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HOOPER — OLIVER — Wilson.
the States, it has been a matter of which the with the laws of the United States in any shape States themselves have had the charge, so far as I or form? I admit what he has already said. know.
Mr. OLIVER. I suppose I shall have to exMr. HOOPER, of Fall River. I will call the press my opinion, founded on the words “white attention of the gentleman from Lawrence to the male citizens,” as found in the laws of the United fact that there is a clause of the Constitution of States. I desire to answer the question in the the United States, which relates to the organizing, most distinct and explicit manner. arming, and disciplining the militia.
Mr. WILSON. I do not know that the genMr. OLIVER. I thank the gentleman from tleman understands me. What I understood the Fall River for calling my attention to that fact, gentleman from Lawrence, in his Report, to say, that the Constitution provides for organizing, is this, that the volunteer system of the militia is arming and disciplining the militia. I know unknown to the United States, and that the laws that that is correct, and congress afterwards made of Massachusetts make no distinction on account
it . of color.
Mr. WILSON, of Natick. I would like to Mr. OLIVER. Igrant that, except in commis
ask the gentleman from Lawrence one question. sioning. The gentleman admits that the volunteer system Mr. WILSON. The Committee say that the of Massachusetts is a service not contemplated whole power on this subject is in the hands of by the laws of the United States, and which I the commander-in-chief, or in certain other offisuppose we all agree in; and he says further that cers, and that they can do what they please with there is no law making any distinction with re- regard to it. Now what I ask is, whether, in the gard to the color of men in volunteer companies, exercise of that power of organizing and charterand that the whole subject is within the control | ing a company of colored persons, there would, and authority of the State officers, who organize in his opinion, be a conflict in any manner whatthe companies. What I desire to ask is this. If ever with the laws of the United States. I admit that control and authority is in the hands of the what the gentleman says, that it would not be commander-in-chief, and if the commander-in- competent to return them to the general governchief should authorize the organization of a col ment, or consider them as a part of the enrolled ored company in the city of Boston or else militia. where, does the gentleman believe it would con
Mr. OLIVER. Our militia system is, at presflict with the laws of the United States ?
ent, it seems to me, wholly of State creation, and Mr. OLIVER. If I understand the gentle- wholly voluntary, compulsion being, in no reman, he asks me if the commander-in-chief spect, an element of the enrolment of the men. should grant a charter to a certain number of The laws of congress expressly direct a compulcolored citizens to organize themselves, and be sory enrolment by captains, and a performance of attached to the militia of Massachusetts, whether certain duties after the enrolment shall have led that would conflict with the laws of the United to organization. Enrolment must precede and States. My opinion is that it would not be com- is absolutely necessary to organization, in view of petent for the adjutant-general to consider such those laws. We make enlistment, a voluntary act, company as a part of the Federal Militia, and to to precede organization. The same laws direct a return that company on the annual returns sent specified class of company officers; we omit one to Washington, among the enrolled militia recog of these, (the ensign,) and add three to the one nized by the laws of the United States.
lieutenant directed by the general law. It is Mr. WILSON. Will the gentleman allow me these variations that have made me, after much one word ?
consideration, doubt whether we are following Mr. OLIVER. Certainly; I wish it under out the enactments of congress. Our legislation stood that I am ready to answer any question has seemed to me to be a departure from those that may be proposed, so far as I am able to an enactments. And I know that the commissioners swer it.
appointed to revise the militia laws, in 1844, Mr. WILSON. The gentleman has answered among whom was my friend from Freetown, (Mr. my question precisely as I supposed he would. I Hathaway,) entertained the same doubts. Now, do not believe it would be competent for the ad
if we have conflicted with the laws of congress in jutant-general to return the members of com the manner of enrolment, making it a mere panies, composed of colored citizens, as a part of matter of paper and pen, and giving no notice the enrolled militia recognized by the laws of the whatever to the parties enrolled, why may we United States; but what I wish further to know, not vary in another respect, and when we enlist, is, does the gentleman believe it would conflict | instead of enrolling, enlist any age or any color ?
