United States House of Representatives
December 9, 1814
Mr. Chairman: After the best reflection which I have been able to bestow on the subject of the bill before you, I am of the opinion that its principles are not warranted by any provision of the Constitution. It appears to me to partake of the nature of those other propositions for military measures which this session, so fertile in inventions, has produced. It is of the same class with the plan of the Secretary of the War; with the bill reported to this House by its own Committee for filling the ranks of the regular army, by classifying the free male population of the United States; and with the resolution recently introduced by an honorable gentleman from Pennsylvania (Mr. Ingersoll), and which now lies on your table, carrying the principle of compulsory service in the regular army to its utmost extent.
This bill indeed is less undisguised in its object, and less direct in its means, than some of the measures proposed. It is an attempt to exercise the power of forcing the free men of this country into the ranks of an army, for the general purposes of war, under color of a military service. To this end it commences with a classification which is no way connected with the general organization of the militia, nor, to my apprehension, included within any of the powers which Congress possesses over them. All the authority which this government has over the militia, until recently called into the ranks of an army, for the general purposes of war, under color of a militia power it has exercised. It now possesses the further power of calling into its service any portion of the militia of the States, in the particular exigencies for which the Constitution provides, and of governing them during the continuance of such service. Here its authority ceases. The classification of the whole body of the militia, according to the provisions of this bill, is not a measure which respects either their general organization or their discipline. It is a distinct system, introduced for new purposes, and not connected with any power which the Constitution has conferred on Congress.
But, sir, there is another consideration. The services of the men to be raised under this act are not limited to those cases in which alone this government is entitled to the aid of the militia of the States. These cases are particularly stated in the Constitution, “to repel invasion, suppress insurrection, or execute the laws.” But this bill has no limitation in this respect. The usual mode of legislating on the subject is abandoned. The only section which would have confined the service of the militia, proposed to be raised, within the United States has been stricken out; and if the President should not march them into the Provinces of England at the north, or of Spain at the south, it will not be because he is prohibited by any provision in this act.
This, sir, is a bill for calling out the militia, not according to its existing organization, but by draft from new created classes; -- not merely for the purpose of “repelling invasion, suppressing insurrection, or executing the laws,” but for the general objects of war for defending ourselves, or invading others, as may be thought expedient; -- not for a sudden emergency, or for a short time, but for long stated periods; for two years, if the proposition of the Senate should finally prevail; for one year, if the amendment of the House should be adopted. What is this, sir, but raising a standing army out of militia by draft, and to be recruited by draft, in like manner, as often as occasion may require?
This bill, then, is not different in principle from the other bills, plans, and resolutions which I have mentioned. The present discussion is properly and necessarily common to them all. It is a discussion, sir, of the last importance. That measures of this nature should be debated at all, in the councils of a free government, is cause of dismay. The question is nothing less than whether the most essential rights of personal liberty shall be surrendered, and despotism embraced in its worst form.
I have risen, on this occasion, with anxious and painful emotions, to add my admonition to what has been said by others. Admonition and remonstrance, I am aware, are not acceptable strains. They are duties of unpleasant performance. But they are, in my judgment, the duties which the conditions of a falling state imposes. They are duties which sink deep in his conscience, who believes it probable that they may be the last services which he may be able to render to the government of his country. On the issue of this discussion, I believe the fate of the government may rest. Its duration is incompatible, in my opinion, with the existence of the measures in contemplation. A crisis has at last arrived, to which the course of things has long tended, and which may be decisive upon the happiness of present and future generations. If there be anything important in the concerns of men, the considerations which fill the present hour are important. I am anxious, above all things, to stand acquitted before God and my own conscience, and in the public judgment, of all participations in the counsels which have bought us to our present condition and which now threaten the dissolution of the government. When the present generation of men shall be swept away, and that this government ever existed shall be a matter of history only, I desire that it may be known that you have not proceeded in your course unadmonished and unforewarned. Let it then be known, that there were those who would have stopped you, in the career of your measures, and held you back, as by the skirts of your garments, from the precipice over which you are now plunging and drawing after you the government of your country.
