POWERS OF THE STATE OVER THE MILITIA: EXEMPTIONS FOR CONSCIENTIOUS
SCRUPLES.
SPEECH IN CONVENTION TO REVISE AND AMEND THE CONSTITUTION OF
MASSACHUSETTS,[2] JUNE 21, 1853.
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],
regarding the extent to which Government may be intrusted with the
power of the sword, can materially influence our decision. I put these
things aside at this time.
[2] The members of this Convention were not required to have their
domiciles in the places which they represented. Mr. Sumner sat as
member for Marshfield, by which place he was chosen while absent
from the State.
The question is on the final passage of the fifteen resolutions
reported by the Committee on the Militia. And here let me adopt a
suggestion dropped by 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 with the
Legislature.
On the formation of the Constitution of Massachusetts, in 1780, it was
natural that our fathers should introduce 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 has proceeded to exercise this
power by the organization of a national militia. Whatever might have
been the original inducement to multiform provisions on this subject in
the Constitution of Massachusetts, none such exists at this day, and
it is impolitic at least to introduce them.
I fear that they are more than impolitic. I will not argue here the
question of Constitutional Law; but I appeal 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
unconstitutional and void, while Congress is recognized as the sole
depository of power on this subject. According to my recollection, it
was expressly held that 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, now
so swift with these provisions, 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 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 are averse to bearing arms. I believe
we cannot go far beyond these without doing too much, while these seem
to me enough.