st article, to which reference was made by the worthy member, militates against himself.
It says, that "no state shall engage in war, unless actually invaded." If
you give this clause a fair construction, what is the true meaning of it?
What does this relate to? Not domestic insurrections, but war. If the country be invaded, a state may go to war,
but cannot suppress insurrections. If there should happen an insurrection
of slaves, the country cannot be said to be invaded. They cannot, therefore,
suppress it without the interposition of Congress. The 4th section of the
4th article expressly directs that, in case of domestic violence, Congress
shall protect the states on application of the legislature or executive;
and the 8th section of the 1st article gives Congress power to call forth
the militia to quell insurrections: there cannot, therefore, be a concurrent
power. The "state" legislatures ought to have power to call forth the efforts of the militia, when necessary.
Occasions for calling them out may be urgent, pressing, and instantaneous.
The states cannot now call them, let an insurrection be ever so perilous,
without an application to Congress. So long a delay may be fatal.
There are three clauses which prove, beyond the possibility of doubt, that Congress, and Congress only, can call forth the militia. (APP Note: Speaking of the document)
The clause giving Congress power to call them out to suppress insurrections,
that which restrains a state from engaging in war except when actually invaded;
and that which requires Congress to protect the states against domestic violence,
render it impossible that a state can have power to intermeddle with them. Will not Congress find refuge for their actions in these clauses? With respect to the concurrent jurisdiction, it is a political monster of absurdity. We
have passed that clause which gives Congress an unlimited authority over
the national wealth; and here is an unbounded control over the national strength. Notwithstanding {424} this
clear, unequivocal relinquishment of the power of controlling the militia,
you say the states retain it, for the very purposes given to congress.
Is it fair to say that you give the power of arming the militia, and at the
same time to say you reserve it? This great national government ought not to be left in this condition. If it be, it will terminate in the destruction of our liberties.
Mr. MADISON. Mr. Chairman,
let me ask this committee, and the honorable member last up, what we are
to understand from this reasoning. The power must be vested in Congress,
or in the state governments; or there must be a division or concurrence.
He is against division. It is a political monster. He will not give it to
Congress for fear of oppression. Is it to be vested in the state governments?
If so, where is the provision for general defence? If ever America should
be attacked, the states would fall successively. It will prevent them from
giving aid to their sister states; for, as each state will expect to be attacked,
and wish to guard against it, each will retain its own militia for its own
defence. Where is this power to be deposited, then, unless in the general
government, if it be dangerous to the public safety to give it exclusively
to the states? If it must be divided, let him show a better manner of doing
it than that which is in the Constitution. I cannot agree with the other
honorable gentleman, that there is no check. There is a powerful check in
that paper. The state governments are to govern the militia when not called forth for general national purposes; and Congress is to govern such part only as may be in the actual service of the Union. Nothing can be more certain and positive than this. It expressly empowers Congress to govern them when in the service of the United States. It is, then, "clear" that the states govern them "when they are not".
(APP Note: The danger that presents itself now, is that the state "militias" once controlled by the state and it's Governor when not in foreign service have been simulated into the standing army as a "National Guard" so that all military men are "always in the service of the United States"
- where are our independent state militias? Where is our checks to power
clearly intended by the founders to protect each independent state, and if
necessary, against the generality? Gone; but not prohibited to reform and reinstitute by the states themselves should they choose, as clearly indicated by these intents being a right of the state to arm, import arms, and discipline its own militias "outside" the federal government. >>> See again John Marshall's statements above, George Nicholas and Mr. Pendleton's Statements below)
"With respect to suppressing insurrections, I say that those clauses which were mentioned by the honorable gentleman are compatible with a concurrence of the power. By the first, Congress is to call them forth to suppress insurrections, and repel invasions of "foreign powers".
