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POWER OF CONGRESS OVER THE MILITIA.
third, fourth, fifth, sixth, and seventh sections of the first article were read and commented on, Tyler, Monroe, Henry, and Grayson urging objections; Randolph, Nicholas, and Madison making reply. After the reading of the eighth section George Mason made a speech on the power of Congress over the militia. He wished " such an amendment as this—that the militia of any State should not be marched beyond the limits of the adjoining State ; and if it be necessary to draw them from one end of the continent to the other, I wish such a check as the consent of the State legislature to be provided." He was averse to a standing army, and thought the militia the safeguard of the state. Congress was to have the power to arm and organize the militia, but they might neglect to do this, and Colonel Mason wished that there should be an express declaration that the State governments might arm and discipline them, in case the general government neglected this duty. He also thought the militia should never be subject to martial law but in time of war. The discussion of this subject was continued by Madison, Henry, C. Clay, Nicholas, and Randolph. George Mason, after reading to the Convention the sixteenth clause of this eighth section, maintained “that it included the power of annexing punishments, and establishing necessary discipline," and therefore most ignominious punishments might be inflicted by Congress, on the worthiest citizens. The speaker then reverted to the subject of representation as inadequate, which was “ a conclusive reason for granting no powers to the government, but such as were absolutely indispensable, and these to be most cautiously guarded.” On the power of impeachment, of which he entertained great suspicions, he said, “after a treaty manifestly repugnant to the interests of the country was made,” how was the Senate to be punished ? “ The House of Representatives were to impeach them. The senators were to try themselves. If a majority of them were guilty of the crime (of bribery and corruption] would they pronounce themselves guilty ? Yet this is called
responsibility.” Referring to the ultimate power given Congress over elections, he was called to order by George Nicholas for leaving the section under discussion, but was allowed to proceed : “He was of opinion that the control over elections tended to destroy responsibility.” He could see no good reason for it and thought it was dangerous: “ I have no power
other person can take from me. I have no right of representation, if they can take it from me. I say, therefore, that Congress may, by this claim, take away the right of representation, or render it nugatory, despicable, or oppressive.” After some further argument on this point, Colonel Mason took notice of a clause in the fifth section, on publishing the proceedings of Congress, and he urged that the words “ from time to time " should be replaced by others less ambiguous. The Confederation had provided that their journal should be published monthly, with certain exceptions. Here was an additional want of responsibility in the new government. In conclusion, Colonel Mason urged that the provision regarding adjournment was objectionable. "Neither house can adjourn without the consent of the other for more than three days. The Senate might have it in their power to worry the House into a compliance with their wishes, by refusing to adjourn, and they could have no objection to long sessions, as they were elected for six years, and would probably make their homes in the Federal city.”
The eighth section was still under consideration on Monday, the 16th, and George Mason spoke seven times on this day. After a speech by Patrick Henry, Madison answered him, and concluded by having the acts of the Assembly read, which provided for calling out the militia. Colonel Mason asked for what purpose they were read. He thought "they militated against the cession of this power to Congress, because the State governments could call forth the militia when necessary, so as to compel a submission to the laws; and as they were competent to it, Congress ought not
THE TEN MILES SQUARE.
