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HATHAWAY-JAMES- BUTLER.

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[June 22d.

articles-the article which gives the governor power to discipline the army and navy, to put in warlike posture the inhabitants of the Commonwealth, and to kill, slay, destroy and conquer, &c., the enemies of the Commonwealth, in all manner of means, and in every way, &c.-as there is in these whole fifteen. There is, then, a great improvement, as to length.

Another thing. If we leave this matter to stand as it does now, by striking out this resolve, do not gentlemen see that they open that much mooted point again, and make as a constitutional

The PRESIDENT. The question recurs upon provision, the section by which the militia of the the final passage of the resolution.

Mr. JAMES, of South Scituate. I like the Constitution as it now stands better than I should were this resolve incorporated in it. This amendment is not called for, and not one person in a thousand, in the Commonwealth of Massachusetts, ever anticipated such an alteration, or desired it. Here are presented to us, for our adoption and for incorporation into the Constitution, fifteen articles upon the subject of the militiaenough to form a whole Constitution, if we could have some man like Benjamin Franklin to draw it up.

The gentleman from Lowell, (Mr. Butler,) objects to any alteration of the resolution, because it is the Report of a Committee, and, he says, we ought to respect its decision. Did the gentleman respect the decision of the Committee which reported the resolves upon the subject of plurality We have a right to do as we will with the resolutions which committees introduce here, provided we do what ought to be done, and we should shape them exactly as our judgments dictate.

There is quite enough in the Constitution as it now stands, and I do not want to insert this great mass of matter into it. If every alteration of that instrument is to occupy as much room as this proposed one, we shall have a book as large as the Revised Statutes, or very much larger than it need be. I shall vote against the resolution because I prefer the Constitution as it now stands.

Mr. BUTLER, of Lowell. I trust it will now be in order to say a word upon the subject matter of the resolve, and I wish gentlemen exactly to understand what they vote for, when they vote to strike out this resolve, and to let the Constitution stand as it is.

In the first place, the gentleman opposite, (Mr. James,) says he is opposed to this resolution, because there is too much of it. There is not near as much of it as there is in the present Constitution. There is as much in one of the present

State are, in no manner of means, to go out of the State? I think this opposition to this reform in the militia, has a strong smell, and looks much like the relic of one of those men, whom my friend for Abington, (Mr. Keyes,) characterized as the back-bone patriots. I do not agree with them; their back-bones are all the wrong way, stiff where they should be limber, and limber where they should be stiff. [Laughter.] I insist upon striking it out from the Constitution, as I had the honor to say to the Committee a few days since, if we cannot insert a provision that the militia of this State shall be a part of the militia of the Union; for while I do not believe in this cry of Union all the while, I do believe that there should be a provision, by which the militia of this State should be under that command, and for those purposes for which we have agreed that they shall be. If we vote down these resolves, we leave the objectionable provision in.

But they say that these are mere provisions of law. Sir, every one of these provisions are in the present Constitution, although they are somewhat changed. If my friend had been among the military at all, as I have been for the last fifteen years, he would have found that they have expected some change in this provision. They have asked over and over again why, while they were allowed to elect their subalterns, their captains, colonels, and brigadiers, the legislature should step in and put over them, as they have done, men who could no more set a brigade in the field, than they could do a sum in algebra. [Laughter.] They have hoped and looked forward to this Convention for some reform in this respect. If for no other reason, as a matter of taste, if there were no other reason to be found, I would have this resolve passed.

I say again that the committees to whom subjects are referred, ought to have the confidence of the Convention, but if the reports are not satisfactory, they should be recommitted. The House has refused to recommit this resolve. Then we must do one of two things; either leave the mat

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ter as it stands, or adopt this Report. The gallant Colonel from Boston, (Mr. Schouler,) says he wishes the matter to remain as it is, because we have had a very good militia as matters are. And why have we? It has been because the Constitution has been carried out in detail by the laws upon our statute book, which contains some two hundred sections.

