Part 2

Mr. Sumner resumed his seat amid heartiest and long-protracted applause.

CIVIL SUPERINTENDENTS OF ARMORIES.

SPEECH IN THE SENATE, ON THE PROPOSITION TO CHANGE THE SUPERINTENDENTS OF ARMORIES, FEBRUARY 23, 1853.

The Army Appropriation Bill being under discussion, Mr. Davis, of Massachusetts, moved the following amendment:--

"That from and after the first day of July next, the Act of Congress approved August 23, 1842, be so modified, that the President may, if in his opinion the public interest demands it, place over any of the armories a superintendent who does not belong to the Army."

In the course of the debate, Mr. Sumner spoke as follows.

Mr. President,--I do not desire to speak upon the general subject of the manufacture of arms under the authority of the United States, which has been opened in debate by honorable Senators. What I have to say will be on the precise question before the Senate, and nothing else. That question, as I understand it, is on the amendment proposed by my colleague [Mr. DAVIS], according to which the Act of 1842 is to be so far modified, that the President, in his discretion, may place over the armories persons not of the army,--leaving it, therefore, to his judgment whether the superintendent shall be a military man or a civilian. This is all.

The Senate is exhorted not to act precipitately. But the character of this proposition excludes all idea of precipitation. We do not determine absolutely that the system shall be changed, but simply that it may be changed in the discretion of the President. This discretion, which will be exercised only after ample inquiry, stands in the way of all precipitation; and this is my answer to the Senator from Illinois [Mr. SHIELDS].

Again, it is urged, that under a military head the armories are better administered than they would be under a civil head, and that the arms are better and cheaper; and here my friend from South Carolina, who sits before me [Mr. BUTLER], dwelt with his accustomed glow upon the success with which this manufacture is conducted at the national armories, and the extent to which it is recognized in Europe. But, Sir, in the precise question before you the merits of the armories are not involved. We do not undertake to judge the military superintendents or their works. The determination of this question is referred to the President; and this is my answer to the Senator from South Carolina.

The objections to this amendment of my colleague, then, seem to disappear. But there are two distinct arguments in its favor, which, at the present moment, do not seem to me susceptible of any answer.

In the first place, there are complaints against the existing system, which ought to be heard. A memorial from five hundred legal voters of Springfield, now on your table, bears testimony to them. Letters to myself and others, from persons whose opinions I am bound to regard, set them forth sometimes in very strong language. The administration of the arsenal at Springfield is commended by many; but there are others who judge it differently. As now conducted, it is sometimes represented to be the seat of oppressive conduct, and the occasion of heart-burning and strife, often running into local politics. In the eyes of some this arsenal is little better than a sore on that beautiful town. Now on these complaints and allegations I express no opinion. I do not affirm their truth or untruth. What I know of the superintendent makes it difficult for me to believe that anything unjust, oppressive, or hard can proceed from him. But the whole case justifies inquiry at least, and such will be secured by the proposition before the Senate. This is the smallest thing we can do.

This proposition is enforced by another consideration which seems to me entitled to weight. I have nothing to say now on the general question of reducing the army or modifying the existing military system. But I do affirm, confidently, that the genius of our institutions favors civil life rather than military life,--and that, in harmony with this, it is our duty, whenever the public interests will permit, to limit and restrict the sphere of military influence. This is not a military monarchy, where the soldier is supreme, but a republic, where the soldier yields to the civilian. But the law, as it now stands, gives to the soldier an absolute preference in a service which is not military, and which, from its nature, belongs to civil life. The manufacture of arms is a mechanical pursuit, and, for myself, I can see no reason why it should not be placed in charge of one bred to the business. Among the intelligent mechanics of Massachusetts there are many fully fit to be at the head of the arsenal at Springfield; but by the existing law all these are austerely excluded from any such trust. The idea which has fallen from so many Senators, that the superintendent of an armory ought to be a military man, that a military man only is competent, or even that a military man is more competent than a civilian, seems to me as illogical as the jocular fallacy of Dr. Johnson, that he "who drives fat oxen should himself be fat."

