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into the hands of one man. It appears to me that the sober, second thought of the Convention will repudiate such a course of proceeding. I say this, without any design to attack the Report of the Committee, for I take it that anything they have proposed, with regard to the militia, is to be adopted. I have no doubt of it at all; but it seems to me there can be no reasonable objection to a clause of that kind. It is simply saying that the citizen soldiery of this Commonwealth shall not be obliged to go out of the limits of the Commonwealth except by their own voluntary consent, or by the consent of the legislature. These two exceptions cover every possible case that it may be necessary or desirable to provide for.

One word as to the unnecessary details contained in these resolves. The Committee undoubtedly followed, in some respects, the example of the old Constitution in thus legislating for the regulation of the militia. I would like to ask the chairman of the Committee on the Militia, suppose you incorporate into the Constitution in respect to all other matters, the same minute details which you have carried out respecting the militia, how large a Constitution would you have? You are filling the Constitution with provisions which properly belong to the legislature, and every one of which, in fact, except the election of major-general, is now regulated by law; and you plead the example of the old Constitution. I submit that that example is worth very little; and it is worth less when you take into consideration the fact that the old Constitution was adopted under the old confederation, and when amendments were afterwards made, to make the instrument conform to the Federal Constitution, these details were retained, though the reason had ceased to exist.

The Constitution of 1780 contained this clause:

"The governor, with advice of council, shall appoint all officers of the continental army, whom, by the confederation of the United States, it is provided that the Commonwealth shall appoint, as also all officers of forts and garrisons."

This was struck out of the Constitution of 1820; being of itself void by the adoption of the Federal Constitution. But I object to lumbering up the Constitution with these useless provisions for the election of officers and other mere matters of detail. You might as properly prescribe the mode of electing school committees.

It seems to me that all the Committee needed to report, was these two articles :

Art. 1. All citizens of this Commonwealth, liable to military service, except such as the laws of the Commonwealth may exempt, shall be

[June 20th.

enrolled in the Militia, and held to perform such military duty as the legislature may prescribe.

That is enough "to perform such military duty as the legislature may prescribe." And then :

Art. 7. The Governor shall be the commanderin-chief of the Army and Navy of the State, and of the Militia thereof, excepting when these forces shall be actually in the service of the United States; and shall have power to call out the same to aid in the execution of the laws, to suppress insurrection, and to repel invasion.

I submit to the consideration of this Convention the propriety of taking only these two articles, and of leaving all other provisions to the legislature. These two articles, with the modification of the seventh as I have suggested, will cover all possible cases of contingency that may arise.

I do not like that clause in the seventh article, "excepting when these forces shall be acting in the service of the United States." We have taken the ground that in this Constitution there shall be no reference to the Constitution of the United States, nor to the federal government, in any form. I believe that is the true doctrine. We have nothing, and can have nothing to do with them when in the service of the United States. Then, what is the use of putting it into the Constitution?

The Constitution of the United States actually prohibits your having anything to do with the subject.

I feel quite indifferent, however, whether these resolves are adopted or not. If the military gentlemen insist upon it, and the politicians will get votes by it, let them pass; but, the amendment proposed by the gentleman from Essex, (Mr. Bradford,) I regard as vital, and I think that even the clause with regard to citizenship had better be left out. Then, the article would read thus, if amended, so as to suit me.

The Governor shall be the commander-in-chief of the Army and Navy of the State, and the Militia thereof, under such restrictions as the legislature may from time to time prescribe. Provided, That the said governor shall not at any time hereafter, by virtue of any power by this Constitution granted, or hereafter to be granted to him by the legislature, transport any of the inhabitants of this Commonwealth, or oblige them to march out of the limits of the same, without their free and voluntary consent, or the consent of the general court; except so far as may be necessary to march or transport them by land or water, for the defence of such part of the State to which they cannot otherwise conveniently have access.

