History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 16

[220] The opposition to a power to tax exports was not confined to the members from North and South Carolina and Georgia. Ellsworth and Sherman of Connecticut, Mason of Virginia, and Gerry of Ma.s.sachusetts considered such a power wrong in principle, and incapable of being exercised with equality and justice.

[221] The vote was taken (August 21) upon so much of the fourth section of the seventh article of the reported draft, as affirmed that "no tax or duty shall be laid by the legislature on articles exported from any State." Ma.s.sachusetts, Connecticut, Maryland, Virginia (General Was.h.i.+ngton and Mr. Madison _no_), North Carolina, South Carolina, Georgia, _ay_, 7; New Hamps.h.i.+re, New Jersey, Pennsylvania, Delaware, _no_, 4.--If the subject had been left in this position, exports would have been taxable by the States. The plan of restraining the power of the States over exports was subsequently adopted, after the compromise involving the revenue and commercial powers of the general government had been settled.

[222] Elliot, V. 457-461.

[223] See _ante_, Vol. I. Book III. Chap. IV., on the origin and necessity of the commercial power.

[224] Elliot, V. 460.

[225] Elliot, V. 470, 471.

[226] Two grave objections were made to this settlement respecting the importation of slaves. Mr. Madison records himself as saying, in answer to the motion of General Pinckney to adopt the year 1808, that twenty years would produce all the mischief that could be apprehended from the slave-trade, and that so long a term would be more dishonorable to the American character, than to say nothing about it in the Const.i.tution. But the real question was, whether the power to prohibit the importation at any time could be acquired for the Const.i.tution; and the facts show that it could have been obtained only by the arrangement proposed and carried. The votes of seven States against four, given for General Pinckney's motion, show the convictions then entertained. The other objection (urged by Roger Sherman and Mr. Madison) was, that to lay a tax upon imported slaves implied an acknowledgment that men could be articles of property. But it appears from the statements of other members, also recorded by Madison, that it was part of the compromise agreed upon in committee, that the slave-trade should be placed under the revenue power, in consideration of its not being placed at once within the commercial power. It also appears that the tax was made to apply to the "_importation_ of such persons as the States might see fit to admit,"

until the year 1808, in order to include and to discourage the introduction of convicts.

But the princ.i.p.al object was undoubtedly the slave-trade; and this particular phraseology was employed, instead of speaking directly of the importation of _slaves_ into the States of North Carolina, South Carolina, and Georgia, in order, on the one hand, not to give offence to those States, and on the other, to avoid offending those who objected to the use of the word "slaves" in the Const.i.tution. Elliot, V. 477, 478.

[227] That part of the compromise relating to the slave-trade, &c. was adopted in Convention by the votes of New Hamps.h.i.+re, Ma.s.sachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, _ay_, 7; New Jersey, Pennsylvania, Delaware, Virginia, _no_, 4. Maryland, Virginia, North Carolina, and Georgia voted for a proposition made by C. Pinckney, to postpone the report, in order to take up a clause requiring all commercial regulations to be pa.s.sed by two thirds of each house. But on the rejection of this motion, the report of the compromise committee, recommending that a two-thirds vote for a navigation act be stricken out, was agreed to, _nem. con._; as was also the clause relating to a capitation tax.

[228] See the note on the American abolition of the slave-trade, _ante_, Vol. I. p. 460.

[229] See the remarks of John Rutledge. Madison, Elliot, V. 491.

[230] General Pinckney. Ibid. 489.

[231] The point respecting the slave-trade was insisted upon by the delegates of those three States, both as a matter of State pride and a matter of practical interest. They regarded the increase of their slave population by new importations as a thing of peculiarly domestic concern, the control of which they were unwilling to transfer to the general government. But they also contended for a political right which their States intended to exercise. The following table, taken from the United States Census, shows that in the twenty years which elapsed from 1790 to 1810 during eighteen of which the importation of slaves could not be prohibited by Congress, the slaves of those three States increased in a ratio so much larger than the rate of increase after the year 1808, as to make it apparent that it was not a mere abstraction on which they insisted. The right to admit the importation of slaves was exercised, and was intended to be exercised;--as some of the delegates of the three States declared in the Convention.

PROGRESS OF THE SLAVE POPULATION FROM 1790 TO 1850, SHOWING THE INCREASE PER CENT IN EACH PERIOD OF TEN YEARS.

North Carolina. South Carolina. Georgia.