A concurrence in the former case is necessary, because a whole state may
be in insurrection against the Union. What has passed may perhaps justify
this apprehension. The safety of the Union and particular states requires
that the general government should have power to {425} repel "foreign" invasions. The 4th section of the 4th article is perfectly consistent with the exercise of the power by the states. The words are, "The
United States shall guaranty to every state in this Union a republican form
of government, and shall protect each of them against invasion, and, on application
of the legislature, or of the executive, (when the legislature cannot be
convened,) against domestic violence." The word invasion here, after power had been given in the former clause to repel invasions, may be thought tautologous, but it has a different meaning from the other. This clause speaks of a particular state. It means that it shall be protected from invasion by "other states". A republican government is to be guarantied to each state, and they are to be protected from invasion from "other states", as well as from foreign powers;
and, on application by the legislature or executive, as the case may be,
the militia of the other states are to be called to suppress domestic insurrections. Does this bar the states from calling forth their own militia? >>> "No" <<<; but it gives them a supplementary security to suppress insurrections and domestic violence.
The other clause runs in these words: "No state shall,
without the consent of Congress, lay any duty on tonnage, keep troops or
ships of war in time of peace, enter into any agreement or compact with another
state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." They are restrained from making war, unless invaded, or in imminent danger. When in such danger, they are "not restrained". I can perceive no competition in these clauses.
They cannot be said to be repugnant to a concurrence of the power. If we
object to the Constitution in this manner, and consume our time in verbal
criticism, we shall never put an end to the business.
Mr. GEORGE MASON. Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, by our representation? I ask, Who are the militia? They consist now of the "whole people", except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and {426} rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.
If we should ever see that day, the most ignominious punishments and heavy
fines may be expected. Under the present government, all ranks of people
are subject to militia duty. Under such a full and equal representation as
ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government.
If there were a more particular definition of their powers, and a clause
exempting the militia from martial law except when in actual service, and
from fines and punishments of an unusual nature, then we might expect that
the militia would be what they are. But, if this be not the case,
we cannot say how long all classes of people will be included in the militia.
There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.
Mr. GEORGE NICHOLAS. Mr.
Chairman, I feel apprehensions lest the subject of our debates should be
misunderstood. Every one wishes to know the true meaning of the system; but
I fear those who hear us will think we are captiously quibbling on words.
We have been told, in the course of this business, that the government will
operate like a screw. Give me leave to say that the exertions of the opposition
are like that instrument. They catch at every thing, and take it into their
vortex. The worthy member says that this government is defective, because
it comes from the people. Its greatest recommendation, with me, is putting
the power in the hands of the people. He disapproves of it because it does
not say in what particular instances the militia shall be called out to execute
the laws. This is a power of the Constitution, and particular instances must
be defined by the legislature. But, says the worthy member, those laws which
have been read are arguments against the Constitution, because they show
that the states are now in possession of the power, and competent to its
execution. {427} Would you leave this power in the states, and by that means
deprive the general government of a power which will be necessary for its
existence? If the state governments find this power necessary, ought not
the general government to have a similar power? But, sir, there is no state
check in this business. The gentleman near me has shown that there is a very important check.
Another worthy member says
there is no power in the states to quell an insurrection of slaves. Have
they it now? If they have, does the Constitution take it away? If it does,
it must be in one of the three clauses which have been mentioned by the worthy
member. The first clause gives the general government power to call them
out when necessary. Does this take it away from the states? >>> No <<<. But it gives an additional security; for, besides the power in the state governments to >>> use their "own" militia <<<, it will be the duty of the general government to aid them with the strength of the Union when called for. >>> No part <<< of this Constitution can show that this power is taken away.
But an argument is drawn
from that clause which says "that no state shall engage in war unless actually
invaded, or in such imminent danger as will not admit of delay." What does
this prohibition amount to? It must be a war with a foreign enemy that the
states are prohibited from making; for the exception to the restriction proves
it. The restriction includes only offensive hostility, as they are at liberty
to engage in war when invaded, or in imminent danger. They are, therefore, not restrained from quelling domestic insurrections, which are totally different from making war with a foreign power.
