Power of Congress to Direct Military Forces
[16 June 1788]
Henry continued his harangue against the powers granted Congress under Article I, Section 8, dwelling particularly on the power to raise armies and to call forth the militia to execute the laws and suppress insurrection.
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 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 bills 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 up without the legislative authority; that is, without the consent of the community itself. Where is the impropriety of saying we shall have an 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 possibility of abuses? It must strike every logical reasoner, that these cannot be entirely provided against. I really thought that the objection to 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 purpose whatever, unless force be provided for executing its 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 militia quelled the sailors, who, otherwise, would have perpetrated their intentions.1 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 combinations of smugglers in Virginia hereafter. We all know the use made of the Isle of Man. It was a general depositary 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, 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. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all. The ingenuity of the gentleman is remarkable, in introducing the riot-act of Great Britain.2 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 it, this is an additional safe-guard 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.) 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.3 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.4 This shews 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.
Robertson, Virginia Debates description begins David Robertson, Debates and Other Proceedings of the Convention of Virginia (2d ed.; Richmond, 1805). description ends , pp. 293–95.
1. JM may have alluded to the 1787 incident involving the rumrunner Dart (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , X, 84, 85 n. 4).
2. Henry spoke of the English common law on quelling riots, then alluded to the 1715 Riot Act (1 Geo. I, chap. 5, Statutes at Large [1763 ed.], V, 8–10). Henry paraphrased this famous law, implying “that if twelve men assemble” and ignore warnings to disperse, “they may be fired upon” (Robertson, Virginia Debates description begins David Robertson, Debates and Other Proceedings of the Convention of Virginia (2d ed.; Richmond, 1805). description ends , p. 292).
3. Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XI, 485–86.
4. Ibid., XII, 449.