1790 to 1800 32.53 36.46 102.99 1800 to 1810[A] 26.65 34.35 77.12 1810 to 1820 21.43 31.62 42.23 1820 to 1830 19.79 22.62 45.35 1830 to 1840[B] 0.08 3.68 29.15 1840 to 1850 17.38 17.71 35.85

[A] The const.i.tutional power of Congress to prohibit the importation took effect and was exercised in 1808.

[B] The great diminution in the rates of increase during this period is probably due to the removal of slaves into Alabama, Arkansas, Louisiana, and Texas.

But while the census shows that the power to admit slaves was exercised freely during the twenty years that followed the adoption of the Const.i.tution of the United States, it also shows that the States which insisted on retaining it for that period could well afford to surrender it at the stipulated time. In 1810, the proportion of the blacks of North Carolina to the whole population was 32.24 per cent, and in 1850 it was 36.36; in South Carolina the proportion in 1810 was 48.4, and in 1850, 58.93; in Georgia, in 1810 it was 42.4, and in 1850, 42.44. It is not probable, therefore, that the prosperity of those States has been diminished by the discontinuance of the slave-trade; for it is not likely that they could well sustain a much larger ratio of the blacks to the whites than that which now exists, and which will probably continue to be maintained at about the same point for a long period of time.

CHAPTER XI.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING POWERS OF CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE STATES.

In the last preceding chapter, the reader has traced the origin of the revenue and commercial powers, and of certain restrictions applied to them in the progress of those great compacts, by means of which they became incorporated into the Const.i.tution. We have now to examine some other qualifications which were annexed to those powers after the first draft of the instrument had been prepared and reported by the committee of detail.

That committee had presented a naked power to lay and collect taxes, duties, imposts, and excises,[232] with a certain restriction as to the taxation of exports, the final disposition of which has been already described; but they had designated no particular objects to which the revenues thus derived were to be applied. The general clause embracing the revenue power was affirmed unanimously by the Convention, on the 16th of August, leaving the exception of exports for future action. At a subsequent period we find the words, "to pay the debts and provide for the common defence and general welfare of the United States," added to the clause which empowers Congress to levy taxes and duties; and it is a somewhat important inquiry, how and with what purpose they were placed there.

While the powers proposed by the committee of detail were under consideration, Mr. Charles Pinckney introduced several topics designed to supply omissions in their report, which were thereupon referred to that committee. The purpose of one of his suggestions was to provide, on the one hand, that funds appropriated for the payment of public creditors should not, during the time of such appropriation, be diverted to any other purpose; and, on the other hand, that Congress should be restrained from establis.h.i.+ng perpetual revenues. Another of his suggestions contemplated a power to secure the payment of the public debt, and still another to prevent a violation of the public faith when once pledged to any public creditor.[233] Immediately after this reference, Mr. Rutledge moved for what was called a grand committee,[234] to consider the expediency of an a.s.sumption by the United States of the State debts; and after some discussion of the subject, such a committee was raised, and Mr. Rutledge's motion was referred to them, together with a proposition introduced by Mr. Mason for restraining grants of perpetual revenue.[235] Thus it appears that the princ.i.p.al subject involved in the latter reference was the propriety of inserting in the Const.i.tution a specific power to make special appropriations for the payment of debts of the United States and of the several States, incurred during the late war for the common defence and general welfare; and not to make a declaration of the general purposes for which revenues were to be raised. Both committees, however, seemed to have been charged with the consideration of some restraint on the revenue power, with a view to prevent perpetual taxes of any kind. The grand committee reported first, presenting the following special provision:--"The legislature of the United States shall have power to fulfil the engagements which have been entered into by Congress, and to discharge, as well the debts of the United States, as the debts incurred by the several States during the late war for the common defence and general welfare."[236] On the following day, the committee of detail presented a report, recommending that at the end of the clause already adopted, which contained the grant of the revenue power, the following words should be added: "for payment of the debts and necessary expenses of the United States; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than ----years."[237]

Two distinct propositions were thus before the Convention. One of them contemplated a qualification of the revenue power, the other did not.

