selves, nor without having been duly turned over to the United States. Now, Sir, I will reply to the question which was asked me by my friend from North Brookfield, whether these volunteers could disband at any time they pleased? Before entering the regular service of the United States, the regiment was of Massachusetts: and under State authority and could have been disbanded by act of Massachusetts. But after having entered that service, in due course of being mustered in and received by the United States, it was no longer of Massachusetts, but by courtesy of title. It was wholly under the control of the president, to go where he ordered, to stay where he decided, and to do his behest of war, "during the war," for such was the term of time for which they enlisted. That war over, their service terminated, and they were mustered out. As soon as mustered out by the United States, they became again Massachusetts militia, and were duly disbanded and the officers discharged. I think any portion of the troops belonging to the State may petition to be disbanded for cause; and cases very frequently occur, within the provisions of law applying to such matters, by which they are disbanded. It is quite a common practice for companies, regiments, and battalions to be disbanded and recreated in various parts of the State. I have expressed the idea that the volunteer force of Massachusetts is an organization per se-that phrase has been used in the Convention so often that it has almost become English-and I give the reasons, in connection with the law of the United States, why I maintain that the militia of Massachusetts does not clearly seem to be part of the militia of the United States, though it is armed and equipped by the general government. I may say, entirely by the general government, unless the members choose to furnish fancy arms for themselves. They are disciplined, so far as it can possibly be done consistent with the character of their service, according to the system pursued in the army of the United States. They are subject to those laws of the United States so far as they can be made subject to them, and are drilled according to the same code and tactics so far as it can be made to apply. Yet it does not appear to be, beyond all doubt, federal militia. It is a sort of mingled race-a mixtum genusbiformis proles, "a mixed race, and two-formed offspring," as perhaps my friend for Manchester would say. To come back now to the point; if this force be entirely a volunteer force-if it be irrespective of the laws of the United States which com [June 22d. pel duty, is there any obstacle in the way of the commander-in-chief's organizing a corps of volunteers irrespective of color? Take the question in this form, whether he could commission colored persons? Take, for instance, a company of light infantry, and suppose that they should choose a colored citizen as their captain; could the commander-in-chief commission the person so elected? No State Constitution can override a law of congress, and by those laws persons recognized as militia men must be whites, and following out this, our State law declares, that "No idiot, lunatic, common drunkard, vagabond, pauper, or person convicted of any infamous crime, nor any other than white able-bodied male citizens shall be eligible to any military office. Our Report does not indeed touch that question, it only goes to the raising of a company, or companies; it does not touch the officering of such companies. There would certainly be a serious difficulty if you were to create a corps of colored citizens and attach it to a squadron, or a regiment. If they are to be volunteers, their services must be voluntary in more respects than one. They must not only be volunteers, as troops, but they must be volunteers in obedience to the officers whom they may elect to command, for these officers could not be commissioned, and I have my doubts whether the arms of the United States could be put into the hands of such men. The petitioners had two several hearings, and expressed themselves fully satisfied with the patience with which they had been listened to, and the hearings given to their various arguments, and even with a portion of the Report of the Committee. I think then that the governor might accept the services of a colored company, but it would be a company with officers destitute of commissions, and with men armed at their own expense-and the company itself so peculiarly situated, that it could not possibly be returned to the general government as militia men. What then would they be? Clearly nothing more than a body of men by courtesy allowed to do military duty, unsafe to take into action, not for lack of courage, but because, if treacherous or turbulent, officers could not be court-martialed, for they are without commissions nor the men be tried at the drumhead, since only volunteers under officers without parchment. The proper way to cure all these difficulties, is for congress to act in the premises. The period of military service might be abridged at both extremes of eighteen and forty-five years, and be brought to about from twenty-one to thirty. This would be materially lessening the numbers, and would give a sufficient nucleus for expan sion. Or