him from doing military service, if he desires it. It seems that colored citizens were permitted in the war of the Revolution, as well as in the war of 1812, to serve their country, and share the dangers of the battle field, and I can see no reason why they should not be allowed to share a little of the fun and pleasure of a military display at the present time. I understand that on several occasions applications have been made by colored persons for commissions to act as a military company, that they might parade and march and review, and enjoy themselves as do the other military companies of our State, and I think it is unjust that they were refused. I believe that the colored citizens of Massachusetts should be permitted to enjoy the same rights and privileges that we ourselves enjoy, and if they desire it, should be allowed to carry out their patriotism, as all good citizens of the Commonwealth ought to do.

Mr. WILSON, of Natick, moved to amend the Report by striking out all after the word "That," in the first line, down to the word "inasmuch," in the fifth line.

Mr. BRADFORD, of Essex. If I understand the motion of the gentleman from Natick, it is not to amend the Report in anything which the Committee have recommended as the proper action of the Convention, but merely in relation to the statement of the grounds of their opinion. It seems to me, however, that it would be hardly proper to strike out the very matter which constitutes the grounds of the opinion upon which the Report is founded.

Mr. WILSON. I would say to the gentleman that I agree with the Report of the Committee, that we take no further action upon this subject, but I do not like the reasons which are given for that Report, and desire to change them. Now, what does the Report say? That in the opinion of the Committee this Convention cannot incorporate into the Constitution any provision which shall conflict with the Constitution of the United States, and they cannot therefore act in accordance with the request of the petitioners.

The laws of the United States require the enrolment of able bodied white men, between the ages of eighteen and forty-five, but the Committee, after making this statement, go on and say that the volunteer system of Massachusetts does not come within the contemplation of the Constitution of the United States, and that in the law governing this system, no reference whatever is made to color; and that it is competent for the governor or commander-in-chief to authorize such companies to be commissioned as he sees fit. I am willing to leave the matter there, but I do

think it is necessary that we should retain this phrase as a reason for the Report. I therefore hope that it will be stricken out.

Mr. CHURCHILL, of Milton. As the chairman of the Committee who submitted this Report is not in his seat, and being a member of the Committee myself, I will say that I do not know that there is any very serious objection to the striking out of a part of the reasons for the Report in the manner proposed by the gentleman from Natick. It is simply an abstract proposition, and although it is abstract in its nature, I suppose it will receive the assent of the members of the Convention. It will be conceded by every gentleman that if any proposition is embodied in the Constitution of this Commonwealth which comes in conflict with the Constitution of the United States it will be a mere nullity, inasmuch as the Constitution and laws of the United States would supercede and override it.

I will briefly state the reasons, as I understand them, why the Committee made this Report. A petition was presented to this body from a part of the colored citizens of the Commonwealth asking for leave to be enrolled in the militia and hold commissions therein. The militia of the various States of the Union, is, according to the Constitution of the United States, a United States institution. The Constitution of the United States grants to congress the power of organizing the militia; congress has acted under that power and has provided that none but able bodied white citizens shall be enrolled in that body. So that if the militia of the State of Massachusetts is intended to conform strictly to the provision of the Constitution, and to be a United States institution, none but white citizens are entitled to be enrolled in it. Massachusetts would therefore have no right to allow her colored citizens to form a part of the militia which the United States creates, within the limits of the State. But if the State chooses to enrol a separate and distinct militia of its own, and embrace within it her colored citizens, that is another matter, confined entirely to its own jurisdiction. I have no objection, however, and I do not know that the rest of the Committee have any to striking out from the Report the sentence to which the gentleman from Natick refers.

Mr. BRIGGS, of Pittsfield. I believe, Sir, that in the Constitution and the laws of Massachusetts there is no provision prohibiting any man on account of his color from holding any office whatever in the State, and I confess I should be sorry to see any provision of that kind in our Constitution. To avoid all the controversy which may arise upon the various questions, however, I

Wednesday,]

would suggest to the gentleman to amend the Report of the Committee by striking out all after the word "report" in the first line until you come to the word "that," in the last line, so that it will read, the Committee report that in their opinion it is inexpedient for the Convention to act thereon.

It seems to me that, under our present voluntary system, every colored man in the State of Massachusetts, or all colored men, if they choose, have a right to organize themselves into a military company, select their own officers, and be as regularly entitled to their pay and equipments as any other military organization of the State; and any person of that race would, in my opinion, be as eligible to the office of major-general or any other office in the militia as a white man; so that, in fact, there is nothing to debar the colored person from receiving all the civil and political rights that are possessed by every other citizen of Massachusetts. That, I believe is the fact, and it is one of which Massachusetts may well be proud. We ought to know no distinction of color here in civil or political rights.

Mr. BANKS, of Waltham. It seems to me that the amendment proposed by the gentleman from Pittsfield, and also the amendment of the gentleman from Natick, does not correspond with the facts in the case. The petitioners do not ask to be commissioned as a company of militia of the Commonwealth.

The CHAIRMAN. The Chair does not understand the gentleman from Pittsfield as having proposed any amendment.

