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Monday]

BIRD.

(June 20th.

into the hands of one man. It appears to me enrolled in the Militia, and held to perform such that the sober, second thought of the Convention military duty as the legislature may prescribe. will repudiate such a course of proceeding. I

That is enough “to perform such military duty say this, without any design to attack the Report of the Committee, for I take it that anything they

as the legislature may prescribe.” And then :have proposed, with regard to the militia, is to be

Art. 7. The Governor shall be the commanderadopted. I have no doubt of it at all; but it in-chief of the Army and Navy of the State, and seems to me there can be no reasonable objection of the Militia thereof, excepting when these forces to a clause of that kind. It is simply saying that shall be actually in the service of the United

States ; and shall have power to call out the same the citizen soldiery of this Commonwealth shall

to aid in the execution of the laws, to suppress not be obliged to go out of the limits of the Com

insurrection, and to repel invasion. monwealth except by their own voluntary consent, or by the consent of the legislature. These I submit to the consideration of this Conventwo exceptions cover every possible case that it tion the propriety of taking only these two articles, may be necessary or desirable to provide for. and of leaving all other provisions to the legisla

One word as to the unnecessary details con ture. These two articles, with the modification tained in these resolves. The Committee un of the seventh as I have suggested, will cover all doubtedly followed, in some respects, the exam possible cases of contingency that may arise. ple of the old Constitution in thus legislating for I do not like that clause in the seventh article, the regulation of the militia. I would like to “excepting when these forces shall be acting in ask the chairman of the Committee on the Mili the service of the United States." We have taken tia, suppose you incorporate into the Constitution the ground that in this Constitution there shall in respect to all other matters, the same minute be no reference to the Constitution of the United details which you have carried out respecting the States, nor to the federal government, in any form. militia, how large a Constitution would you I believe that is the true doctrine. We have hare: You are filling the Constitution with pro nothing, and can have nothing to do with them visions which properly belong to the legislature, when in the service of the United States. Then, and every one of which, in fact, except the elec what is the use of putting it into the Constitution ? tion of major-general, is now regulated by law; The Constitution of the United States actually and you plead the example of the old Constitu prohibits your having anything to do with the tion. I submit that that example is worth very subject. little ; and it is worth less when you take into I feel quite indifferent, however, whether these consideration the fact that the old Constitution resolves are adopted or not. If the military was adopted under the old confederation, and gentlemen insist upon it, and the politicians when amendments were afterwards made, to make will get votes by it, let them pass; but, the the instrument conform to the Federal Constitu amendment proposed by the gentleman from tion, these details were retained, though the rea Essex, (Mr. Bradford,) I regard as vital, and I son had ceased to exist.

think that even the clause with regard to citizenThe Constitution of 1780 contained this clause: ship had better be left out. Then, the article * The governor, with advice of council, shall

would read thus, if amended, so as to suit me. appoint all officers of the continental army,

The Governor shall be the commander-in-chief whom, by the confederation of the United States,

of the Army and Navy of the State, and the it is provided that the Commonwealth shall ap

Militia thereof, under such restrictions as the point, as also all officers of forts and garrisons.”

legislature may from time to time prescribe. This was struck out of the Constitution of any time hereafter, by virtue of any power by

Provided, That the said governor shall not at 1820 ; being of itself void by the adoption of the this Constitution granted, or hereafter to be Federal Constitution. But I object to lumbering granted to him by the legislature, transport any up the Constitution with these useless provisions of the inhabitants of this Commonwealth, or for the election of officers and other mere matters

oblige them to march out of the limits of the of detail. You might as properly prescribe the

same, without their free and voluntary consent,

or the consent of the general court; except so far mode of electing school committees.

as may be necessary to march or transport them It seems to me that all the Committee needed by land or water, for the defence of such part of to report, was these two articles :

the State to which they cannot otherwise con

veniently have access. Art. 1. All citizens of this Commonwealth, liable to military service, except such as the laws Mr. HOPKINSON, of Boston. I am not one of the Commonwealth may exempt, shall be of those "ambitious military men,” whose action

Monday,]

HOPKINSON.