some system might be devised, under authority of the general government, by which a volunteer militia analogous to our own should be organized by the several States, and recognized by the United States. Clearly the system of 1792 is dead and cannot revive. Nor should it. It is too cumbrous and burdensome, and for the purposes of supplying a draft in case of war, will never be resorted to. In my opinion, congress will never again make drafts of militia men. All troops raised hereafter for the general service, will be such as were raised in the late Mexican war, they will be volunteers, and there will always be enough of them, easily raised, easily inured to the camp and the field, and able to cope with any enemy they may encounter. Mr. CHOATE. A question of expediency is involved in the proposition of the gentleman from Natick, (Mr. Wilson,) in regard to which I take little interest, and have nothing, or little, to say; but whether that proposition raises or approaches a conflict with the law of the United States, is a matter of more importance. And in further answer to the inquiry with which the gentleman for Abington, (Mr. Keyes,) just now interrupted the gentleman from Lowell, (Mr. Abbott,) and to which he gave, I think, the right general reply, I should say that whether here would be a conflict of the two governments or not depends on what you propose really to do, which has not yet been very definitely indicated. If you mean merely to empower the governor to organize, or to recognize the organization of, a corps of colored men-to such an extent only as this-that is—so far as to protect them from being prosecuted as a riotous, or armed assemblage, under our criminal law-if you mean to organize a mere insulated local force-call it police or what you will-forming no part of the national militia; no part of the militia which congress provides for "organizing, arming, disciplining, and calling forth" in the emergencies specified in the Constitution-a force not coming within that name; not entitled or liable to serve in their ranks; not subject to the code of law by which they are governed, nor with any right to expect the compensations by which they might be rewarded-a mere separate and local body of persons-then there is no conflict that I can see. But if you propose, and are here attempting to create a portion of militia proper, as known to the national Constitution and laws; if you mean, or expect, to put them upon the parade on legal equality with the militia of the country, identified with them, taking their name, and sharing in their regulations and discipline and character, then you do menace a conflict with the supreme law. [June 22d. What you aim at, if it is this, is beyond your reach. Whether the little you can do, it is worth while to do; whether philanthropy will gain much, or State Rights anything, by authorizing this portion of your fellow citizens, I will not say to play at training, but certainly to strive and assume to be, what by law they cannot be, is another question on which I shall have little to say. First, then, Sir, in regard to the question of conflict of laws. I do not quite agree with all the gentlemen whom I have heard this morning, and still less with a gentleman who addressed you yesterday, and whom I had not the pleasure of hearing, (Mr. Sumner,) upon the extent and nature of the jurisdiction of the national government over the subject of the militia. That jurisdiction is not exclusive, in the strict or highest sense of that expression. The terms of the grant in the Constitution do not declare it to be exclusive. There is not that essential incompatibility in its concurrent exercise, which makes it exclusive by construction; even although congress have legislated on the general subject, yet just so far as it leaves the ground uncovered, the States may cover it by supplementary and auxiliary regulation; and therefore, unless you should raise the case of direct conflict, in regard to the precise matter, on which, by your Constitution, or by law, you propose to act, direct conflict between what you do and what congress has done, there is no difficulty. It is for this reason that I think the objection of the gentleman, (Mr. Sumner,) made, as I understood, last evening, that this Convention has no power under the Constitution of the United States to provide for organizing, training, and disciplining the militia-by a system in strict subordination to, and cooperation with, the system of congress, is unsound. On the contrary, it is quite competent for you, if you please, to make an organic law that shall reenact, so to speak; shall adopt, recognize, and aim to carry out every provision in the Constitution, and in every act of congress, on the subject of the militia, from first to last. You may reenact, you may aid, you may supply deficiencies, you may do anything and everything up to the point of actual conflict of specific provisions. When it comes up to that you must stop, and the supreme law must prescribe the rule. The case of Prigg vs. State of Pennsylvania, which I am told the gentleman referred to, is no authority to the contrary. That case stands alone, and is likely to continue to so stand. It is an adjudication on the fugitive slave clause, and nothing