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Return to American Patriot Party, Oregon Patriot Party or to CDF Civil Defense Force
American Patriot Party
On
Citizen Militia, State Militias
and Standing Armies.
We will First Present The American Patriot Party News Letter. This presents
the Constitutional Debates regarding Militias and Standing Armies. This is
followed by further definition by the Founders.
More information can be found on the American Patriot Party website.
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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;
And 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)
Oregon Patriot Party (.com)
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
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MONDAY, June 16, 1788.
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[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?
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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 there 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 on 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. Justice
has nothing to do with making someone do something, or 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 actions he defines himself as a Tyrant.
(end APP)
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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.
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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.
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