USA > Massachusetts > History of Massachusetts from the year 1790, to 1820. v. 3 > Part 10
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In adverting, incidentally, to this subject, Mr. Otis, in a pub- lic letter, says, " If the President has the right, not only of de- ciding upon the existence of the constitutional contingency, which is to justify him in calling out the militia, but also of ap- pointing his Prefects to command them, he possesses the power, at any moment, of converting the whole militia of the nation, into Pretorian cohorts. This is a tremendous power, and an aw- fully pregnant question, which it is not our purpose to discuss. It is a question about the power of the sword, which settles all other questions. If it is clear the President has it, be it so. But is it so clear, that all doubt must be precluded ? Is it so clear, that hesitation becomes a crime ? Was the retention of the command by the Executive of the State, under the circum- stances of the case, equivolent to an obstruction of the laws, a paralyzing of the means and agents of the government ? It cannot be pretended. The orders of the government were car- rieff into effect, though not by its own appointed organ."
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the part of the United States Navy. The Frigate was built in Boston ; and both the political parties, unhappily divided on many other subjects of a pub- lic nature, rejoiced in the reputation and success of the gallant naval commander.
The Governor of Connecticut adopted a similar course to that pursued by Governor Strong. In a letter to the War De- partment, stating the considerations which induced him to de- cline calling out the militia, at the time proposed, he said, "I am disposed to execute every constitutional requisition from the general government ; but I am not willing to execute an order which I consider repugnant to the constitution." This shews, that he believed he had the right to judge whether the exigency mentioned in the constitution, existed, or not.
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CHAPTER VIII.
A reference to the arguments for and against the course pursued by the Governor respecting the militia ..... Electors of President and Vice Presi- dent of the United States ..... Governor's Speech in October 1812 ..... His reasons for not calling out the militia ..... Representatives approve of his conduct in this respect ..... Extract from their reply to the Speech of the Governor ..... Loan proposed ..... Charge of plotting to destroy the Union ..... Opinions expressed on the subject ..... Declarations of Virginia and Ken- tucky.
The subject referred to in the former chapter, as to the constitutional power of the general govern- ment, or of its Chief Executive officer, over the militia, is certainly, a very important one ; and should never be attempted to be settled in a time of political excitement, when reason and argument are in danger of being unperceived through the mists of prejudice and passion. When the coun- try is invaded, or there is danger of an immediate invasion, no one would deny the authority of the President of the United States to order out the militia for defence. But to call the militia (or, in other words, the independent citizens of a State) into service for a long period of time, and thus to subject them to the duties and hardships of regu- lar troops when no invasion was made nor justly feared, is a very different case. The doctrine con- tended for by the national administration, at that time, went to this extent, that the militia were lia-
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ble to perform military duty, proper only for reg- ular troops, according to the direction of the Pres- ident or that of his subordinate officers. This, it was believed, the federal constitution did not in- tend ; and would also be depriving the militia of their distinctive character, and of the privileges and liberty, which they had always enjoyed, even by authority of law. It is important therefore that a question, in the solution of which every citizen is deeply interested, should be deliberately settled in a time of peace, and before another war shall arise, to afflict the country.
The Governor however gave proof, of a disposi- tion to protect the citizens from invasion, and to order out the militia, in cases of real danger, for the defence of the country. This was manifested, in calling on the militia to march to Eastport, where the people were not only alarmed, but in danger of an attack ; and in furnishing the means of defence to the citizens in other sea-port towns. It was generally believed, and probably, not with- out good reason, that the Governor considered the war, in some measure, unnecessary, and was there .. fore, reluctant in giving it any gratuitous support. But this did not prevent him from devising plans and furnishing means for protecting the people of the Commonwealth. When he declined placing the militia under the command of officers, and in the service, of the United States, at an early peri- od of the war, he did not suppose the State would suffer by his non-compliance with the request to order them out, as proposed. There was then in- deed, no danger of invasion. IIe doubted the right of the President to demand the service of the mi- litia, in the existing state of things ; and he would
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do nothing in dereliction of the legitimate authori- ty of the State, or in violation of the rights of his fellow citizens. . He considered himself the legal guardian of the militia of the State, and the pro- tector of their rights and privileges. Ile was convinced also, that the State would be more ef- fectually defended by arming the people and call- ing them out only when there was actual danger of invasion, than by having them placed in the forts of the United States, or embodied for some time, after the manner of regular troops, when no just cause had occurred to require their service.