else; and who does not remember how Wednesday,] CHOATE. [June 22d. be not repugnant to the supreme law of the land. But now, Sir, the difficulty here is, that if you propose so to organize persons of color as to make them part of the militia of the United States-that militia over whom the Constitution gives to congress the kind of jurisdiction of which I have spoken-you do run into direct conflict with that supreme law. Congress has legislated on the question of who may be of the militia. It has defined the word, and that definition confines it to white persons. It transcends your power to so enlarge it as to comprehend others. solicitous Mr. Justice Story, in giving the opinion, | restriction, under which it acts, is that its action is to insist, that the court confine themselves exclusively to that single clause; that they regard that as strictly sui generis; that they address themselves solely to its history; its objects and policy, as disclosed by its history; and aimed at such a construction as should be consistent with, and in furtherance of, its origin and its intention thus ascertained. It was no part of the purpose of the court, in that decision, to establish general doctrines of interpretation or of jurisdiction. Still less did they mean to overrule or limit in the slightest degree one of the long series of cases and opinions, in which the learning and acuteness of that court and the learning of all our schools of statesmen, the Jeffersons, and the Johnsons, as well as the Hamiltons and Marshalls and Madisons, had been employed in drawing the line between exclusive and concurrent federal powers. What, then, is all you can do in this behalf? You may ordain that a company of "other persons," if called out by the governor, may arm themselves and march to music, and with the flag, without being guilty under the statute which prohibits the going armed offensively, to the terror of the people; you may protect them from indictment in that transaction. So far you may go. Perhaps you may go farther; but into the militia of the country, into the militia of Massachusetts-itself a part of the militia of the country, recognized and armed by the general government-you cannot incorporate them. In that institution they cannot be recognized; its regulations cannot reach them; its courts-martial cannot try them; it has no weapons to place in their hands; no punishments; no rewards. Yes, Sir; it is to play at training that you propose to give them a chance. Its work, its wages, its position, its dignity, you cannot give them. I said, Mr. President, that I should not discuss the question whether it is worth your while to do the little which is alone within your power. As a matter of kindness to this portion of your fellow citizens, as matter of humanity, of philan Going back, then, to the earlier decisions on the direct subject, and which, you see, the case of Prigg does not touch, one is enough. That is, Houston vs. Moore, reported in the fifth volume of Wheaton. Some strong, almost loose expressions, there are, of different judges. But the point adjudged is remarkable, and is conclusive against the objection of the gentleman, (Mr. Sumner). An act of congress provided for calling the militia into the service of the United States; and ordained, among other things, that if any man refused to obey the call, he should be punished, to a prescribed extent, on conviction, by a court-martial. He was to be tried, and punished for an omission of duty committed at home, or on his way to camp, and before he should arrive in camp, and be actually mustered into service. So that here you had the general government legislating on a specific subject; creating an offence which should be committed at a particular time and place; de-❘thropy, I doubt greatly whether it is worth your fining the punishment, and erecting a tribunal to inflict it. Thus, it covered all that ground. And yet, what did the ever patriotic State of Pennsylvania? Why, she passed a law-applying itself directly to the very same offence-an omission of duty before arriving in camp, committed at the same time and same place, by which she imposed a higher punishment than that imposed by congress, and established a court-martial of her own to inflict it. Here, then, were both governments acting ad idem; but they were not in conflict, and therefore the law of Pennsylvania was adjudged constitutional. And so, I repeat, the jurisdiction of congress is not exclusive. The actual exercise of the jurisdiction does not exclude a State from legislation, coöperative and ancillary, over the identical subject matter; and the single while. Why call them to the parade, unfurl the national banner over their heads, bid them march to the music and mimic the pride, pomp and circumstance of glorious war, when the discriminations and disabilities of color must, under the law, cleave to them even there more conspicuous by the contrasts of place and associationturning all to a sport of childhood, without its interest, or gladness, or hope? But it was not to this part of the subject that I meant to address myself. I desired only to express the opinion that the national jurisdiction over the militia is not exclusive; that we may legislate in aid of the legislation of