I had hoped, sir, at an early period of the session, to find gentlemen in another temper. I trusted that the existing state of things would have impressed on the minds of those who decide national measures, the necessity of some reform in the administration of affairs. If it was not to have been expected that gentlemen would be convinced by argument it was still not unreasonable to hope that they would listen to the solemn preaching of events. If no previous reasoning could satisfy them, that the favorite plans of government would fail, they might yet be expected to regard the fact, when it happened, and to yield to the lesson which it taught. Although they had, last year, given no credit to those who predicted the failure of the campaign against Canada, yet they had seen that failure. Although they then treated as idle all doubts of the success of the loan, they had seen the failure of that loan. Although they then held in derision all fears for the public credit, and the national faith, they had yet seen the public credit destroyed, and the national faith violated and disgraced. They had seen much more than was predicted; for no man had foretold that our means of defense would be so far exhausted in foreign invasion, as to leave the place of our own deliberations insecure, and that we should this day be legislating in view of the crumbling monuments of our national disgrace. No one had anticipated that this city would have fallen before a handful of troops, and that British generals and British admirals would have taken their airings along the Pennsylvania Avenue, while the government was in full flight, just awaked perhaps fro one of its profound meditations on the plan of a conscription for the conquest of Canada. These events, sir, with the present state of things, and the threatening aspect of what is future, should have brought us to a pause. They might have reasonably been expected to induce Congress to review its own measures, and to exercise its great duty of inquiry relative to the conduct of others. If this was too high a pitch of virtue for the multitude of party men, it was at least to have been expected from gentlemen of influence and character, who ought to be supposed to value something higher than mere party attachment, and to act from motives somewhat nobler than a mere regard to party consistency. All that we have yet suffered will be found light and trifling in comparison with what is before us, if the government shall learn nothing from experience but despise it, and shall grow more and more desperate in its measures, as it grows more and more desperate in its affairs.
It is time for Congress to examine and decide for itself. It has taken things on trust long enough. It has followed executive recommendation, ‘til there remains no hope of finding safety in that path. What is there, sir, that makes it the duty of this people now to grant new confidence to the Administration, and to surrender their most important rights to its discretion? On what merits of its own does it rest this extraordinary claim? When it calls thus loudly for the treasure and lives of the people, what pledge does it offer that it will not waste all in the same preposterous pursuits which have hitherto engaged it? In the failure of all past promises, do we see any assurance of future performance? Are we to measure out our confidence in proportion to our disgrace and now at last to grant away everything, because all that we have heretofore granted has been wasted or misapplied? What is there in our condition that bespeaks a wise or an able government? What is the evidence that the protection of the country is the object principally regarded. In every quarter that protection has been more or less abandoned to the States. That every town on the coast is not now in possession of the enemy, or in ashes, is owing to the vigilance and exertions of the States themselves, and to no protection granted to them by those on whom the whole duty of their protection rested.
Or shall we look to the acquisition of the professed objects of the war, and there find grounds for approbation and confidence. The professed objects of the war are abandoned in all due form. The contest for sailors’ rights is turned into a negotiation about boundaries and military roads, and the highest hope entertained by any man of the issue, is that we may be able to get out of the war without a cessation of territory.
Look, sir, to the finances of the country. What a picture do they exhibit of the wisdom and prudence and foresight of government. “The revenue of a state,” says a profound writer, “is the state.” If we are to judge of the condition of the country by the condition of its revenues, what is the result? A wise government sinks deep the fountain of its revenues not only ‘till it can touch the first springs, and slake the present thirst of the treasury, but ‘til lasting sources are opened, too abundant to be exhausted by demands, too deep to be affected by heats and droughts. What, sir, is our present supply, and what our provision for the future resource? I forebear to speak of the present condition of the treasury; and as to public credit, the last reliance of government, I use the language of government itself only, when I say it does not exist. This is a state of things calling for the soberest counsels, and yet it seems to meet only the wildest speculations. Nothing is talked of but banks, and a circulating paper medium, and exchequer notes, and the thousand other contrivances which ingenuity, vexed and goaded by the direst necessity, can devise, with the vain hope of giving value to mere paper. All these things are not revenue, nor do they produce it. They are the effect of a productive commerce, and a well ordered system of finance, and in their operation may be favorable to both, but are not the cause of either. In other times these facilities existed. Bank paper and government paper circulated because both rested on substantial capital or solid credit. Without these they will not circulate, nor is there a device more shallow or more mischievous, than to pour forth new floods of paper without credit as a remedy for the evils which paper without credit has already created. As was intimated the other day by my honorable friend from North Carolina (Mr. Gaston) this is an attempt to act over again the farce of the Assignats of France. Indeed, sir, our politicians appear to have but one school. They learn everything of modern France; with this variety only, that for examples of revenue they go to the Revolution, when her revenue was in the worst state possible, while their model for military force is sought after in her imperial era, when her military was organized onprinciples the most arbitrary and abominable.
