SPEECH IN CONVENTION TO REVISE AND AMEND THE CONSTITUTION OF
MASSACHUSETTS, JUNE 22, 1853.
On 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 this Commonwealth, on
account of color or race."
On this proposition Mr. Sumner spoke as follows.
I HAVE a suggestion for my friend opposite [Mr. WILSON], in
regard to the form of his proposition, which, if he accepts 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 strike out the word "militia," and substitute 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."
MR. WILSON. I accept the suggestion, and will amend my proposition
accordingly.
MR. SUMNER. Now the proposition, as amended, I assert, 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 the militia, and gives Congress
full power over the subject,--in which particular, be it observed, it
is clearly distinguishable from that of fugitive slaves, over whom no
such power is given. 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: "The Congress shall have 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 then, at the close of the section, it is
further declared, that Congress shall have power "to make _all laws
which shall be necessary and proper_ for carrying into execution the
foregoing powers."
In pursuance of this power, Congress has proceeded, by various laws,
"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." The earliest of these laws, still in force, is
entitled "An act more effectually to provide for the national defence,
by _establishing an uniform_ militia throughout the United States."[3]
This was followed by several acts in addition. Congress, then, has
undertaken to exercise the power of "organizing" the militia under the
Constitution.
Here the question arises, to what extent, if any, this power, when
already exercised by Congress, is exclusive in character. Among the
powers delegated to Congress there may be some 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 is left to each State within its 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.
[3] Act of May 8, 1792, ch. 33.
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."[4] 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.[5] There is the power over patents and
copyrights, which is also 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 that other power,
"to establish post-offices and post-roads." All these powers, as in the
case of the power over the National Militia, have been exercised by
Congress, and even if not absolutely exclusive in original character,
have become so by exercise.
[4] Chirac _v._ Chirac, 2 Wheaton, 269.
[5] Gibbons _v._ Ogden, 9 Wheaton, 198.
Now, Sir, upon what ground do gentlemen make any discrimination in
the case of the power over the National Militia? I know of none which
seems at all 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 National Constitution
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, according to the express language
of the Constitution, was left "the appointment of the officers, and
the authority of training the militia according to the discipline
prescribed by Congress." To this may be added 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,
excludes the States from the exercise of all other powers 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 has undertaken to enact laws for this purpose.
The history of the adoption of the several parts of this clause in the
National 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, reserving
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.[6] It seems, then, that there was strong
opposition in the Convention, even to the secondary reservation 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
National Government, but absolutely _according to the discipline
prescribed by Congress_,--nor more, nor less: thus distinctly
recognizing the essentially exclusive character of the legislation of
Congress on this subject.
[6] Madison's Debates, August 23, 1787.
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 National Constitution. To the crown was given
"the _sole right_ to govern and command them," though they were
"officered" by the Lord Lieutenant, the Deputy Lieutenants, and other
principal landholders of the county.[7] 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 National Government and the
States, on this subject, the peculiar arrangement prevailing in the
mother country was not disregarded.
[7] Blackstone, Commentaries, I. 412, 413.
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_ v.
_Pennsylvania_, after asserting a power over fugitive slaves which
is controverted, has proceeded to annul 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."[8] Without the
sanction of any express words in the Constitution, and chiefly, if not
solely, impressed by the importance of consulting "unity of purpose or
uniformity of operation"[9] in the legislation with regard to fugitive
slaves, the Court assumed a power over this subject, and then, as a
natural incident to this assumption, excluded the States from all
sovereignty in the premises.
[8] Prigg _v._ Pennsylvania, 16 Peters, 636.
[9] Ibid., 624.
If this rule be applicable to the pretended power over fugitive slaves,
it is still more applicable to the power over the militia which nobody
questions. Besides, I know of no power which so absolutely requires
what has been regarded as an important criterion, "unity of purpose or
uniformity of operation." 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.
Now, Sir, let us apply this reasoning to the matter in hand. In
Massachusetts there exists, and has for a long time existed, an
anomalous system, familiarly and loosely described as the Volunteer
Militia, not composed absolutely of those enrolled under the laws of
the United States, but a smaller, more select, and peculiar body. It
cannot be doubted that the State, by virtue of its _police powers_
within its own borders, has power to constitute or organize a body of
_volunteers_ to aid in enforcing its laws. But it does not follow that
it has power to constitute or organize a body of volunteers who shall
be regarded as part of the National Militia. And, Sir, I make bold
to say that the volunteer militia--I prefer to call it the volunteer
military companies--cannot be regarded as part of the National Militia.
It is no part of that _uniform militia_ which it was the object of the
early Act of Congress to organize. It may appear to be part of this
system, it may affect to be, but I pronounce it a mistake to suppose
that it is so in any just constitutional sense.
As a local system, disconnected from the National Militia, and not in
any way constrained by its organization, it is within our jurisdiction.
We are free to declare the principles which shall govern it. We
may declare, that, whatever may be the existing law of the United
States with regard to its enrolled militia,--and with this I propose
no interference, because it would be futile,--I say, Massachusetts
may proudly declare that in her own volunteer military companies,
marshalled under her own local laws, there shall be no distinction of
race or color.