Mr. HOPKINSON, of Boston. I am not one of those "ambitious military men," whose action

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in this matter is to be feared; but I am a friend to the militia. Opposed as I am to war, and heartily as I coincide in all that the gentleman from Lawrence has said of its horrors and the causes why it should be deprecated, I still believe the time is far distant when a well organized militia will not be necessary to any government. Happy, indeed, will it be for every government in which more than an organized militia of citizen soldiers is not required to enforce the laws. I believe, therefore, that, as far as it is necessary to give efficiency and force to the military power of the State, it should be incorporated into the Constitution; and although the details contained in this Report, seemed to me to be unnecessary, I do not set any opinion of my own, which I may have upon that subject, against that of the Committee. It is sufficient that, if they are unnecessary, I do not see that they are objectionable; and, therefore, the Report, so far as these details go, shall have my vote.

But I am not satisfied, Mr. Chairman, with this seventh article. I am in favor of the amendment which has been proposed, and even then, with the amendment, the article itself would not satisfy me. I am in favor of giving the governor the power, as the commander-in-chief of the army, but I am not in favor of giving him an unlimited and unrestrained power. I think, therefore, the clause in the Constitution as it now stands, by which it is provided that these powers shall be exercised agreeably to the rules of the Constitution and the law of the land, or words to that effect, is better. Some such clause is necessary as a restraining and controlling influence over this grant. I believe also that there should be an amendment to the section which should determine the power which the governor shall have over the militia when called into the service of the United States, so far as that power may be used and exercised by the State, without being in conflict with this Constitution and laws of the United States. Why, Sir, what is this power? At the time when this Constitution was first formed the military power was considered a most important branch of the government; not only most important for sustaining the government itself, but also most important in respect to its dangers, requiring more to be guarded and controlled in its exercise than any other branch whatever. We propose to give him unlimited power as commander-in-chief. Now what are the duties of the commander-in-chief of the army and navy, independently of any control whatever, except what is given by the Constitution? What may the commander-in-chief do, or in other words, what may he not do? May he not exercise any

[June 20th.

and all military powers, even dictatorial and unlimited? He holds the sword in his hand and commands the army and the militia, and if the legislature should attempt to control him, he appeals to the Constitution, and says, I am commander-in-chief of these forces, and by what power does the legislature attempt to control me? It appears to me this idea will justify the provision of the gentleman from Walpole, when he proposes that it should be limited so as to be exercised agreeably to the laws of the land.

But I have made these remarks for the purpose of considering one step further. What becomes of the militia of this State when called into the active service of the United States? I know there is the constitutional power of the United States. I know that authority will override and control any powers which we may give in conflict with that Constitution. But I would not extend the sacrifice already made, nor be swift to seek how large the surrender may be found to be.

I would rather insist on the strictest construction of the terms of the Federal Constitution in this particular. I would jealously hold on to all that was left in the control of the State, and rather hazard an excess or collision, than come short of our duty.

Therefore I am opposed, in the most express terms, to such a grant of this power, except that it shall be subject to this provision, that when called into the service of the United States they shall be under the control of the governor of the Commonwealth. But even then I am not willing to yield all power and control of the militia. If it be so, if it be that the State has no power left either in officering or managing or ordering the militia, then, I submit, there lies back a hidden and unexplored power, the depths of which no man's judgment or forecast can conceive. If the troops of the State, when called into the service of the United States, are to lose entirely their character of militia, and they are to be merged in the army of the United States, and this requisition can be made on them at the pleasure of the president of the United States, and whenever the president shall judge that there is an exigency for it, then I submit that whenever the State attempts to vindicate any of its rights, whenever the State can in any manner come into collision with the president of the United States the State is powerless, the wand is torn from the hand of the governor, and every soldier in the whole State is lost in the army of the United States; and the president marches, sword in hand, without any control except his own judgment and discretion. I say this may be done whenever the president or congress shall deem that an exigency demands it. I

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know this is disputed ground. In past times the question and the only question in which the Constitution and laws of this State were supposed to come in conflict with the Constitution of the United States was this; not whether the army should pass into the hands of the president of the United States when occasion required it; but, under the existing laws, the president might, in certain cases, and for certain causes, call out the militia, and the question was whether it was for the president and the congress of the United States, or whether it was for the governor of Massachusetts and the legislature of Massachusetts to determine when that exigency arose.