Let us examine the nature and extent of the power which is assumed by the various military measures before us. In the present want of men and money, the Secretary of War has proposed to Congress a military conscription. For the conquest of Canada, the people will not enlist; and if they would, the treasury is exhausted, and they could not be paid. Conscription is chosen as the most promising instrument, both of overcoming reluctance to the service, and of subduing the difficulties of the exchequer. The Administration asserts the right to fill the ranks of the regular army by compulsion. It contends that it may now take one out of every twenty-five men, and any part, or the whole of the rest, whenever its occasions require. Persons thus taken by force, and put into an army, may be compelled to serve during the war, or for life. They may be put on any service, at home or abroad, for defense or for invasion, accordingly to the will and pleasure of the government. The power does not grow out of any invasion of the country, or even out of a state of war. It belongs to government at all times, in peace as well as in war, and it is to be exercised under all circumstances, according to its mere discretion. This, sir, is the amount of the principle contended for by the Secretary of War.
Is this, sir, consistent with the character of a free government? Is this civil liberty? Is this the real character of our Constitution? No sire, indeed it is not. The Constitution is libeled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their own treasure and their own blood a Magna Carta to be slaves. Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it? Under what concealment has this power lain hidden which now for the first time comes forth, with a tremendous and bailful aspect, to trample down and destroy the dearest rights of personal liberty? Who will show me any Constitutional injunction which makes it the duty of the American people to surrender everything valuable in life, and even life itself, not when the safety of their country and its liberties may demand the sacrifice, but whenever the purposes of an ambitious and mischievous government may require it? Sir, I almost disdain to go to quotations and references to prove that such an abominable doctrine has no foundation in the Constitution of the country. It is enough to know that that instrument was intended as the basis of a free government, and that the power contended for is incompatible with any notion of personal liberty. An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from substance of a free government. It is an attempt to show, by proof and argument, that we ourselves are subjects of despotism, and that we have a right to chains and bondage, firmly secured to us and our children by the provisions of our government. It has been the labor of other men, at other times, to mitigate and reform the powers of government by construction; to support the rights of personal security by every species of favorable and benign interpretation, and thus to infuse a free spirit into governments not friendly in their general structure and formation to public liberty.
The supporters of the measures before us act on the opposite principle. It is their task to raise arbitrary powers, by construction, out of a plain written charter of National Liberty. It is their pleasing duty to free us of the delusion, which we have fondly cherished, that we are the subjects of a mild, free, and limited government, and to demonstrate, by a regular chain of premises and conclusions, that government possesses over us a power more tyrannical, more arbitrary, more dangerous, more allied to blood and murder, more full of every form of mischief, more productive of every sort and degree of misery than has been exercised by any civilized government, with a single exception, in modern times.
The Secretary of War has favored us with an argument on the constitutionality of this power. Those who lament that such doctrines should be supported by the opinions of a high officer of government, may a little abate their regret, when they remember that the same officer, in his last letter of instructions to our ministers abroad, maintained the contrary. In that letter, he declares, that even the impressments of seamen, for which many more plausible reasons may be given than for the impressments of soldiers, is repugnant to our Constitution. It might therefore be a sufficient answer to his argument, in the present case, to quote against it the sentiments of its own author, and to place the two opinions before the House, in a state of irreconcilable conflict. Further comment on either might then by properly foreborne, until he should be pleased to inform us which he retracted, and to which he adhered. But the importance of the subject may justify a further consideration of the arguments.
Congress having, by the Constitution, a power to raise armies, the Secretary contends that no restraint is to be imposed on the exercise of this power, except such as is expressly stated in the written letter of the instrument. In other words, that Congress may execute its powers, by any means it chooses, unless such means are particularly prohibited. But he general nature and object of the Constitution impose as rigid a restriction on the means of exercising power as could be done by the most explicit injunctions. It is the first principle applicable to such a case, that no construction shall be admitted which impairs the general nature and character of the instrument. A free constitution of government is to be construed upon free principles, and every branch of its provisions is to receive such an interpretation as is full of its general spirit. No means are to be taken by implication which would strike us absurdly if expressed. And what would have been more absurd than for this Constitution to have said that to secure the great blessings of liberty it gave to government uncontrolled power of military conscription? Yet such is the absurdity which it is made to exhibit, under the commentary of the Secretary of War.
