As I said, Mr. Chairman, I hope this Report will be incorporated into, and become a part of the Constitution; and in reply to the remark of the gentleman upon my left, "that there were some who were opponents of this Convention," I answer that is true, unquestionably true, and I was one of those who opposed the calling of this Convention, the reasons for which I need not specify. I believe, if this Report, so vital to the interest of thousands in this Commonwealth, is not put into the Constitution, a great part of the doings of this Convention will be rejected by the people. On the other hand, I have no hesitancy in saying that if this Report is adopted and made a part of the Constitution, and the militia of this State see that it is regarded with some interest and that we have given it healthful and well defined laws for its guidance and protection in the fundamental law, five thousand votes in favor of the revision of the Constitution will be carried by those who were originally opposed to the calling of this Convention. I see a number of military men upon this floor, and I think I can answer for them as well as myself, that the military in general, are decidedly in favor of the amendment proposed by this Report, and will be gratified to sce that we have given them a place to stand upon. I hope, therefore, that the resolution will pass in the form in which it has been reported and recommended by the Committee, and that no change will be made in it. The experience and knowledge of the chairman of the Committee and other members of it, ought to give great weight to their recommendations; and I shall oppose all modification or amendment of their Report unless I shall hear some more convincing arguments than I have yet listened to.

Mr. BANKS. I will ask permission of the Committee to say a word or two in regard to the seventh paragraph of this resolve. It seems to me that, if the subject of the militia is to be embodied in the Constitution at all, so much of that organization as is covered by this article could not be better expressed, nor more safely limited than it is in the exact phraseology in which we now find it. If I concurred with my friend from Boston, over the way, (Mr. Hopkinson,) in believing that it infringed in the slightest degree upon the rights of this State as an independent State, or in any way extended the power of the federal executive, I might say that I would hesitate whether I would support it or not. If the gentleman will look at it-and I suppose I may speak upon that matter, as the question is upon the proviso, which naturally refers us to the other provisions of the resolve-if he will refer to the power of the federal executive over the

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[June 20th.

militia, he will see, not that he has absolute power over the troops of the State and can march them here and there according to his own arbitrary will, but that he is limited to the single power of calling out the troops to aid in the execution of the laws, to repel actual invasion, or what is nearly the same thing, in case of imminent danger of invasion; so that the only power which the federal executive has over the troops of the United States or of the State of Massachusetts, is to call them out under the circumstances to which I have just alluded. Sir, I think no gentleman would be disposed to deny this amount of military power to the president of the United States as commander-in-chief of the army and navy; and that is all the power that in this respect he has.

Now, what power has the executive of the State under this provision? He has exactly the same power in regard to the State that the president of the United States has in regard to the whole Union-not unlimited power, as the gentleman from Boston appears to imagine; but the language of that paragraph limits him in exactly the same way as the president of the United States is limited: He "shall have power to call out the same [the troops] to aid in the execution of the laws, to suppress insurrection, and repel invasion." That is the limit of his authority; and I ask, if any gentleman here would hesitate to give to the governor of the State this authority over the troops of the Commonwealth? It seems to me, that if any gentleman in this Convention were to study for the purpose of limiting in the fullest degree the power of the executive, that limitation could not be expressed in more precise terms than it is expressed in this article. I see, therefore, neither the danger nor the difficulty suggested by the gentleman from Boston.

Let me say one word in regard to the duties of the federal executive in this respect. What should the Constitution of this State recognize? It should recognize and conform to the truth. And what is the truth in regard to the power of the commander-in-chief over the troops of this State? We find it in the Constitution of the United States, in this matter certainly the supreme law. The president of the United States is commander-in-chief of the militia of the States when in the service of the United States. I ask is there a reason of any kind why this limitation should not be expressed in our Constitution? The gentleman from Walpole intimated that we should, as far as possible, make our Constitution independent of the Constitution of the United States. I concur in his opinion; but when we say that the governor shall be commander-in-chief, without limitation, we do not state the truth. The

Constitution of the United States declares, that when the militia is in the service of the United States the president of the United States, and not the governor of any State, shall be the commanderin-chief, and the amendment proposed provides that when the militia is not in the service of the federal government the governor shall be the commander-in-chief. That accords exactly with the fact, and therefore ought to be embodied in the Constitution.

Let me now say a word in regard to the amendment proposed by the gentleman from Essex. The proviso is of itself unnecessary, because, truly considered, every limitation of that proviso is in the article as it stands now. The governor is to have power to call out the troops "to suppress insurrection and repel invasion," and the proviso does not check him in one single part of these powers; nor do the terms of the proviso limit him in regard to this matter, should it be adopted. What then will be the result of its adoption? It will be to attach to the command of the troops of the State, a number of delicate, difficult, and embarrassing questions. Instead of having a commander who shall direct the troops according to his own judgment, who shall be responsible to the people at the end of his term, as he should, every man in the service of the Commonwealth is a commander, and upon every one of these limitations every man, so far as his own conduct and action is concerned, is equal, if not superior, to the governor himself. Let me ask the attention of the gentleman from Essex to this proviso:

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.