The laws now divide the militia of the State into the acting militia and the enrolled militia. The acting militia are liable to be called out at all times, but the enrolled militia are also liable to be called out on certain occasions. Every man in this Convention, excepting, perhaps, the clergymen, are liable to be called for the purpose of suppressing insurrection or repelling invasion in the United States. We have simply divided it for the purpose of convenience. We have done precisely as the laws of the United States say we may. We are in full communion with the authorities of the United States upon this subject. Our drill, our tactics, our divisions, our brigades, are all in exact conformity with the militia of the United States, and we can go into the field, take right and left lines, understand and obey orders nearly as well as they. We have discipline nearly as good as they. There are some companies in this city, and some out of this city, too, who can drill through the manual with the skill of a practical soldier, as well as the United States troops themselves. So, there is no conflict here between the Constitution and laws of the United States and those of Massachusetts. We are acting in exact conformity to those laws, and are in a condition to be called out whenever the United States want us to suppress insurrection, or to repel invasion. We are not acting in opposition to the authorities of the United States. We are a portion of the great national arm of defence. I believe I express the sentiments of every officer and every soldier in the volunteer militia of Massachusetts, when I say that they desire that the militia system shall be made as perfect as possible in the Constitution. Sir, I repeat what Judge Parker said in a former Convention, that we want a Constitution that shall be perfectly in obedience to the Constitution and laws of the United States; but we want a Constitution which will be perfect in itself, so that if we are obliged to cut ourselves asunder, if we are obliged to man our own boat, and go to sea on our own account, it shall be a perfect boat, a perfect Constitution, so that we can sail alone, if alone we should have to go, which I hope in God may never happen. It is true that some things are left in this constitutional provision which might have been left to the provisions of law, because we

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want a perfect Constitution, a perfect frame of government for ourselves.

Now, Sir, I respectfully submit, that if gentlemen will look to the Military Digest-and gentlemen will find it very good reading, by the by-I say if they will look at the digest of the laws upon the subject, they will find that it is prepared with a great deal of care to render it in exact conformity, so far as we can understand them, to the laws of the United States; and I never have heard in all the trials by courts-martial, in all the trials by law, where matters connected with the militia were made the subject of controversy, that any lawyer has ever raised a constitutional objection to our militia system. I have never heard that it has there been hinted that it was not in conformity with the Constitution and laws of the United States.

It is true that some change has been made from time to time, and changes from the nature of things must be made. The law provides that every man should provide himself with two spare flints. Well, Sir, flints are not now used at all, and it could not be expected, under the present state of things, that every man would be required to carry two spare flints in his pouch. Again, the laws provide that every man shall have an "espontoon." Well, Sir, I have never been able to discover exactly what an "espontoon" was, but I am sure no one would think of carrying that law into effect. Then other changes have been made to conform with the times, but not to place ourselves or our system in conflict with the laws of the United States. And I trust that what is provided in this Report will be granted to the volunteer militia. I hope they will at least receive this much regard from the Convention. The gentleman from Scituate, (Mr. James,) undertook to tell us that this is a subject of no consequence-that it is only to provide for the "mere militia." Well, Sir, the soldiers who fought at Bunker Hill were "mere militia," and that is precisely what the British said of them"mere militia !" The men who fought in the revolution and achieved our Independence were "mere militia," and I suppose the gentleman would say they were of no consequence. John Adams said that there were four things, any one of which would have led to the Revolution-our free schools, our congregational societies, our town meetings and our volunteer militia. Sir, that volunteer militia has once been the salvation of the country, and it is a salt, which, thank God, has not yet lost its savor in this city. Sir, I trust the gentleman will weigh his words well when he talks about leaving out of the Constitution this great right arm of our defence-the sword, the

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only emblem under which we have quiet, and says it is a question of "mere militia."

Now Sir, there is another change that this resolution makes, which I am glad to be reminded of. We have always had great difficulty in getting out officers, among us, who were incompetent to discharge their duties. We have had difficulty among us in this respect, as well as they have had among the clergy. [Laughter.]