But it is said that it might happen that an army could not be raised by voluntary enlistment, in which case the power to raise armies would be granted in vain, unless they might be raised by compulsion. If this reasoning could prove anything, it would equally show, that whenever the legitimate power of the Constitution should be so badly administered as to cease to answer the great ends intended by them, such new powers may be assumed or usurped, as any existing Administration may deem expedient. This is the result of his own reasoning, to which the Secretary does not profess to go. But it is a true result. For if it is to be assumed, that all powers were granted, which might by possibility become necessary, and that government itself is the judge of this possible necessity, then the powers of government are precisely what it choose they should be. Apply the same reasoning to nay other power granted to Congress, and test its accuracy by the result. Congress has power to borrow money. How is it to exercise this power? Is it confined to voluntary loans? There is no express limitation to that effect, and, in the language of the secretary, it might happen, indeed it has happened, that persons could not be found willing to lend. Money might be borrowed then in any other mode. In other words, Congress might resort to a forced loan. It might take the money of any man by force, and give him in exchange exchequer notes or certificates of stock. Would this be quite constitutional, sir? It is entirely within the reasoning of the Secretary, and it is a result of his argument, outraging the rights of individuals in a far less degree than the practical consequences which he himself draws from it. A compulsory loan is not to be compared, in point of enormity, with a compulsory military service.
If the Secretary of War has proved the right of Congress to enact a law enforcing a draft of men out of the militia into the regular army, he will at any time be able to prove, quite as clearly, that Congress has power to create a Dictator. The arguments which have helped him in one case, will equally aid him in the other, the same reason of a supposed or possible state necessity, which is urged now, may be repeated then, with equal pertinency and effect.
Sir, in granting Congress the power to raise armies, the people have granted all the means which are ordinary and usual, and which are consistent with the liberties and security of the people themselves, and they have granted no others. To talk about the unlimited power of the government over the means to execute its authority, is to hold a language which is true only in regard to despotism. The tyranny of arbitrary government consists as much in its means as in its ends; and it would be a ridiculous and absurd constitution which should be less cautious to guard against abuses in the one case than in the other. All the means and instruments which a free government exercises, as well as the ends and objects which it pursues, are to partake of its own essential character, and to be conformed to its genuine spirit. A free government with arbitrary means to administer it is a contradiction; a free government without adequate provisions for personal security is an absurdity; a free government, with an uncontrolled power of military conscription, is a solecism, at once the most ridiculous and abominable that ever entered into the head of man.
Sir, I invite the supporters of the measures before you to look to their actual operation. Let the men who have so often pledged their own fortunes and their own lives to the support of this war, look to the wanton sacrifice which they are about to make of their lives and fortunes. They may talk as they will about substitutes, and compensations, and exemptions. It must come to the draft at last. If the government cannot hire men voluntarily to fight its battles, neither can individuals. If the war should continue, there will be no escape, and every man’s fate and eve man’s life will come to depend on the issue of the military draft. Who shall describe to you the horror which your orders of conscription shall create in the once happy villages of this country? Who shall describe the distress and anguish which they will spread over those hills and valleys, where men have heretofore been accustomed to labor, and to rest in security and happiness. Anticipate the scene, sir, when the class shall assemble to stand its draft, and to throw the dice for blood. What a group of wives and mothers and sisters, of helpless age and helpless infancy, shall gather round the theatre of this horrible lottery, as if the stroke of death were to fall from heaven before their eyes on a father, a brother, a son, or a husband. And in a majority of cases, sir, it will be the stroke of death. Under present prospects of the continuance of the war, not one half of them on whom your conscription shall fall will ever return to tell the tale of their sufferings. They will perish of disease or pestilence or they will leave their bones to whiten in fields beyond the frontier. Does the lot fall on the father of a family? His children, already orphans, shall see his face no more. When they behold him for the last time, they shall see him lashed and fettered, and dragged away from his own threshold, like a felon and an outlaw. Does it fall on a son, the hope and the staff of aged parents? That hope shall fail them. On that staff they shall lean no longer. They shall not enjoy the happiness of dying before their children. They shall totter to their grave, bereft of their offspring and unwept by any who inherit their blood. Does it fall on a husband? The eyes which watch his parting steps may swim in tears forever. She is a wife no longer. There is no relation so tender or so sacred that by these accursed measure you do not propose to violate it. There is no happiness so perfect that you do not propose to destroy it. Into the paradise of domestic life you enter, not indeed by temptations and sorceries, but by open force and violence.
