Editor’s Note: This speech was delivered in 1917 and was published in the September issue of Watson’s Magazine.
Mr. Chairman and Gentlemen: Deeply impressed with the gravity of this occasion, and an earnest desire to preserve the liberties of my people and our common country, I beg to submit, that —
The First Amendment to the Constitution of the United States says:
“Congress shall make no law abridging…the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
In pursuance of our rights, we who are here assembled, declare:
1st. That we are peaceful and law-abiding citizens of the State of Georgia; that we are loyal and submissive to the laws and- institutions of our State, and of the United States, made and established in accordance with the powers delegated by the people as set forth in the Constitution of the United States, and the Constitution of the State of Georgia.
2nd. That we are in nowise antagonistic to but are earnestly in accord with the declaration of war against Germany; and have no intent or purpose to in any way obstruct or oppose the prosecution of the war by every Constitutional means necessary to secure victory, justice and lasting peace.
3rd. That our object and desire is to use every means provided to protect our rights as citizens of this State; and we make this open and direct petition to all whom we have elected and delegated to represent and protect us, that they at once institute measures to secure the persons, rights and immunities reserved and guaranteed to every citizen.
4th. We bear with patience, born of conscious rectitude, all charges and insinuations of “disloyalty” and “treason,” and cite in answer the following, written by the Father of the Constitution, the author of “Madison’s Report,” in The Federalist, XLVI. letter, “That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should throughout this period uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments — of the States — and the people of the States, should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads–must appear to every one more like incoherent dreams or misjudged exaggerations, than like the sober apprehensions of genuine patriotism.”
We confess our too long patience, silence and confidence; but deny that our misplaced confidence has destroyed our rights. Our fathers bore much, suffered much, to establish our liberties and guarantee them by and with the Constitution.
We protest that, if to claim those rights and liberties, and to appeal to the guarantee, be “treason,” it is time to realize that respect for law, devotion to one’s country and love of liberty are no longer evidences of genuine patriotism!
5th. We believe every free man is an integral part of the sovereign people; that every citizen is such, in virtue of his being a free man, and one of a community of like men, who inherently have the rights and power to vote, to establish law and order, to establish civil and military process, to sustain this “law and order,” which is government. That this citizen is also, and necessarily, a militiaman — an armed citizen — to sustain the civil citizen’s rights to “life, liberty, and the pursuit of happiness” whenever military force shall be needful.
We submit that, more than two hundred years ago. Queen Anne wrote, “by her own hand,” to the Emperor of Russia, that the power to deport a citizen-subject, though a criminal, was “paramount to any authority vested in the crown of Great Britain,” and “contrary to the Constitution and the laws.” This was saying a citizen could not be deported; though a criminal, and though a treaty requiring it was then in effect.
Sir William Blackstone asserted the same principle.
We do not believe such power exists in the Congress.
We believe and assert, that the militia of the States are its armed citizens, specifically “reserved” to protect the rights and privileges of citizenship, which rest in the States, only; and that to “discharge” the militia from their inherent duty and allegiance is to destroy the citizenship of the “several States.”
6th. We deny the power of Congress, our accredited servants, to “authorize” the discharge of our militia, our armed citizens, from their sovereign dignity, from their allegiance to our State, under any pretext, or for any purpose. We declare these rights are inherent and existed antecedent to the Constitution.
We submit that to subscribe to such a doctrine, or to be silent as to it, would be to supinely acknowledge that Congress, the people’s creature, may at their pleasure reduce us, their creator and master, to “involuntary servitude,” and final abject slavery.
We declare the equal of these despotic assumptions are not to be found in the charges against George III., as enunciated by the Declaration of Independence. The power to “discharge” one citizen may remove every citizen of every State.
7th. We believe and declare that the excuse pleaded for conscription, viz., that the volunteer system has been proven a failure, is contradicted by true history; is a child of centralism, and a plea for military autocracy.
We submit that England is the only country in Europe that has not been repeatedly subjugated in the last eight hundred years; and that since feudal times England’s soldiers have been volunteers. That since five hundred years England has been defeated but twice — in the Revolution and the War of 1812 — in which American volunteers defeated England!