The supreme court of Massachusetts decided that it was for the State to determine when the exigency arose. I suppose it is now conceded that that decision does not stand, and that it is for the president and congress to decide when the exigency arises. I confess the reasoning of the Massachusetts judges has seemed to me sounder on this point than that of the United States judges. But I care not to agitate that question. Whether that decision be right or wrong I trust that no collision will again arise. But if it is to arise we cannot by our action be rid of the control of the Constitution of the United States. The question must be decided on the language of the Federal Constitution alone, consequently it is not necessary to agitate the question now; but so far as the control of the State can be continued over these armies, the sole arm by which it can defend itself in case of an emergency, let it be retained and exercised. I hope it will be retained. I would do no more, but I would act fully up to the law, and jealously fear to stop short of it. If we are to retain the clause, "except when called into the service of the United States," we should add what I also find in the Constitution of another State, that when these forces are called into the service of the United States the governor of the State may, if he please, or by legislative provision, go with them, may have his rank with them, and take charge of them, and take care of their interests so far as he may, subject to the law of the United States.

[June 20th.

which leave the officering of the militia to the power of the several States.

No man is more disposed to believe in the perpetuity of the Constitution and Union of the States than I am. I believe no one is more willing to concede every one of its powers, and they are vast, and liable to become, or at least to appear to be more vast. These powers are liable to be more realized and more immediately felt by the citizens of Massachusetts than they have been. But I would be prepared as far as possible for the worst event. In case of a dissolution of the Union, we should be prepared with an entire government to protect ourselves, with an army and navy to enforce its behests. The State, in such case, should come forth in full armor to stand before the world as an independent nation. I think I see a strong tendency to bind the States into a consolidated mass, whether for better or for worse I cannot say. But I feel that the tendency in that direction is rapid enough without our being in haste to surrender any power which we may lawfully exercise over the troops which constitute the right arm of Massachusetts, as of every government having any claim to sovereignty. I am not willing to have the whole militia merged in one great army of the United States, exept it is conceded that the governor may, if the legislature shall so determine, go with them and look to their rights and interests and be able to report to the legislature of Massachusetts, of the condition of the army, and prepare them to act as the emergency shall require. I can conceive many cases in which this would be most important to the interests of the State and the soldier.

I would, however, have even the governor subject to the control of the law of the land. I would not give this unlimited and road power which amounts to neither more nor less than that of a dictator, by being commander-in-chief of the army and navy, except it be under the controlling power of the legislature and such laws as they shall pass from time to time. Now I submit, I will not pronounce a definite opinion upon it, but I submit to the consideration of gentlemen, whether this provision, as reported by the Committee, does leave any ground for the legislature by which the army and navy can be in the least controlled by them; or whether it does not override, by its own force, all legislation, and concede the military power absolutely to the governor as commanderin-chief of the army and navy.

The Constitution of Alabama, evidently with a view to this very question, has wisely provided that when called into the service of the United States, the general assembly may fix his, the governor's, rank. Before this matter is dismissed from the Committee, I shall propose an amendment that when the State forces are acting in the service of the United States, the legislature|ercised agreeably to the laws of the land, or make

may fix his rank, which we may clearly do under the provisions of the United States Constitution,

If that is so, we should at least provide that these powers which we have granted shall be ex

some provision of that sort. I am, therefore, of the opinion that it is better not to pass the resolu

Monday,]

HOPKINSON - PARSONS.

[June 20th.

