Mr. B., in offering his resolution, said: In the course of the debate on the Massachusetts Claim, it seemed to be generally stated, by its advocates, that the object of the bill was merely to authorize the settlement of the claim on the same principles on which the claims of other States had been settled. But Mr. B. was not aware that any bill had been passed to authorize the allowance of claims of other States, and he could see no occasion for any particular legislation in the present instance. It had, indeed, been said, that the late President had, by his message to Was it not due, then, he would ask, to the just expecCongress, deprived the Department of the power to set-tations of the friends of the claim, that they should now tle it in the ordinary way; and, it was for the purpose of have an expression of Legislative opinion upon the subdoing away the effect of that message, and referring the ject? subject to the proper quarter, that he offered his resolution.

purse and the sword: the fiscal and the physical energies of her dominion, to be used by you for the purposes of the general welfare.

Aware of the importance of these powers, and of the incompetency of the States to protect themselves, when you should have drawn out their revenues derived from the customs, you guarantied to them, by the fourth section of the fourth article of the Constitution, "protection," not only against foreign "invasion," but against "domestic violence." From domestic violence, God forbid that she should ever have occasion to ask your protection. The character of her citizens forbids such an apprehension. But from invasion she has been, and may again be, compelled to ask protection from those to whom she has surrendered the means by which she would otherwise have protected herself.

[H. of R.

history, in the letter of General Knox, while Secretary of War, to the Governor of Georgia, in 1793, and by the report of General Dearborn, then Secretary of War, to the House of Representatives, in 1803.

"It is lawful for the Governor of a State, when invaded, or in imminent danger of invasion, to be the judge of the duration and extent of the danger, and to apportion the defence to the exigencies that presented."

The United States have always recognized, in the end, the justice of such claims; and, though payment has been often delayed, the Statute Books are full of acts providing for the satisfaction of them.

Indeed, so sacred has this class of claims been consider. ed, that, at the last session of Congress, a bill passed, allowing to Virginia, what he believed was rarely, if ever, allowed on other claims-interest upon the money borrowed by her to pay the militia that were called out to defend that State during the last war.

no doubt would be eventually granted.

The principles of the social compact of Government it. self, would justify the Claim, independent of the special obligations which the United States have assumed as an At this very session, a petition of a similar kind had equivalent for the privileges granted by the States. Un-been presented from the State of Maryland, which he had der what Government of the earth, he would ask, would the expenditure necessarily incurred by the defence of an integral portion of the empire, be thrown exclusively upon the citizens of that particular territory? Where, but under colonial vassalage, could such a doctrine maintain? Even there, the colony would have an exemption, which a State has not, from the burthens incident to the defence of the General Government.

How much more strongly, Sir, do such obligations rest upon the Government of the United States, by the fundamental law of the country-the Constitution under which we live.

Independent of their revenues, which are justly termed the sinews of war, the States surrendered, as a means of defence, under certain specified emergencies, their Militia to the United States.

By the Constitution, article 1, section 8, it is provided that Congress shall have power to provide for calling forth the militia

To execute the laws of the Union,
To suppress insurrections,

And to repel invasions.

Why, then, it may be asked, are the Claims of Massachusetts resisted? It is admitted that the services were rendered by their militia, in defence of the State, against the common enemy, and were paid for out of the Treasu ry of the State; that the services were rendered with triotic intentions, and were necessary for her defence.

pa

It was said at one time that the Executive and Government of Massachusetts had assumed constitutional doctrines, so repugnant to the true intent of that instrument, and so hostile to the interests of the Union, that the claim could not be allowed.

He was not disposed, as a Representative of Massachusetts, unnecessarily and unjustly to place her in a posture of hostile array against the General Government; nor, as a member of one branch of the General Government, was he willing to admit, for a moment, that they ever assumed a hostile attitude towards Massachusetts. The state of the question supposes no such necessity, and the history of the time affords no sanction to an assertion of such

broad and indiscriminating censure. But he was prepared to admit, that the constitutional construction at

and then to shew that that construction has no bearing upon the character of the services rendered, and ought not to bear upon the merits of the question now before the Committee.