(June 20th.

me.

in this matter is to be feared; but I am a friend and all military powers, even dictatorial and unto the militia. Opposed as I am to war, and limited ? He holds the sword in his hand and heartily as I coincide in all that the gentleman commands the army and the militia, and if the from Lawrence has said of its horrors and the legislature should attempt to control him, he causes why it should be deprecated, I still believe appeals to the Constitution, and says, I am comthe time is far distant when a well organized | mander-in-chief of these forces, and by what militia will not be necessary to any government. power does the legislature attempt to control Happy, indeed, will it be for every government me? It appears to me this idea will justify the in which more than an organized militia of citizen provision of the gentleman from Walpole, when soldiers is not required to enforce the laws. I. he proposes that it should be limited so as to be believe, therefore, that, as far as it is necessary to exercised agreeably to the laws of the land. give efficiency and force to the military power of

But I have made these remarks for the purpose the State, it should be incorporated into the Con of considering one step further. What becomes stitution; and although the details contained in of the militia of this State when called into the this Report, seemed to me to be unnecessary, I do active service of the United States? I know there not set any opinion of my own, which I may is the constitutional power of the United States. have upon that subject, against that of the Com I know that authority will override and control mittee. It is sufficient that, if they are unneces any powers which we may give in conflict with sary, I do not see that they are objectionable; that Constitution. But I would not extend the and, therefore, the Report, so far as these details sacrifice already made, nor be swift to seek how go, shall have my vote.

large the surrender may be found to be. But I am not satisfied, Mr. Chairman, with this I would rather insist on the strictest construcseventh article. I am in favor of the amendment tion of the terms of the Federal Constitution in which has been proposed, and even then, with this particular. I would jealously hold on to all the amendment, the article itself would not satisfy that was left in the control of the State, and

I am in favor of giving the governor the rather hazard an excess or collision, than come power, as the commander-in-chief of the army, short of our duty. but I am not in favor of giving him an unlimited Therefore I am opposed, in the most express and unrestrained power. I think, therefore, the terms, to such a grant of this power, except that it clause in the Constitution as it now stands, by shall be subject to this provision, that when which it is provided that these powers shall be called into the service of the United States they exercised agreeably to the rules of the Constitu shall be under the control of the governor of the tion and the law of the land, or words to that Commonwealth. But even then I am not wileffect, is better. Some such clause is necessary as ling to yield all power and control of the militia. a restraining and controlling influence over this If it be so, if it be that the State has no power grant. I believe also that there should be an left either in officering or managing or ordering amendment to the section which should determine the militia, then, I submit, there lies back a hidthe power which the governor shall have over the den and unexplored power, the depths of which militia when called into the service of the United no man's judgment or forecast can conceive. If States, so far as that power may be used and the troops of the State, when called into the serexercised by the State, without being in conflict vice of the United States, are to lose entirely their with this Constitution and laws of the United character of militia, and they are to be merged in States. Why, Sir, what is this power: At the the army of the United States, and this requisitime when this Constitution was first formed the tion can be made on them at the pleasure of the military power was considered a most important president of the United States, and whenever the branch of the government; not only most im- president shall judge that there is an exigency for portant for sustaining the government itself

, but it, then I submit that whenever the State attempts also most important in respect to its dangers, to vindicate any of its rights, whenever the State requiring more to be guarded and controlled in can in any manner come into collision with the its exercise than any other branch whatever. president of the United States the State is powerWe propose to give him unlimited power as com less, the wand is torn from the hand of the govermander-in-chief. Now what are the duties of nor, and every soldier in the whole State is lost in the commander-in-chief of the army and navy, the army of the United States; and the president independently of any control whatever, except marches, sword in hand, without any control exwhat is given by the Constitution: What may cept his own judgment and discretion. I say the commander-in-chief do, or in other words, this may be done whenever the president or conwhat may he not do? May he not exercise any gress shall deem that an exigency demands it. I

Monday,]

HOPKINSON.