We cite the fact that, without one single conscript on the fighting line, British volunteers, Canadians, Australians, are constantly defeating the very best German iron-clad conscripts, and proving the superiority of volunteers!
We assert that no English-speaking people have ever been subjugated! No English-speaking people have ever served in foreign countries since feudal times, except as volunteers!
We assert that, this being true, volunteers are not a failure. If it be not true, it can be refuted.
We declare that, until the refutation of these facts is accomplished, the excuse for conscription should be relegated to the now populous region of myths, as unworthy of consideration.
8th. We complain and protest, with all the earnestness born of conviction, that our most sacred rights and privileges as reserved and secured by the Constitution are being violated, subverted and destroyed by the unlawful, grievous and oppressive provisions of the laws enacted, known as the Dick Bill, and the Conscription Acts, being enforced by Congress, by which private free citizens of the States are being deprived by force of personal liberty, free speech, the privilege of a free press, and reduced to involuntary servitude by the usurping servants of the people, who assume powers never delegated, but were specifically retained by the people of the States, respectively.
We solemnly protest against the indefensible, untenable, undemocratic dogma that “war suspends our Constitution,” or is a reason to evade its provisions, or is an excuse for enslaving our free citizens, as a “preparedness” means for enslaving foreign hordes.
To submit to such a doctrine is to make of our Constitution a political, mercenary and military convenience.
9th. “We believe and declare that to touch, by force, the militia of the State- (except as specifically provided and limited by the Constitution, to which the people voluntarily assented), is to destroy the principle of sovereign personal liberty (which in the aggregate is the sovereign, inherent power of the people), which existed antecedent to the Constitutional compact, was not alienated by that instrument, and remains in the people.
We repeat and endorse Daniel Webster’s warning to Congress in 1813, “You have no Constitutional authority to conscript American citizens into an army!” We also assert, as did John C. Calhoun in 1833 and 1837, that to each State is reserved “Its own officers of their militia.”
We recall further, that seven hundred years ago. Magna Charta guaranteed that “No free man shall be dis-seized of his liberty, or his free custom, or exiled, banished, nor otherwise destroyed”; and that this has been confirmed more than thirty times since.
10th. We believe the Executive has no power over the militia beyond that established and limited by the Constitution, which is embraced in the few words, “When called into the actual service of the United States,” which were proposed as an amendment and twice adopted by the Convention, 1787, to definitely limit his power.
11th. We believe and declare it to be our first and urgent duty to preserve the rights and liberties we possess. Hence we protest earnestly against their violation, under any pretext; and petition with confidence to those whom Ave have placed in power — His Excellency, H. M. Dorsey. Governor of Georgia : our Senators and Representatives in Congress, our Legislature of Georgia, our courts of judicature — for relief, redress and protection against the onerous, grievous and oppressive exactions, oppressions and processes with which we are being threatened.
In support of the rights we claim and the relief and redress we petition for, we submit the following:
Congress shall have power
Sec. 8, Art. I. “To provide for organizing the militia, and fur governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.”
Sec. 8. Art. I. “To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.”
That embraces all the power delegated to Congress, over the militia.
As these two paragraphs must govern, we will examine their history, which is peculiarly significant and decidedly pertinent, now.
In the Convention we shall follow (1787), sat two future Presidents — Washington and Madison: two Chief Justices of the Supreme Court: Jay and Ellsworth: one Vice-President, and numerous Governors, Senators, Ambassadors, and Cabinet Secretaries. The Commander-in-Chief during the Revolution was President of the Convention. These men knew exactly what they did.
In the draft of the Constitution which the committee submitted to the Convention, August 6th, 1787, the only power given to Congress over the militia was in these words:
“To call forth the aid of the militia in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions.”
On August 18th, two motions to change this were made: one giving the appointment of the officers to the States, the other, reserving no power to the States, except by implication.
These two motions were referred to a committee of eleven, one from each State. On August 21st, this committee reported the first paragraph exactly as
it is in the Constitution. On the 22d a motion was made to strike out the last clause, i. e., “and the authority of training the militia,” etc.
It did not pass: it went over and, on August 23rd, a second motion was made only to arm part of the militia when called into the service of the United States. This was voted down, eight States to three.