Is not our volunteer system quite as much a State | Massachusetts was started in 1840, and if gentlearmed police as a federal militia ?
men will refer to that system, as it is detailed in Mr. WILSON. I am perfectly satisfied with our statutes, they will find no reference there the gentleman's answer.
at all, either to color, or nation, excepting where Mr. OLIVER. But the gentleman's question commissions are provided for, and there the phrase really reaches further than is manifest at first is, “none other than able-bodied white male look. And it is this in extent, whether colored citizens.” Naturalized persons being citizens, of citizens of Massachusetts, when organized into a course can become members of volunteer micompany of State volunteers, could be furnished litia companies; and, however much it may be by the State, with the arms that are distributed a matter of doubt, whether it is best to have disby the general government for arming the militia ? tinct corps made up of Irish, or German or French, Clearly they could not. There cannot be a doubt yet doubtless the services and aid of all would be on this point. The arms are merely“ distributed” welcome when the need of the State should require to the States for the federal militia. They are them. I would prefer that there should be no not even given to the States, they are a loan, and such distinct organizations, but that each man I doubt the right of Massachusetts to sell these who wishes, should have the opportunity of joinarms and use the money, as she has often done. ing some one of the regularly organized American The gentleman from Natick is undoubtedly corps. But we know that so far as colored citizens aware that the United States distinctly limit the are concerned, there is a repugnance which, from militia to “white male citizens,” and it is for whatever cause it may arise, or however unjust it these that the arms are intended. I do not wish may be shown to be, it would be difficult to get to be understood as arguing either for or against over among the soldiers of our companies. Were organizing companies of colored citizens. II colonel of a regiment, I think I should not look merely intend to present my views in connection about me to see what was the color of the men with our State laws and the enactments of con whom the State placed under my guidance. I gress.
should hold myself, so long as I retained commisSo far as I am personally concerned, if I were sion, bound to protect one man as much as any engaged in a struggle with an enemy for the other, and should strive to make all of them good liberties of my country or my state, or were soldiers, prompt to do all the duties required of fighting for my life, I would not look to see what them. was the color of the man next to me, either on Well, Sir, the State has formed this system, the right or on the left. I should simply desire though it appears to me not in its enrolment and to know who would best help the good cause of entire organization in exact accordance with the my country, and to every such one my cry should law of congress. be " Lay on, Macduff.” Nor will I here venture an Mr. WALKER. I would like to ask the genexpression of an opinion of what would be the tleman from Lawrence whether the adjutant-geneffect upon the militia of Massachusetts, of the eral could return the volunteer militia as a part organization and incorporation into a regiment of of the State militia. a company of colored persons. With regard to Mr. OLIVER. The volunteer militia are rethe latter, I intend to be frank, open-hearted, turned to Washington as a part of the militia of and honest. I believe that colored citizens, and the State. It was my practice so to return them. colored persons, even not citizens, have heretofore
In my time, there were something like one hundone good service, both in the war of the Revolu- dred, or one hundred and ten thousand, enrolled tion and in the war of 1812 to 1814, and may do militia ; and I will, in the course of my remarks, it again. I recollect an instance which occurred which may not be as aptly connected as if carein the revolutionary war. In one of the battles fully written out, describe the manner in which fought in the south by General Greene, I think, the enrolment is made, if the Convention perafter a very fierce charge which determined the mit. Those who are simply enrolled and recontest, there were found fast locked together in turned to the adjutant-general here, are added to death, a black slave and a British soldier, and the number of the several volunteer corps, so that they were the only two who were found in such there are sent to the department at Washington a position, with the dead hands of each grasping the numbers of both the sedentary and the active his musket, and the bayonet of each penetrating militia of the State, and the State receives on the the entire body of his antagonist.
basis so made, its quota of arms as furnished by But this is not entirely relevant to our discus- the United States. By a law of the United sion, and I hope the Convention will pardon the States, the sum of $200,000 is annually appropridigression. The volunteer system of militia in lated for the purpose of procuring arms for dis
WALKER - OLIVER.