But the great thing to be dreaded is that, during an insurrection, the militia
will be called out from the state. This is his kind of argument. Is it possible that, at such a time, the general government would order the militia to be called?
It is a groundless objection, to work on gentlemen's apprehensions within
these walls. As to the 4th article, it was introduced wholly for the particular
aid of the states. A republican form of government is guarantied, and protection
is secured against invasion and domestic violence on application. Is not
this a guard as strong as possible? Does it not exclude the unnecessary interference of Congress in business of this sort?
The gentleman over the
way cannot tell who will be the {428} militia at a future day, and enumerates
dangers of select militia. Let me attend to the nature of gentlemen's objections.
One objects because there will be select militia; another objects because
there will be no select militia; and yet both oppose it on these contradictory
principles. If you deny the general government the power of calling out the
militia, there must be a recurrence to a standing army. If you are really
jealous of your liberties, confide in Congress.
Mr. MASON rose, and said that he was totally misunderstood. The contrast between his friend's objection and his was improper.
His friend had mentioned the propriety of having select militia, like those
of Great Britain, who should be more thoroughly exercised than the militia
at large could possibly be. But he, himself, had not spoken of a selection
of militia, but of the exemption of the highest classes of the people
from militia service; which would justify apprehensions of severe and ignominious
punishments.
Mr. NICHOLAS wished to
know whether the representatives of the people would consent to such exemptions,
as every man who had twenty-five acres of land could vote for a federal representative.
Mr. GRAYSON. Mr. Chairman,
I conceive that the power of providing and maintaining a navy is at present
dangerous, however warmly it may be urged by gentlemen that America ought
to become a maritime power. If we once give such power, we put it in the
hands of men whose interest it will be to oppress us. It will also irritate
the nations of Europe against us. Let us consider the situation of the maritime
powers of Europe: they are separated from us by the Atlantic Ocean. The riches
of all those countries come by sea. Commerce and navigation are the principal
sources of their wealth. If we become a maritime power, we shall be able
to participate in their most beneficial business. Will they suffer us to
put ourselves in a condition to rival them? I believe the first step of any
consequence, which will be made towards it, will bring war upon us. Their
ambition and avarice most powerfully impel them to prevent our becoming a
naval nation. We should, on this occasion, consult our ability. Is there
any gentleman here who can say that America can support a navy? The riches
of America are not sufficient to bear the enormous expense it must certainly
occasion. I may be supposed to exaggerate, {429} but I leave it to the committee
to judge whether my information be right or not.
It is said that shipwrights
can be had on better terms in America than in Europe; but necessary materials
are so much dearer in America than in Europe, that the aggregate sum would
be greater. A seventy-four gun ship will cost you ninety-eight thousand pounds,
including guns, tackle, &c. According to the usual calculation in England,
it will cost you the further sum of forty-eight thousand pounds to mail it,
furnish provisions, and pay officers and men. You must pay men more here
than in Europe, because, their governments being arbitrary, they can command
the services of their subjects without an adequate compensation; so that,
in all, the expenses of such a vessel would be one hundred and forty thousand
pounds in one year. Let gentlemen consider, then, the extreme difficulty
of supporting a navy, and they will concur with me, that America cannot do
it. I have no objection to such a navy as will not excite the jealousy of
the European countries. But I would have the Constitution to say, that no
greater number of ships should be had than would be sufficient to protect
our trade. Such a fleet would not, probably, offend the Europeans. I am not
of a jealous disposition; but when I consider that the welfare and happiness
of my country are in danger, I beg to be excused for expressing my apprehensions.
Let us consider how this navy shall be raised. What would be the consequence
under those general words, "to provide and maintain a navy"? All the vessels
of the intended fleet would be built and equipped in the Northern States,
where they have every necessary material and convenience for the purpose.
Will any gentleman say that any ship of war can be raised to the south of
Cape Charles? The consequence will be that the Southern States will be in
the power of the Northern States.