I think an

ernor above the laws of the land.
amendment of this kind is needed; and, further,
if the time should ever come, as however I hope
it may not, when these forces may be called upon
by the United States to go into their service, I
hope we shall have the right to send our governor
with them, to take care of them and to look out
for their welfare-to see that the powers of the
United States are properly exercised in accord-
ance with the Constitution and the laws of the
land. I do not believe there will be any clash-
ing, if there is no necessity by the abuse of the
powers of the United States government for it ;
but if there is such occasion for it, there is so much
the more need of our executive there as the high-
est officer of the State to see that justice is done to
our citizens. If our soldiers have got to march
through the swamps of Mexico, or into a foreign
land for the purpose of conquest, I want to have
somebody there to see that they are properly
taken care of; and so far as the arm of this Com-
monwealth can reach, so far should he retain this
power. I hope the whole of this will be stricken
out, and the provisions of our present Constitu-
tion retained; but if the Report of the Committee
is to be adopted, I desire, at any rate, that the
amendment now under consideration should be
adopted.

tion-that the Report of the Committee would be sufficient without it, and that the provisions of the Constitution upon the subject should be suffered to remain as they are. I know, Sir, that there is something of detail there-there is something like a repetition of language—it is not, perhaps, as succinct or stated with as much mathematical precision as a proposition might be drawn up by the wiser heads of this day; but I do not think that, merely for the purpose of securing better grammar or a better phraseology, or even a more concise form of expression, the provisions which have stood so long and which have answered their purpose so well, should now be changed. I therefore desire to leave the Constitution as it stands in this respect, for I do not consider that there is any essential improvement proposed. When John Adams and Judge Parsons passed upon it, I think they knew something; and what suited them is good enough for me. It is one of the distinguishing features of our government not to give unlimited powers in a short clause. Republicans guard, and limit and retain the powers which belong to them; they do not give them up with a mere sweep of the pen. It is for Louis Napoleon, the autocrat of Russia, or the emperor of Austria, with a single line to sweep away the liberties of a people. They may put a decree in short language, for they have the power not only to decree, but to construe, at will, the force and extent of the decree. Where power is not limited, you may grant it in short terms; but when we wish to guard and retain power, to protect the rights of our citizens, we say in the name of the people, "we have here retained something which we do not cede. The Constitution is not only a charter of powers, but it is also a limitation of power." For such a purpose we need to be a little more prolix-we need more words-we need restraining clauses. I am not going to look at the example of absolute governments, to try to find the shortest phraseology for this purpose. It appears to me that while there is no serious fault found with the Constitution as it now stands -while it contains the essential and important provisions which we desire to embody, we can do no better than to let it remain as it is. But if we are going to take the seventh article which the Committee recommend, I think it is important that two provisos should be attached to it. In the first place, I think the proviso which has been moved by the gentleman from Essex should be adopted, that is to retain the proviso of the existing Constitution; and in the second place, I think a provision should also be inserted that the governor shall exercise this authority agreeably to the laws of the land, so that we shall not have a gov-port changes the power of the governor over the

Mr. PARSONS, of Lawrence. I have a very few words to say in regard to the seventh article; and, as I remarked once before, I desire that it shall pass as it has been recommended by the Committee. In reading the resolution over, the only difference that I have observed to exist from the powers which exist in the present Constitution is in that part of the seventh article which defines the power of the governor in connection with the militia, when the militia shall be ordered out by the United States; and in my view that is the great point in the resolution. It is the great principle in this resolution that whenever it becomes necessary in this city or in any other city or town in this Commonwealth, in order to execute the United States law, the General Government shall have the power to call upon the militia for that purpose. If they shall volunteer to assist in maintaining the laws of the United States, that is a matter for the United States alone to take cognizance of, and neither the governor nor any officer of the militia in this Commonwealth has anything to do with it, except as they may be retained, or their services accepted by the government of the United States. Much has been said in relation to the power of the governor of this State. I do not understand, Mr. Chairman, that this resolu