tribution among the several States, in proportion State, some of them being under eighteen, and to the number which the militia of each bears to some over forty-five years of age. Sir, the adjuthe whole militia of the Union; and Massachu-tant-general would be in an entire state of ignosetts receives about $10,000 worth per annum, rance with regard to all that matter, because he in such kind of arms and equipments as she may receives the returns from others, and in numbers elect.
only, without mention of age. The laws of the Mr. WALKER. It was stated by the gentle United States require that all persons over man from Natick that a part of these enrolled eighteen and under forty-five years of age, shall forces are under eighteen years of age, and a part
be enrolled by the captains. Now, the enrolof them are over forty-five. It seems to me
ment of the militia of Massachusetts is not made it would be improper to return them as the mi- | by captains, but by the assessors, and although litia of the State.
some of these gentlemen, at the time of the enMr. OLIVER. I have no doubt of the fact rolment, or prior to making the enrolment, may
have held commissions from the State of Massathat there are those in the volunteer corps who are under eighteen, and others who are over forty
chusetts as captains in the militia thereof, they five years of age. I doubt whether any of the did not make the enrolment in the capacity of enrolled, distinctly so called, are without those
such captains as were contemplated by the law
of the United States when that law was passed. limits.
The whole thing is done by the assessors, so far Mr. WALKER. Mr. President.
as the enrolment is concerned, in the various The PRESIDENT. Does the gentleman from
towns and cities of the Commonwealth. At the Lawrence yield the floor?
very outset, a legal man, I should think, though Mr. OLIVER. Certainly. I will state that,
I do not look at these things through the specwithout the ceremony of yielding, I am ready to
tacles of a lawyer, would say that there was an answer any gentleman.
illegality, and that the enrolment, not being Mr. WALKER. I wish to ask the gentleman made by captains, but by assessors, was not such further, whether it is proper to return, as a part of
as is contemplated by the laws of the United the militia of the State, the members of the vol
States. unteer companies, as such returns cannot be reli
Now, this enrolled militia is a mere list of able ?
names—nay, hardly that, under present use ; it The PRESIDENT. The Chair will suggest is a mere certificate from assessors or town clerks, that it is competent for any gentleman to yield that in the several municipalities of the State the floor only for explanation ; but if yielded for there are so many persons liable to military duty. other purposes, he loses his right to the floor. I cannot conceive that this is, in any proper manMr. OLIVER. If the adjutant-general knew
ner, a compliance with the requirements of law. that the lists of men returned to him contained It looks to me very like an evasion, “ an artful persons under eighteen, and over forty-five years dodge,” and the merest useless farce. The asof age, and knew who those persons were, and sessors go about the cities and towns, making the I refer both to those enrolled, and those enlisted, inquiry at each house of how many persons there it would be his duty to strike them off before are between eighteen and forty-five. When making up his aggregate for the general return to the list or enumeration is made up, they notify the department of war at Washington. I have the city or town clerks, and the latter notify known persons myself who were over forty- the adjutant-general, and he notifies the secfive, for I recollect that when reviewing a regi- retary of war. And what good comes of it ment in the north part of Worcester County, all? They thus conjure up some one hundred I saw several persons there who appeared and ten or twenty thousand men ; whether in to be over forty-five. I asked one of them his making the lists, if lists be made, new ones are age, and he told me that he was fifty-two, and added who may have reached eighteen since the that he had performed military duty every year last record, and old ones are left off, who have since he was eighteen ; therefore I have no doubt passed forty-five, the adjutant-general cannot of the correctness of the statement.
