WASHINGTON, _February 23, 1824_.
_To the Senate and House of Representatives of the United States_:
I herewith transmit to Congress certain documents relating to a claim
of Massachusetts for services rendered by the militia of that State
in the late war, and for which payment was made by the State. From the
particular circumstances attending this claim I have thought it proper
to submit the subject to the consideration of Congress.
In forming a just estimate of this claim it will be necessary to recur
to the cause which prevented its admission, or the admission of any part
thereof, at an earlier day. It will be recollected that when a call was
made on the militia of that State for service in the late war, under
an arrangement which was alike applicable to the militia of all the
States and in conformity with the acts of Congress, the executive of
Massachusetts refused to comply with the call, on the principle that
the power vested in Congress by the Constitution to provide for
calling forth the militia to execute the laws of the Union, suppress
insurrections, and repel invasions was not a complete power for
those purposes, but conditional, and dependent on the consent of the
executives of the several States, and, also, that when called into
service, such consent being given, they could not be commanded by a
regular officer of the United States, or other officer than of the
militia, except by the President in person. That this decision of
the executive of Massachusetts was repugnant to the Constitution of
the United States, and of dangerous tendency, especially when it is
considered that we were then engaged in a war with a powerful nation
for the defense of our common rights, was the decided opinion of this
Government; and when the period at which that decision was formed was
considered, it being as early as the 5th of August, 1812, immediately
after the war was declared, and that it was not relinquished during the
war, it was inferred by the Executive of the United States that the
decision of the executive of that State was alike applicable to all the
services that were rendered by the militia of the State during the war.
In the correspondence with the governor of Massachusetts at that
important epoch, and on that very interesting subject, it was announced
to him by the Secretary of War that if the militia of the State were
called into service by the executive of the State, and not put under the
command of the Major-General of the United States, as the militia of
the other States were, the expense attending their service would be
chargeable to the State, and not to the United States. It was also
stated to him at the same time that any claim which the State might
have for the reimbursement of such expenses could not be allowed by the
Executive of the United States, since it would involve principles on
which that branch of the Government could not decide.
Under these circumstances a decision on the claim of the State of
Massachusetts has hitherto been suspended, and it need not be remarked
that the suspension has proceeded from a conviction that it would be
improper to give any sanction by its admission, or by the admission
of any part thereof, either to the construction of the Constitution
contended for by the then executive of that State or to its conduct
at that period toward the General Government and the Union.
In January, 1823, the Representatives in Congress from Massachusetts and
Maine suggested, by memorial, that the constitutional objection could
not apply to a portion of the claim, and requested that the accounting
officer of the Government might be instructed to audit and admit such
part as might be free from that objection. In all cases where claims
are presented for militia service it is the duty and the practice of
the accounting officer to submit them to the Department for instruction
as to the legality of the claim; that is, whether the service had been
rendered by order of the competent authority, or otherwise, under
circumstances to justify the claim against the United States, admitting
that the evidence in support of it should be satisfactory. To this
request there appeared to be no well-founded objection, under the
reservation as to the constitutional principle, and accordingly an order
was given to the accounting officers of the Treasury to proceed in
auditing the claim with that reservation.
In conformity with this arrangement, the executive of Massachusetts
appointed two citizens of that State commissioners to attend to the
settlement of its claim, and who, in execution of the trust reposed in
them, have presented to the accounting officer of the Treasury that
portion comprehending the services of the fifth division of the militia
of the State, which has been audited and reported for consideration,
subject to the objection above stated. I have examined this report, with
the documents presented by the commissioners, and am of opinion that
the services rendered by that division were spontaneous, patriotic, and
proper, necessary for self-defense, to repel in some instances actual
invasion and in others to meet by adequate preparation invasions that
were menaced. The commissioners of the State having intimated that other
portions of service stood on similar ground, the accounting officer has
been instructed, in auditing the whole, to do it in such manner as to
enable the Department to show distinctly under what circumstances each
portion of service was rendered, whether voluntary, called out by
invasion or the menace of invasion, or by public authority, and in such
case whether the militia rendering such service was placed under the
authority of the United States or retained under that of the State.