One was to give authority to Congress to pay the revolutionary debt, both of the United States and of the States, and to fulfil all the engagements of the Confederation; the other was to declare that revenues were to be raised and taxes levied for the purpose of paying the debts and necessary expenses of the United States, limiting all revenue laws, excepting those which were to appropriate specific funds to the payment of interest on debts or loans, to a term of years. When these propositions came to be acted upon, that reported by the grand committee was modified into the declaration that "all debts contracted and engagements entered into, by or under the authority of Congress, shall be as valid against the United States, under this Const.i.tution, as under the Confederation." The State debts were thus left out; the declaration was prefixed, as an amendment, to the clause which granted the revenue power, and was thus obviously no qualification of that power.[238]

But it was thought by Mr. Sherman, that the clause for laying taxes and duties ought to have connected with it an express provision for the payment of the old debts; and he accordingly moved to add to that clause the words, "for the payment of said debts, and for the defraying the expenses that shall be incurred for the common defence and general welfare." This was regarded by the Convention as unnecessary, and was therefore not adopted.[239] But the provision reported by the committee of detail, which was intended as a qualification of the revenue power, by declaring the objects for which taxes and duties were to be levied, had not yet been acted upon, and on the 31st of August, this, with all other matters not disposed of, was referred to a new grand committee, who, on the 4th of September, introduced an amendment to the revenue clause, which made it read as follows:--"The legislature shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States." This amendment was unanimously adopted;[240] and when the Const.i.tution was revised, at the close of the proceedings, the declaration which made the debts and engagements of the Confederation obligatory upon the new Congress, was separated from the context of the revenue clause, and placed by itself in the _sixth_ article.

There is one other restraint upon the revenue, as well as upon the commercial power, the history of which now demands our inquiries. But in order to understand it correctly, it will be necessary for the reader to recur to the position in which the revenue and commercial powers were left by the sectional compromises described in the last chapter. The struggle between the Northern and the Southern States concerning the limitations of those powers turned, as we have seen, on certain restrictions desired by the latter. They wished to have exports excepted out of the revenue power; they wished to have a vote of two thirds made necessary to the pa.s.sage of any commercial regulation; and three of them wished to have the slave-trade excepted from both the revenue and the commercial powers. We have seen that the result of the sectional compromises was to leave the commercial and revenue powers unlimited, excepting by the saving in relation to the slave-trade; that they left the revenue power unlimited, excepting by the restriction concerning exports and a capitation tax; and that the commercial power was to be exercised, like other legislative powers, by a majority in Congress. General commercial and revenue powers, then, without other restrictions than these, would enable Congress to collect their revenues where they should see fit, without obliging them to adopt the old ports of entry of the States, or to consider the place where a cargo was to be unladen. They might have custom-houses in only one place in each State, or in only such States as they might choose to select, and might thus compel vessels bound from or to all the other States to clear or enter at those places. But, on the other hand, a const.i.tutional provision which would require them to establish custom-houses at the old ports of entry of the States, without leaving them at liberty to establish other ports of entry, or to compel vessels to receive on board revenue officers before they had reached their ports of destination, would create opportunities and facilities for smuggling.

It appears that the people of Maryland felt some apprehension that an unrestricted power to make commercial and fiscal regulations might result in compelling vessels bound to or from Baltimore to enter or clear at Norfolk, or some other port in Virginia. The delegates of Maryland accordingly introduced a proposition, which embraced two ideas; first, that Congress shall not oblige vessels, domestic or foreign, to enter or pay duties or imposts in any other State than in that to which they may be bound, or to clear from any other State than that in which their cargoes may be laden; secondly, that Congress shall not induce vessels to enter or clear in one State in preference to another, by any privileges or immunities.[241] This proposition became the basis of that clause of the Const.i.tution, which declares that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another."[242]

It was while this subject of the equal operation of the commercial and revenue powers upon the different States was under consideration, that the further provision was devised and incorporated into the Const.i.tution, which requires all duties, imposts, and excises to be uniform throughout the United States. This clause, in the final revision of the instrument, was annexed to the power of taxation.[243]

The commercial power, besides being subjected to the restrictions which have been thus described, was extended to a subject not embraced in it by the report of the committee of detail. They had included in it "commerce with foreign nations, and among the several States";--meaning, by the former term, not to include the Indian tribes upon this continent, but all other communities, civilized and barbarian, foreign to the people of the United States. By the system which had always prevailed in the relations of Europeans and their descendants with the Indians of America, those tribes had constantly been regarded as distinct and independent political communities, retaining their original rights, and among them the undisputed possession of the soil; subject to the exclusive right of the European nation making the first discovery of their territory to purchase it.

