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184

CONSCRIPTION BILL.

HOUSE OF REPRESENTATIVES, FEB. 25, 1863.

The House resumed, as the regular order of business, the consideration of the bill of the Senate (No. 511) for enrolling and calling out the national forces, and for other purposes.

Mr. THOMAS obtained the floor.

The SPEAKER. The gentleman from New York having already spoken, and not being the mover or introducer of the proposition, cannot speak again without the leave of the House. The gentleman from Massachusetts [Mr. Thomas] is entitled to the floor.

Mr. BAKER. Will the gentleman from Massachusetts yield to me for a moment?

Mr. THOMAS, No, sir : I cannot yield for any purpose. I have but twenty minutes.

Mr. HOLMAN. I rise to a point of order. I sought the floor at the time the gentleman from New York [Mr. Olin] did, and raised upon him the point of order which has been disposed of by the Chair; and I think, therefore, I am entitled to the floor.

The SPEAKER. The Chair did not understand the gentleman from Indiana as claiming the floor, but only as raising the question of order. If the gentleman raised it desiring to speak himself, he is entitled to the floor.

Mr. HOLMAN. I understand that the gentleman from Kentucky [Mr. Crittenden] and the gentleman from Massachusetts [Mr. Thomas] desire to be heard on this bill, and I am unwilling to occupy the time of the House while those gentlemen desire to speak. I will, therefore, yield to those gentlemen ; and I now resign the floor to the gentleman from Massachusetts.

Mr. THOMAS. Mr. Speaker, I thank my friend from Indiana (Mr. Holman] for his great courtesy in yielding to me the floor. I rejoice, with exceeding joy, that I have no party interests to represent, no party topics to discuss. I have heard with sorrow, not to say disgust, the voices of discord and bitter strife from both sides of the House. If the spirit of party cannot be subdued or chastened in the presence of our imminent peril, God save the country; for he only can.

In the few remarks I shall have time to submit to the House, I would look directly to the merits of the measure before us. Mr. Speaker, this is a terrible bill ; terrible in the powers it confers upon the Executive, terrible in the duty and burden it imposes upon the citi

I meet the suggestion by one as obvious and as cogent; and that is, that the exigency is a terrible one, and calls for the use of all the powers with which the Government is invested.

Some of the features of the bill my judgment condemns, unhesitatingly condemns.

The period for which the service is required is unreasonably long. I think the enrolment should not include judges of the State courts, or ministers of the gospel, or members of Congress of either branch; though the

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inclusion of members of Congress would be, I think, simply void. I earnestly object also to the provision of the bill for the arrest of civilians by the military power; but I understand that gentlemen upon my right will consent to an amendment which shall strike out that feature. But, saving these objections, I think the bill is within the scope of the Constitution, and necessary and just. First, the question of power.

. Congress has power to 66 declare war.” A necessary incident to this power would be that of raising and supporting armies. But the power to “raise and support armies” is given in terms. No limitation is imposed as to the numbers to be raised, or the mode of raising. In the nature of things, such limitation could not be imposed. The power must be broad enough to meet all possible exigencies; and the possible exigencies of the country no man or prophet could foresee. The powers of Congress within their scope are supreme, and strike directly to the subject, and hold him in their firm and iron grasp. I stand by the opinion, early expressed upon this floor, that there is not a human being, domiciled within the territory of the United States, black or white, bond or free, whom the Government may not use for its military service, whenever the defence of the country requires ; and of this exigency Congress alone must judge.

Is the exercise of the power to raise armies made dependent upon the consent of the individual citizen ? I say, clearly not. - Government is not influence,” said Washington ; it is not moral suasion. That only is gov

ernment which can command obedience and enforce it.

The duty of the citizen to defend the State is admitted. Does the discharge of that duty depend upon his will and discretion, or the will and discretion of the Government? If upon the former, the objection is fatal even to any militia law: if upon the latter, the 'extent, and mode of use, are questions for Congress only.

The question was asked half a century ago, whether, under the power to support armies, Government could take property without consent; and, if not, how it was, that, under the power to raise armies, you can take men without consent. I answer, that very clearly, for the support of the war, you may take the property of the subject without his consent, but not without compensation ; for the fifth article of the Amendments has put this limitation upon your power,

Under the “ Articles of Confederation,” Congress had not power to raise armies, though it had to build and equip a navy. Its duty was to agree upon the number of land forces, and to make requisitions upon each State for its quota (Art. 9). But the men who framed the Constitution, knew, by the experience of the Revolution, how defective and inadequate was such power, and that, whatever possible danger there might be in the grant of the power without limitation, any limitation might prove fatal to the national defence. The power was therefore given to raise armies without qualification; and, though the subject of much bitter complaint and criticism in the State Conventions, to-day at least its necessity is plain to all men.

Having the power to raise and support armies, and the exigency existing in which the use of that power is necessary, the question arises, whether the powers given to Congress and the States, with respect to the militia, qualify and restrain the power to raise and support armies. Very clearly not, Mr. Speaker. They are distinct, independent powers. The militia is a branch of service well understood in the mother-country and our own, to be called forth “ to execute the laws, suppress insurrections, and repel invasions.” It was not designed for permanent service, but to meet special exigencies, and for brief periods of time.

Much has been said, though without much reflection, about the very “ unpatriotic” course of the Government of Massachusetts with respect to the use of the militia in the war of 1812. The opinion of the Supreme Court of Massachusetts of that day proceeded, as I recollect it, upon the ground, that, the purposes of the militia being to suppress insurrection and repel invasion, the militia of the State could not be required by the Federal Executive to go beyond the limits of the State. To that view I do not assent; but it is, I think, quite plain, they are not, in the light of the Constitution, a part of the army of the United States: they are to be enrolled and organized for the purposes stated in the Constitution, and for no other.

This unqualified power to raise and support armies is given us to meet an hour and an exigency like this.

The gentleman from Kentucky [Mr. Wickliffe] says that the army is made up, and has been made up, by volunteer enlistments, and that you never have “conscripted” men into the army. Doubtless, such has

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