Who is to be the judge upon these many provisions and limitations? Upon whose discretion is ultimate action and responsibility to rest? Certainly every man under the command of the executive is the equal if not the superior of the commander-in-chief in a case like this, so far as his own conduct and action is concerned, either as regards the free and voluntary consent of the militia man, or the construction of legislative enactments.

Now, in regard to the third exception, their transportation, and again, as to the manner in which the troops shall reach another part of the State, who is to judge? Every private is to determine for himself; and I submit to my friend from Essex that this proviso is full of difficulties

[June 20th.

and provisos-that it is not and cannot be indispensable in our Constitution. Who is the gov

ernor of the Commonwealth? He is the officer elected by the people in the month of November; who, among other duties, is to command the militia of the Commonwealth, and who, in the month of November following, is to lay down his command. And, Sir, cannot we trust him and the people for a twelvemonth? If we can trust a man with the administration of our civil affairs for a twelvemonth, surely we can trust him and them with the military command of the State, for the same time. But if we seek to limit his command we ought to do so in such a manner as will lead to no misconstruction or doubt. And in this view, the addition of this proviso is not neces

sary.

The gentleman from Walpole, said we might be called upon to send troops to China or Mexico, and he asks who is to judge of the propriety of their going? The executive of the Commonwealth is to judge. The requisition is made upon him, and he is to determine whether the troops are to be called out, and whether the contingency upon which the requisition is based, is among those in which the Constitution gives the president power; and if he refuse, that refusal shall be passed upon immediately by the people of the Commonwealth. Suppose the executive at Washington should notify the governor of Massachusetts to furnish troops. We all know that the limitation of the power of the president of the United States, in this respect, is that he may call upon the States for troops to suppress insurrection, to repel actual invasion, or in case of imminent danger of invasion; and this is the full extent of the militia power which he has. And so with regard to our own executive. His power is limited in exactly the same way, and exactly to the same extent. It is to aid in the execution of the laws; to suppress insurrection and repel invasion. Does the gentleman from Walpole, or the gentleman from Essex, or the gentleman from Boston object to that? It seems to me that the limitation is as clear, as positive, as direct, as any member of the Convention can desire; and therefore I think it should be adopted without the amendment proposed either by the gentleman from Boston or the gentleman from Essex.

One word now in regard to the amendment suggested by the gentleman from Boston, on my right, (Mr. Hopkinson). He says that if the troops of the State are at any time to be called into the service of the United States, the governor of the Commonwealth should go with them. Most assuredly he will not press such a propo

sition as that in the Convention. Suppose a regiment or battalion should be called into the service of the United States

Mr. HOPKINSON. The proposition is not that the governor ought to go with them, but that the legislature should have the power to say whether he should.

Mr. BANKS. Sir, the legislature may give that power, or the governor may take it. He may resign his office as governor, and take a commission as a colonel, or a command of more or less dignity. Let him, if it be necessary, or if he desires military glory, resign his place at home and take the field against the enemy here or abroad. But no such necessity will occur. There are plenty of men in the Commonwealth who are capable of commanding a regiment or a battalion; plenty of men who can command a division, if need be; and there is no necessity of degrading the office and dignity of the commander-in-chief -the supreme executive of this Commonwealthby sending him into another Commonwealth to suppress insurrection or repel invasion. There is no necessity for either of these changes-certainly not for the change proposed by the gentleman from Boston, and I trust that the Convention will not assent to such an arrangement.

Let me say one word now in regard to the necessity of a militia. This necessity arises from many causes; and even before the hands of that clock should indicate the hour of six, peaceful and undisturbed as everything seems now to be, their services might be required in any city or town of the Commonwealth. A militia is useful for many purposes. Take the case of a city or village on fire, by night or by day; there may be in such case, a necessity for instant organization, outside of existing fire departments, in order to protect both property and life. Where is an organization that, in an instant, can be brought out for such a purpose, except it be found in the militia. You may not have the power to bring them out by law in such case, but there is the skeleton of the organization all ready at the tap of the drum; men knowing their commander, knowing each other, disciplined for service, and capable of rendering instant as well as efficient aid, not to be attained by other means. So in the case of riot. What has occurred in the city of Boston? What occurred a few years ago in the city of New York? in the city of Baltimore? and more lately in Montreal? Every municipal corporation may find itself in this position; unable to meet these emergencies on the instant, except by means of military organizations. But I did not mean to say anything, Mr. Chairman, on this subject. I am not acquainted with the details of military

[June 20th.

| matters, and personally have no pride in them; but I have always regarded such organizations as being not only useful, but necessary for the wellbeing of society-more peculiarly so in the United States, perhaps, than in any other country. They are provided for in the Constitution, and it is necessary that we should either strike out of that instrument all the provisions relating to them, or from time to time to make such provisions as may be necessary for their regulation. And I think the limitation of executive power cannot be better expressed than it is in the seventh paragraph of this resolve.

