Essay Introduction

In "Conscription," Daniel Webster delivers a fiery opposition to a proposed draft bill during the War of 1812. Speaking before the House of Representatives in 1814, Webster argues that conscription constitutes a violent encroachment on personal liberty and violates the Constitution. He contends that the federal government's power to raise armies does not extend to forcing free men into service against their will, distinguishing this from the specific constitutional provisions for calling forth the militia. Webster warns that such arbitrary power transforms a free government into a despotism and predicts that enforcing a draft would require military force against the citizenry itself, potentially leading to the dissolution of the government.

Conscription

by Daniel Webster

It has been said of Daniel Webster (1782-1852), the great American statesman and orator, that his massive mind needed the spur of a great national crisis to make him render his best with words befitting a nation hanging in the balance. Such a situation, he felt, was that of the closing months of 1814, shortly before the end of the conflict with England. Under the pressure of war needs for men and money, a conscription bill was then before Congress, backed by the Secretary of War, in order to further the conflict for the conquest of Canada. Except for the headings, the following is extracted from his speech in the House of Representatives on December 9, 1814, a copy of which is on exhibit at the New Hampshire Historical Society.

THIS bill indeed is less undisguised in its object, & less direct in its means, than some of the measures proposed. It is an attempt to exercise the power of forcing the free men of this country into the ranks of an army, for the general purposes of war, under color of a military service. It is a distinct system, introduced for new purposes, & not connected with any power, which the Constitution has conferred on Congress.

But, Sir, there is another consideration. The services of the men to be raised under this act are not limited to those cases in which alone this Government is entitled to the aid of the militia of the States. These cases are particularly stated in the Constitution—"to repel invasion, suppress insurrection, or execute the laws." But this bill has no limitation in this respect. The usual mode of legislating on the subject is abandoned. The only section which would have confined the service of the Militia, proposed to be raised, within the United States has been stricken out; & if the President should not march them into the Provinces of England at the North, or of Spain at the South, it will not be because he is prohibited by any provision in this act.

Recruit By Draft

This, then, Sir, is a bill for calling out the Militia, not according to its existing organization, but by draft from new created classes;—not merely for the purpose of "repelling invasion, suppressing insurrection, or executing the laws," but for the general objects of war—for defending ourselves, or invading others, as may be thought expedient;—not for a sudden emergency, or for a short time, but for long stated periods; for two years, if the proposition of the Senate should finally prevail; for one year, if the amendment of the House should be adopted. What is this, Sir, but raising a standing army out of the Militia by draft, & to be recruited by draft, in like manner, as often as occasion may require?

The question is nothing less, than whether the most essential rights of personal liberty shall be surrendered, & despotism embraced in its worst form.

I have risen, on this occasion, with anxious & painful emotions, to add my admonition to what has been said by others. Admonition & remonstrance, I am aware, are not acceptable strains. They are duties of unpleasant performance. But they are, in my judgment, the duties which the condition of a falling state imposes. They are duties which sink deep in his conscience, who believes it probable that they may be the last services, which he may be able to render to the Government of his Country. On the issue of this discussion, I believe the fate of this Government may rest. Its duration is incompatible, in my opinion, with the existence of the measures in contemplation. A crisis has at last arrived, to which the course of things has long tended, & which may be decisive upon the happiness of present & of future generations. If there be anything important in the concerns of men, the considerations which fill the present hour are important. I am anxious, above all things, to stand acquitted before GOD, & my own conscience, & in the public judgments, of all participations in the Counsels, which have brought us to our present condition, & which now threaten the dissolution of the Government. When the present generation of men shall be swept away, & that this Government ever existed shall be a matter of history only, I desire that it may then be known, that you have not proceeded in your course unadmonished & unforewarned. Let it then be known, that there were those, who would have stopped you, in the career of your measures, & held you back, as by the skirts of your garments, from the precipice, over which you are plunging, & drawing after you the Government of your Country.