And also to provide for organizing, arming, and disci-tributed to the Executive of Massachusetts was unsound, plining 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.

By these provisions, it is manifest that, notwithstanding the laudable State jealousy which they evince, still the militia of the States are, to the General Government, the right arm of the national defence; and by the other clause, that of "raising and supporting armies and maintaining navies," the General Government were provided with the means of carrying on their offensive operations against the common enemy, wherever a blow might be struck with effect.

In admitting, as he felt himself bound to do, the incorrectness of some of these doctrines, he begged leave to guard against any misapprehension from that fact.

The admission was not drawn from us with any idea that it could or ought to affect the claim.

This was no sacrifice of opinion, to conciliate support to our interests. He could say, upon his honor and conscience, that he thought such admission had no tendency to conciliate support from any quarter. If such should be the tendency, such could never have been the motive. Nothing but a deep conviction that there was error, ought ever to produce its avowal; and all would agree with him, that Massachusetts ought sooner to sacrifice her

For purposes, then, merely municipal, as it regards ourselves, and strictly defensive, as it regards the enemy, the militia of the States compose the force upon which the General Government may, and perhaps ought, exclusive-clain, than to yield one iota of just constitutional princily to rely.

Beyond this he could never go, in the construction of the powers of the General Government over the militia, who are, in effect, the People of the States.

ple, upon a question of such vital importance to the country in all after time.

He was aware, too, that the constitutional doctrine alluded to, had been maintained by an individual of distinFrom these principles, it would inevitably result that guished talents in the Executive Government of Massachuwhere, from the remoteness of the troops of the General setts, and supported by a judicial tribunal which did not Government, or from the suddenness of the danger, the yield to any other in this country, in its capacity to inves States had called out their militia to repel invasion. or un-tigate and decide those questions which belonged to the der a well-founded apprehension of invasion, the General Government were bound to remunerate the States for the expenses so incurred.

jurist and the statesman.

But in opposition even to such authority, he confessed that his own opinion was, that, under the Constitution, the This position was sanctioned at an early period of our General Government was, and ought to be, the judge of

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[APRIL 7, 1826.

the Constitutional exigencies under which the militia may over the militia which has not previously been authorized be called into the service of the United States to repel in- by an act of a Congress composed of Representatives of vasion; and that, when so called into the service, the each of the States-a power so limited that it cannot be President, with the limitations and restrictions mention-abused; so restricted that he can never take from a comed in the Constitution, was their Commander-in-Chief, although not actually present in person to assume that

character.

He did not mean to enter fully into the argument of this part of the case. It was unnecessary for the purpose of coming to a just conclusion upon the merits of the claim.

But he would mention one or two leading considerations which had brought his own mind to a conclusion opposite to the doctrines alluded to.

In all grants of power, he considered the rule as uncontradicted, that they should receive such a construction as to carry into effect the intentions of the grant.

It was manifestly the intention of this grant by the States to the General Government, to give to the latter a power over the militia, which would repel the intrusion of a hostile footstep upon the territory of the Union.

pany, battalion, regiment, or division, those officers which their own choice, or State authority, has placed over them.

By the 97th section of the rules and articles of war, a corps of militia can only be commanded by an officer of the United States of equal or superior rank with the highest militia officer belonging to that corps.

Let the President attempt to send a major to command a regiment, or a colonel to command a division of militia, and the patriotic spirit of the militia will convince him of the danger of innovating upon their rights, or those of the State to which they belong.

Having thus ingenuously admitted the erroneous opinions which were entertained by the Government of Massachusetts, he thought himself entitled to remark as freely upon the errors of constitutional opinion which had been entertained by the General Government, and some of its

How was this power to be exercised, unless the Gene-distinguished officers, upen the same subject. ral Government should be (as a mean of carrying it into effect) clothed with the authority to judge when there was imminent danger of invasion.