A MEMBER. Yes, and among the lawyers, too. Mr. BUTLER. Well, all three were life officers, but the great difficulty with the military was that we could not vote them out. They, were commissioned for life and there they would stick, and there was no way of getting rid of them, until they became tired of it, and resigned. Now, we propose to commission them for three years, the same length of time for which you appoint many of your civil officers. We propose to remodel the institution so that these incompetent officers shall not remain an incubus and a clog upon us, and when we propose these changes are we to be met with the remark of "Oh, this is the mere militia?"

Mr. JAMES, of South Scituate. I ask the gentleman to allow me to correct him. I did not make use of the expression "mere militia" at all. I said that the militia were well provided for in the Constitution as it now stands, and that the legislature could, in my opinion, supply the remedy for any of the evils which may exist in the system.

Mr. BUTLER. Well, Sir, I suppose I am bound to take the gentleman's explanation, but at the same time I am bound to defend my own ears. [Laughter.] My ears tell me that the gentleman spoke of this matter as a question of the "mere militia." The gentleman says he did not make use of that expression, and as I can settle the difficulty better with my own ears than with the gentleman, in case of a contradiction between them, I shall take it for granted that he is right and they are wrong. [Renewed laughter.] All I ask, is, that this part of the Commonwealththis minor and unimportant part of the Commonwealth, if it be such-shall be fairly considered in the revision of our Constitution. These resolutions have been drawn up with a good deal of care. I have examined them as far as I could, and they commend themselves to my judgment. I have not examined them as thoroughly as I ought to have done, but with what examination I have been able to give them, they will command my vote, and I trust that the Convention will at least give us these three great reforms in our militia system. And, in addition to this, I think it well that it should be seen that the militia is recog

[June 22d.

nized as a part of the Constitution and fundamental law of the land. The militia is at least entitled to this amount of consideration.

I did not intend to have spoken upon this question at all, but it seemed to me that we were about to pass upon it upon the mere consideration of how much paper the Constitution should be printed on, or of how much space the provisions in reference to this subject, shall occupy.

Now, Sir, there are three questions which I think we should ask ourselves, before we vote down this Report.

First. Will you vote that the militia shall stand, in this State, on the "Caleb Strong" doctrine? Are you ready to vote for that? Because if you are, I should like to see the man who believes in the Caleb Strong doctrine. I thought that race of men had about passed away from the Commonwealth of Massachusetts.

Second. Are you ready to say that the legislature shall put a major-general over your militia who knows about as much of his duty as a general I heard of, who, when he came into the field says, "this regiment kivers a good deal of ground," [laughter,] and that was all he could say ?

The next thing which I desire to ask is, "Are you ready to vote to retain in your Constitution the life tenure of your militia officers and of your judges, for they now stand together in your Constitution? The tenure of your judges and of your militia officers are precisely alike, and they are the only two things in your Constitution which we are to be afflicted with during the natural life of man.

These are the three things which I understand this resolution proposes to change, and upon which I have hastily and crudely, as you all see, given you the result of my reflections. I will only add, that I hope the Convention will adopt these resolutions.

Mr. MORTON, of Quincy. I do not wish to be pertinacious, but I do believe we have heard enough upon this subject. I am perfectly satisfied that there are not ten men in the Convention who care a copper one way or the other, whether the resolutions are adopted or not. I hope, however, that the Convention will adopt them, and that we shall not permit them to consume any more of our time. I move the previous question.

Mr. SCHOULER, of Boston. I think it is hardly fair to move the previous question just at this time. It is true that it has got to be pretty late in the afternoon, and gentlemen may be wanting to go home in the cars, [laughter,] but I appeal, nevertheless, to the gentleman, to withdraw his motion. There were some things said

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MORTON SCHOULER- Oliver.

by the gentleman from Lowell, (Mr. Butler,) which I think ought to be answered, and which I think could be answered in a very short time. I do not wish to make a long speech. I think I can say all I wish to say, before half past four o'clock, and there would then be time enough for our friends to go home in the cars. I think the gentleman from Lowell has either misunderstood the Constitution, or that he has given a rather doubtful construction to some of its provisions. He is either very much mistaken or I am. I hope, therefore, the gentleman will withdraw his motion for the previous question, for a moment.