This principle, incorporated into the public law of Europe at the time of the discovery and settlement of the New World, and practised by general consent of the nations of Europe, was the basis of all the relations maintained with the Indian tribes by the imperial government, in the time of our colonial state, by our Revolutionary Congress, and by the United States under the Confederation. It recognized the Indian tribes as nations, but as nations peculiarly situated, inasmuch as their intercourse and their power to dispose of their landed possessions were restricted to the first discoverers of their territory. This peculiar condition drew after it two consequences;--first, that, as they were distinct nations, they could not be treated as part of the subjects of any one of the States, or of the United States; and secondly, that, as their intercourse and trade were subjected to restraint, that restraint would be most appropriately exercised by the federal power. So general was the acquiescence in these necessities imposed by the principle of public law which defined the condition of the Indian tribes, that during the whole of the thirteen years which elapsed from the commencement of the Revolution to the adoption of the Const.i.tution, the regulation of intercourse with those tribes was left to the federal authority. It was tacitly a.s.sumed by the Revolutionary Congress, and it was expressly conferred by the Articles of Confederation.

The provision of the Confederation on this subject gave to the United States the exclusive right and power "of regulating the trade and managing all affairs with the Indians not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated." The exception of such Indians as were members of any State, referred to those broken members of tribes who had lost their nationality, and had become absorbed as individuals into the political community of the whites.

With all other Indians, remaining as distinct and self-governing communities, trade and intercourse were subject to the regulation of Congress; while at the same time each State retained to itself the regulation of its commerce with all other nations. The broad distinction thus early established, and thus perpetuated in the Confederation, between commerce with the Indian tribes, and commerce with "foreign nations," explains the origin and introduction of a special provision for the former, as distinguished from the latter, in the Const.i.tution of the United States.

For although there might have been some reason to contend that commerce with "foreign nations"--if the grant of the commercial power had not expressly embraced the Indian tribes--would have extended to those tribes, as nations foreign to the United States, yet the entire history of the country, and the peculiarity of the intercourse needful for their security, made it eminently expedient that there should be a distinct recognition of the Indian communities, in order that the power of Congress to regulate all commerce with them might not only be as ample as that relating to foreign nations, but might stand upon a distinct a.s.sertion of their condition as _tribes_. Accordingly, Mr.

Madison introduced the separate proposition "to regulate affairs with the Indians, as well within as without the limits of the United States";[244] and the committee to whom it was referred gave effect to it, by adding the words, "and with the Indian tribes," to the end of the clause containing the grant of the commercial power.[245]

The remaining powers of Congress may be considered in the order in which they were acted upon by the Convention. The powers to establish a uniform rule of naturalization, to coin money and regulate the value thereof and of foreign coin, and fix the standard of weights and measures, were adopted without discussion and with entire unanimity, as they had been proposed in the draft prepared by the committee of detail. The power to establish post-offices was extended to embrace post-roads.[246]

These were succeeded by the subject of borrowing money and emitting bills on the credit of the United States; a power that was proposed to be given by the committee of detail, while they at the same time proposed to restrain the States from emitting bills of credit. I have not been able to discover upon what ground it was supposed to be proper or expedient to confer a power of emitting bills of credit on the United States, and to prohibit the States from doing the same thing. That the same thing was in contemplation in the two provisions reported by the committee, sufficiently appears from the debates and from the history of the times. The object of the prohibition on the States was to prevent the issue and circulation of paper money; the object of the proposed grant of power to the United States was to enable the government to employ a paper currency, when it should have occasion to do so. But the records of the discussions that have come down to us do not disclose the reasons which may have led to the supposition that a paper currency could be used by the United States with any more propriety or safety than by a State. One of the princ.i.p.al causes which had led to the experiment of making a national government with power to prevent such abuses, had been the frauds and injustice perpetrated by the States in their issues of paper money; and there was at this very time a loud and general outcry against the conduct of the people of Rhode Island, who had kept themselves aloof from the national Convention, for the express purpose, among others, of retaining to themselves the power to issue such a currency.

