Sidebilder
PDF
ePub
[blocks in formation]

the States, it has been a matter of which the States themselves have had the charge, so far as I know.

Mr. HOOPER, of Fall River. I will call the attention of the gentleman from Lawrence to the fact that there is a clause of the Constitution of the United States, which relates to the organizing, arming, and disciplining the militia.

Mr. OLIVER. I thank the gentleman from Fall River for calling my attention to that fact, that the Constitution provides for organizing, arming and disciplining the militia. I know that that is correct, and congress afterwards made further provision for it by the act of 1792.

[June 22d.

with the laws of the United States in any shape or form? I admit what he has already said.

Mr. OLIVER. I suppose I shall have to express my opinion, founded on the words "white male citizens," as found in the laws of the United States. I desire to answer the question in the most distinct and explicit manner.

Mr. WILSON. I do not know that the gentleman understands me. What I understood the gentleman from Lawrence, in his Report, to say, is this, that the volunteer system of the militia is unknown to the United States, and that the laws of Massachusetts make no distinction on account of color.

Mr. OLIVER. I grant that, except in commissioning.

Mr. WILSON, of Natick. I would like to ask the gentleman from Lawrence one question. The gentleman admits that the volunteer system of Massachusetts is a service not contemplated by the laws of the United States, and which I suppose we all agree in; and he says further that there is no law making any distinction with regard to the color of men in volunteer companies, and that the whole subject is within the control and authority of the State officers, who organize the companies. What I desire to ask is this. If that control and authority is in the hands of the commander-in-chief, and if the commander-in-competent to return them to the general govern

chief should authorize the organization of a colored company in the city of Boston or elsewhere, does the gentleman believe it would conflict with the laws of the United States?

Mr. OLIVER. If I understand the gentleman, he asks me if the commander-in-chief should grant a charter to a certain number of colored citizens to organize themselves, and be attached to the militia of Massachusetts, whether that would conflict with the laws of the United States. My opinion is that it would not be competent for the adjutant-general to consider such company as a part of the Federal Militia, and to return that company on the annual returns sent to Washington, among the enrolled militia recognized by the laws of the United States.

Mr. WILSON. Will the gentleman allow me one word?

Mr. OLIVER. Certainly; I wish it understood that I am ready to answer any question that may be proposed, so far as I am able to answer it.

Mr. WILSON. The gentleman has answered my question precisely as I supposed he would. I do not believe it would be competent for the adjutant-general to return the members of companies, composed of colored citizens, as a part of the enrolled militia recognized by the laws of the United States; but what I wish further to know, is, does the gentleman believe it would conflict

Mr. WILSON. The Committee say that the whole power on this subject is in the hands of the commander-in-chief, or in certain other officers, and that they can do what they please with regard to it. Now what I ask is, whether, in the exercise of that power of organizing and chartering a company of colored persons, there would, in his opinion, be a conflict in any manner whatever with the laws of the United States. I admit what the gentleman says, that it would not be

ment, or consider them as a part of the enrolled militia.

Mr. OLIVER. Our militia system is, at present, it seems to me, wholly of State creation, and wholly voluntary, compulsion being, in no respect, an element of the enrolment of the men. The laws of congress expressly direct a compulsory enrolment by captains, and a performance of certain duties after the enrolment shall have led to organization. Enrolment must precede and is absolutely necessary to organization, in view of those laws. We make enlistment, a voluntary act, to precede organization. The same laws direct a specified class of company officers; we omit one of these, (the ensign,) and add three to the one lieutenant directed by the general law. It is these variations that have made me, after much consideration, doubt whether we are following out the enactments of congress. Our legislation has seemed to me to be a departure from those enactments. And I know that the commissioners appointed to revise the militia laws, in 1844, among whom was my friend from Freetown, (Mr. Hathaway,) entertained the same doubts. Now, if we have conflicted with the laws of congress in the manner of enrolment, making it a mere matter of paper and pen, and giving no notice whatever to the parties enrolled, why may we not vary in another respect, and when we enlist, instead of enrolling, enlist any age or any color?