We should be called upon
for our share of the expenses, without having equal emoluments. Can it be
supposed, when this question comes to be agitated in Congress, that the Northern
States will not take such measures as will throw as much circulating money
among them as possible, without any consideration as to the other states?
If I know the nature of man, (and I believe I do,) they will have no consideration
for us. But, supposing it were not so, America {430} has nothing at all to
do with a fleet. Let us remain for some time in obscurity, and rise by degrees.
Let us not precipitately provoke the resentment of the maritime powers of
Europe. A well-regulated militia ought to be the defence of this country.
In some of our constitutions it is said so. This Constitution should have
inculcated the principle, Congress ought to be under some restraint in this
respect. Mr. Grayson then added, that the Northern States would be principally
benefited by having a fleet; that a majority of the states could vote the
raising a great navy, or enter into any commercial regulation very detrimental
to the other states. In the United Netherlands there was much greater security,
as the commercial interest of no state could be sacrificed without its own
consent. The raising a fleet was the daily and favorite subject of conversation
in the Northern States. He apprehended that, if attempted, it would draw
us into a war with Great Britain or France. As the American fleet would not
be competent to the defence of all the states, the Southern States would be most exposed.
He referred to the experience of the late war, as a proof of what he said.
At the period the Southern States were most distressed, the Northern States, he said, were most happy. They had privateers in abundance,
whereas we had but few. Upon the whole, he thought we should depend on our
troops on shore, and that it was very impolitic to give this power to Congress
without any limitation.
Mr. NICHOLAS remarked that
the gentleman last up had made two observations the one, that we ought not
to give Congress power to raise a navy; and the other, that we had not the
means of supporting it. Mr. Nicholas thought it a false doctrine. Congress,
says he, has a discretionary power to do it when necessary. They are not
hound to do it in five or ten years, or at any particular time. It is presumable,
therefore, that they will postpone it until it be proper.
Mr. GRAYSON had no objection
to giving Congress the power of raising such a fleet as suited the circumstances
of the country. But he could not agree to give that unlimited power which
was delineated in that paper.
Adverting to the clause
investing Congress with the power of exclusive legislation in a district
not exceeding ten miles square, he said he had before expressed his doubts
that this {431} district would be the favorite of the generality, and that
it would be possible for them to give exclusive privileges of commerce to
those residing within it. He had illustrated what he said by European examples.
It might be said to be impracticable to exercise this power in this manner.
Among the various laws and customs which pervaded Europe, there were exclusive
privileges and immunities enjoyed in many places. He thought that this ought
to be guarded against; for should such exclusive privileges be granted to
merchants residing within the ten miles square, it would be highly injurious
to the inhabitants of other places.
Mr. GEORGE MASON thought that there were few clauses in the Constitution so dangerous as that which gave Congress exclusive power of legislation within ten miles square.
Implication, he observed, was capable of any extension, and would probably
be extended to augment the congressional powers. But here there was no need
of implication. This clause gave them an unlimited authority, in every possible
case, within that district. This ten miles square, says Mr. Mason, may set
at defiance the laws of the surrounding states, and may, like the custom
of the superstitious days of our ancestors, become the sanctuary of the blackest
crimes. Here the federal courts are to sit. We have heard a good deal said of justice.
It has been doubted whether
jury trial be secured in civil eases. But I will suppose that we shall have
juries in civil cases. What sort of a jury shall we have within the ten miles
square? The immediate creatures of the government. What chance will poor
men get, where Congress have the power of legislating in all cases whatever,
and where judges and juries may be under their influence, and bound to support
their operations? Even with juries the chance of justice may here be very
small, as Congress have unlimited authority, legislative, executive, and
judicial. Lest this power should not be sufficient, they have it in every
case. Now, sir, if an attempt should be made to establish tyranny over
the people, here are ten miles square where the greatest offender may meet
protection. If any of their officers, or creatures, should attempt
to oppress the people, or should actually perpetrate the blackest d
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