[June 20th,

know this is disputed ground. In past times the which leave the officering of the militia to the question and the only question in which the power of the several States. Constitution and laws of this State were supposed No man is more disposed to believe in the perto come in conflict with the Constitution of the petuity of the Constitution and Union of the United States was this; not whether the army States than I am. I believe no one is more willshould pass into the hands of the president of the ing to concede every one of its powers, and they United States when occasion required it; but, are vast, and liable to become, or at least to appear under the existing laws, the president might, in to be more vast. These powers are liable to be certain cases, and for certain causes, call out the more realized and more immediately felt by the militia, and the question was whether it was for citizens of Massachusetts than they have been. the president and the congress of the United But I would be prepared as far as possible for the States, or whether it was for the governor of Mas worst event. In case of a dissolution of the sachusetts and the legislature of Massachusetts to Union, we should be prepared with an entire determine when that exigency arose.

government to protect ourselves, with an army The supreme court of Massachusetts decided and navy to enforce its behests. The State, in that it was for the State to determine when the such case, should come forth in full armor to exigency arose. I suppose it is now conceded stand before the world as an independent nation. that that decision does not stand, and that it is I think I see a strong tendency to bind the States for the president and congress to decide when into a consolidated mass, whether for better or for the exigency arises. I confess the reasoning of worse I cannot say. But I feel that the tendency the Massachusetts judges has seemed to me in that direction is rapid enough without our sounder on this point than that of the United being in haste to surrender any power which States judges. But I care not to agitate that we may lawfully exercise over the troops which question. Whether that decision be right or constitute the right arm of Massachusetts, as of wrong I trust that no collision will again arise. every government having any claim to soverBut if it is to arise we cannot by our action be eignty. I am not willing to have the whole rid of the control of the Constitution of the

militia merged in one great army of the United United States. The question must be decided on States, exept it is conceded that the governor may, the language of the Federal Constitution alone, if the legislature shall so determine, go with them consequently it is not necessary to agitate the and look to their rights and interests and be able question now; but so far as the control of the to report to the legislature of Massachusetts, of State can be continued over these armies, the sole the condition of the army, and prepare them to act arm by which it can defend itself in case of an as the emergency shall require. I can conceive emergency, let it be retained and exercised. I many cases in which this would be most important hope it will be retained. I would do no more, to the interests of the State and the soldier. but I would act fully up to the law, and jealously I would, however, have even the governor subfear to stop short of it. If we are to retain the ject to the control of the law of the land. I would clause, “except when called into the service of the not give this unlimited and Broad power which United States," we should add what I also find amounts to neither more nor less than that of a in the Constitution of another State, that when dictator, by being commander-in-chief of the army these forces are called into the service of the and navy, except it be under the controlling power United States the governor of the State may, if of the legislature and such laws as they shall pass he please, or by legislative provision, go with from time to time. Now I submit, I will not them, may have his rank with them, and take pronounce a definite opinion upon it, but I subcharge of them, and take care of their interests so mit to the consideration of gentlemen, whether far as he may, subject to the law of the United this provision, as reported by the Committee, does States.

leave any ground for the legislature by which the The Constitution of Alabama, evidently with army anà navy can be in the least controlled by a view to this very question, has wisely pro them; or whether it does not override, by its own vided that when called into the service of the force, all legislation, and concede the military United States, the general assembly may fix his, power absolutely to the governor as commanderthe governor's, rank. Before this matter is dis in-chief of the army and navy. missed from the Committee, I shall propose an amendment that when the State forces are acting these powers which we have granted shall be exin the service of the United States, the legislature cised agreeably to the lav the land, or make may fix his rank, which we may clearly do under some provision of that sort. I am, therefore, of the provisions of the United States Constitution, the opinion that it is better not to pass the resolu

n If that is so, we should at least provide that

Monday,]

HOPKINSON – PARSONS.