It will be readily believed, that in such a situa- tion of public affairs -- the State exposed to hostile attacks, though there was no apprehension of im- mediate danger-the national rulers demanding the service of the militia, when the constitution did not appear to authorise it-marching their regular troops out of the State, and leaving it defenceless, excepting so far as it would be protected by its own citizens-complaining, too, of the conduct of the Executive of the State, as if it were justly chargeable with a neglect of duty towards the Unit- ed States-the people, thus deserted and exposed, calling for means of defence, and the citizens look- ing to him for protection of their rights and deliv- crance from threatening calamities-In such a sit- uation, the Governor could but feel his responsi- bility, and be deeply sensible of the extensive pub- lic duties which devolved upon him. To acquit himself, in this critical posture, to the entire satis- faction of all his fellow-citizens, he could hardly expect. But, although he was not indifferent to the approbation of his fellow-men, he was evidently most solicitous to fulfil, with fidelity and if possi- VOL. III. 19
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ble, with success, his high public duties to his con- stituents and to the Commonwealth. He never wavered in his course, through timidity or a wish for popular favour. His moral courage was equal to any crisis, or any censures. Yet he was desir- ous of learning the opinions of intelligent men, and of conforming to public sentiment and feeling, as far as his own convictions of propriety and right would permit. His letters to the officers of the United States discover a conciliatory spirit ; and his communications to the Legislature were cal- culated to allay party feelings, and to persuade them to prudent and temperate measures.
Those who contended for such a power in the President over the militia supposed it might be found by implication at least in the constitution : and said, that if the President had a right to command and controul the militia, in time of actual invasion, he ought to be able to call them into service, if an invasion were possible, or might take place at a very distant period ; because the country ought to be seasonably prepared for an attack ; and if known to be prepared, the enemy would not be so ready to invade. On the other hand, it was said, that the constitution gave this power only in time of invasion ; and that such construction only, comported with the character and rights of the militia. For they were liable to be called into military service mere- ly for defence, and only in cases of sudden and un- expected attack, when regular troops could not be collected. A different doctrine and a different construction of the constitution, it was argued, would put the militia entirely in the power of the President, to march to any places, and to require service of them for any period he might please.
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The act of Congress, which provided for calling the militia into the service of the United States, it was said, expressly referred to the exigency, on the existence of which the constitution authorised such a call ; and if the militia might be required, under any other circumstances, it would be trans- cending the power given both by that instrument and the law passed on the subject. If the militia were called out, when an attack was made, or the danger of invasion was imminent, and were kept in preparation to march for the defence of any place, which should be threatened, it was said, that all the military duty and service, which could be justly required of them, would be performed. The majority of citizens in Massachusetts, among? whom were some whose political opinions were not favourable to Governor Strong, approved of the measures of the Chief Magistrate at this criti- cal period.
An extra session of the Legislature was holden, in October, (1819) to adopt a mode for the choice of Electors of President and Vice President of the United States, which was omitted at the June ses- sion. The political character of the majority of the Senate was different from that of the House of Representatives ; and the two branches did not agree upon any method for the appointment or choice of Electors. Nor did they now decide in what manner the Electors should be chosen, till after a good deal of discussion, and several modes propos- ed had been rejected. A resolve was, at last, adopt- ed, for choosing them by the people and not by the Legislature ; and the Commonwealth was di- vided into six districts for the purpose. The coun- ties of Suffolk, Essex and Middlesex, composed
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one district and chose five Electors ; Worcester, Hampshire, Berkshire, Franklin and Hampden formed a district, and chose six ; Plymouth, Nor- folk, Bristol, Barnstable, Nantucket and Dukes were made a district and chose four ; York Cum- berland and Oxford chose three; Lincoln, Ken- nebec and Somerset chose three; and Hancock and Washington chose one. When the Electors met in the month of December,* they gave their votes for Mr. Clinton of New-York, for President : But Mr. Madison was re-elected, by a great ma- jority of votes given in by the whole United States.
At this session of the Legislature, the Governor gave a particular statement of the measures he had adopted, subsequently to their adjournment in June, in relation to the requisition for the militia, by the officer of the United States. He mentioned the reasons, which induced him to decline calling them into service, as had been proposed by an agent of the federal government ; and expressed his doubts, both of the constitutional power of the President to call for the militia, under the circumstances of the case, and of his own authority to order them into the national service, in the manner required. Some paragraphs from the Governor's Speech, on this occasion, have been already quoted.t Some others are here given, to disclose more fully his sense of the impropriety of his co-operating in the
* The Electors who were chosen belonged to the federal or peace party ; and received 25,000 votes more than were given to the candidates proposed by those who approved of the war and were the political friends of the national administration, at that time.
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plans of the national administration and its agents, as to the militia.
"General Dearborn plainly supposes, that in consequence of the act declaring war, he was au- thorised, by virtue of the power given by the Pres- ident, to require any part, or even the whole of the militia to be called and marched to such places in this and the other States, as he may think proper. If this construction of the constitution is correct, then the President and Congress will be able, at any time, by declaring war, to call the whole of the militia of the United States into actual service, and to march them to such places as they may see fit : and to retain them in service as long as the war shall continue.
