HOUSE....No. 152.

Commonwealth of Massachusetts.

HOUSE OF REPRESENTATIVES, April 10, 1848.

The Joint Standing Committee on the Militia, to whom were referred the Report of the Commissioners appointed, under the Resolve of April 26, 1847, to arrange a system for the organization and discipline of the Militia of this Commonwealth, and sundry petitions relating thereto, have considered the same, and ask leave to submit the following

REPORT:

The committee came to the consideration of the report of the commissioners, in a confident hope, that the research bestowed by them upon the subject would be found to have been rewarded by the discovery of some means to reach the difficulties with which the militia system is at present environed, and were proportionally disappointed at finding, that the commissioners, after all efforts, had not been able to arrive at results in all respects satisfactory to themselves.

These difficulties are experienced from the conflict between the United States and the State laws, and the different estimates which may be placed upon the powers of the respective

legislatures. By the law of congress passed in 1792, under that section of the constitution which vests the power of providing for the organizing, arming, and disciplining the militia, in congress, a method of enrolment is required, evidently based upon the idea that the state was to be geographically divided, so as to place each individual, liable to do military duty, within the territorial limits of a company, and subject him to enrolment, as a soldier, by its captain. Until 1840, the law of Massachusetts was in conformity with the act of congress; and the commissioners say, that, in case it is deemed necessary by the legislature to return to that system, in order to comply with the laws of the U. S., no better code could be adopted than that proposed by a former commission, in the year 1839.

In 1840, an entire change was made by the legislature in the method of enrolment, and it was made to consist simply of a list, prepared by the assessors of each city or town, of the persons therein liable to perform military duty, but from whom no duty was required; and the only militia service actually performed was to be performed by volunteers, induced to enlist or enrol themselves under various captains, by motives of patriotism, the pleasure of military exercise, and some slight compensation from the state, for the loss of time, and the expense to which they were subjected, in doing duty. As this method is one sanctioned by the legislation of six successive. years, the commissioners, although they themselves were not satisfied of its constitutional propriety, yet have reported a bill upon this basis, as an alternative proposition, and left to the legislature to decide on its own constitutional powers.

While, however, they retain the mode of enrolment at present adopted, they have introduced into it an entirely new and most important feature. Since 1840, nothing has been required of persons enrolled: they have remained simply subject to be called upon in those emergencies when every citizen must take up arms in the common defence. The commissioners now propose that, as a commutation for military service, these persons thus enrolled shall pay the sum of one dollar and fifty cents.

The committee, sensible as they are of the cogent necessity of taking some steps to arrest the threatened decay of this most

important arm of the state, and desirous of performing all the duties incumbent upon us under the laws of the United States, have yet found themselves unable to coincide entirely with either plan proposed.

To return to a system based upon the plan of organization existing before 1840, inasmuch as that system, after long trial and repeated amendments, was finally condemned and abandoned, the committee deem unwise, at least until all attempts to amend the present system have been exhausted, and no hope of otherwise maintaining an efficient militia force remains.

In regard to the other plan proposed by the commissioners, assenting, as they are inclined, to the argument against the constitutionality of the system of enrolment contained in the bill, they do not feel justified in urging upon the legislature the passage of a law, the constitutionality of which must be seriously doubted by all who examine the requirements of the laws of the United States, when by that system a pecuniary fine or tax is proposed to be imposed upon the citizen. It could not be expected that the commutation for personal service would be paid otherwise than grudgingly, if the right to impose was doubtful, and odium must necessarily attach to an institution which deserves, and should continue to receive, the fostering care of the whole Commonwealth.

Under these circumstances, the result to which the committee have been forced is, to hold out additional inducements for enlistments under the law at present in operation-which, in the present state of public sentiment, they believe the best system that can practically be carried out without attempting to ingraft upon it any new principles. It is true, our present system of enrolment is similar to that of the commissioners' bill, and must be of questionable constitutionality, if that is; but the question is of far less embarrassing and serious a nature, when no duty is imposed upon the citizen by enrolment, than when he is liable to a pecuniary tax. In the one case, we are sure we do no injustice to the citizen individually. As the law now stands, no one can with propriety complain that duties are unjustly imposed, as he only performs duty, if at all, by his voluntary act in causing himself to be enlisted in a company when his lia

bility to perform military service results from what may not improperly be considered his contract with the state.

Under our present system, the only persons actually performing duty, are persons enlisted by the captains of companies to which they belong,-an enlistment not varying, in important particulars, from enrolment. All admit, that a State may increase the number of exempts from military duty to any extent, the only limit being the exercise of its good faith to the United States, in the preservation of the militia; and if the legislature choose to say, that none shall be enrolled except those who are induced to consent to it from the inducements which may be held out, and their own inclinations, it would seem to follow, that it might say so constitutionally. But if the exempts, under the law, are only to become so upon the payment of a tax, before that tax can be levied upon them, they have a right to demand that the enrolment shall be constitutionally made, and the question therefore assumes a practical importance, which it does not now possess.

Deeply impressed with the necessity of some immediate action on the part of the legislature, and believing that,—without any change in the general principles of the present system,—by an increase of the compensation to the soldier, additional motives to enlistment will be offered sufficiently strong to refill the ranks, and infuse greater vitality into the system, they have ventured to submit a bill in accordance with their views, trusting to the good sense and patriotism of the legislature for its adoption. That it is incumbent upon the States to sustain, and afford it the means of existence, appears plain alike by the law of Congress, which, however doubtful in its minor requirements it may be, is imperative in this respect,-and the indispensable wants of our social condition. Its necessity, as a means of fortifying the civil power, and repelling mob violence, has been more than once demonstrated in the State of Massachusetts during the present year.

ARTHUR L. DEVENS, for the Committee.