Other parts of the same Constitution had vested them with the power of maintaining a national force, which might alarm Foreign nations; of declaring war, which would call them to invade us; and above all, of managing the Foreign relations of the country, which, at the same time that they might produce a disposition in Foreign Governments hostile to ours-furnished ours, through the medium of Diplomatic and other agencies abroad, with the earliest information of their hostile intentions, and thereby enabled the General Government to do what the States could not possess the knowledge in season to perform. That is, by anticipating the hostile movements of other nations, to defeat entirely the object, or at least to meet the occasion with the preparation and vigor which alone could give efficacy to military operations.

Even the law of 1795, notwithstanding the clear and cogent arguments of his friend and colleague, (Mr. Davis) he must still consider as containing a principle more dangerous to the rights and sovereignty of States, than those he had disavowed could be to the interests of the General Government.

He was aware that the law alluded to had received a judicial construction by the Supreme Court, in the case of Houston vs. Moore, 5th Wheaton. But the attention of the court had not been called, in that case, to the particular defect to which he alluded, and gentlemen must also be aware that the law of 1795 was passed, not in a moment like the present, favorable to the adoption of just and conciliatory constitutional views, but of extreme excitement and alarm, lest the whiskey rebellion of your native State, Mr. Chairman, should spread its fell and destructive influence over the Union.

of regret, that it should be suffered to remain there down through a lapse of thirty years of almost uninterrupted peace, and of continued constitutional inquiry.

In such a moment, it is less a matter of surprise that To leave therefore to the conflicting councils of twenty-this particular feature should exist in the law, than it is four different States, the right to judge of the exigency, and to withhold the militia, unless each one of them could perceive when and where invasion approached, would be to defeat a grant, the confessed object of which is, to protect each integral portion of the Union from the footsteps of a common enemy.

Equally difficult would it be to carry the other branch of the grant into effect, if it be true, that the President could only command in person.

"The President shall be the Commander in Chief of "the Army and Navy of the United States, and of the "militia of the several States, when called into the actual "service of the United States."

With a power, and as the case might be, under a duty of calling out the militia of twenty-four States simultaneously, to say that the President can only command in person, and not by delegated authority, is to deny to him, in totidem verbis, the very power which the States gave him by the Constitution, of being "Commander in Chief "of the militia of the several States, when called into the "service of the United States."

He hoped he should not be understood as conceding away the rights of States, or of the militia. As a citizen of Massachusetts, and a member of the militia, he would guard with scrupulous jealousy the rights of both.

He had said, with the "limitations and restrictions, in "the Constitution," the President was Commander in Chief, &c.-and those are "reserving to the States re"spectively, the appointment of the officers, and the "training of the militia, according to the discipline pre"scribed by Congress."

He need not say that he alluded to the power given by that law to the President to call upon the officers of the militia of the several States directly to march out the troops in single companies or in corps, without the intervention of an order or request through the Governor of such State, who is, by the Constitution of all the States but Rhode Island, (he believed) Commander in Chief of their militia.

As such Commander, and as the organ of State sovereignty, he was entitled to have any call for the militia of his State, made directly through him; and he was happy to observe, that the President, during the war, disregarding the law of 1795, and respecting the character of Sovereign States, made his requisitions directly upon the Governors of the States, and not militia officers.

By this plan, you annihilate State Sovereignty; admit this doctrine, and you melt down the militia of the several States into a mass of army material, to be moulded and manufactured again into what shape the General Government shall please.

But although the General Government practically admited the impropriety of the law of 1795, yet some of its distinguished officers maintained opinions still more unconstitutional and dangerous.

He made no allusion to these opinions by way of recrimination. Impugning the opinions of officers of the General Government upon these, had no tendency to excuse or sanction opinions of the officers of State Govern

The President himself, therefore, can exercise no powerments upon other subjects.

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Massachusetts Claims.

[H. of R.