Mr. BRIGGS, of Pittsfield. I can hardly perceive the object of this amendment, but from the current of remarks of gentlemen who have preceded me, I infer that the amendment to insert the proviso was offered because it was thought to be a necessary limitation of the powers of the governor which would be conferred upon him by the Constitution, if this seventh section should be incorporated into it. Now, Sir, if such is the case, I concur with the gentleman who has just taken his seat, in the belief that it is entirely unnecessary. That provision of the Constitution both prescribes and limits the power of the gov ernor, and without it what power would he have over the militia? That is the granting authority, and the authority it confers is limited by clear and explicit terms, defining the purposes and occasions on which the governor may call out the militia. And what are they? To execute the laws. What laws? The laws of the Commonwealth. To suppress insurrection. What insurrection? Insurrections within our own midst. To repel invasion. Invasions of what? Invasions of this Commonwealth. Well, Sir, under that power, and that grant of power, may the governor of Massachusetts order the militia of Massachusetts to go into the western part of New York to repel an invasion from Canada into the State of New York? Is there any one here who believes that there is a color of authority for saying that the power is conferred for any such purpose? Why, Sir, that is all the limitation there is upon the president of the United States. There is no limitation upon his power except such as is contained in the words she shall be the commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." But the Constitution confers power upon congress in this respect, and what is it? 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, and to call them forth to exe

cute the laws, suppress insurrections, and repel invasions. These are the objects for which congress may provide for calling forth the militia, and all the power of the federal government has not authority to call forth the militia of the States for any other purpose whatever. There is no further limitation upon that power. Now, when that same language is applied to the governor of Massachusetts within the State of Massachusetts, can any one suppose that any governor would be so mad as to assume the authority of taking the militia of the State of Massachusetts out of the State, upon some Quixotic expedition ?

It seems to me that the adoption of this proviso is entirely unnecessary. I agree with the gentleman who last addressed the Committee, (Mr. Banks,) that the language is clear, definite, and unmistakable, and I would not encumber it with another word.

I do not know but it would have been well, had my friend from Lawrence, (Mr. Oilver,) embodied in this Report those matters which he referred to as being left for the legislature to act upon. But it is probably best as it is, for the Committee have looked into the whole matter, and under the direction of one, allow me to say, who is no novice in these matters, and I have no doubt the provisions of the Report are very carefully and cautiously guarded, more prudently arranged, and more wisely fixed, than they would be were they left to the action and control of any legislature. If the subject were referred to the legislature, without any restriction upon them, it would be a mere accident, if any man should be found in it who had the ability and the disposition to give to it the thought and attention which has been bestowed upon it by this Committee. I hope, therefore, that we shall adopt as the provisions of the Constitution upon this subject, the Report of the Committee.

I am no military man, and I have none of the military spirit about me. I believe if there are any peace men, I am one of the number. Yet I would desire to have the militia of Massachusetts organized in the most perfect manner. I would have it with them, as it was said at a military dinner, in the State of New York, where a newfledged militia captain gave a sentiment, and in the presence of old General Root. "I give you," said he, "the Militia of New Yorkthey never want," and there he paused, and General Root promptly finished the sentiment with the words "and never be wanted." [Laughter.] Now, that is my wish in regard to the militia of Massachusetts. But among frail human beings, subject to passions and the impulses of excitement, reason sometimes will lose her control, and the

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[June 20th.

language of the law will be impotent, and the proclamations of your chief magistrates powerless, unless the law and the proclamation has behind something to enforce their behests, and that something, in this free country must be the soldiery organized by its citizens.

I have frequently felt, and have often expressed my feelings, that it is lamentable to witness the change which has taken place in the public mind within a few years upon this subject. Perhaps the almost uninterrupted course of peace and prosperity which has attended us since we united ourselves into a "more perfect union" may, to some extent, have caused it. Look back into the messages of the governors of your different States, and into the messages of the presidents of the United States, and what do you find? You always find them commending the citizen-soldier militia, as the only authority to be relied upon to execute the laws, suppress insurrection, and repel invasions, and as Jefferson said, to be relied upon in the first moments of war. But this old doctrine has become stale, and the militia is looked upon as a show, a puppet exhibition. These warm and ardent young men, who have been willing to spend their time and money in equiping and organizing themselves, instead of being encouraged as they ought to be, have been neglected and overlooked, and given over to the multitude, who gather around to make them the butt of their ridicule. Encourage these young do everything to make their position respectable, let them feel that they are the arm, under Providence, upon which the State must rely in time of trouble and alarm.