It affords me great pleasure to state that the present executive of
Massachusetts has disclaimed the principle which was maintained by the
former executive, and that in this disclaimer both branches of the
legislature have concurred. By this renunciation the State is placed on
the same ground in this respect with the other States, and this very
distressing anomaly in our system is removed. It is well known that the
great body of our fellow-citizens in Massachusetts are as firmly devoted
to our Union and to the free republican principles of our Government as
our fellow-citizens of the other States. Of this important truth their
conduct in every stage of our Revolutionary struggle and in many other
emergencies bears ample testimony; and I add with profound interest and
a thorough conviction that, although the difficulty adverted to in the
late war with their executive excited equal surprise and regret, it
was not believed to extend to them. There never was a moment when the
confidence of the Government in the great body of our fellow-citizens
of that State was impaired, nor is a doubt entertained that they were
at all times willing and ready to support their rights and repel an
invasion by the enemy.
The commissioners of Massachusetts have urged, in compliance with their
instructions, the payment of so much of their claim as applies to the
services rendered by the fifth division, which have been audited, and
I should have no hesitation in admitting it if I did not think, under
all the circumstances of the case, that the claim in all its parts was
cognizable by Congress alone. The period at which the constitutional
difficulty was raised by the executive of the State was in the highest
degree important, as was the tendency of the principle for which it
contended, and which was adhered to during the war. The public mind
throughout the Union was much excited by that occurrence, and great
solicitude was felt as to its consequences. The Executive of the United
States was bound to maintain, and did maintain, a just construction of
the Constitution, in doing which it is gratifying to recollect that the
most friendly feelings were cherished toward their brethren of that
State. The executive of the State was warned, in the correspondence
which then took place, of the light in which its conduct was viewed
and of the effect it would have, so far as related to the right of the
Executive of the United States, on any claim which might afterwards be
presented by the State to compensation for such services. Under these
circumstances the power of the Executive of the United States to settle
any portion of this claim seems to be precluded. It seems proper, also,
that this claim should be decided on full investigation before the
public, that the principle on which it is decided may be thoroughly
understood by our fellow-citizens of every State, which can be done by
Congress alone, who alone, also, possess the power to pass laws which
may be necessary to carry such decision into effect.
In submitting this subject to the calm and enlightened judgment of
Congress, I do it with peculiar satisfaction, from a knowledge that you
are now placed, by the course of events, in a situation which will
enable you to adopt such measures as will not only comport with the
sound principles of our Government, but likewise be conducive to other
the highest interests of our Union. By the renunciation of the principle
maintained by the then executive of Massachusetts, as has been done by
its present executive and both branches of the legislature in the most
formal manner and in accord with the sentiments of the great body of the
people, the Constitution is restored in a very important feature (that
connected with the public defense) and in the most important branch
(that of the militia) to its native strength. It is very gratifying to
know that this renunciation has been produced by the regular, orderly,
and pacific operation of our republican system, whereby those who
were in the right at the moment of difficulty and who sustained the
Government with great firmness have daily gained strength until this
result was accomplished. The points on which you will have to decide
are, What is fairly due for the services which were actually rendered?
By what means shall we contribute most to cement the Union and give the
greatest support to our most excellent Constitution? In seeking each
object separately we are led to the same result. All that can be claimed
by our fellow-citizens of Massachusetts is that the constitutional
objection be waived, and that they be placed on the same footing with
their brethren in the other States; that regarding the services rendered
by the militia of other States, for which compensation has been made,
giving to the rule the most liberal construction, like compensation be
made for similar services rendered by the militia of that State.
I have been led to conclude on great consideration that the principles
of justice as well as a due regard for the great interests of our Union
require that this claim in the extent proposed should be acceded to.
Essential service was rendered in the late war by the militia of
Massachusetts, and with the most patriotic motives. It seems just,
therefore, that they should be compensated for such services in like
manner with the militia of the other States. The constitutional
difficulty did not originate with them, and has now been removed. It
comports with our system to look to the service rendered and to the
intention with which it was rendered, and to award the compensation
accordingly, especially as it may now be done without the sacrifice of
principle. The motive in this instance is the stronger because well
satisfied I am that by so doing we shall give the most effectual support
to our republican institutions. No latent cause of discontent will be
left behind. The great body of the people will be gratified, and even
those who now survive who were then in error can not fail to see with
interest and satisfaction this distressing occurrence thus happily
terminated. I therefore consider it my duty to recommend it to Congress
to make provision for the settlement of the claim of Massachusetts
for services rendered in the late war by the militia of the State,
in conformity with the rules which have governed in the settlement of
the claims for services rendered by the militia of the other States.