Challenge To Congress

It is time for Congress to examine & decide for itself. It has taken things on trust long enough. It has followed Executive recommendations, till there remains no hope of finding safety in that path. What is there, Sir, that makes it the duty of this people now to grant new confidence to the administration, & to surrender their most important rights to its discretion? On what merits of its own does it rest this extraordinary claim? When it calls thus loudly for the treasure & the lives of the people, what pledge does it offer, that it will not waste all in the same preposterous pursuits, which have hitherto engaged it? In the failure of all past promises, do we see any assurance of future performance? Are we to measure out our confidence in proportion to our disgraces, & now at last to grant away every thing, because all that we have heretofore granted has been wasted or misapplied? What is there in our condition, that bespeaks a wise or an able Government? What is the evidence, that the protection of the country is the object principally regarded?

Conscription is chosen as the most promising instrument, both of overcoming reluctance to the Service, & of subduing the difficulties which arise from the deficiencies of the Exchequer. The administration asserts the right to fill the ranks of the regular army by compulsion. It contends that it may now take one out of every twenty-five men, & any part or the whole of the rest, whenever its occasions require. Persons thus taken by force, & put into an army, may be compelled to serve there, during the war, or for life. They may be put on any service, at home or abroad, for defence or for invasion, according to the will & pleasure of Government. This power does not grow out of any invasion of the country, or even out of a state of war. It belongs to Government at all times, in peace as well as in war, & is to be exercised under all circumstances, according to its mere discretion. This, Sir, is the amount of the principle contended for by the Secretary of War.

Freedom Denied

Is this, Sir, consistent with the character of a free Government? Is this civil liberty? Is this the real character of our Constitution? No, Sir, indeed it is not. The Constitution is libelled, foully libelled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their own treasure & their own blood a Magna Charta to be slaves. Where is it written in the Constitution, in what article or section is it contained, that you may take children from their parents, & parents from their children, & compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it? Under what concealment has this power lain hidden, which now for the first time comes forth, with a tremendous & baleful aspect, to trample down & destroy the dearest rights of personal liberty? Who will show me any constitutional injunction, which makes it the duty of the American people to surrender every thing valuable in life, & even life itself, not when the safety of their country & its liberties may demand the sacrifice, but whenever the purposes of an ambitious & mischievous Government may require it? Sir, I almost disdain to go to quotations & references to prove that such an abominable doctrine has no foundation in the Constitution of the country. It is enough to know that the instrument was intended as the basis of a free Government, & that the power contended for is incompatible with any notion of personal liberty. An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from the substance of a free Government. It is an attempt to show, by proof & argument, that we ourselves are subjects of despotism, & that we have a right to chains & bondage, firmly secured to us & our children, by the provisions of our Government.

Supporters Of Conscription

The supporters of the measures before us act on the principle that it is their task to raise arbitrary powers, by construction, out of a plain written charter of National Liberty. It is their pleasing duty to free us of the delusion, which we have fondly cherished, that we are the subjects of a mild, free & limited Government, & to demonstrate by a regular chain of premises & conclusions, that Government possesses over us a power more tyrannical, more arbitrary, more dangerous, more allied to blood & murder, more full of every form of mischief, more productive of every sort & degree of misery, than has been exercised by any civilized Government, with a single exception, in modern times.

But it is said, that it might happen that an army would not be raised by voluntary enlistment, in which case the power to raise armies would be granted in vain, unless they might be raised by compulsion. If this reasoning could prove any thing, it would equally show, that whenever the legitimate powers of the Constitution should be so badly administered as to cease to answer the great ends intended by them, such new powers may be assumed or usurped, as any existing administration may deem expedient. This is a result of his own reasoning, to which the Secretary does not profess to go. But it is a true result. For if it is to be assumed, that all powers were granted, which might by possibility become necessary, & that Government itself is the judge of this possible necessity, then the powers of Government are precisely what it chooses they should be. Apply the same reasoning to any other power granted to Congress, & test its accuracy by the result.