Mr. BANKS. The gentleman from Pittsfield suggested an amendment, and the gentleman from Natick, (Mr. Wilson,) moved one. Neither of the propositions however correspond with the fact.

Mr. BRIGGS, of Pittsfield. If the gentleman from Waltham will give way for a moment I would like to correct a statement which I made. In speaking of the law in regard to the militia of the Commonwealth I find that I labored under a mistake in supposing that colored persons were entitled to the same military privileges which belong to the white population. On looking at the law, a copy of which has been placed in my hands, I perceive that it provides specially that every able bodied white male citizen, between the ages of eighteen and forty-five, shall be enrolled in the militia of the State.

Mr. BANKS. I was about to say that this Report involves a question somewhat different from that which has been alluded to. The petition which I hold in my hand is from persons who ask that there shall be a change made in the Con

[June 22d.

stitution in reference to this matter. The petitioners ask that no person may be forbidden or prevented on account of his color from serving or holding office in the militia, that is, that part of the military organization of the United States which is regulated by the law of Congress; and that law recites the words which the gentleman from Pittsfield has repeated, that every able bodied white male citizen shall be enrolled in the militia. Now, in my opinion, it is impossible for us so to provide in the Constitution of Massachusetts, that every able bodied citizen, irrrespective of color, shall be admitted into the militia of the State, as is desired by these petitioners, for it would be in direct contravention of the Constitution of the United States. It must be understood however, that there is a distinction between the militia of the United States and the militia of Massachusetts. In regard to one we may take such action as we please, but in considering the other we must confine ourselves strictly to the provisions of the Constitution of the United States.

Mr. WILSON. I have no objection to the amendment of the gentleman from Pittsfield as I think the simple Report is sufficient. I do not believe we can incorporate into the Constitution of Massachusetts any provision which will in any way conflict with the Constitution of the Union, but I do say that in the voluntary system of this State there is no such restriction made on account of color, and ought not to be.

Mr. KEYES, for Abington. It appeared to me that this was a matter of no great consequence until the gentleman from Pittsfield stated a fact which seems to have obtained quite generally. It has been apparently taken for granted on all sides that the laws of Massachusetts did not prevent the enlistment in the militia, of colored persons. But it appears that the law does forbid it. and from my own personal experience I know it to be a matter of fact, that companies of colored persons have petitioned for commissions, that they might form an independent organization, and they have been refused over and over again. Now, according to the remarks of the gentleman, if these petitioners had been admitted into the service of the militia, they could not be under a national organization, but only so far as the State is concerned. I cannot therefore see why, if the Committee have rejected the petition they should not give the reasons for so doing. It seems to me by rejecting it you say to them substantially you shall not be organized into the militia. The expediency of granting their petition is one thing, I think, and the right is another. But I do not consider it of any great consequence either to

Wednesday,]

SPOONER

[June 22d.

The question was then taken on the adoption of the amendment of Mr. Wilson, of Natick, and it was decided in the negative.

So the amendment was not adopted.

Mr. SPOONER, of Warwick. I do not propose to offer an amendment myself, but as the Committee have rejected the amendment of the gentleman from Natick, I will suggest one having reference somewhat to another subject under discussion, and if it is appropriate, it may be proposed by some other gentleman. It reads as follows:

Inasmuch as the government of the United States is not based upon population-the only true basis in any free government-and inasmuch as it is our duty in all possible ways to counteract the influence and authority, of any government not thus founded, and founded in wrong and injustice, therefore that the prayer of the petitioners ought to be granted.

Now I think, according to the argument of gentlemen, particularly from Boston and the immediate vicinity, upon the question of representation, which has been before the Committee of the Whole, that from the fact that a government is founded upon anything else than population, it must be founded in wrong and injustice. Hence it becomes every man to counteract the influence and authority of that government in every possible way and manner. Now I will suggest to the gentlemen from Boston who have addressed the Committee upon the question of representation, that they should use their influence to have the Report amended something in accordance with my motion.

Mr. WILSON moved that the Committee rise and report the resolve to the Convention.

Mr. WHITNEY, of Boylston. Before the Committee rise, if the gentleman will withdraw his motion, I would like to offer an amendment. Mr. WILSON. I will withdraw it.

Mr. WHITNEY. I move to amend the Report of the Standing Committee, by inserting after the words "just named," in the last line but one, the following: "But no distinction shall ever be made in the enrolment of persons to serve in the volunteer militia of Massachusetts, on account of difference of race."

Mr. WILSON. It appears to me that the gentleman could attain his object much better by offering his amendment in the form of a resolution at the conclusion of the Report.

Mr. WHITNEY. I should like to have this

seems to me that we ought to say whether we will protect this portion of our citizens or not. And I moreover think it should be expressly and distinctly provided that the colored citizens may be permitted to serve in the volunteer militia of the State if they desire to do so.