know. That is the way in which the thing is Now, to come again to the question whether it done. The enrolled sedentary militia, the paper was lawful for the adjutant-general to return to force which is sent in, is nothing but a list of head-quarters at Washington, in order to secure names, or an aggregate of numbers, and the the quota of arms due to the State, the members adjutant-general cannot tell whether there are of the volunteer companies thus apparently any under eighteen, or over forty-five years of recognizing them as a part of the militia of the age. But the assessors are instructed not to enrol
any outside of those limits, and the fair presump- | ciple of taking the safest course, and replied that tion is, that the enrolment is confined to those we had enrolled upon our registers the names limits of age. With regard to the returns of the of militia men to the amount of more than volunteer militia, also, is would likewise be im- | 110,000, of whom a part were armed and equipped possible for the adjutant-general to know whether for service at any time. I presented him likewise there were any enlisted who were under eighteen a copy of the militia laws of Massachusetts, and or over forty-five years of age. He receives the sundry military documents. returns at two stated periods—in the spring and I recollect hearing, soon after, that in reference in the fall. In the month of June, the captains to this circumstance, one of our judges said, when of companies make returns of the numbers of informed of it, that if the person who should study their men to the field-officers in command of the these laws, and such others as related to military regiments or battalions; the latter officers make matters as managed here, and
ild put them the aggregate returns of their companies to their into such perfect working practice, that there brigadier-generals; they make the returns of should be no creaking nor jarring, it would be their brigades to their major-generals, and these quite an exploit, and he should be glad to have last officers, consolidating the whole, forward them the method explained, for it was rather difficult to the adjutant-general, who generally receives to understand. them by the month of August. In the fall of It seems to me, then, Mr. President, that the each year, after the fall parades, the brigade- organization of our active militia is not in strict inspectors make similar returns of the number of accordance with that contemplated by the laws men in their several brigades. To carry out the of the United States. I may differ from other system of paying the troops from the State mil- gentlemen, but that is the way in which I look itia bounty, the captains of companies, likewise, at it. The old militia organization has died out, after the fall parades, send the names of their men, receiving no attention from congress; and I bebut not their ages, directly to the adjutant-gen- lieve that throughout the Union, it has fallen into eral. From the returns by division and brigade almost entire disuse. In many of the States there of the active militia, and from the returns of the is no military parade ; and in two of the States, town clerks of the enrolled or sedentary militia, Iowa and Wisconsin, as I am informed, there is a general return is made up and sent to the sec no military organization whatever. Yet, notretary of war at Washington, who, on the basis withstanding this fact, that the volunteer forces of of these aggregate returns, assigns to Massachu the State of Massachusetts-the active nilitiasetts her quota of arms. In this way it is that appears not to be a militia as contemplated by the we present the very respectable force of from one law of the United States, and therefore is not the hundred and fifteen thousand to one hundred and force referred to, when the law of the United twenty thousand men, most of them “men in States was passed by which the militia of the buckram," I grant, yet it sometimes serves a States were to be supplied with arms by the genpurpose. The question was once put by the em eral government; notwithstanding that fact, peror of Russia to our minister at his court, what Massachusetts, as well as the other States, receives was the number of the standing army of the United the arms furnished by the United States, and States. It was a question which perhaps had a supplies them to the volunteer military companies. great deal of meaning, and the cautious repre But, Sir, what is the situation of this volunteer sentative of our country replied that there were force of Massachusetts, with regard to the obligaover two millions. (Laughter.]