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militia of this State, from the power already granted to him—not at all. He maintains precisely the same position in relation to the militia of the Commonwealth, if we adopt this Report, as former governors have maintained. Has the governor of this State any right to order me into the State of Rhode Island upon any occasion? Had he ever the right to do it? If he had, one thing is certain-I am not aware of it. If any governor should presume to order a single company of the volunteer militia of this State into any other State to quell any insurrection or riot, or any breach of law that might arise there, I think the experiment would be very unsuccessful. That is the legitimate business of the United States government, and not of the States; and I believe it is necessary that we shall settle at this time, once and forever, the right of the United States to maintain and assert its laws guaranteed by the Constitution in this Commonwealth; and that if the governor or any other person in the State shall interfere with that matter, he should be dealt with according to law.

From the tenor of the remarks made in the discussion of this question, one would naturally suppose that our volunteer militia, in case of war, would be ordered out as they now exist as companies. This would not be the fact. It was not so in the war with Mexico, and I desire it never will be so; and, as our country has become very populous and powerful, the probabilities are that it never will be so. Every portion of the militia that was raised in this State upon the occasion of the Mexican war, volunteered; and, as a general thing, it was not the volunteer militia in the State that went to Mexico; it was an entirely different class of men. They were men from the peaceful walks of life, and unacquainted with the manual of arms and the evolutions of military science.

Mr. Chairman, with regard to the amendment which is here proposed, and with regard to the governor's commanding our militia. It is very well understood by those composing the militia why this power therein contained is conferred upon the governor, making him commander-inchief. It is not that he is to take the command of the forces composing the same, in person-not by any means. I would say it in no disrespect to any governor of this Commonwealth, but I think we could find many men who are more competent to take command of our militia than our governors. This of course will be admitted by all without discussion. But it is proper that they should have power to order out the militia, as occasion may require. Suppose, for instance, that the government of the United States calls

[June 20th.

upon this State for three thousand troops, it may be to go to Mexico, in order to maintain the rights of the United States, or it may be to wage an aggressive warfare. I wish to ask gentlemen of the Convention whether the governor of this Commonwealth is to go with these troops to the heart of Mexico, or if he is to send the lieutenant governor, or one of the councillors, or any body else he may choose to select, to command them while they may be absent from the Commonwealth. He has no power, Mr. Chairman, to do anything of the kind. He has nothing to do with United States troops in the service of the general government; and without the bounds of his own State, it is for the United States to appoint officers to command the forces which may be raised for that purpose. The United States are to take the responsibility; and are they not to appoint their officers to direct their own enterprises? Most assuredly they are. Suppose that, in the event of ordering out by the general government a division from this State to go to Mexico, our legislature should pass a law that the governor of this Commonwealth should go with them and be their commander. When the division should have been raised and properly armed and equipped, and passed into the jurisdiction of the United States, the commander-in-chief of the United States forces would say to that governor : "I do not desire your services any longer; these men are under my control; I have been appointed by the government to command these men; I am responsible; I do not need your services any longer, and you can go home." As I said before, Congress has power to appoint its own officers to command its armies, and it views with jealousy State interference in the matter.

For these reasons, and for those which have been so ably stated by the chairman of this Committee, I hope this amendment will pass. I wish to say one word with regard to the remarks which were made by the gentleman upon my left, (Mr. Davis, of Fall River,) who hoped that this Report would not be incorporated into our Constitution. I must say, Mr. Chairman, if there is anything which has been done in this Convention which I deem of paramount importance, and for which I have strong feelings of regard, it is for this very Report. I have been led to believe

I have experienced it-I have seen it-that the volunteer militia of this State is a respectable body of men. Sir, they are a body of men who do credit to the State. They are the State. I am not going to argue the necessity of having a volunteer militia-I take that for granted. The history of the revolutionary war and the late war with Great Britain conclusively show this.

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