Then a third motion was offered, to arm and train, making no mention of States’ power. This was voted down, ten States to one.
A fourth motion was made, to recommit it to the committee. This was defeated, ten States to one.
The first part of the paragraph was then taken up (giving the power to Congress, as it is). This was adopted, nine States to two.
A motion was then made, “reserving to the States, respectively, the appointment of the officers under the rank of General.” This was defeated, nine States to two.
It was then moved to adopt the clause, “reserving to the States, respectively, the appointment of the officers.” This was adopted, as it is, nine States to two.
Then the first motion was taken up to strike out the last clause (“and the authority of training the militia,” etc.). The motion was voted down, and the last clause adopted as reported (as it is), seven States to four.
On August 29th, the whole paragraph, as it now is, was adopted without opposition. On September 15th, the whole was adopted unanimously.
We believe that record fixes the intent of the Convention to restrict the power of Congress to the exact limits prescribed, for seven attempts to give more power to Congress failed.
The second paragraph, as quoted from the Constitution, also has a history. On August 6th, it was reported to the Convention in these words:
“To call forth the aid of the militia in order to execute the laws of the Union, enforce treaties, suppress insurrections and repel invasions.”
On August 23rd, it was moved to alter this paragraph so as to read as follows :
“To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”
It was so adopted, without opposition, and stands.
Two changes were made of enormous importance. As the words, “to enforce treaties,” might be construed as power to use the militia in foreign countries, it was stricken out entirely. As to “call forth” gave Congress power to call the militia direct, regardless of the States, it was changed to “To provide for calling forth” the militia, through the States, as officered and trained by the States; and only for the three particular purposes stated.
Congress cannot create more power.
As to the power of the Executive over the “militia of the States, we submit that the power now assumed was stricken specifically from the original draft, reported by the special committee to the Convention on August 6th, 1787, in these words:
“He shall be commander-in-chief of the Army and Navy of the United States, and of the militia of the several States.”
On August 27th, it was moved to add the clause, “when called into the actual service of the United States.”
This was adopted without opposition ; and, on the last day of the Convention’s work — Saturday, September 10th — the same words were again proposed and again adopted, without opposition, though already embodied in the Constitution, evidencing the purpose and intent of the Convention to limit the power of the Executive as fixed in this paragraph as the only power given him over the militia of the States.
Congress has no power to change this.
Certain explanations, definitions and decisions are of unquestioned authenticity and force. We herewith submit a few of the many which confirm and sustain our convictions.
In explaining and defining the powers given to Congress over the militia in the Virginia Convention in 1788, James Madison said (in reply to Patrick Henry):
“The honorable gentleman sees great danger in the provision concerning the militia; the authority of training the militia and appointing t lie officers is reserved to the States. Congress ought to have the power of establishing an uniform discipline throughout the States, and to provide for the execution of the laws, suppress insurrections and repel invasions: these are the only cases wherein they can interfere with the militia of the States.”
Mr. Madison repeatedly made equally definite statements on this issue in his debates and his writings in The Federalist.
As President and Commander-in-Chief, James Madison had the following issued, in General Orders, by his Adjutant-General, March 19th, 1813, during war. We quote:
“All militia in the service of the United States must be under the requisition of some officer (regularly authorized) on the executive of the State.
“In these requisitions shall be expressed the number of privates, non-commissioned and commissioned officer- required.
“As soon as one hundred privates, eight non-commissioned officers, and five commissioned officers shall have been organized as a company, they will
be mustered, inspected, and received into the service of the United States.
(Signed) “T. H. Cushing, “Adjutant-General.”
That is the Constitutional way the militia are organized and received into the actual service, as directed by the “Father of the Constitution.”‘
We believe the power to appoint officers was reserved by the States to prevent the centralizing of power in the United States; and that this power, now assumed by Congress, is being used to that end. Hence, we protest that it will inevitably destroy the security of our liberties if enforced, as now proposed, in the onerous laws cited.
In the Virginia Convention, 1788, Edmund Randolph said:
“They — the militia — are only to be called out in three cases, and only to be governed by the authority of Congress when in the actual service of the United States; so that their articles of war can no longer operate upon them, than when in the actual service of the Union. The officers are to be appointed by the States.”