tion which devolves upon her, in case the general At the close of the late war with Mexico, I was government should call upon her to draft from waited upon by the British vice-consul, who them for the purpose of procuring men to be wished to make some inquiries with regard to the mustered into the service of the United States ? system of raising volunteers, and specially with I do not know whether I may differ from the regard to the militia of Massachusetts. He put to lawyers, but I give you my views, without imme quite a number of questions. I hardly knew posing upon anybody else the necessity of adoptwhat to do, for I did not know what might be ing them. My impression is, that the United the ulterior purport of the catechism. I did not States could not call upon this force. I very well know whether it was intended to find out the know that the State in organizing this force, deweakness or the strength, of the system, and of clared that in case of insurrection or invasion they the State, or what might be the object in view; shall first be called into the field, But I always but I felt anxious to give him as favorable a supposed that that contemplated calling them into notion as possible of our strength, and copying the service so far as the exigencies of the Commonexample just cited I threw myself upon the prin- / wealth might require them, and not so far as the
demands of the United States were concerned. ganization was exclusively one of volunteers, and And it may be that such view was had at Wash so Massachusetts could meet the call under her ington, for gentlemen may recollect that during own existing laws. They exactly fitted the case. the late Mexican war, a call was made upon the The statute allows seven thousand men. At the various States for volunteers. I am not going time of the call, we had but about five thousand extensively into that matter, but merely bring it volunteer troops in the State, and there was, up for an illustration. I am afraid to go into therefore, room enough for the regiment called that, for fear that if I should, by some chance, for. As I have said, parties came forward with a gentleman whom I highly honor and respect, their petitions, the companies were duly raised might in his zeal to reprobate that war, even force and organized, the regiment was formed and offiout a more "voluminous vernacular,” than is cered and mustered by officers of the regular army already in existence. A call was made for men into the service of the United States, according to in the month of May, 1846, upon all the New their own expressed wish, and soon after sailed England States, Massachusetts of course included. for the seat of war, joining the army under Gen. That call was subsequently withdrawn. The Taylor. Thus the State lost its control over them secretary of war, in a communication to the by their being-at their own request, at their governor of this Commonwealth, withdrew it, but “own free will and consent,”-joined to the regthe call was renewed in the month of December ular forces under disposal of the President. following, and the most singular part of the mat Let us look a little farther after them. The ter was, that at that time, it was made
upon Mas regiment subsequently joined the army of occusachusetts alone, among all the New England pation under General Scott, and entered the city States. For what cause—" cui bono," " who was of Mexico. It was never in action, nor under to be benefited ?” as some of my Latin friends fire of an enemy-yet many of the officers died would say-I do not know ; but that was the of diseases incident to the climate of Mexicocase. I am unable to say how much envy was and it became necessary to fill the vacancies thus excited among the other States of New England, created. Elections were ordered by General Cadfor the preference and distinction thus shown to wallader in whose brigade the regiment had been Massachusetts. The call was made, but for what placed. The elections were held, but the original kind of troops ? Not for the militia of Massachu- orders for them not having emanated from an setts, but for volunteers, and those volunteers officer commissioned by Massachusetts, and therewere to be raised in accordance with the laws of fore authorized to issue such order to a regiment the State ; and they were to be officered in accord- of Massachusetts men, no commissions were sent ance with those laws, after they had been raised, back on the receipt of the election papers. The though it was declared in the call that if there officers elect were therefore without the authority were any companies of our own volunteers which of a commission, were not recognized at the office should desire to enter the regiments called for, of our adjutant-general as officers of the regithey would be received, but yet in the light of vol- ment, and had they committed treason, or been unteers, and would, with the new ones to be raised, guilty of cowardice, it might have been difficult be mustered regularly into the service. Well, to convict and punish them. There were several Sir, as soon as that call was made, a proclamation officers so situated, yet the men continued to obey from the governor went out, calling for volun- them, under the idea, I presume, that having been teers, and general orders went with it, defining elected, they were regularly commissioned offithe mode to be pursued in organizing the compa cers. Portions of the regiment finally returned. nies. In a very short time a considerable number Now, Sir, this exemplifies what I designed to say of persons came forward and desired permission in reply to my friend from North Brookfield, that to organize companies in accordance with the laws the volunteer forces of Massachusetts could only of the State. They were told, that by the laws of | become a part of the forces of the United States the State, whenever forty-eight men desired to be by their own voluntary action. I take it that organized into a company, the commander-in- if any one of those regiments, either of Boschief had a right so to organize them, or had a ton or of Charlestown or from whatever point right to authorize the mayor and aldermen of they may have come, had volunteered and any city, or the selectmen of any town to do answered under this call of the president of the it.
United States, the whole regiment might at once Now the second call of the United States was have been turned over as such. Yet it could not, for a single regiment of infantry, say about six as I understood it, have been taken by order of hundred to eight hundred men, and they were to the government of the United States, out of the be “ volunteers” not militia." The State or State, contrary to the will of the troops them