[blocks in formation]

Is not our volunteer system quite as much a State armed police as a federal militia?

Mr. WILSON. I am perfectly satisfied with the gentleman's answer.

Mr. OLIVER. But the gentleman's question really reaches further than is manifest at first look. And it is this in extent, whether colored citizens of Massachusetts, when organized into a company of State volunteers, could be furnished by the State, with the arms that are distributed by the general government for arming the militia? Clearly they could not. There cannot be a doubt on this point. The arms are merely "distributed” to the States for the federal militia. They are not even given to the States, they are a loan, and I doubt the right of Massachusetts to sell these arms and use the money, as she has often done. The gentleman from Natick is undoubtedly aware that the United States distinctly limit the militia to "white male citizens," and it is for these that the arms are intended. I do not wish to be understood as arguing either for or against organizing companies of colored citizens. I merely intend to present my views in connection with our State laws and the enactments of congress.

So far as I am personally concerned, if I were engaged in a struggle with an enemy for the liberties of my country or my state, or were fighting for my life, I would not look to see what was the color of the man next to me, either on the right or on the left. I should simply desire to know who would best help the good cause of my country, and to every such one my cry should be "Lay on, Macduff." Nor will I here venture an expression of an opinion of what would be the effect upon the militia of Massachusetts, of the organization and incorporation into a regiment of a company of colored persons. With regard to the latter, I intend to be frank, open-hearted, and honest. I believe that colored citizens, and colored persons, even not citizens, have heretofore done good service, both in the war of the Revolution and in the war of 1812 to 1814, and may do it again. I recollect an instance which occurred in the revolutionary war. In one of the battles fought in the south by General Greene, I think, after a very fierce charge which determined the contest, there were found fast locked together in death, a black slave and a British soldier, and they were the only two who were found in such a position, with the dead hands of each grasping his musket, and the bayonet of each penetrating the entire body of his antagonist.

But this is not entirely relevant to our discussion, and I hope the Convention will pardon the digression. The volunteer system of militia in

[June 22d.

Massachusetts was started in 1840, and if gentlemen will refer to that system, as it is detailed in our statutes, they will find no reference there at all, either to color, or nation, excepting where commissions are provided for, and there the phrase is, "none other than able-bodied white male citizens." Naturalized persons being citizens, of course can become members of volunteer militia companies; and, however much it may be a matter of doubt, whether it is best to have distinct corps made up of Irish, or German or French, yet doubtless the services and aid of all would be welcome when the need of the State should require them. I would prefer that there should be no such distinct organizations, but that each man who wishes, should have the opportunity of joining some one of the regularly organized American corps. But we know that so far as colored citizens are concerned, there is a repugnance which, from whatever cause it may arise, or however unjust it may be shown to be, it would be difficult to get over among the soldiers of our companies. Were I colonel of a regiment, I think I should not look about me to see what was the color of the men whom the State placed under my guidance. I should hold myself, so long as I retained commission, bound to protect one man as much as any other, and should strive to make all of them good soldiers, prompt to do all the duties required of them.

Well, Sir, the State has formed this system, though it appears to me not in its enrolment and entire organization in exact accordance with the law of congress.

Mr. WALKER. I would like to ask the gentleman from Lawrence whether the adjutant-general could return the volunteer militia as a part of the State militia.

Mr. OLIVER. The volunteer militia are returned to Washington as a part of the militia of the State. It was my practice so to return them. In my time, there were something like one hundred, or one hundred and ten thousand, enrolled militia; and I will, in the course of my remarks, which may not be as aptly connected as if carefully written out, describe the manner in which the enrolment is made, if the Convention permit. Those who are simply enrolled and returned to the adjutant-general here, are added to the number of the several volunteer corps, so that there are sent to the department at Washington the numbers of both the sedentary and the active militia of the State, and the State receives on the basis so made, its quota of arms as furnished by the United States. By a law of the United States, the sum of $200,000 is annually appropriated for the purpose of procuring arms for dis

i

[blocks in formation]

tribution among the several States, in proportion to the number which the militia of each bears to the whole militia of the Union; and Massachusetts receives about $10,000 worth per annum, in such kind of arms and equipments as she may elect.