In this same Convention the future Chief Justice, John Marshall, said:
“The power of governing the militia was not vested in the States by implication, because, being possessed of it antecedent to the adoption of the Government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been: and it could not be said that the States derived any powers from that system — government — but retained them.
“For continental purposes, Congress may call forth the militia, as to suppress insurrections and repel invasion. But the power given to the States by the people is not taken away; for the Constitution does not say so.”
Of these same powers, Alexander Hamilton wrote:
“What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, while the particular States are to have the sole and exclusive appointment of the officers?
“The circumstance of the officers being in the appointment of the States will always secure to them a preponderating influence over the militia.”
(The italics are Mr. Hamilton’s.)
We feel that we could rest our complaint and petition on what we have adduced, but will submit two decisions which we believe to fully sustain our convictions.
In March, 1863, the United States enacted a Conscript law (much milder than this Act of 1917). The Supreme Court of Pennsylvania pronounced that Conscript law to be “unconstitutional and void.”
From this decision we submit a few excerpts. It says:
“The Constitution of the United States recognizes only two sorts of military land forces, viz.: the militia and the Regular or Standing Army.
“The Constitution authorizes levies of the militia of the States, in its organized form, in cases of rebellion and invasion; but in no other case, or mode, than is therein prescribed.
“It (the Conscript law) is incompatible with the provisions of the Constitution relative to the militia.
“The mode of coercion provided for this purpose, by the Act, is unconstitutional, because —
“It provides for a thorough fusion of the army and the militia — two forces which are kept distinct by the Constitution — by investing the President with power to assign the soldiers, obtained by the draft, to any corps, regiment or branch of service, at his pleasure.
“It submits the citizen to the Rules and Articles of War before he is in ‘actual service,’ and proposes to effect this purpose by merely drawing his name from a wheel and serving notice of that fact upon him.
“The great vice of the Conscript law is, that it is founded on an assumption that the Congress may take away, not the State rights of the citizen, but the security and foundation of his State rights. And how long is civil liberty expected to last, after the securities of civil liberty are destroyed?
“It is not founded on that clause of the Constitution which provides for ‘calling forth’ the militia, because the persons drafted under the Act are not to be armed, organized and disciplined under the militia law; nor are they ‘called forth’ under State officers, as required by the Constitution.
“It exhausts the militia force of the several States, which existed as an institution before the formation of the Federal Government; and was not only not granted away, but expressly re- served at the formation of the Constitution.
“The Constitution of the United States committed the liberties of the citizen in part to the United States Government; but expressly reserved to the States and the people of the States all it did not delegate. It gave the general Government a standing army, but left the States their militia. Its purposes in all this balancing of powers was wise and good; but this legislation disregards these distinctions and upturns the whole system of government when it converts the State militia into ‘national forces,’ and claims to use and govern them as such.”
This decision was rendered by Justice G. W. Woodward, of the Pennsylvania Supreme Court, and is available in full in any legal library.
We submit that, although the following excerpts are from a decision in an habeas corpus case, the facts in the case put the question of the military powers of the President before the Court, and it distinctly decided and defined the powers and limitations as to the President; and also fixes the power to appoint the officers, with the reasons therefor. We quote:
“Before the Chief Justice of the Supreme Court of the United States, at Chambers. Ex parte John Merryman.
“He (the President) is elected, as I have already said, for the brief term of four years, and is made personally responsible, by impeachment, for malfeasance in office. He is from necessity and the nature of his duties the Commander-in-Chief of the Army and Navy, and of the militia, when called into actual service. But no appropriation for the support of the Army can be made by Congress for a longer term than two years, so that it is in the power of the succeeding House of Representatives to withhold the appropriation for its support, and thus disband it, if in their judgment the President used or designed to use it for improper purposes.
“And although the militia, when in the actual service, are under his command, yet the appointment of the officers is reserved to the States as a security against the use of the military power for purposes dangerous to the liberties of the people or the rights of the States.
“And the only power, therefore, which the President possesses, where the ‘life, liberty or property’ of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires that he shall take care that the laws be faithfully executed.”
(Signed) R. B. Taney, Chief Justice of the Supreme Court of the United States.”