to have the power.” He was not satisfied with the explanation that General Lee had given of the word organisation. The latter maintained that it did not include the infliction of punishments. Whereas George Mason insisted that organizing and disciplining the militia embraced the power of inflicting punishments, which might be made severe and ignominious. It was said the militia would only be subject to martial law when in actual service. But what was there to hinder Congress from inflicting it always ? Madison replied, and the subject was discussed by Henry, Corbin, Grayson, and Marshall. George Mason said it had been asked who were the militia, if they were not the people of the country. He thought they did at this time consist of the whole people, but they might at some future period be confined to the lower and middle classes, under the new government. Then ignominious punishments and heavy fines might be expected. Discriminating laws might be made by Congress exempting its members and others from militia duty. George Nicholas professed to find an inconsistency in the propositions severally advanced by William Grayson and George Mason, and asserted that they both opposed the power given Congress on “contradictory principles.” Mason replied “that he was totally misunderstood. The contrast between his friend's objection and his was improper. His friend had mentioned the propriety of having select militia, like those of Great Britain, who should be more thoroughly exercised than the militia at large could possibly be. But he, himself, had not spoken of a selection of militia, but of the exemption of the highest classes of the people from militia service ; which would justify apprehensions of some ignominious punishments." The opponents of the Constitution all feared the power given Congress over the federal district, and George Mason spoke on the subject at this time :
“This ten miles square may set at defiance the laws of the surrounding States, and may, like the custom of the superstitious days of our ancestors, become the sanctuary of the blackest crimes. If any of their [the Federal government's] officers, or creatures should attempt to oppress the people, or should actually perpetrate the blackest deed, he has nothing to do but get into the ten miles square.
It is an incontrovertible axiom, that, when the dangers that may arise from the abuse are greater than the benefits that may result from the use, the power ought to be withheld."
Such he conceived to be the case here. And, alluding to a remark of Edmund Randolph, he added :
“We are told by the honorable gentleman that Holland has its Hague. I confess I am at a loss to know what inference he could draw from that observation. This is the place where the deputies of the United Provinces meet to transact the public business. But I do not recollect that they have any exclusive jurisdiction whatever in that place, but are subject to the laws of the province in which the Hague is. To what purpose the gentleman mentioned that Holland has its Hague I cannot see.”
George Mason thought that Congress should only have exclusive power as regarded the police and good government of the place.
Of the last, or “sweeping clause," as it was termed, of the eighth section, the Antifederalists had no opinion whatever. George Mason replied to Madison and Pendleton on this head: "Gentlemen say there is no new power given by this clause. Is there anything in this Constitution which secures to the States the powers which are said to be retained ? Will powers remain to the States which are not expressly guarded and reserved"? He then stated an imaginary case, not an impossible one, of oppression arising under powers exercised by the federal government, and protests being made by public writers against such misgovernment. Could not Congress call this encouraging sedition, and lay restrictions on the liberty of the press? Here Colonel Mason anticipated exactly what took place in the sedition law of the second administration. As with the liberty of the press, he continued, so with the trial by jury and other personal rights.
He then referred to the second of the Articles of Confederation “reserving to the States respectively every power, jurisdiction, and right, not expressly delegated to the United States. This clause has never been complained of, but approved by all. Why not, then, have a similar clause in this Constitution, in which it is the more indispensably necessary than in the Confederation, because of the great augmentation of power vested in the former?” At the conclusion of his remarks, Patrick Henry suggested that the Bill of Rights be read to the Convention from the eighth to the thirteenth article. George Nicholas then spoke in defence of the Constitution as it stood, and was followed in reply by Colonel Mason. He still thought the amendment he had proposed was necessary. The people of Virginia had reserved certain rights when they had formed their government, and he asked :
“Why should it not be so in this Constitution ? Was it because we were more substantially represented in it than in the State government ? If in the State government, where the people were substantially and fully represented, it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, he asked if it was not more necessary in this government, where they were but inadequately represented ? ... He could see no clear distinction between rights relinquished by a positive grant, and lost by implication." ;
Speeches were then made by Henry, Grayson, and Nicholas. George Mason rose to correct Nicholas who had asserted that the Virginia Bill of Rights did not prohibit torture, whereas, in fact, it was provided against by two clauses.'
The ninth and tenth sections of the first article, with the first section of the second, were debated on Tuesday the 17th. George Mason was the first to speak after the reading of the first clause ; also after the reading of the second, third, and fourth, and again after the fifth and sixth. He called this a fatal section, " which has created more dangers 1 Ibid.
*“ Debates of the Virginia Convention,” Robertson.