congress; that in case of actual conflict between its legislation and ours, we must yield; and that an attempt to make these persons part of the militia of the country, brings on such conflict, and is unconstitutional. Mr. WILSON, of Natick. I should like to ask the distinguished gentleman from Boston if, in his opinion, the law of the United States would forbid the governor of this Commonwealth, the commander-in-chief of the volunteer militia of this Commonwealth, to act as such in calling them out to suppress a riot,—and I ask in connection with that, whether a colored man may not be one of the volunteer militia? Mr. CHOATE. I will answer the question, if I have rightly caught its import, with frankness; although it is obviously, to my mind, nothing to the gentleman's purpose. The president of the United States, perhaps has no power in any such case— ex directo-to prohibit a governor from doing such an act. The law might not prohibit it. But the difficulty is this. Suppose the president or the law cannot prohibit it, and does not, and the governor does call out such a company, what are they when thus called out? Are they the militia -a portion of the militia of the United States, as the volunteer militia of Massachusetts are? tainly not, in my judgment of the law. Cer Mr. SUMNER, for Marshfield. I have a suggestion to make to my friend opposite, (Mr. Wilson,) in regard to the form of his proposition, which, if he will accept it, will, as it seems to me, absolutely remove his proposition from the criticism of my most eloquent friend before me, (Mr. Choate,) and from the criticism of other gentlemen who have addressed the Convention. suggest to him to strike out the word "militia," and substitute therefor the words "military companies," so that his proposition will read "that in the organization of the volunteer military companies of the Commonwealth there shall be no distinction of color or race." I Mr. WILSON. I accept the suggestion, and will amend my proposition accordingly. Mr. SUMNER. Now that proposition, as amended, I submit, is absolutely consistent with the Constitution of the United States, and, I believe, in conformity with the public sentiment of Massachusetts. A brief inquiry will show that it is consistent with the Constitution of the United States, and in no respect interferes with the organization of the national militia. That Constitution provides for organizing, arming and disciplining a militia, and gives congress full power over the subject. To be more explicit I will read the clause. It is found in the long list of enumerated powers of congress, and is as follows:-"Congress shall have power to provide for organizing, arming and disciplining the militia, and of governing such [June 22d. 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 authority of training the militia, according to the discipline prescribed by congress." And then at the close of the section it is further declared "that congress shall make all laws which shall be necessary and proper for carrying into execution the foregoing powers." In pursuance of this power, congress have proceeded, by various laws, "to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be engaged in the service of the United States." The earliest of these laws, which is still in force, is entitled, "An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States." [Act of May 8th, 1792, ch. 33.] This has been followed by several acts in addition thereto. Congress, then, have undertaken to exercise the power of "organizing" the militia under the Constitution. And here the question arises, to what extent, if any, this power, when already exercised by congress, is exclusive in its character. Among the powers delegated to congress, there may be some which are not for the time being, exercised. For instance, there is the power "to fix the standard of weights and measures." Practically this has never been exercised by congress; but it has been left to each State within it own jurisdiction. On the other hand, there is a power belonging to the same group, "to establish uniform laws on the subject of bankruptcies throughout the United States," which, when exercised by congress, has been held so far exclusive, as to avoid at once all the bankrupt and insolvent laws of the several States. Sir, I might go over all the powers of congress, and find constant illustration of the subject. For instance, there is the power "to establish an uniform rule of naturalization,"-on which Chief Justice Marshall once remarked :-"That the power of naturalization is exclusively in congress, does not seem to be, and certainly ought not to be, controverted." There is the power "to regulate commerce with foreign nations and among the several States," which was early declared by the supreme court, to be exclusive, so as to prevent the exercise of any part of it by the States. There is the power over patents and copyrights, which has also been regarded as exclusive. So, also, is the power "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." So, also, is still another power, viz. : "to establish post-offices and post-roads." All of these powers, as in the case Wednesday,] SUMNER. [June 22d. of the power over the national militia, have been | nizing the exclusive