" Heretofore, it has been understood, that the power of the President and Congress to call the militia into service was to be exercised only in cases of sudden emergency ; and not for the pur- pose of forming them into a standing army, or of carrying on offensive war. But according to the above construction, the right to employ the militia is made to depend, not upon contingencies, which the national government might be unable to fore- sce, or to provide against ; but upon its own act ; upon the existence of a state of war, which the government has a right to declare, and to continue as long as it may think proper.
" Although many of the most important attrib- utes of sovereignty are given, by the federal con- stitution, to the government of the United States, yet there are some which still belong to the State Governments. Of these, one of the most essential is the entire controul of the militia, except in the exigencies above mentioned. This has not been
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delegated to the United States. It is therefore, reserved to the States respectively. And wheney- er it shall be taken from them, and a consolidation of the military force of the States shall be effect- ed, the security of the State Governments will be lost ; and they will wholly depend, for their exis- tence, upon the moderation and forbearance of the national government.
" War is so dreadful in its effects and so des- tructive to human happiness, that the law of na- ture allows of it only in the utmost extremity ; and requires, that when it is resorted to, the persons engaged in it shall endeavour to mitigate its hor- rors as far as their safety will permit, by the ex- ercise of justice and humanity. These principles of the law of nature are confirmed by the precepts of the christian religion.
" Whatever sentiments may prevail among the people of this State, concerning the justice or ex- pediency of the present war, I hope and trust, that they will perform the duties enjoined on them by the constitution and the laws ; and that they will do nothing to obstruct the government in the con- istitutional measures it may think proper to adopt."
'The majority of the Representatives fully ap- proved of the conduct of the Governor, with regard to the requisition for the militia, as appears by the following paragraph from their answer, at that time.
"We have witnessed with great satisfaction, the course which your Excellency adopted and pursu- ed, in regard to the requisition of General Dear- born, for a portion of the militia of this Common- wealth ; and it is due to your Excellency to de- clare, that the conduct of the Supreme Executive, upon this interesting subject, has met the unquali-
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fied approbation, not only of this House, but of the great body of the people. While, on the one hand, it has discovered a sincere desire to comply with the requisitions of the constitution of the Uni- ted States, and the laws made in pursuance thercof, it has equally evinced a determination to protect the citizens against all unconstitutional encroach- ments, and to maintain the rights of the State, as secured and recognized by that constitution. By the constitution, Congress are wisely entrusted not only with the right of declaring war, but with the power of raising such forces, both by sca and land, as may be necessary for its vigourous prosecution. By a discreet and judicious exercise of these important powers, the national government may, at all times, place themselves in such a state of preparation, as to render the aid of the militia unnecessary in the commencement of an offensive war, deliberately declared by themselves; and the power to call the militia into service, was never to be exercised, except in cases of sudden emergency, or for the purposes of defence; certainly, not with a view of forming them into a standing army, or to prosecute a war of conquest. Any other construc-
tion of the constitution, than that which your Ex- cellency has adopted, would expose the citizens to be torn from their homes, whenever the general government might think proper to declare war : and to be retained in the United States service, as long as the war might continue ; while, by thus de- priving the Commonwealth of all its means of pro- tection and defence, every essential attribute of state sovereignty would be completely destroyed. The people of Massachusetts have never surrender- ed to the general government, the power to call
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forth the militia, except to execute the laws of the Union, suppress insurrections and repel invasions ; and whenever this call is made, it is not only the right of the Commander in Chief, but his solemn duty to determine, whether either of these cases exists. The citizens of the Commonwealth will long cherish grateful recollections of the independent and faithful manner, in which your Excellency has discharged this important trust."*
On the part of Great Britain, the war was a de- fensive one, and probably, unexpected. Canada was carly invaded by the United States' troops ; and the Province was fully occupied in measures of defence and safety. No invasion was made, or threatened, during 1812, by the enemy ; and the militia, therefore, were not called out, except a few companies at Eastport. Great exertions were made, however, by their respective officers, to arm the militia, and have them in a state of preparation and readiness to repel any invasion, according to the general order of the Governor, of the third of July, before mentioned. Still, the people on the sea-coast were not wholly free from alarm, As war had been declared against a nation of very ex- tensive naval force, they felt themselves in an ex- posed and dangerous situation ; and in most cases suspended their usual business of navigation, of fishing and coasting.