(June 20th.

me.

tion—that the Report of the Committee would be ernor above the laws of the land. I think an sufficient without it, and that the provisions of amendment of this kind is needed; and, further, the Constitution upon the subject should be suf if the time should ever come, as however I hope fered to remain as they are. I know, Sir, that it may not, when these forces may be called upon there is something of detail there-there is some by the United States to go into their service, I thing like a repetition of language-it is not, per- hope we shall have the right to send our governor haps, as succinct or stated with as much mathe with them, to take care of them and to look out matical precision as a proposition might be drawn for their welfare-to see that the powers of the up by the wiser heads of this day; but I do not United States are properly exercised in accordthink that, merely for the purpose of securing ance with the Constitution and the laws of the better grammar or a better phraseology, or even land. I do not believe there will be any clasha more concise form of expression, the provisions ing, if there is no necessity by the abuse of the which have stood so long and which have an powers of the United States government for it; swered their purpose so well, should now be but if there is such occasion for it, there is so much changed. I therefore desire to leave the Consti the more need of our executive there as the hightution as it stands in this respect, for I do not est officer of the State to see that justice is done to consider that there is any essential improvement our citizens. If our soldiers have got to march proposed. When John Adams and Judge Par through the swamps of Mexico, or into a foreign sons passed upon it, I think they knew some land for the purpose of conquest, I want to have thing; and what suited them is good enough for somebody there to see that they are properly

It is one of the distinguishing features of taken care of; and so far as the arm of this Comour government not to give unlimited powers in a monwealth can reach, so far should he retain this short clause. Republicans guard, and limit and power. I hope the whole of this will be stricken retain the powers which belong to them; they do out, and the provisions of our present Constitunot give them up with a mere sweep of the pen. tion retained; but if the Report of the Committee It is for Louis Napoleon, the autocrat of Russia, is to be adopted, I desire, at any rate, that the or the emperor of Austria, with a single line to amendment now under consideration should be sweep away the liberties of a people. They may adopted. put a decree in short language, for they have the Mr. PARSONS, of Lawrence. I have a very power not only to decree, but to construe, at will, few words to say in regard to the seventh article ; the force and extent of the decree. Where power and, as I remarked once before, I desire that it is not limited, you may grant it in short terms; shall pass as it has been recommended by the but when we wish to guard and retain power, to Committee. In reading the resolution over, the protect the rights of our citizens, we say in the name only difference that I have observed to exist of the people, "we have here retained something from the powers which exist in the present which we do not cede. The Constitution is not Constitution is in that part of the seventh artionly a charter of powers, but it is also a limitation of cle which defines the power of the governor power.” For such a purpose we need to be a in connection with the militia, when the mililittle more prolix - we need more words — we tia shall be ordered out by the United States ; need restraining clauses. I am not going to look and in my view that is the great point in the at the example of absolute governments, to try to resolution. It is the great principle in this resofind the shortest phraseology for this purpose.

lution that whenever it becomes necessary in this It appears to me that while there is no serious city or in any other city or town in this Commonfault found with the Constitution as it now stands wealth, in order to execute the United States -while it contains the essential and important law, the General Government shall have the provisions which we desire to embody, we can do power to call upon the militia for that purpose. no better than to let it remain as it is. But if we If they shall volunteer to assist in maintaining are going to take the seventh article which the the laws of the United States, that is a matter for Committee recommend, I think it is important the United States alone to take cognizance of, and that two provisos should be attached to it. In the neither the governor nor any officer of the first place, I think the proviso which has been militia in this Commonwealth has anything to moved by the gentleman from Essex should be do with it, except as they may be retained, or adopted, that is to retain the proviso of the exist their services accepted by the government of the ing Constitution; and in the second place, I think United States. Much has been said in relation a provision should also be inserted that the gover to the power of the governor of this State. I do nor shall exercise this authority agreeably to the not understand, Mr. Chairman, that this resolulaws of the land, so that we shall not have a gov- | port changes the power of the governor over the