But this father, or this son, or this husband goes to the camp. With whom do you associate him? With those only who are sober and virtuous and respectable like himself? No, sir. But you propose to find him companions in the worst men of the worst sort. Another bill lies on your table offering a bounty to deserters from your enemy. Whatever is most infamous in his ranks you propose to make your own. You address yourselves to those who will hear you and advise them to perjury and treason. All who are ready to set heaven and earth at defiance at the same time, to violate their oaths and run the hazard of capital punishment, and none others, will yield to your solicitations. And these are they whom you are allowing to join ranks, by holding out to them inducements and bounties with one hand, while with the other you are driving thither the honest and worthy members of your own community, under the lash and scourge of conscription. In the line of your army, with the true leveling of despotism, you propose a promiscuous mixture of the worthy and the worthless, the virtuous and the profligate; the husbandmen, the merchant, the mechanic of your own country, with the beings whom war selects from the excess of European population, who possess neither interest, feeling, nor character in common with your own people, and who have no other recommendation to your notice than their propensity to crimes.
Nor is it, sire, for the defense of his own house and home, that he who is the subject of military draft is to perform the task allotted to him. You will put him upon a service equally foreign to his interests and abhorrent to his feelings. With his aid you are to push your purposes of conquest. The battles which he is to fight are the battles of invasion battles which he detests perhaps, and abhors, less from the danger and the death that gathers over them, and the blood with which they drench the plain, than from the principles in which they have their origin. Fresh from the peaceful pursuits of life, and yet a soldier but in name, he is to be opposed to veteran troops, hardened under every scene, inured to every privation, and disciplined in every service. If, sir, in this strife he fall if, while ready to obey every rightful command of government, he is forced from his home against right, not to contend for the defense of his country, but to prosecute a miserable and detestable project of invasion, and in that strife he fall ‘tis murder. It may stalk above the cognizance of human law, but in the sight of Heaven it is murder; and though millions of years may roll away, while his ashes and yours lie mingled together in the earth, the day will yet come when his spirit and the spirits of his children must be met at the bar of omnipotent justice. May God, in his compassion, shield me from any participation in the enormity of this guilt.
I would ask, fir, whether the supporters of these measures have well weighed the difficulties of their undertaking. Have they considered whether it will be found easy to execute laws which bear such marks of despotism on their front, and which will be so productive of every sort and degree of misery in their execution? For one, sir, I hesitate not to say that they cannot be executed. No law professedly passed for the purpose of compelling a service in the regular army, no any law which, under color of military draft, shall compel men to serve in the army, not for the emergencies mentioned in the Constitution, but for long periods, and for the general objects of war, can be carried into effect. In my opinion it ought to be carried into effect. The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist; and their highest obligations bind them to the preservation of their own rights and the liberties of their people. I express these sentiments here, sir because I shall express hem to my constituents. Both they and myself live under a constitution which teaches us that “the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.” (New Hampshire Bill of Rights). With the same earnestness with which I now exhort you to forebear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their own liberties.
In my opinion, sir, the sentiments of the free population of this country are greatly mistaken here. The nation is not yet in a temper to submit to conscription. The people have too fresh and strong a feeling of the blessings of civil liberty to be willing thus to surrender it. You may talk to them as much as you please, of the victory and glory to be obtained in the enemy’s provinces; they will hold those objects in light estimation if the means be a forced military service. You may sing to them the song of Canadian Conquest in all its variety, but they will not be charmed out of the remembrance of their substantial interests and true happiness. Similar pretences, they know, are the grave in which the liberties of other nations have been buried, and they will take warning.
Laws, sir, of this nature can create nothing but opposition. If you scatter them abroad, like the fabled serpents’ teeth, they will spring up into armed men. A military force cannot be raised in this manner, but by the means of a military force. If the Administration has found that it cannot form an army without conscription, it will find, if it ventures on these experiments, that it cannot enforce conscription without an army. The government was not constituted for such purposes. Framed in the spirit of liberty, and in the love of peace, it has no powers which render it able to enforce such laws. The attempt, if we rashly make it, will fail; and having already thrown away our peace, we may thereby throw away our government.
Allusions have been made sir, to the state of things in New England, and, as usual, she has been charged with an intention to dissolve the Union. The charge is unfounded. She is much too wise to entertain such purposes. She has had too much experience, and has too strong a recollection of the blessings which the Union is capable of producing under a just administration of government. It is her greatest fear, that the course at present pursued will destroy it, by destroying every principle, every interest, every sentiment, and every feeling which have hitherto contributed to uphold it. Those who cry out that the Union is in danger are themselves the authors of that danger. They put its existence to hazard by measures of violence, which it is not capable of enduring. They talk of dangerous designs against government, when the are overthrowing the fabric from its foundations. They alone, sir, are friends to the union of the States, who endeavor to maintain the principles of civil liberty in the country, and to preserve the spirit in which the Union was framed.
From: D. Webster, Writings and Speeches (Boston: Little, Brown, 1903), pp. 55-69.
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