Article 1, Section 8, Clause 15
House of Representatives, Militia16, 21 Dec. 1790Annals 2:1811--12, 1817--18
Mr. Hartley observed, that the Constitution declares that the persons of members shall be privileged from arrest during their attendance on Congress; in going to, and returning from the session; with a special reference to the independence of the Legislature. He conceived that it would counteract the spirit of the Constitution to render the members liable to be called on to discharge duties incompatible in their nature; on this principle also, it would be in the power of a designing President, should such a character ever be elected, to prevent the members assembling by calling out individuals to attend military duties at the moment when their attendance would be necessary in Congress. The States individually, as well as the Parliament of Great Britain, have set us a good example in this respect.
Mr. Boudinot agreed in sentiment with Mr. Hartley, that the independence of the members was an important object. The ideas of the gentlemen from Virginia (Messrs. Madison and Giles) that legislators ought to participate in the burthens imposed on others, ought never to be lost sight of--but in the present instance, the doctrine would be carried into practice; for at the end of every two years, the members would revert to the mass of citizens, and feel in common with others the influence of the laws. The business of legislation is more arduous and momentous than any other; and ought not to be impeded, or rendered liable to be frustrated by any other. This he thought would be the case by adopting the amendment.
Mr. Madison supposed nothing would be risked by the amendment, as the Constitution had sufficiently secured the independence of the members. He had not anticipated so much debate on the motion. He was satisfied in his own mind of its propriety. The possible cases which had been stated did not, in his opinion, justify the violation of the great principle he had mentioned; but, to simplify the question, he would withdraw his motion, so far as only to propose to strike out from the exemptions, "the members of Congress."
Mr. Madison said, he conceived it would be necessary to pass a law authorizing a President of the United States to call out the militia, as the Constitution only says that he shall be commander-in-chief of the militia when in the service of the United States, without giving him the power of ordering it out.
Mr. Fitzsimons wished a clause inserted in the bill, granting to the President that power.
Mr. Boudinot conceived it was not the intention of the Constitution that he should be possessed of such a power. It could only be granted to him by a special act of Congress.
Mr. Smith read a law passed last session, and still in force, giving him that authority.
The sixteenth section, providing penalties for those not performing militia duty, and pointing out exemptions, being read,
Mr. Sherman moved to have it struck out. It was, he said, an absolute poll-tax, and not levied according to the number of inhabitants, which was in violation of the Constitution.
Mr. Burke said, it was contrary to the interest of the militia to establish so many exemptions as had been provided. He gave notice that when the report came before the House, he would move for their reduction, and gave his reasons fully. It was contrary to the Constitution, he also observed, to lay a tax upon certain classes of citizens; not being consonant with the principles of justice to make those conscientiously scrupulous of bearing arms pay for not acting against the voice of their conscience. This, he said, was called the land of liberty, in it, we boasted, that no one suffered on account of his conscientious scruples, and yet we are going to make a respectable class of citizens pay for a right to a free exercise of their religious principles; it was contrary to the Constitution; it was contrary to that sound policy which ought to direct the House in establishing the militia.
Mr. Jackson said, he certainly should oppose the principle started by the gentleman last up. Who are to know, he asked, what persons were really conscientiously scrupulous? There is no tribunal erected to make them swear to their scruples. If the principle were adopted, he conceived very few would be found, if their own word was to be taken, not conscientiously scrupulous. There were other sects, he said, besides the Quakers averse to bearing arms. If the principle be adopted of requiring no compensation from the exempted, it will lay the axe to the root of the militia, and, in his opinion, the bill might as well be postponed altogether. He did not choose to enter into the subject fully at this time; he would wait until the bill came before the House.
Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.
© 1987 by The University of Chicago