It is possible that the phrase "emit bills on the credit of the United States" might have been left in the Const.i.tution, without any other danger than the hazards of a doubtful construction, which would have confined its meaning to the issuing of certificates of debt under the power to "borrow money." But this was not the sense in which the term "bills of credit" was generally received throughout the country, nor the sense intended to be given to it in the clause which contained the prohibition on the States. The well-understood meaning of the term had reference to paper issues, intended to circulate as currency, and bearing the public promise to pay a sum of money at a future time, whether made or not made a legal tender in payment of debts. It would have been of no avail, therefore, to have added a prohibition against making such bills a legal tender. If a power to issue them should once be seen in the Const.i.tution, or should be suspected by the people to be there, wrapt in the power of borrowing money, the instrument would array against itself a formidable and probably a fatal opposition. It was deemed wiser, therefore, even if unforeseen emergencies might in some cases make the exercise of such a power useful, to withhold it altogether. It was accordingly stricken out, by a vote of nine States against two, and the authority of Congress was thus confined to borrowing money on the credit of the United States, which appears to have been intended to include the issuing of government notes not transferable as currency.[247]

The clauses which authorize Congress to const.i.tute tribunals inferior to the Supreme Court,[248] and to make rules as to captures on land and water,[249]--the latter comprehending the grant of the entire prize jurisdiction,--were a.s.sented to without discussion.[250] Then came the consideration of the criminal jurisdiction in admiralty, and that over offences against the law of nations. The committee of detail had authorized Congress "to declare the law and punishment of piracies and felonies committed on the high seas, ... and of offences against the law of nations." The expression to "declare the law," &c.

was changed to the words "define and punish," for the following reason. Piracy is an offence defined by the law of nations, and also by the common law of England. But in those codes a single crime only is designated by that term.[251] It was necessary that Congress should have the power to declare whether this definition was to be adopted, and also to determine whether any other crimes should const.i.tute piracy. In the same way, the term "felony" has a particular meaning in the common law, and it had in the laws of the different States of the Union a somewhat various meaning. It was necessary that Congress should have the power to adopt any definition of this term, and also to determine what other crimes should be deemed felonies. So also there were various offences known to the law of nations, and generally regarded as such by civilized States. But before Congress could have power to punish for any of those offences, it would be necessary that they, as the legislative organ of the nation, should determine and make known what acts were to be regarded as offences against the law of nations; and that the power to do this should include both the power to adopt from the code of public law offences already defined by that code, and to extend the definition to other acts. The term "declare" was therefore adopted expressly with a view to the ascertaining and creating of offences, which were to be treated as piracies and felonies committed on the high seas, and as offences against the law of nations.[252]

The same necessity for an authority to prescribe a previous definition of the crime of counterfeiting the securities and current coin of the United States would seem to have been felt; and it was probably intended to be given by the terms "to provide for the punishment of"

such counterfeiting.[253]

The power to "declare" war had been reported by the committee as a power to "make" war. There was a very general acquiescence in the propriety of vesting the war power in the legislature rather than the executive; but the former expression was subst.i.tuted in place of the latter, in order, as it would seem, to signify that the legislature alone were to determine formally the state of war, but that the executive might be able to repel sudden attacks.[254] The clause which enables Congress to grant "letters of marque and reprisal" was added to the war power, at a subsequent period, on the recommendation of a committee to whom were referred sundry propositions introduced by Charles Pinckney, of which this was one.[255]

In addition to the war power, which would seem to involve of itself the authority to raise all the necessary forces required by the exigencies of a war, the committee of detail had given the separate power "to raise armies," which the Convention enlarged by adding the term to "support."[256] This embraced standing armies in time of peace, and, as the clause thus amended would obviously allow, such armies might be enlarged to any extent and continued for any time. The nature of the government, and the liberties and the very prejudices of the people, required that some check should be introduced, to prevent an abuse of this power. A limitation of the number of troops that Congress might keep up in time of peace was proposed, but it was rejected by all the States as inexpedient and impracticable.[257]

Another check, capable of being adapted to the proper exercise of the power itself, was to be found in an idea suggested by Mr. Mason, of preventing a perpetual revenue.[258] The application of this principle to the power of raising and supporting armies would furnish a salutary limitation, by requiring the appropriations for this purpose to pa.s.s frequently under the review of the representatives of the people, without embarra.s.sing the exercise of the power itself. Accordingly, the clause now in the Const.i.tution, which restricts the appropriation of money to the support of the army to a term not longer than two years, was added to the power of raising and supporting armies.[259]

Authority "to provide and maintain a navy" was unanimously agreed as the most convenient definition of the power, and to this was added, from the Articles of Confederation, the power "to make rules for the government and regulation of the land and naval forces."[260]

The next subject which required consideration was the power of the general government over the militia of the States. There were few subjects dealt with by the framers of the Const.i.tution exceeding this in magnitude, in importance, and delicacy. It involved not only the relations of the general government to the States and the people of the States, but the question whether and how far the whole effective force of the nation could be employed for national purposes and directed to the accomplishment of objects of national concern. The mode in which this question should be settled would determine, in a great degree, and for all time, whether the national power was to depend, for the discharge of its various duties in peace and in war, upon standing armies, or whether it could also employ and rely upon that great reservation of force that exists in all countries accustomed to enroll and train their private citizens to the use of arms.