Mr. WALKER. It was stated by the gentleman from Natick that a part of these enrolled forces are under eighteen years of age, and a part of them are over forty-five. It seems to me it would be improper to return them as the militia of the State.

Mr. OLIVER. I have no doubt of the fact that there are those in the volunteer corps who are under eighteen, and others who are over fortyfive years of age. I doubt whether any of the enrolled, distinctly so called, are without those limits.

Mr. WALKER. Mr. President.

The PRESIDENT. Does the gentleman from Lawrence yield the floor?

Mr. OLIVER. Certainly. I will state that, without the ceremony of yielding, I am ready to answer any gentleman.

Mr. WALKER. I wish to ask the gentleman further, whether it is proper to return, as a part of the militia of the State, the members of the volunteer companies, as such returns cannot be reliable?

The PRESIDENT. The Chair will suggest that it is competent for any gentleman to yield the floor only for explanation; but if yielded for other purposes, he loses his right to the floor.

Mr. OLIVER. If the adjutant-general knew that the lists of men returned to him contained persons under eighteen, and over forty-five years of age, and knew who those persons were, and I refer both to those enrolled, and those enlisted, it would be his duty to strike them off before making up his aggregate for the general return to the department of war at Washington. I have known persons myself who were over fortyfive, for I recollect that when reviewing a regiment in the north part of Worcester County, I saw several persons there who appeared to be over forty-five. I asked one of them his age, and he told me that he was fifty-two, and that he had performed military duty every year since he was eighteen; therefore I have no doubt of the correctness of the statement.

Now, to come again to the question whether it was lawful for the adjutant-general to return to head-quarters at Washington, in order to secure the quota of arms due to the State, the members of the volunteer companies thus apparently recognizing them as a part of the militia of the

[June 22d.

State, some of them being under eighteen, and some over forty-five years of age. Sir, the adjutant-general would be in an entire state of ignorance with regard to all that matter, because he receives the returns from others, and in numbers only, without mention of age. The laws of the United States require that all persons over eighteen and under forty-five years of age, shall be enrolled by the captains. Now, the enrolment of the militia of Massachusetts is not made by captains, but by the assessors, and although some of these gentlemen, at the time of the enrolment, or prior to making the enrolment, may have held commissions from the State of Massachusetts as captains in the militia thereof, they did not make the enrolment in the capacity of such captains as were contemplated by the law of the United States when that law was passed. The whole thing is done by the assessors, so far as the enrolment is concerned, in the various towns and cities of the Commonwealth. very outset, a legal man, I should think, though I do not look at these things through the spectacles of a lawyer, would say that there was an illegality, and that the enrolment, not being made by captains, but by assessors, was not such as is contemplated by the laws of the United States.

At the

Now, this enrolled militia is a mere list of names-nay, hardly that, under present use; it is a mere certificate from assessors or town clerks, that in the several municipalities of the State there are so many persons liable to military duty. I cannot conceive that this is, in any proper manner, a compliance with the requirements of law. It looks to me very like an evasion, "an artful dodge," and the merest useless farce. The assessors go about the cities and towns, making the inquiry at each house of how many persons there are between eighteen and forty-five. When the list or enumeration is made up, they notify the city or town clerks, and the latter notify the adjutant-general, and he notifies the secretary of war. And what good comes of it all? They thus conjure up some one hundred and ten or twenty thousand men; whether in making the lists, if lists be made, new ones are added who may have reached eighteen since the last record, and old ones are left off, who have passed forty-five, the adjutant-general cannot know. That is the way in which the thing is done. The enrolled sedentary militia, the paper force which is sent in, is nothing but a list of names, or an aggregate of numbers, and the adjutant-general cannot tell whether there are any under eighteen, or over forty-five years of age. But the assessors are instructed not to enrol

Wednesday,]

OLIVER.