But he did it for the fair and legitimate purpose of show- the defence of Boston, under the command of an officer of ing, that, while such errors of opinion were consistent with devotion to the Union in the officers of the General Government, they cannot be tortured into a ground of belief, that officers of State Governments were necessarily actuated by any but a patriotic attachment to the general welfare, and a scrupulous jealousy of the Constitutional rights of the States over which they presided.

the United States. I am not aware that any specific request was made to him for that purpose, but, if there were, it is quite apparent that the decision of 1812 was not made the ground of refusal. Indeed, during that month, eleven or twelve hundred troops were actually placed in the Forts of Boston harbor, under the command of General Dearborn, but more immediately commanded In support of this assertion, he referred the committee by his son, then a Brigadier General in the Massachusetts to the letter of Mr. Monroe, then Secretary of State, to militia. To show the intentions and sentiments of the GoMr. Giles, Chairman of the Military Committee in the Se-vernment of Massachusetts, it may be well to refer to the nate, in 1815, in which he considers "the right of Con- order of events, from the breaking out of the war down to gress to provide for calling forth the militia, by fair con the period just alluded to. struction, to be an exemplification of the power to prosecute the war with effect; and not the limitation of it by strict construction to the special case of the descent of the enemy upon any particular part of our Territory."

By reference to the order of July, 1812, in pursuance of the requisition of the General Government for the Massachusetts quota of 100,000 men, it will be seen that the militia were called upon by every consideration which He goes on to say, that, from the nature of our popula- could rouse their spirits as men, or their loyalty as patriots, tion, the militia was the force, which, in his judgment, to hold themselves in readiness to march at a moment's ought principally to be relied on for all national purposes. warning for the defence of the State. No remarks, sir, can What national purposes, sir? Can we suppose, for a do justice to the spirit and sentiments of this order. He moment, that, by the Constitution, the freemen of this would, therefore, take leave to quote from it some of those country can be called from their occupations, against their sentiments, which he considered as triumphantly repelling principles, their interests, and their wishes, to a war of con- the charge of an attempt to thwart the views of the Genequest and aggrandizement, by some ambitious and unprin- ral Government in regard to the defence of the country. cipled administration that shall hereafter get into place? "War having been declared, the Commander in Chief To prosecute what war with effect? he would ask. An" calls upon the militia of Massachusetts duly to notice the offensive war!!!-Will the People of the States for a mo- "solemn and interesting crisis, and exhorts them to meet ment tolerate the doctrine that the militia of Massachusetts "the occasion with constancy and firmness. When war is may be marched to the conquest of Mexico, or those of " commenced, no human foresight can discern the time of Georgia to the conquest of Nova Scotia and New Bruns-" its termination, or the course of events that may follow wick? "in its train-but the path of duty is the path of safety. Are the yeomen of sovereign States to be made liable" Providence seldom abandons to ruin those, who, to a to a conscription more indiscriminating and not less odious" just reliance upon the superintending influence of Heathan that of Bonaparte? "ven, add their own strenuous exertions to preserve "themselves."

And yet, this is pushing the doctrine alluded to, to its legitimate extent-no more.

He then goes on to recommend a close and persevering Very far was he from wishing to impute to the late Ad- attention to the duties of their several stations; that the ministration, or the still remoter one, that conducted the men may be perfectly armed, equipped, and disciplined; war, any ambitious or unprincipled designs in this respect. that the officers may thoroughly understand their duty; He spoke only of the effect of such a construction of and that they all may be ready with "alacrity and effect powers by the General Government, and if ever there" to defend their country, their Constitutional rights, and was a moment in which a just construction upon those "their liberties, which are not only our birth-rights, but large and somewhat undefined powers could be obtained," which, at the expense of so much blood and treasure, he thought this a most favorable moment for that purpose. He would beg the committee to bear in mind that, according to the doctrine of the Essays in the Federalist, and particularly that of Mr. Madison, this was a Government of checks and balances.

"were purchased in the late Revolution."