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militia of this State, from the power already | upon this State for three thousand troops, it may granted to him-not at all. He maintains pre be to go to Mexico, in order to maintain the cisely the same position in relation to the militia rights of the United States, or it may of the Commonwealth, if we adopt this Report, as an aggressive warfare. I wish to ask gentlemen former governors have maintained. Has the gov of the Convention whether the governor of this ernor of this State any right to order me into the Commonwealth is to go with these troops to the State of Rhode Island upon any occasion? Had heart of Mexico, or if he is to send the lieutenhe ever the right to do it? If he had, one thing is ant governor, or one of the councillors, or any certain—I am not aware of it. If any governor body else he may choose to select, to command should presume to order a single company of the them while they may be absent from the Comvolunteer militia of this State into any other monwealth. He has no power, Mr. Chairman, State to quell any insurrection or riot, or any to do anything of the kind. He has nothing to breach of law that might arise there, I think do with United States troops in the service of the the experiment would be very unsuccessful. general government; and without the bounds of That is the legitimate business of the United his own State, it is for the United States to apStates government, and not of the States; and I point officers to command the forces which may believe it is necessary that we shall settle at this be raised for that purpose. The United States time, once and forever, the right of the United are to take the responsibility; and are they not States to maintain and assert its laws guaranteed to appoint their officers to direct their own enterby the Constitution in this Commonwealth; and prises : Most assuredly they are. Suppose that, that if the governor or any other person in the in the event of ordering out by the general govState shall interfere with that matter, he should ernment a division from this State to go to Mexbe dealt with according to law.

ico, our legislature should pass a law that the From the tenor of the remarks made in the governor of this Commonwealth should go with discussion of this question, one would naturally them and be their commander. When the divisuppose that our volunteer militia, in case of war, sion should have been raised and properly armed would be ordered out as they now exist as com and equipped, and passed into the jurisdiction of panies. This would not be the fact. It was not the United States, the commander-in-chief of the so in the war with Mexico, and I desire it never

United States forces would say to that governor : will be so; and, as our country has become very “I do not desire your services any longer ; these populous and powerful, the probabilities are that men are under my control; I have been apit never will be so. Every portion of the militia pointed by the government to command these that was raised in this State upon the occasion of men; I am responsible; I do not need your serthe Mexican war, volunteered; and, as a general vices any longer, and you can go home.” As I thing, it was not the volunteer militia in the State said before, Congress has power to appoint its that went to Mexico; it was an entirely different own officers to command its armies, and it views class of men. They were men from the peace with jealousy State interference in the matter. ful walks of life, and unacquainted with the For these reasons, and for those which have manual of arms and the evolutions of military been so ably stated by the chairman of this Comscience.

mittee, I hope this amendment will pass. I wish Mr. Chairman, with regard to the amendment to say one word with regard to the remarks which is here proposed, and with regard to the which were made by the gentleman upon my governor's commanding our militia. It is very left, (Mr. Davis, of Fall River,) who hoped that well understood by those composing the militia this Report would not be incorporated into our why this power therein contained is conferred Constitution. I must say, Mr. Chairman, if there upon the governor, making him commander-in is anything which has been done in this Convenchief. It is not that he is to take the command of tion which I deem of paramount importance, and the forces composing the same, in person—not by for which I have strong feelings of regard, it is any means. I would say it in no disrespect to for this very Report. I have been led to believe any governor of this Commonwealth, but I think I have experienced it, I have seen it—that the we could find many men who are more compe volunteer militia of this State is a respectable tent to take command of our militia than our body of men. Sir, they are a body of men who governors. This of course will be admitted by do credit to the State. They are the State. I all without discussion. But it is proper that am not going to argue the necessity of having a they should have power to order out the militia, volunteer militia-I take that for granted. The as occasion may require. Suppose, for instance, history of the revolutionary war and the late war that the government of the United States calls with Great Britain conclusively show this.

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