men,

The chief magistrate of this city told me a few years ago of an incident which occurred at a time when there was great excitement here and in the neighborhood, in consequence of the announcement that a citizen of Boston had disappeared very suddenly, and that his remains had been disposed of in a neighboring building. The public heart was deeply affected, and strong intimations were given that when the darkness of the night should come over the city, that building would be levelled to the ground. The magistrate gave notice to these faithful sentinels, the citizen soldiers, to be upon their arms, at the old cradle of liberty, for it might be necessary to call upon them during the night. There they assembled and remained, and during the whole night, from setting to rising sun, messages passed between him, and those faithful guardians of the public interest. He told me that one of the men who were to have taken the lead in demolishing that building, declared that nothing prevented the outbreak but the fact that they were informed of

Monday,]

[June 20th.

Such occasions, thanks to a kind Providence, have not often occurred, and I hope will not often occur. But they are possible, and even probable, in the course of human affairs, and under the influence of human passions, and when they do occur what is there to fall back upon? Nothing but the militia. Sir, when there is an uprising of the people, through any great excitement, and danger is threatened there, milita men are our only support. Let the multitude hear the beat of their drum, the sound of their fife, and see their glittering bayonets, and they see the emblems of the power of the magistrate which will be brought to bear upon them in case of violence.

Now, Sir, so long as man is man, and government is government, until the millenium comes, these things will happen in human governments, and it is the part of wisdom to guard against them. I would then insert in the Constitution these resolves, and thereby give them the form and solemnity of that instrument, and give them a place where they will command respect.

Mr. KEYES, for Abington. I find I shall have to be very careful in my remarks upon this, to me, very delicate subject, for I have made several attempts in the way of speaking upon it, and, to use a common phrase, always "got my foot in it."

But I am constrained to make another attempt, influenced mainly by the remarks of the gentleman behind me, who says that unless the Constitution does contain "something" substantially like these resolutions upon this subject, it will be opposed by the military. Well, the Constitution does contain considerable, and these peculiar friends of the militia propose to strike out a main portion of it.

So far as I can see any force in the arguments of the honorable President of the Convention, (Mr. Banks,) and the gentleman from Pittsfield, (Mr. Briggs,) it seems to me that there can be no objection to putting this proviso into the new Constitution, on the ground that it can do no harm; as the gentlemen say that the limit of power is just as well fixed by the seventh proposed amendment, as it would be were this proviso inserted. Now that depends very much upon the man who may chance to be governor, and upon the prevailing sentiment of the day, at the time it may be called into exercise. This section says that the governor shall have power to call out the militia to aid in the execution of the laws. What laws? To execute the fugitive slave law in Maryland? To suppress insurrections. Where? In Virginia? To repel inva

Now, Sir, I suppose the meaning of this resolution may be all right, because I have great confidence not only in the military, but in the general good judgment of the gentlemen who framed this bill. But I suppose that the gentleman who last spoke, (Mr. Briggs,) recollects the circumstance when a governor of the Commonwealth, if he did not exactly order the troops of Massachusetts, did urgently invite them to go some distance, viz., to Mexico. [Laughter.] I know he was charged with it. [Laughter.] Here is that invitation; if there is anything in this document against the said governor, (Briggs,) I do not want to read it. [Laughter.]

Mr. BRIGGS. What is it?

Mr. KEYES. It is your proclamation when governor.

Mr. BRIGGS. Read on.
Mr. KEYES. It says:-

"To the People of Massachusetts:

"An Act of Congress passed on the thirteenth day of May instant, declares that by an Act of the Republic of Mexico, a state of war exists between that government and the United States,' and said Act' authorizes the President to employ the militia, the naval and military forces of the United States, and to call for and accept the services of any number of volunteers not exceeding fifty thousand, who may offer their services.'

"In pursuance of the provisions of that Act, I have received from the Secretary of War a communication dated the 19th instant, in which he says: On the part of the President, I have to request your Excellency to cause to be enrolled and held in readiness for muster into the service of the United States, ONE REGIMENT OF INFANTRY.'

"Whatever may be the difference of opinion as to the origin or necessity of the war, the constitutional authorities of the country have declared that war with a foreign country actually exists.

"It is alike the dictate of patriotism and humanity that every means honorable to ourselves and just to our enemy, should be employed to bring said war to a speedy and successful termination,' and thus to alleviate its calamities, and save the sacrifice of human life, and the wasting of the public treasure.

"A prompt and energetic co-operation of the whole people in the use of those means is eminently calculated to produce that most desirable

result.

"To that end I call upon the citizen-soldiers of Massachusetts at once to enroll themselves in sufficient numbers to meet this request of the President of the United States, and to hold themselves in readiness to be mustered into the service of the Republic, when the exigencies of the country shall require it.