Militia Bill.

December 22, 1790.

Mr. BLOODWORTH moved to strike out the words in the 1st section, "except as herein exempted," and to insert, in lieu thereof, "except such as shall be exempted by the legislatures of the particular states."

Mr. SHERMAN wished the gentleman would consent to alter his motion, and let it be all between certain ages, and who are not exempted from militia duty by the respective states.

Mr. MADISON said, the motion ought to go still farther, and exempt the judges of the federal courts; because some states, having no militia laws, could not have exempted them, and the propriety of exonerating them from militia duty was too apparent to need any arguments to prove it.

Mr. SHERMAN thought the motion was simple as it stood, and would decide a question upon which the house seemed to be divided. It would afterwards be open for amendment, so far as to add the exemptions.

Mr. MADISON said, if the gentleman would vary his motion, so as to embrace his idea, he would have no objection to the adoption of that part which was first moved.

Mr. LIVERMORE declared, that he had several objections. The first was, that the expression in the motion was of a doubtful import. It could not be readily ascertained, whether it had relation to the militia laws at this time existing in the several states, or to the existing and future laws. If it opens a door to future laws, it is impossible for us to foresee where it will end. It destroys that certainty which is necessary in a government of laws, and renders us incapable of judging of the propriety of our own act. Some states may exempt all persons above thirty years of age; some may exempt all mechanics; and others all husbandmen, or any general description of persons; and this uncertainty will be productive of inconceivable inconveniences. Hence it will be improper to adopt the amendment in the present form.

Mr. SHERMAN observed. that most of the powers delegated to the government of the United States, by the Constitution, were altogether distinct from the local powers retained by the individual states. But in the case of the militia it was different. Both governments are combined in the authority necessary to regulate that body. The national government is to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. But, then, it is to be observed, that the states do, respectively and expressly, reserve out of such power the right of appointing officers, and the authority of training the militia; so that the concurrence of both governments is evidently necessary, in order to form and train them. Now, in governing the militia, the states have, at times other than when they are in the actual service of the United States, an indisputable title to act as their discretion shall dictate. And here it was au allowable supposition, that the particular states would have the greatest advantage of judging Of the disposition of their own citizens, and who are the most proper characters to be exempted from their government. {423} He admitted, however, that the general government had (under that clause of the Constitution which gave the authority to exercise all powers necessary to carry the particularly enumerated powers into effect) a right to make exemptions of such officers of the government whose duties were incompatible with those of militiamen. Every thing, besides this, he believed, was vested in the particular states; and he would ask the gentleman whether it was not a desirable thing to give satisfaction on these points; and whether they ought not to avoid stretching the general power, which he had mentioned, beyond what was absolutely necessary to answer the end designed.

An accommodation (continues Mr. Sherman) on this point took place between the gentlemen, and the two motions were blended and made into one; whereupon Mr. GILES rose and said, he had now greater objections to the motion than before, and was well persuaded that if the gentleman (Mr. Sherman) attended to its consequences, he would find that it was not only extremely dissimilar in its principles, but tended to overthrow the very doctrine laid down in the first proposition, which was intended to decide whether, under the division of the authority for forming and raising the militia, the power of making exemptions remained in the state governments, or was granted by the Constitution to the government of the United States. Now, in the compromised proposition, there appears to be a mixture of power; the first part seems to declare that the states ought to make the exemptions; yet the subsequent absolutely exercises it on the part of the United States. If, then, the power of exemption be either ceded to the general government, or reserved to the state governments, the amendment must fall to the ground.

But this was not his only objection. He conceived that, whether the power of exemption was in the state or federal government, there was one description of men mentioned in the proposition which could not be exempted or further privileged by the house. He alluded to the members of the legislature of the United States. The privilege of these persons was taken up and duly considered by the Convention, who then decided what privileges they were entitled to. It is under this clause, said he, that every thing necessary or proper to be done for members of Congress was done. "The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony, and breach of peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place." Now, if the Convention took up this subject, (as it is plain from the foregoing clause that they did,) it is reasonable to presume that they made a full declaration of all our privileges; and it is improper to suppose that we are possessed of similar powers with the Convention and able to extend our own privileges. I conceive that every inconvenience which would attend the want of an exemption in the bill, is completely remedied by the Constitution; and therefore if is impolitic to make a useless regulation.

Mr. WILLIAMSON. When we departed from the straight line of duty marked out for us by the first principles of the social compact, we found ourselves involved in difficulty. The burden of militia duty lies equally upon all persons; and when we contemplate a departure from this principle, by making exemptions, it involves us in our present embarrassment. I wish, therefore; that, before we proceed any farther in considering {424} the propriety of the amendment, we should consider the intention of the Constitution. When it speaks of regulating the militia, was it for organizing, arming, and disciplining, the militia of the several states, that Congress ought to provide? I think it was not the militia of the nation, but that which existed in the several states. It is impossible the Convention could have had any thing else in contemplation; because the Constitution says that Congress shall have the power of such parts of them as may be employed in the service of the United States. If we are, then, to govern the militia, it must be such men as the particular states have declared to be militia.

Mr. BOUDINOT. With respect to the power of exempting from militia duty, I believe little doubt will remain on the mind of any gentleman, after a candid examination of the Constitution, but that it is vested in Congress. This, then, reduces the question to the doctrine of expediency. Is it more expedient that the general government should make the exemptions, or leave it to the state legislatures? For my part, I think we ought to exercise the power ourselves; because I can see neither necessity, propriety, nor expediency, in leaving that to be done by others which we ourselves can do without inconvenience.

Mr. JACKSON, (a gentleman of superior talents, who had been an active member of the Federal Convention, in framing the general Constitution, and who is one of the judges of the Supreme Court of the United States; was likewise a member of the late Convention of Pennsylvania; audit is in evidence that he gave his assent to the present Constitution of that state, one article of which declared that persons conscientiously scrupulous of bearing arms shall be exempted from performing militia duty, upon the condition of their paying an equivalent.) Is not this a declaration of the sense of the people of Pennsylvania, that they, and they only, had the right to determine exemptions so far as relates to their own citizens? And it is observable that this Constitution has been framed whilst the federal government was in full operation. If this privilege belongs to the state, as they have declared it does, why shall Congress attempt to wrest it from them, first by undertaking exemptions for them, and then depriving them of a tax, which they contemplate to receive into the state treasury, as an equivalent for such exemption? Certainly such conduct must excite alarm, and occasion no inconsiderable degree of jealousy. These circumstances and considerations are forcible arguments with me to desist.

December 24, 1790.

Mr. LIVERMORE. He saw no reason why Congress should grant an exemption to those who are conscientiously scrupulous of bearing arms, more than to any other description of men. They ought, in his opinion, to be exempted by the state legislatures. As to the money accruing from such exemptions, he could not conceive that Congress was authorized to raise a revenue for the United States by the militia bill; nor was any such thing ever intended by the Constitution.