[June 22d.

we had enrolled upon our registers the names of militia men to the amount of more than 110,000, of whom a part were armed and equipped for service at any time. I presented him likewise a copy of the militia laws of Massachusetts, and sundry military documents.

I recollect hearing, soon after, that in reference to this circumstance, one of our judges said, when informed of it, that if the person who should study these laws, and such others as related to military matters as managed here, and could put them into such perfect working practice, that there should be no creaking nor jarring, it would be quite an exploit, and he should be glad to have the method explained, for it was rather difficult to understand.

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 limits of age. With regard to the returns of the volunteer militia, also, is would likewise be impossible for the adjutant-general to know whether there were any enlisted who were under eighteen or over forty-five years of age. He receives the returns at two stated periods-in the spring and in the fall. In the month of June, the captains of companies make returns of the numbers of their men to the field-officers in command of the regiments or battalions; the latter officers make the aggregate returns of their companies to their brigadier-generals; they make the returns of their brigades to their major-generals, and these last officers, consolidating the whole, forward them to the adjutant-general, who generally receives them by the month of August. In the fall of each year, after the fall parades, the brigadeinspectors make similar returns of the number of men in their several brigades. To carry out the system of paying the troops from the State militia bounty, the captains of companies, likewise, after the fall parades, send the names of their men, but not their ages, directly to the adjutant-general. From the returns by division and brigade of the active militia, and from the returns of the town clerks of the enrolled or sedentary militia, a general return is made up and sent to the secretary of war at Washington, who, on the basis of these aggregate returns, assigns to Massachusetts her quota of arms. In this way it is that we present the very respectable force of from one hundred and fifteen thousand to one hundred and twenty thousand men, most of them "men in buckram," I grant, yet it sometimes serves a purpose. The question was once put by the emperor of Russia to our minister at his court, what was the number of the standing army of the United States. It was a question which perhaps had a great deal of meaning, and the cautious representative of our country replied that there were over two millions. [Laughter.]

At the close of the late war with Mexico, I was waited upon by the British vice-consul, who wished to make some inquiries with regard to the system of raising volunteers, and specially with regard to the militia of Massachusetts. He put to me quite a number of questions. I hardly knew what to do, for I did not know what might be the ulterior purport of the catechism. I did not know whether it was intended to find out the weakness or the strength, of the system, and of the State, or what might be the object in view; but I felt anxious to give him as favorable a notion as possible of our strength, and copying the example just cited I threw myself upon the prin

It seems to me, then, Mr. President, that the organization of our active militia is not in strict accordance with that contemplated by the laws of the United States. I may differ from other gentlemen, but that is the way in which I look at it. The old militia organization has died out, receiving no attention from congress; and I believe that throughout the Union, it has fallen into almost entire disuse. In many of the States there is no military parade; and in two of the States, Iowa and Wisconsin, as I am informed, there is no military organization whatever. Yet, notwithstanding this fact, that the volunteer forces of the State of Massachusetts-the active militia— appears not to be a militia as contemplated by the law of the United States, and therefore is not the force referred to, when the law of the United States was passed by which the militia of the States were to be supplied with arms by the general government; notwithstanding that fact, Massachusetts, as well as the other States, receives the arms furnished by the United States, and supplies them to the volunteer military companies. But, Sir, what is the situation of this volunteer force of Massachusetts, with regard to the obligation which devolves upon her, in case the general government should call upon her to draft from them for the purpose of procuring men to be mustered into the service of the United States ? I do not know whether I may differ from the lawyers, but I give you my views, without imposing upon anybody else the necessity of adopting them. My impression is, that the United States could not call upon this force. I very well know that the State in organizing this force, declared that in case of insurrection or invasion they shall first be called into the field, But I always supposed that that contemplated calling them into service so far as the exigencies of the Commonwealth might require them, and not so far as the

Wednesday,]

OLIVER.