It will readily be supposed, that such interrup- tion and suspension of their common pursuits, on which the comfort of their families depended, pro- duced much distress and uneasiness among the people. All those concerned directly or indirect -
* It is important to state, that the vote of the House of Rep- resentatives, on adopting the answer to the Governor's speech,
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ly in commercial enterprises, felt the evils of war pressing very heavily upon them. They had al- · ready been long suffering under the system of com- mercial restrictions and non-intercourse ; and es- pecially under the law imposing an Embargo, which was in force for an unusual period of time. A vast amount of capital was unemployed; or, if vested in navigation, was almost certain of being sacrificed and lost. The price of all imported ar- ticles was high beyond any former year, subse-
quent to the revolutionary war.
This led to the
practice of smuggling, in some instances. The
produce of the country also, bore a very great price; while that portion of the community who depended upon the farmers, which is composed of those who were engaged in navigation, were loss able to pur- chase. Many citizens in Massachusetts, who had before given their support to the national adminis- tration, became dissatisfied ; and complained of the policy of the general government, as loudly as
any others. It is not to be supposed, that those who thus complained, were less patriotic, or more selfish, than the people in other parts of the nation. Could they have perceived any great national ben- efits to result from the war, they would have en- dured the privations and ovils, to which they were subjected, with perfect acquiescence, as they did in the war of 1776. But doubting the necessity of the war, and seeing no reason to believe that England would yield to the demands and claims
in which his conduct respecting the militia is so expressly and fully approved, was by a greater majority, than for any other political measure, adopted at this session. There were 325 in favour of the answer, and only 150 against it. This shows the feelings and opinions of the people, on this interesting subject. VOL. III. 20
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made upon her, by the United States, they openly condemned the policy of the national rulers, who had brought the country into such a situation of em- barrassment and suffering.
A loan was, at this period, desired by the gene- ral government, to a large amount, to enable them to prosecute the war. Applications were made in
all parts of the nation. The United States had then a great debt to provide for ; and the revenuc, in consequence of the embargo, and other restric- tions on commerce, was comparatively small .--- Few subscriptions were made to the loan in Mas- sachusetts. The capitalists were not so ready, as on some former occasions, to lend their money to the government. Many declined, because they were opposed, in principle, to the war. And oth- ers feared the debt of the nation would be so in- creased, as that, with a restricted navigation, and a scanty revenue, the government would not be able to refund the money for many years.
This refusal of the opulent citizens of the State, to lend their money for the prosecution of the war, was made a matter of severe complaint, by the ar- dent friends of the national administration : and, added to the fact of the Governor's declining to call the militia into service, as requested, gave oc- casion for the renewal of the charge, made in 1809, of an intention to divide the Union, and erect the New England States into a separate government. Although no proof of such a plan was then, or at any time offered, to substantiate the charge, or to ren- der it probable even, in the opinion of the impartial and disinterested, which, no doubt, would have been produced, if any were known, still, the dissatisfac- tion, manifested by the majority of the Eastern
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States to the war with England, gave some plaus- ibility to the accusation, with the unreflecting and those of strong party feelings. Some individuals probably, spoke unadvisedly and rashly, on the sub- ject. But the people generally, and those in pow- er in Massachusetts held no other or stronger opin- ion than this, "that they feared the anti-commer- cial system, and other impolitic and injurious meas- ures of the federal government might lead to a sev- erance of the States."
At no public meeting of the people, cither in a body, or by delegates, was language stronger than the following used, respecting a separation of the union ; and this was at a large county convention, in the country, at a great distance from the metrop- olis, and assembled without any extraneous influ- ence .- " Resolved, that we consider the union of these States as an inestimable blessing; and that we deeply deplore a system of measures, which may disaffect any portion of the community to this na- tional compact." Mr. Ames, whose opinion had great influence in Massachusetts, and in other parts of the nation, indeed, was known to be a decided friend to the Union, while he lived. " No pri- vations or calamities,"' in his opinion, "could jus- tify a separation of the United States"-and yet he sometimes expressed fears, as to the excess of democracy, growing out of the French revolution ; and he lamented the restrictions on commerce, as calculated to irritate the people in the Atlantic States.
An eminent federalist, writing on this subject, in Massachusetts, after referring to the sufferings of the people, under the embargo, the anti-com- mercial system and the war, says, " Let us cleave
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to the Union, to the last extremity." Ile also as- serts, "that no treatise, essay, official speech, or other public document, with the sanction of any respectable name among the federalists, has ever appeared, favouring, in the most remote degree, the suggestion of dividing the Union. No one can be named, who cspouses this theory even in con- versation. No report of any committee, no legis- lative act or resolve, can be produced, giving the Icast countenance to such a project, if any was form- cd. On the contrary, it is notorious, that the most decided and distinguished of the federal par- ty, have been the most zealous advocates for the continuance of the Union. It is, indeed, the uni- versal sentiment among the federalists, that the force of the motives, which led to the union, though weakened, is not so impaired as to justify the at- tempt, or even the wish for a separation.
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