Despotic Thinking

If the Secretary of War has proved the right of Congress to enact a law enforcing a draft of men out of the Militia into the regular army, he will at any time be able to prove, quite as clearly, that Congress has power to create a Dictator. The arguments which have helped him in one case, will equally aid him in the other. The same reason of a supposed or possible state necessity, which is urged now, may be repeated then, with equal pertinency & effect.

Sir, in granting Congress the power to raise armies, the People have granted all the means which are ordinary & usual, & which are consistent with the liberties & security of the People themselves; and they have granted no others. To talk about the unlimited power of the Government over the means to execute its authority, is to hold a language which is true only in regard to despotism. The tyranny of Arbitrary Government consists as much in its means as in its end; & it would be a ridiculous & absurd constitution which should be less cautious to guard against abuses in the one case than in the other. All the means & instruments which a free Government exercises, as well as the ends & objects which it pursues, are to partake of its own essential character, & to be conformed to its genuine spirit. A free Government with arbitrary means to administer it is a contradiction; a free Government without adequate provision for personal security is an absurdity; a free Government, with an uncontrolled power of military conscription, is a solecism, at once the most ridiculous & abominable that ever entered into the head of man.

A Sacrifice

Sir, I invite the supporters of the measures before you to look to their actual operation. Let the men who have so often pledged their own fortunes & their own lives to the support of this war, look to the wanton sacrifice which they are about to make of their lives & fortunes. They may talk as they will about substitutes, & compensations, & exemptions. It must come to the draft at last. If the Government cannot hire men voluntarily to fight its battles, neither can individuals.

Into the paradise of domestic life you enter, not indeed by temptations & sorceries, but by open force & violence.

Nor is it, Sir, for the defense of his own house & home, that he who is the subject of military draft is to perform the task allotted to him. You will put him upon a service equally foreign to his interests & abhorrent to his feelings. With his aid you are to push your purposes of conquest. The battles which he is to fight are the battles of invasion; battles which he detests perhaps & abhors, less from the danger & the death that gather over them, & the blood with which they drench the plain, than from the principles in which they have their origin. If, Sir, in this strife he fall—if, while ready to obey every rightful command of Government, he is forced from home against right, not to contend for the defence of his country, but to prosecute a miserable & detestable project of invasion, & in that strife he fall, 'tis murder. It may stalk above the cognizance of human law, but in the sight of Heaven it is murder; & though millions of years may roll away, while his ashes & yours lie mingled together in the earth, the day will yet come, when his spirit & the spirits of his children must be met at the bar of omnipotent justice. May God, in his compassion, shield me from any participation in the enormity of this guilt.

The operation of measures thus unconstitutional & illegal ought to be prevented, by a resort to other measures which are both constitutional & legal. I express these sentiments here, Sir, because I shall express them to my constituents. Both they & myself live under a Constitution which teaches us, that "the doctrine of non-resistance against arbitrary power & oppression, is absurd, slavish, & destructive of the good & happiness of mankind." With the same earnestness with which I now exhort you to forbear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their own liberties.

A military force cannot be raised, in this manner, but by the means of a military force. If administration has found that it can not form an army without conscription, it will find, if it venture on these experiments, that it can not enforce conscription without an army. The Government was not constituted for such purposes. Framed in the spirit of liberty, & in the love of peace, it has no powers which render it able to enforce such laws. The attempt, if we rashly make it, will fail; & having already thrown away our peace, we may thereby throw away our Government.

EDITOR'S NOTE: This essay as originally published in Essays on Liberty, Vol. II, included a second part by B. H. Liddell Hart. Permission to reprint that portion is not available.

About the Author

Daniel Webster was the famous American statesman, orator, lawyer. "Conscription" (Part I) is extracted from his speech in the House of Representatives on December 9, 1814, in which he voiced a warning and prophecy to his fellow countrymen regarding the draft. It was published by the Foundation in 1953.

Attribution

Webster, Daniel. "Conscription." In Essays on Liberty, Vol. 2, 261-270. Irvington-on-Hudson, NY: The Foundation for Economic Education, Inc., 1954.