The American Revolution had displayed nothing more conspicuously than the fact, that, while the militia of the States were in general neither deficient in personal courage, nor incapable of being made soldiers, they were inefficient and unreliable as troops. One of the princ.i.p.al reasons for this was, that, when called into the field in the service of the federal power, the different corps of the several States looked up to their own local government as their sovereign; and being amenable to no law but that of their own State, they were frequently indisposed to recognize any other authority. But a far more powerful cause of their inefficiency lay in the fact that they were not disciplined or organized or armed upon any uniform system. A regiment of militia drawn from New Hamps.h.i.+re was a very different body from one drawn from New York, or Pennsylvania, or New Jersey, or South Carolina. The consequence was, that when these different forces were brought to act together, there were often found in the same campaign, and sometimes in the same engagement, portions of them in a very respectable state of discipline and equipment, and others in no state of discipline or equipment at all.

The necessity, therefore, for a uniform system of disciplining and arming the militia was a thing well ascertained and understood, at the time of the formation of the Const.i.tution. But the control of this whole subject was a part of the sovereignty of each State, not likely to be surrendered without great jealousy and distrust; and one of the most delicate of the tasks imposed upon the Convention was that of determining how far and for what purposes the people of the several States should be asked to confer upon the general government this very important part of their political sovereignty. One thing, however, was clear;--that, if the general government was to be charged with the duty of undertaking the common defence against an external enemy, or of suppressing insurrection, or of protecting the republican character of the State const.i.tutions, it must either maintain at all times a regular army suitable for any such emergency, or it must have some power to employ the militia. The latter, when compared with the resource of standing armies, is, as was said of the inst.i.tution of chivalry, "the cheap defence of nations"; and although no nation has found, or will be likely to find, it sufficient, without the maintenance of some regular troops, the nature of the liberties inherent in the construction of the American governments, and the whole current of the feelings of the American people, would lead them to the adoption of a policy that might restrain, rather than encourage, the growth of a permanent army. So far, therefore, it seemed manifest, from the duties which were to be imposed on the government of the Union, that it must have a power to employ the militia of the States; and this would of necessity draw after it, if it was to be capable of a beneficial exercise, the power to regulate, to some extent, their organization, armament, and discipline.

But the first draft of the Const.i.tution, prepared by the committee of detail, contained no express power on this subject, excepting "to call forth the aid of the militia in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions."[261] Possibly it might have been contended, after the Const.i.tution had gone into operation, that the general power to make all laws necessary and proper for the execution of the powers specially enumerated, would enable Congress to prescribe regulations of the force which they were authorized to employ, since the authority to employ would seem to involve the right to have the force kept in a fit state to be employed. But this would have been a remote implication of power, too hazardous to be trusted; and it at once occurred to one of the wisest and most sagacious of the statesmen composing the Convention, who, though he never signed the Const.i.tution, exercised a great and salutary influence in its preparation,--Mr. Mason of Virginia,--that an express and unequivocal power of regulating the militia must be conferred. He stated the obvious truth, that, if the disciplining of the militia were left in the hands of the States, they never would concur in any one system; and as it might be difficult to persuade them to give up their power over the whole, he was at first disposed to adopt the plan of placing a part of the militia under the control of the general government, as a select force.[262] But he, as well as others, became satisfied that this plan would not produce a uniformity of discipline throughout the entire ma.s.s of the militia. The question, therefore, resolved itself practically into this,--what should be the nature and extent of the control to be given to the general government, a.s.suming that its control was to be applicable to the entire militia of the several States. This important question, involved in several distinct propositions, was referred to a grand committee of the States.[263] It was by them that the plan was digested and arranged by which Congress now has the power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;[264]--a provision that was adopted by a large majority of the States. The clause reported by the committee of detail was also adopted, by which Congress is enabled to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.[265]