On the Bill for raising a Volunteer Corps.
Mr. POINDEXTER. Can we constitutionally employ volunteer militia, without the jurisdiction of the United States, in the prosecution of hostilities, in the enemy's country? He was of opinion, that no legislative act of Congress could confer such a power on the President.
Mr. GRUNDY. If the Constitution forbids the President from sending the militia out of the United States, how can we authorize him to do so by law? We cannot: we should legislate to no purpose. Whether he had the authority or not, would depend upon the construction the President himself shall give to the Constitution. Nor could he see how this proposition gets over the difficulty.
It provides that a militiaman may authorize the President to send him beyond the limits of the United States. He had always understood that, in framing the Constitution of this government, there was great jealousy exhibited lest the general government should swallow up the powers of the state governments; and when the power of making war and raising armies was given to Congress, the militia was retained by the states, except in cases mentioned by the Constitution. How, then, can you permit militiamen to engage in the service of the United States, contrary to the provisions of the Constitution, and by that means leave the state unprotected?
Mr. PORTER. He did not agree with the gentleman, (Mr. Poindexter,) that the militia could in no case be employed without the limits of the United States. He did not think their services were to be confined by geographical limits. If it became necessary for the executive to call out the militia to repel invasion, he thought they might pursue the enemy beyond the limits, until the invaders were effectually dispersed.
Mr. CHEVES. Though the gentleman from New York says the service of the militia is not to be bounded by geographical limits, I cannot, said Mr. C., discover the premises by which he comes to this conclusion, if the general government has no other power over the militia than is given to it in this clause of the Constitution. If they may cross the line, why not go to the walls of Quebec? The principle is trampled upon the instant they pass beyond the territorial limits of the United States; nor, if this be a correct construction, said he, can the consent of the individual add any thing to the powers or the rights of the general government, while he remains a member of the militia of the state.
Mr. CLAY. In one of the amendments, it is declared that a well-regulated militia is necessary to the security of a free state. But if you limit the use of the militia to executing the laws, suppressing insurrections, and repelling invasions,—if you deny the use of the militia to make war,—can you say they are "the security of a state"? He thought not.
Mr. CHEVES. It is said that the powers of the general government were not sovereign, but limited. This was to deny the existence of any sovereignty which was limited as to its objects, than which nothing is, however, more common. But there is an authority on this point which Mr. C. supposed would not be controverted. He meant Mr. Hamilton's argument on the constitutionality of the Bank of the United States.
[Here Mr. C. read the following extract from that work: "The circumstance that the powers of the sovereignty are, in this country, between the national and state governments, does not afford the distinction required. It does not follow from this that each of the portions of power, delegated to the one or the other, is not sovereign with regard to its proper objects. It will only follow from it that each has sovereign power with regard to certain things, and not as to other things. To deny that the government of the United States has sovereign power as to its declared purposes and trusts, because its power does not extend to all laws, would be equally to deny that state governments have sovereign power in any case, because their power does not extend to every case."]
It was said, by the same gentleman, that the writers contemporaneous with the adoption, and the debates of the several conventions on the adoption of the Constitution, repelled the construction now contended for; but that gentleman had not produced, nor had any other gentleman produced, a sentence to that effect, except the gentleman from Tennessee, (Mr. Grundy,) who read from the Virginia debates, in the argument of Mr. Nicholas, a detached sentence, in which, speaking of that article of the Constitution which gives power to Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," he says they cannot call them forth for any other purpose than to execute the laws, suppress insurrections, and repel invasions. But Mr. Madison, in the same debate, says, "The most effectual way to render it unnecessary, is to give the general government full power to call forth the militia, and exert the whole natural strength of the Union, when necessary." He (Mr. C.) was opposed to the latitude of the bill.