Sunday, May 05, 2013
"to preserve the boundary, and to resist and repel illegal encroachments"
"Mr. Speaker, there are certain general principles which lie at the bottom of this subject--In a limited government, such that established by the Constitution of the United States, they may truly be called fundamental. By some may be considered as familiar and trite--and by others as scarcely worthy of attention in these enlightened days. But the great men to whom we are indebted for our independence and civil institutions, thought differently. They supposed that they were all important. They believed that it was always necessary to bear them in mind--and advisable frequently to recur to them, to keep government within its proper sphere, and to defend rights and liberties of the people. One of these principles is that the militia of the several states belongs to the people and government of the states--and not to government of the United States. I consider this, sir, a proposition too clear to require illustration, or to admit of doubt. The militia consists of the whole of a state, or rather of the whole male population capable of bearing arms; including all, of every description, avocation or age. Exemption from militia duty is a matter of grace. This militia being the very people, belongs to the people, or to the state governments, for their use and protection. It was their's at the time the revolution, under the old confederation--and when the present form of government was adopted. Neither the people nor their state governments have ever surrendered this their property in the militia to the general government, but have carefully kept and preserved their general dominion or control, for their own use, protection and defence. They have, it is true, granted or lent (if I may use such an expression) to Congress a special concurrent authority or power over the militia in certain cases; which cases are particularly set down--guarded--limited and restricted, as fully as the most scrupulous caution, and the use of the most apt and significant words our language affords could limit and restrict them. The people have granted to Congress a right to call forth the militia in certain cases of necessity and emergency--a right to arm and organize them--and to prescribe a plan ,upon which they shall be disciplined and trained. When they are called into the service of the United States (and they cannot be called unless upon the happening of one of the contingencies enumerated) they are to be under command of the President. Hence, it follows, that general power, authority or jurisdiction, remains in state governments. A special, qualified, limited and concurrent power is vested in Congress, to be exercised when the event happens, and in the manner pointed out, prescribed and limited in the constitution. And hence it also follows, that this delegated power cannot be executed upon any other occasions, nor in any other ways than those prescribed by the constitution. There is another general rule or principle of construction to which I must allude. It is that all particular, special, limited powers, taken from or carved out of the general power, must be construed strictly. The general power remains in full force, unimpaired, except where it is expressly granted away, and the construction must be on the words of the grant, and not by recurring to the doctrine of analogy or parity of reason. This is a rule applicable to all grants of power, public or private, but it is particularly to be attended to in grants of public authority; and most of all in those solemn grants denominated constitutions. These grants being from the people to their rulers are always deliberately framed. They are penned with the utmost accuracy and precision of language. All powers intended to be granted are granted--and those not included in the terms made use of, are withheld. This is not a mere technical rule of the schoolsmen or the forum. It is founded in reason, good sense, and justice; and is all-important in the construction of constitutions. If the words of such grants are departed from, upon any pretence, what safety do they afford? If reasoning by analogy is once permitted, so that cases not enumerated but supposed to stand upon a footing in point of reason and expediency, are by liberal construction, held to be included in it, what security is there but the discretion of those who undertake to expound it? A constitution should be considered as a pillar of marble not as a figure of wax: it must remain as it comes from the hand of the artist, and not be moulded by officious hands, into a more convenient shape. The rule I have laid down, has been considered of sufficient importance to be engrafted into the constitution itself. The tenth amendment, in ordaining that "all powers not delegated by the constitution, nor "prohibited by it to the states, are reserved to the states respectively and to the people," declares in the spirit of the rule I have stated, that all powers not granted to the Congress by the constitutional charter, remain with the people or the state governments.
“Mr. Speaker, the special, limited, concurrent power over the militia, is given by the states to the Congress only in three cases--"To enforce the laws---suppress insurrections, and repel invasion." I call it a special concurrent power, and it is clearly no more; for the states, notwithstanding this grant, retain the power to call forth their militia for the same or any other lawful purposes. There is then, no grant of absolute power even in these cases; and the people and the state governments have not only the right of insisting upon a strict observance of the limitation; but the corresponding right to resist all encroachments upon what they have reserved unto themselves--for as it is of the very essence of a limited government to be kept within its proper orbit, so it is the unquestionable right and duty of the people to oblige those who administer it, to preserve the boundary, and to resist and repel illegal encroachments.”
- Hon. Richard Stockton, excerpted from Speech delivered in the House of Representatives of the United States on Dec. 10, 1814. [THE AMERICAN ORATOR. COMPRISING A COLLECTION, PRINCIPALLY FROM AMERICAN AUTHORS, OF THE MOST ADMIRED SPECIMENS OF CONGRESSIONAL, FORENSIC, PULPIT AND POPULAR ELOQUENCE, WITH DIALOGUES AND POETICAL EXTRACTS, ADAPTED TO PUBLIC RECITATION, AND AN INTRODUCTION EMBRACING THE PRINCIPAL RULES RELATING TO DELIVERY AND ACTION. BY JOSHUA P SLACK. 1815