THE POWERS OF A STATE OVER THE MILITIA.

SPEECHES ON THE MILITIA GENERALLY AND A COLORED MILITIA, IN THE CONVENTION TO REVISE AND AMEND THE CONSTI

TUTION OF MASSACHUSETTS * 21ST AND 22D JUNE, 1853.

The propositions of amendment on the general subject of the Militia being under consideration in Committee of the Whole, Mr. Sumner spoke as follows:

I SHOULD like to call the attention of the Committee to the precise question on which we are to vote. This does not, as it seems to me, properly open the discussion to which we have been listening. I do not understand that it involves the topics introduced by my friend opposite [Mr. Wilson], -the present condition of Europe, the prospects of the liberal cause in that quarter of the globe, or the extent to which that cause may be affected by a contemporaneous movement for peace. Nor do I understand that the important considerations introduced by the gentleman on my right [Mr. Whitney, of Boylston], on the extent to which Government may be entrusted with the power

* The members of this Convention were not required to have their domicil in the places which they represented. Mr. Sumner sat as the member for Marshfield, for which place he was chosen while absent from the State.

of the sword, can materially influence our decision. I put these things aside at this time.

The question is on the final passage of the fifteen resolutions reported by the Committee on the Militia; and here let me catch and adopt one word from my friend opposite [Mr. Wilson]. He regretted, if I understood him, that this whole subject was not compressed into one or two resolutions. Am I right?

Mr. WILSON. The gentleman is correct. Mr. SUMNER. I agree with him. I regret that it was not compressed into one or two resolutions. I object to these resolutions for several reasons. In the first place, there are too many. In the second place, at least two of them seem to be an assumption of power belonging to Congress, and, therefore, at least, of doubtful constitutionality; and in the third place, because twelve of them undertake to control matters which it were better to leave to the Legislature.

On the formation of the Constitution of Massachusetts, in 1780, it was natural that our fathers should introduce into it details with regard to the militia and its organization. The Constitution of the United States had not then been made. But since the establishment of this Constitution, the whole condition of the militia is changed. Among the powers expressly given to Congress, is the power "to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers and the authority of training the militia, according to the discipline prescribed by Congress." And Congress have proceeded to exercise this power by the organization of a national

militia. I submit that whatever might have been the original inducements to introduce multiform provisions on this subject into the Constitution of Massachusetts, none such exist at this day; and it is impolitic, at least, to introduce them.

But I fear that they are more than impolitic. I will not argue here the question of constitutional law; but I submit to the better judgment of my professional brethren - and I am happy to see some of them lingering at this late hour that any attempt on the part of the State to interfere, in any way, by addition or subtraction, with the organization of the national militia, is an experiment which we should not introduce into the permanent text of our organic law. If the decisions of the Supreme Court of the United States on the powers of Congress are to prevail, then, it seems to me, any such assumption, in a case where the original power of Congress is clear, will be unconstitutional and void. In the famous case of Prigg v. Pennsylvania, after an elaborate discussion at the bar, all State legislation on the subject of fugitive slaves was declared to be unconstitutional and void, while Congress was recognized as the sole depository of power on this subject. According to my recollection, it was expressly held, that the legislation by Congress excluded all State legislation on the same subject, whether to control, qualify or superadd to the remedy enacted by Congress. I commend gentlemen, who are now so swift to introduce these provisions into our Constitution, to the study of this precedent. It is comparatively recent; and the principle of interpretation which it establishes is applicable to State laws on the militia, even though entirely inapplicable to State

laws on fugitive slaves; for the simple reason that in the former case the original power of Congress is clear, while in the latter it is denied.

But the States are not without power over the militia. In the very grant to Congress is a reservation to them as follows: "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 here is precisely what the States can do. They may appoint the officers and train the militia.

Now, sir, the first two resolutions before us transcend the powers of the State. They touch the enrolment and organization of the militia, and on this account are an assumption of power, forbidden by the principle to which I have referred. The other thirteen resolutions, with the exception of the seventh, are in the nature of a military code, concerning the choice of officers, all of which should be left to the action of the Legislature.

In conformity with these views, Mr. Chairman, and in the hope of presenting a proposition on which the Convention may unite, I propose to strike out all after the preamble and insert two resolutions, as follows:

Art. 1. The Governor shall be the Commander-in-Chief of the Army and Navy of the State, and the Militia thereof, excepting when these forces shall be actually in the service of the United States; and shall have power to call out the same to aid in the execution of the laws, to suppress insurrection, and to repel invasion.

Art. 2. The appointment of officers and the training of the Militia shall be regulated in such manner as may hereafter be deemed expedient by the Legislature, and all persons, who from scruples of conscience, shall be averse to bearing arms shall be

excused on such conditions as shall hereafter be prescribed by law.

The first of these resolutions is identical with the seventh resolution of the Committee. The second provides for the exercise, by the Legislature, of the powers expressly reserved to the States, over the appointment of officers and the training of the militia; and taking advantage of the Act of Congress, which allows the States to determine who shall be exempted from military duty, it plants in the text of the Constitution a clause by which this immunity is secured to all persons, who, from scruples of conscience, shall be averse to bearing arms. I believe we cannot go far beyond these without doing too much, while these seem to me to be enough. I send the resolutions to the Chair, and leave the Convention to dispose of them as they think proper.

On the next day, 22d June, the following resolution was brought forward by Mr. Wilson :

Resolved, That no distinction shall ever be made in the organization of the volunteer militia of the Commonwealth on account of color or race.

On this proposition Mr. Sumner spoke as follows:

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. I suggest to him to strike out the word " militia," and substitute therefor the