"The Commander in Chief further orders and directs that the Generals and other officers of the militia of Mas"sachusetts, bearing in mind the possibility of a sudden "invasion, hold themselves, and the corps under their The Constitution, also, had wisely guarded against too" command, in constant readiness to assemble and march great a latitude of construction, by providing, that all to the defence of any part or parts of the Commonpowers not specifically granted to the General Govern-"wealth, pursuant to the orders to be given by him, but ment, were reserved to the States. "without waiting for such orders in case of actual inva Having shown that those errors of constitutional opinion" sion, or such imminent danger thereof as will not admit might exist in men who were devoted to the interests and" of delay."

honor of the country, he would proceed to show, from the If this be thwarting the views of the General Governdocuments themselves, that a due regard to the security ment, sir, it would follow that those views were hostile to and protection of the country must have animated the a patriotic defence of the territory of Massachusetts, Government, even at that time; and that, before any ac- which he hoped no man would be willing to impute to the tual invasion in eighteen hundred and fourteen, the Go-Government of the United States. vernment of Massachusetts had, practically, abandoned the offensive constitutional doctrines.

Indeed the militia were, in several instances, to the number of three thousand, voluntarily submitted to the command and direction of General Dearborn, during the Summer and Fall of 1814, and that command accepted by him. This could not have been done unless the Governor had himself revised, or, at least doubted the opinion of the Supreme Court, sanctioned by him in 1812; for no invasion actually existed, and the President himself was not there in person to assume the command.

It may, to be sure, be said, that, as late as September, 1814, the Governor refused to put the troops detached for

This was the order under which the militia of Massachusetts were to move throughout the war: wherever invasion threatened, there they were to march. Is this, sir, throwing obstacles in the way of the General Government? True, sir, there was, at that time, in the Govern ment of Massachusetts, an opposition, a Constitutional one, to the men in power; and who is there that would dare to call upon the People of any State to surrender its right to judge what class of men are most competent to wield the power of the nation? But, this right of opinion was not exercised in a manner calculated to obstruct the measures of the General Government. In the letter of the Governor to the Secretary of War, of the 5th August,

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[APRIL 7, 1826.

1812, he says: the companies to be marched to Passama- the centre and extremity of the Commonwealth for the quoddy and Eastport will be stationed there "until the "President shall otherwise direct," and, in conclusion, he remarks, that he is fully disposed to afford all the aid to the measures of the National Government which the Constitution requires of him; but, he presumes it will not be expected or desired that he should fail in the duty he owed to the People of the State, who had confided their interests to his care.

This letter, Sir, is an argument to show, that the mode of calling out the militia, proposed by General Dearborn, would invite the aggressions of the enemy, and diminish the power which Massachusetts then had of resistance.

And, what was the mode subsequently proposed by Gen. Dearborn? It will be remembered, that the militia of Massachusetts were organized into companies of sixtyfour, according to the laws of the United States, and his requisition was, for the militia, in companies of one hundred each, according to the organization of the regular army, and contrary to the existing law of the United States in regard to the organization of the militia. No argument need be made to show the practical inconvenience which would result from such a call, nor its tendency to defeat the constitutional provision, which was reserved to the States, of appointing their officers and training the militia, according to discipline prescribed by Congress.

defence of the capital-and remained encamped in the vicinity for several weeks, until the apprehension had subsided, or at least the danger had gone by. As one of that corps, he could himself bear testimony to the alacrity with which the troops came out, and the unfeigned joy with which they were received as the defenders of the capital. To any one acquainted with the occurrences of that period, and the threats of the enemy, it would be superfluous to say, that these measures averted the calanı ities which would have followed the threatened attacks of the enemy. Twenty-five hundred men were marched from the county of Norfolk, after a notice of twenty-four hours, for the defence of Boston; and eleven hundred and sixty men were placed, in September of this year, under the command of the United States' officer, and stationed in the forts of Boston Harbor.

A regiment was stationed also at Cambridgeport, and, at the request of General Dearborn, all the militia within twenty miles of Boston, were kept in constant preparation to be called out.

