Chapter 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.

THE PACIFIC RAILROAD AND THE DECLARATION OF INDEPENDENCE.

LETTER TO THE MAYOR OF BOSTON, FOR THE CELEBRATION OF JULY 4,
1853.

BOSTON, July 1, 1853.

Dear Sir,--It will not be in my power to unite with the City
Council of Boston in the approaching celebration of our national
anniversary; but I beg to assure you that I am not insensible to
the honor of their invitation.

The day itself comes full of quickening suggestions, which can need
no prompting from me. And yet, with your permission, I would gladly
endeavor to associate at this time one special aspiration with the
general gladness. Allow me to propose the following toast.

_The Railroad from the Atlantic to the Pacific._--Traversing a
whole continent, and binding together two oceans, this mighty
thoroughfare, when completed, will mark an epoch of human progress
second only to that of our Declaration of Independence. May the day
soon come!

Believe me, dear Sir, faithfully yours,

CHARLES SUMNER.

HON. BENJAMIN SEAVER, Mayor, &c.

THE REPRESENTATIVE SYSTEM, AND ITS
PROPER BASIS.

SPEECH ON THE PROPOSITION TO AMEND THE BASIS OF THE HOUSE OF
REPRESENTATIVES OF MASSACHUSETTS, IN THE CONVENTION TO REVISE AND AMEND
THE CONSTITUTION OF THAT STATE, JULY 7, 1853.

Mr. President,--If the question under consideration were less important in its bearings, or less embarrassed by conflicting opinions, I should hesitate to break the silence which I have been inclined to preserve in this Convention. In taking the seat to which I was unexpectedly chosen while absent from the Commonwealth, in another sphere of duty, I felt that it would be becoming in me, and that my associates here would recognize the propriety of my course, considering the little opportunity I had enjoyed of late to make myself acquainted with the sentiments of the people on proposed changes, especially in comparison with friends to whom this movement is mainly due,--on these accounts, as also on other accounts, I felt that it would be becoming in me to interfere as little as possible with these debates. To others I willingly left the part which I might have taken.

And now, while I think, that, since our labors began, weeks, even months, have passed, and that the term is already reached, when, according to the just expectations and earnest desires of many, they should be closed, I feel that acts rather than words, that votes rather than speeches,--at least such as I might hope to make,--are needed here, to the end that the Convention, seasonably and effectively completing its beneficent work, may itself be hailed as a Great Act in the history of the Commonwealth.

But the magnitude of this question justifies debate; and allow me to add, that the State, our common mother, may feel proud of the ability, the eloquence, and the good temper with which it has thus far been conducted. Gentlemen have addressed the Convention in a manner which would grace any assembly that it has been my fortune to know, at home or abroad. Sir, the character of these proceedings gives new assurance for the future. The alarmist, who starts at every suggestion of change, and the croaker, who augurs constant evil from the irresistible tendency of events, must confess that there are men here to whose intelligence and patriotism, under God, the interests of our beloved Commonwealth may well be intrusted. Yes, Sir, Massachusetts is safe. Whatever the result even of the present important question, whichsoever scheme of representation may be adopted, Massachusetts will continue to prosper as in times past.

In the course of human history, two States, small in territory, have won enviable renown by genius and devotion to Freedom, so that their very names awaken echoes: I refer to Athens and Scotland. But Athens,--even at Salamis, repelling the Persian host, or afterwards, in the golden days of Pericles,--and Scotland, throughout her long struggle with England, down to the very Act of Union at the beginning of the last century,--were each inferior, in population and wealth, to Massachusetts at this moment. It belongs to us, according to our capacities, to see that this comparison does not end here. Others may believe that our duty is best accomplished by standing still. I like to believe that it can be completely done only by constant, incessant advance in all things,--in knowledge, in science, in art, and lastly in government itself, destined to be the bright consummation, on earth, of all knowledge, all science, and all art.

* * * * *

In framing our Constitution anew, we encounter a difficulty which at its original formation, in 1780, perplexed our fathers,--which perplexed the Convention of 1820,--which with its perplexities has haunted successive Legislatures and the whole people down to this day,--and which now perplexes us. This difficulty occurs in determining the Representative System, and proceeds mainly from the corporate claims of towns. From an early period in the State, towns, both great and small, with slight exceptions, have sent one or more representatives to the Legislature. In primitive days, when towns were few and the whole population was scanty, this arrangement was convenient at least, if not equitable. But now, with the increased number of towns, and the unequal distribution of a large population, it has become inconvenient, if not inequitable. The existing system does not work well, and we are summoned to reform it.

And here, Sir, let me congratulate the Convention, that, on this most important question, transcending every other, all of us, without distinction of party, are in favor of reform. All are Reformers. The existing system finds no advocate on this floor. Nobody here will do it reverence. If the call of the Convention were not already amply vindicated, if there were doubt anywhere of its expediency, the remarkable concurrence of all sides in condemning the existing representative system shows that we have not come together without cause.

The orders of the day have been filled with various plans to meet the exigency. Most of these aimed to preserve the corporate representation of towns; some of them, at least one from the venerable gentleman from Taunton [Mr. MORTON], and another from the venerable gentleman from Boston [Mr. HALE], favored an opposite system, hitherto untried among us, and proposed to divide the State into districts. The question has been between these hostile propositions; and that is the question which I propose to consider, in the light of history and abstract principle, as also with reference to present exigencies. I shall speak, _first_, of the origin and nature of the Representative System, and its proper character under American institutions; and, _secondly_, I shall endeavor to indicate the principles which may conduct us to a practical conclusion in the present debate. Entering upon this service at so late a stage of the discussion, I feel like a tardy gleaner in a well-traversed field; but I shall proceed.