Mr. MORTON, of Quincy. I am very anxious to accommodate the gentleman from Boston, as well as to hear his speech. I will withdraw the motion, asking the gentleman to renew it as soon as he has concluded his remarks.

Mr. SCHOULER. Well, Sir, I understand the gentleman withdraws his motion for me then. The gentleman from Lowell advocates these resolutions in the first place, because if we re tain the provisions as they now stand in the Constitution, we keep in operation the "Caleb Strong" doctrine. Well, Sir, I am not going into any definition of what the Caleb Strong doctrine is, but I will say that if we adopt the resolutions as reported by the Committee, I do not see how they will conflict with that doctrine. We had a speech from the chairman of this Committee, (Mr. Oliver,) this morning, saying that the men who enlisted in this Commonwealth, and who were commissioned in this Commonwealth, were taken into the United States army and went to Mexico under requisition from congress; and that is the operation of the Caleb Strong doctrine under our existing Constitution.

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now appointed by the legislature, I think generally in consequence of his being the senior in rank. He is a man who has been elected brigadier-general, and who has come up through all the lower grades of office, and if the legislature have appointed a man who could not say anything but

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this regiment kivers a good deal of ground, they have appointed just such a man as has been elected to fill the office of brigadier-general, which is one of quite as much importance so far as the duties are concerned.

Mr. OLIVER. These officers rise in a regular line of succession. The captains are made majors, the majors are made lieutenant-colonels, the lieutenant-colonels are made colonels, and so on in regular succession.

Mr. SCHOULER. Well, Sir, suppose a man is elected a lieutenant, he receives the endorsement of his company, then when he is elected captain, he again receives the endorsement o his company; when he is elected major, we have the endorsement of all the commissioned officers in the regiment. We have the endorsement of all those officers again when he is elected lieutenantcolonel, again when he is elected colonel, again when he is elected brigadier-general, and when a man has received all these endorsements, it seems to me the legislature cannot go far out of the way when they m ke him major-general.

But, again, under this resolution only the people of a portion of the State can elect the majorgeneral. Now if the time should come when the militia of the Commonwealth should be called into actual service, I want to know why Berkshire, or Barnstable, or any of the other counties, which have no militia should not have a voice in the appointment of the major-general who is to command the forces of the State? I think every portion of the State should have a voice in that election.

I think, therefore, that part of his objection falls to the ground. The gentleman from Lowell, (Mr. Butler,) in his zeal for the militia upset his own doctrine. He told us in what fine condition the militia were, and that we had several compa

The next objection which I understood the gentleman from Lowell to make, was, that the officers were elected for life. Now, Sir, I should like that gentleman to point to the clause of the Constitution which provides that the major-generals shall be elected for life. There is nothing in the Constitution in relation to the appointment of these officers, except to provide that they "shall be appointed by the Senate and House of Rep-nies in Boston and Lowell, and in this I quite resentatives, each having a negative upon the other, and be commissioned by the governor." That is all it says upon the subject, and if they are appointed for life it is in pursuance of some provision of law which the legislature can alter whenever they please. Whenever it shall seem expedient to them to have the major-generals appointed for a term of three years, or for any term of years, they can so provide.