Mr. KEYES, for Abington. I begin to think, Sir, that some provision of this kind might very properly be incorporated in the Constitution, not that I think it will at all benefit the militia, or have any particular effect upon it, because being a voluntary system entirely, such persons only are admitted by the company which is formed as they may select, and none others-but, theoretically speaking, it strikes me it is very important that we should not recognize any difference in color or race so far as regards the military. The system which is at present established, was adopted in obedience to the slave power of the United States, in obedience to the congress which was itself controlled and governed by the slave power of the South, and it is an insult to Massachusetts, and to all free States, whose Constitutions declare that negroes as well as white men are entitled to privileges as citizens. In the Southern States, it would be very proper that such a provision should exist, but inasmuch as we recognize negroes as voters, and citizens, it seems to me that it is here the very opposite, and that we ought to have a provision in our Constitution, which will give this class of persons the same privileges that we ourselves enjoy.

Now, I am not for following the dictation, or surrendering to those ideas that have come from another generation. I contend that if our laws contain any such provision, they contain it, because we have submitted to another authority which did not belong here at all, and with which we had nothing to do. If these colored people are citizens of Massachusetts, why, I ask, should they be prohibited from forming military companies, or why should our Constitution or our laws indicate that they have recognized any such difference, as must have been remarked by every person? If the militia were involuntary, if they were compelled by law to form companies and attend trainings, &c., there might be objections among the military to such a course, because, notwithstanding all that was said the other day in regard to the patriotism of our soldiers, they have a considerable degree of feeling in these matters. I recollect that during the short period when I belonged to the militia of Massachusetts, the principal act of my service was the disbanding of six military companies, here in this city, because they refused to stand on parade with an Irish company.

Wednesday,]

[June 22d.

nays.

Mr. BOUTWELL, for Berlin. It may be, Sir, that the view which I take of this matter is incorrect, inasmuch as I have not had any considerable opportunity to examine the subject. But, presented as it is, by the gentleman from Natick, and under the solemnity of a recorded individual vote, I think it of some importance that we examine the subject, so as to understand the nature of the vote we are to give. I may be mistaken, Sir, but, if I comprehend this proposition, it is directly in conflict with a law of the United States based upon the Constitution of the Union. In the first place, the Constitution of the United States in reference to the militia, declares that "The congress shall have power 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, reserving to the States, respectively, the appointment of the officers and the training the militia according to the discipline prescribed by congress." Now then, Sir, I think that the use of these three words, " arming," "organizing," and "disciplining" the militia, is equivalent to defining who and what shall constitute the militia of the country. If it is not, I do not know how the militia of the country can be defined. Therefore, I say, that if the Constitution has given to congress the power of defining what the militia of the country shall be, and if congress has the power so to define what the militia of the country shall be, it has the power to define what the militia of each State in the Union shall be. And, if I am correct in the definition of that power, I come next to the inquiry what the congress of the United States has done in regard to this matter. I find that, by an Act of May 8th, 1792, it is provided, that "every free, ablebodied, white male citizen of the United States, between the ages of eighteen and forty-five years, shall be enrolled in the militia of the United States."

Now, Sir, it appears to me, that the congress of the United States has, by this Act, explicitly declared, that none other than free, able-bodied, white male citizens of the United States, between the ages of eighteen and of forty-five years, shall be enrolled in the militia. What is the proposition of the gentleman from Natick? It is that other men, not answering, in any particular, to the description contained in this law of the United

Constitution of the Union, shall be enrolled in the militia of Massachusetts, to become an integral part of the militia of this Union, bound, in all respects, to conform to the requirements of the laws of the United States. For if it is in the power of Massachusetts, either by Convention or through a legislative Act, to determine that the militia of this State shall not be, in all particulars, in conformity with the militia of the Union, then every other State has the same power, and the result will be, that, instead of having a homogeneous militia, which the Constitution of the country contemplates, we shall have one that is the very reverse.

Sir, I cannot agree that we shall take upon ourselves the exercise of a power which the Constitution of the United States did not contemplate. It is not at all necessary that we should go into an inquiry, as to whether this provision of the Constitution of the United States is right or not. We all have our individual opinions in regard to that matter, but we are not here, I take it, to express those opinions, much less to act upon them. I do not know but I may be wrong in the view that I take, but it certainly appears to me to be the just and proper view. And, if I am right, I certainly can do no otherwise than vote against the proposition of the gentleman from Natick.

Mr. KEYES, for Abington. I believe the State Rights doctrine has always been that Massachusetts and the other States retained all the powers which they did not grant to the general government, and which are not enumerated in the Constitution of the United States, but I do not know that it is declared in that instrument, anywhere, that Massachusetts shall not have a militia for herself if she wants it. Now, Sir, it strikes me that that doctrine is plain enough for State Rights men to act upon, even though it may be reasoned out of existence by acute politicians who may desire to subserve some particular purpose of their own. I have found it to be universally the case that when the government of the United States demands anything that is in hostility to such a system as this, these persons find no difficulty at all in getting over it. It is only when Massachusetts claims something in behalf of the democracy, and of freedom, that trouble arises. How different this doctrine seems from that of the old State Rights doctrine of 1798 and 1799. Even the gentleman for Berlin himself, in his speech, expressed his doubts upon the subject; and why, let me ask him, does he not construe that doubt in favor of freedom and the rights of the people of Massachusetts. Suppose it is con