It is true, that the troops ordered out at this period, with the exception of those alluded to in the forts of Bos ton harbor, were not placed under the command of the officers of the United States. They were ordered out in companies of sixty-four, according to their habitual organization, under the laws of the United States, and not ac. cording to the requisition of the officers of the General Government. It is believed that such new and illegal or

In July, 1813, the regular troops were removed from the State of Massachusetts, to carry on the war upon the Northern frontier. The course taken by Massachusetts, therefore, did not diminish the power of the General Go-ganization would, if not resisted by the militia themvernment to prosecute the war with effect, wherever the enemy could be met.

In July, 1814, a requisition was made by Gen. Dearborn, upon the Governor, for eleven hundred men, and, notwithstanding the strong objection which resulted from the organization into companies of one hundred, as proposed by that call, they were placed under his command for the three months required.

At the same time, Gen. King was authorized to call out the militia of his division, in Maine, and place them in the forts along that sea-board, should the officers of the United States require it.

The Major Generals of the fifth division, including the counties of Plymouth, Bristol, and Barnstable; of the second division, in the county of Essex; of the sixth and twelfth divisions, comprising the counties of York and Cumberland--all of which bordered upon the seacoast, were directed to keep guards at the points of danger, and have the militia in constant readiness to march, at the shortest notice, for the defence of any place that might be attacked.

selves, at least, have thwarted the patriotic purposes for which they were summoned to the field.

Indeed, the Governor, at this period, announced to the Secretary of War, that he had not placed them under the superintendence of the Chief of that Military District, because such inconveniences and objections had arisen from having done so before, that he could not repeat the

measure.

The cotemporaneous opinion of the officers of the Navy, shew how justly these measures were appreciated, and how they estimated the alacrity of the troops in coming to the defence of the Naval Depot.

66

Commodore Bainbridge, in his letter of April 6, 1814, expresses to General Welles "the gratification he receiv ed in witnessing the ready disposition of General Brooks, of himself, and the military under their command, in affording aid in defence of the frigate Constitution." And Captain Jones, in his letter to the same militia officer, says, that the proofs "of zeal and alacrity to repel medi"tated attacks of the enemy, evinced in the correspondence, are extremely gratifying, and ensured the safety The alarm had, during this Summer, become almost uni-"of the flourishing town of Charlestown and the naval versal along the seacoast, of six hundred miles, from Rhode "property which the enemy is so desirous to destroy." Island to the Eastern extremity of Maine, which Massa- The President himself, in his Message of February, chusetts had to defend, without the aid of any of the regu- 1824, speaking of the services of the fifth division, the lar troops. accounts in regard to which had been audited at the War Department, says, that the services rendered by it were spontaneous, patriotic, and proper; necessary for self-defence, to repel, in some instances, actual invasion, and in others to meet, by adequate preparation, invasions that were menaced.

British ships of war were hovering on our coast. Every place was exposed. Every thing was in danger from an effective force of the enemy of eight or ten thousand men, enabled, by the fleet to which they were attached, to make a descent upon any point of this long extended line of sea coast.

Never, says he, in the same communication, was there Boston was considered the object of the enemy. The a moment when the confidence of the Government in the British Admiral threatened the towns on the sea board great body of our fellow-citizens of Massachusetts, was generally, with destruction. But the United States' na-impaired, nor is there a doubt that they were at all times val depot at Charlestown, and the wealth of our capital, at once excited the avarice and the love of glory of the enemy. Apprehension became universal, and the danger of invasion was so imminent, that the Government issued new orders for the whole militia of the Commonwealth to be in readiness. Five regiments of infantry, two battalions of artillery, and several independent and rifle companies--the flower of Massachusetts-were marched from

willing to support their rights, and to repel an invasion by the enemy. He goes on to say, that essential service was rendered in the late war by the militia of Massachusetts, and from the most patriotic motives. It seems just, therefore, says he, that they should be compensated in like manner with the militia of the other States.

Even the remonstrance of the Portland officers against being placed under the command of officers of the Unit