The gentleman also spoke about the character of the major-general. Well, Sir, that officer is

agree with him, that are equal in point of drill and in all military tactics, to the United States troops. But why, in this very Constitution which we are now about amending will you incorporate these things which, as I think, are so objectionable. I think it is much better, that we should elect major-generals by the legislature, where the whole people of the Commonwealth are represented, because the militia of the State in active service are to come under their control. We should not allow a few men in Boston, Low

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ell, and half a dozen other places, to elect the whole from beginning to end, corporals, lieutenants, captains, colonels, majors, brigadier-generals and major-generals, and thereby to control the whole militia of the State. I trust that this Convention will never submit to any such policy as that. The gentleman who moved the previous question, stated that there were three hundred men in this Convention who did not care a fig about this matter one way or the other. My friend from Cambridge says, that is true. I am sorry that it is so, but I cannot dispute it, where there are two witnesses to substantiate the fact. The third objection I make is, that major-generals are elected for life.

Mr. OLIVER, of Lawrence. The gentleman from Boston in making the argument he does is supposed to make it upon an entire knowledge of the facts about which he speaks. Without any intention of casting any reflection upon him in the least, I should like to ask him where that proviso is in regard to which he speaks with so much certainty, that major-generals are elected for life.

Mr. SCHOULER. I am very sorry that the gentleman from Lawrence, did not hear the gentleman from Lowell, (Mr. Butler,) who said that the Constitution provided that they should be elected for life. I have been arguing that there is nothing in the Constitution which says that they shall be elected for life. It says that they shall be elected by the legislature. I say that you submit this thing to the people of the Commonwealth with the other amendments which we will adopt, and it will produce great confusion. We should guard against submitting to the people a great pile of amendments, many of them of no consequence whatever. I say that we can organize the militia under the Constitution as it now stands as well as we can under these fifteen resolves contained in this Report. I have not counted the the words in them, but I have looked at the articles. The gentleman from Lowell said that the Report of the Committee would be much shorter than the present provision of the Constitution in regard to this subject. I take issue with him upon that matter. The whole subject of the militia is contained in the seventh article of the Constitution, and one small article besides, and I say that they are not half so long as this Report. We have grown up under this system and we know what it is. Our laws have been made to conform to it, and we have got a body of militia laws and a Constitution, which are now well understood by the people. If we adopt this Report, we shall have to begin legislation anew upon this subject. If we let the Constitution remain just

it is, and the laws just as they are, we have as

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perfect a system as it is possible for us to have; and there is no more need of altering the Constitution upon this question and the laws in regard to it, than there is for the gentleman to jump out of the window to get down stairs, instead of going down the proper way. It is merely piling amendment upon amendment, and making confusion worse confounded, sending forth amendments to the people which they care nothing about.

Mr. OLIVER, of Lawrence. I am exceedingly sorry to be called upon to say one single word in defence of the Report of this Committee; and were it not for the severity of remark in which the gentleman has indulged, I should not open my mouth in connection with this question. When I hear such assertions as the gentleman has made—with all due respect and deference to him-I must say a word or two in defence of the Report which has been presented by the Committee. I believe my friend's connection with the militia was very brief indeed, not extending over a long period of time.

Mr. SCHOULER. About ten years.

Mr. OLIVER. During one of the last years of which he was in commission

Mr. SCHOULER. I was in commission six years.

Mr. OLIVER. That is not a very large slice out of a man's life. I do not wish this Report to go to the Convention under any false issues or inaccurate ideas. The main ground of the argument of my friend is, that we are hampering the Constitution with amendments. I beg leave to ask my friend, in all candor, if he has carefully compared the provisions of the Constitution as it now stands with the provisions which are presented by this Committee. I desire to ask him in all frankness, and request him to answer me in like manner, whether he really intends to be so understood by this Convention, when he states that this Committee have presented to the Convention a confused mass of amendments which nobody can understand, which would confuse the Convention and worse than confound the people.

Mr. SCHOULER. I do not suppose that I touched upon that point. I acknowledge the ability of the Committee and the intelligence of the Convention. I referred to a remark made by a gentleman in the course of debate, that there were not ten men in the State who cared anything about this matter. I say if you submit these things to the people, that a very large portion of them will not understand the amendments, and another portion will care nothing about them.

Mr. OLIVER. If the people can understand

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