[June 22d.

so Massachusetts could meet the call under her own existing laws. They exactly fitted the case. The statute allows seven thousand men. At the time of the call, we had but about five thousand volunteer troops in the State, and there was, therefore, room enough for the regiment called for. As I have said, parties came forward with their petitions, the companies were duly raised and organized, the regiment was formed and officered and mustered by officers of the regular army into the service of the United States, according to their own expressed wish, and soon after sailed for the seat of war, joining the army under Gen. Taylor. Thus the State lost its control over them by their being-at their own request, at their "own free will and consent,"-joined to the regular forces under disposal of the President.

demands of the United States were concerned. | ganization was exclusively one of volunteers, and And it may be that such view was had at Washington, for gentlemen may recollect that during the late Mexican war, a call was made upon the various States for volunteers. I am not going extensively into that matter, but merely bring it up for an illustration. I am afraid to go into that, for fear that if I should, by some chance, a gentleman whom I highly honor and respect, might in his zcal to reprobate that war, even force out a more "voluminous vernacular," than is already in existence. A call was made for men in the month of May, 1846, upon all the New England States, Massachusetts of course included. That call was subsequently withdrawn. The secretary of war, in a communication to the governor of this Commonwealth, withdrew it, but the call was renewed in the mouth of December following, and the most singular part of the matter was, that at that time, it was made upon Massachusetts alone, among all the New England States. For what cause-" cui bono," "who was to be benefited?" as some of my Latin friends would say I do not know; but that was the case. I am unable to say how much envy was excited among the other States of New England, for the preference and distinction thus shown to Massachusetts. The call was made, but for what kind of troops? Not for the militia of Massachusetts, but for volunteers, and those volunteers were to be raised in accordance with the laws of the State; and they were to be officered in accordance with those laws, after they had been raised, though it was declared in the call that if there were any companies of our own volunteers which should desire to enter the regiments called for, they would be received, but yet in the light of volunteers, and would, with the new ones to be raised, be mustered regularly into the service. Well, Sir, as soon as that call was made, a proclamation from the governor went out, calling for volunteers, and general orders went with it, defining the mode to be pursued in organizing the companies. In a very short time a considerable number of persons came forward and desired permission to organize companies in accordance with the laws of the State. They were told, that by the laws of the State, whenever forty-eight men desired to be organized into a company, the commander-inchief had a right so to organize them, or had a right to authorize the mayor and aldermen of any city, or the selectmen of any town to do it.

Now the second call of the United States was for a single regiment of infantry, say about six hundred to eight hundred men, and they were to be "volunteers" not "militia." The State or

Let us look a little farther after them. The regiment subsequently joined the army of occupation under General Scott, and entered the city of Mexico. It was never in action, nor under fire of an enemy-yet many of the officers died of diseases incident to the climate of Mexicoand it became necessary to fill the vacancies thus created. Elections were ordered by General Cadwallader in whose brigade the regiment had been placed. The elections were held, but the original orders for them not having emanated from an officer commissioned by Massachusetts, and therefore authorized to issue such order to a regiment of Massachusetts men, no commissions were sent back on the receipt of the election papers. The officers elect were therefore without the authority of a commission, were not recognized at the office of our adjutant-general as officers of the regiment, and had they committed treason, or been guilty of cowardice, it might have been difficult to convict and punish them. There were several officers so situated, yet the men continued to obey them, under the idea, I presume, that having been elected, they were regularly commissioned offiPortions of the regiment finally returned. Now, Sir, this exemplifies what I designed to say in reply to my friend from North Brookfield, that the volunteer forces of Massachusetts could only become a part of the forces of the United States by their own voluntary action. I take it that if any one of those regiments, either of Boston or of Charlestown or from whatever point they may have come, had volunteered and answered under this call of the president of the United States, the whole regiment might at once have been turned over as such. Yet it could not, as I understood it, have been taken by order of the government of the United States, out of the State, contrary to the will of the troops them

cers.

« ForrigeFortsett »