character of the legislation exercised by congress, and even if not absolutely of congress on this subject. exclusive in their original character, have become so by the exercise. Now, Sir, upon what ground do gentlemen make any discrimination in the case of the power over the national militia? I know of no ground which seems to be tenable. It is natural that the States should desire to exercise this power, since it was so important to them before the Union; but I do not see how any discrimination can be maintained at the present time. Whatever may have been the original importance of the militia to each State, yet when the Constitution of the United States was formed, and congress exercised the power delegated to it over this subject, the militia of the several States was absorbed into one uniform body, organized, armed and disciplined as the national militia. To the States respectively was left, according to the express language of the Constitution," the appointment of the officers and the authority of training the militia, according to the discipline prescribed by congress." To this we may add the implied power of "governing" them when in the service of the State. This is all. The distinct specification of certain powers, as reserved to the States, seems to exclude them from the exercise of all others, which are not specified or clearly implied. In other words, they are excluded from all power over the "organizing, arming, and disciplining the militia,"-at least after congress have undertaken to enact laws for this purpose. The history of the adoption of the several parts of this clause in the Federal Convention reflects light upon its true meaning. The first part, in regard to organizing, arming, and disciplining the militia, was passed by a vote of nine States against two; the next, referring the appointment of officers to the States, after an ineffectual attempt to amend it by confining the appointment to officers under the rank of general officers, was passed without a division; and the last, reserving to the States the authority to train the militia, according to the discipline prescribed by congress, was passed by a vote of seven States against four. It seems, then, that there was a strong opposition in the Convention, even to the express reservation to the States of "the authority of training the militia." But this power is not reserved unqualifiedly. The States are to train the militia "according to the discipline prescribed by congress;" not according to any discipline determined by the States, or by the States concurrently with the general government; but absolutely according to the discipline prescribed by congress; nor more, nor less; thus distinctly recog This interpretation derives confirmation from the manner in which the militia of England was constituted or organized at the time of the adoption of the Federal Constitution. To the crown was given the "sole right to govern and command them," though they were "officered" by the lord lieutenant of the county, the deputy-lieutenant, and other principal landholders of the county. The commentaries of Sir William Blackstone, from which this description is drawn, were familiar to the members of the Convention; and it is reasonable to suppose that, in the distribution of powers between the general government and the States, on this subject, the peculiar arrangement which prevailed in the mother country was not disregarded. If it should be said, that the adoption of this conclusion would affect the character of many laws enacted by States, and thus far recognized as ancillary to the national militia, it may be replied, that the possibility of these consequences cannot justly influence our conclusions on a question which must be determined by acknowledged principles of constitutional law. In obedience to these same principles, the supreme court, in the case of Prigg vs. Pennsylvania, have pronounced an opinion, which has annulled a large number of statutes in different States. Mr. Justice Wayne in this case said: "That the legislation, by congress, upon the provision, as the supreme law of the land, excludes all State legislation upon the same subject; and that no State can pass any law or regulation, or interpose such as may have been a law or regulation when the Constitution of the United States was ratified, to superadd to, control, qualify, or impede a remedy enacted by congress for the delivery of fugitive slaves to the parties to whom their service or labor is due." Without the sanction of any express words in the Constitution, and chiefly, if not solely, in view of the importance of consulting "unity of purpose or uniformity of operation" in the legislation with regard to fugitive slaves, they have excluded the States from all sovereignty in the premises. Now if this rule be applicable to the power over fugitive slaves, it is also applicable to the power over the militia. Indeed, I know of no power which so absolutely requires what has been regarded as an important criterion, "unity of purpose or uniformity of operation," as that over the militia. No uniform military organization can spring from opposite or inharmonious systems; and all systems proceeding from different sources are liable to be opposite or inharmonious. |