NECESSITY OF UNION TO UPHOLD FREEDOM.

LETTER TO A RHODE ISLAND COMMITTEE, MARCH 26, 1853.

WASHINGTON, March 26, 1853.

Dear Sir,--I cannot promise myself the pleasure of being in Rhode Island at the time you propose, and am therefore constrained to decline the invitation with which you have honored me.

But let me assure you, that, in all our political contests, I see no question comparable in practical importance, as surely there is none equal in moral grandeur, to that which is presented by the Free Democracy, and which now enlists your sympathies.

Both the old parties unite in upholding Slavery. It becomes all good citizens to unite in upholding Freedom; nor should any one believe that his single vote may not exert an influence on the struggle.

Believe me, dear Sir, faithfully yours, CHARLES SUMNER.

GEORGE L. CLARKE, Chairman of the State Central Committee of the Free Democracy of Rhode Island.

AGAINST SECRECY IN PROCEEDINGS OF THE SENATE.

SPEECH IN THE SENATE, ON THE PROPOSITION TO LIMIT THE SECRET SESSIONS OF THE SENATE, APRIL 6, 1853.

The following resolution was submitted by Mr. Chase, of Ohio.

"_Resolved_, That all sessions and all proceedings of the Senate shall be public and open, except when matters communicated in confidence by the President shall be received and considered, and in such other cases as the Senate by resolution from time to time shall specially order; and so much of the thirty-eighth, thirty-ninth, and fortieth rules as may be inconsistent with this rule is hereby rescinded."

In the debate which ensued, Mr. Sumner spoke as follows.

Mr. President,--Party allusions and party considerations have been brought to bear upon this question. I wish to regard it for a moment in the light of the Constitution, and in the spirit of our institutions. In the Constitution there is no injunction of secrecy on any of the proceedings of the Senate; nor is there any requirement of publicity. To the Senate is left the determination of its rules of proceeding. Thus abstaining from all regulation of this matter, the framers of the Constitution obviously regarded it as in all respects within the discretion of the Senate, to be exercised from time to time as it thinks best.

The Senate possesses three important functions: _first_, the legislative or parliamentary power, where it acts concurrently with the House of Representatives, as well as the President; _secondly_, the diplomatic power, or that of "advice and consent" to treaties with foreign countries in concurrence with the President; and, _thirdly_, the executive power, or that of "advice and consent" to nominations by the President for offices under the Constitution. I say nothing of another, rarely called into activity, the sole power to try impeachments.

At the first organization of the Government, the proceedings of the Senate, whether in legislation or on treaties or nominations, were with closed doors. In this respect legislative business and executive business were alike. This continued down to the second session of the Third Congress, in 1794, when, in pursuance of a formal resolution, the galleries were opened so long as the Senate were engaged in their legislative capacity, unless where, in the opinion of the Senate, secrecy was required; and this rule has continued ever since. Here was an exercise of discretion, in obvious harmony with public sentiment and the spirit of our institutions.

The change now proposed goes still further. It opens the doors on all occasions, whether legislative or executive, except when specially ordered otherwise. The Senator from South Carolina [Mr. BUTLER] says that the Senate is a confidential body, and should be ready to receive confidential communications from the President. But this will still be the case, if we adopt the resolution now submitted to us. The limitation proposed seems adequate to all exigencies, while the general rule will be publicity. Executive sessions with closed doors, shrouded from the public gaze and public criticism, constitute an exceptional part of our system, too much in harmony with the proceedings of other Governments less liberal in character. The genius of our institutions requires publicity. The ancient Roman, who bade his architect so to construct his house that his guests and all that he did could be seen by the world, is a fit model for the American people.

THE GERMAN EMIGRANT MUST BE AGAINST SLAVERY.

LETTER TO LEWIS TAPPAN, ESQ., MAY 17, 1853.

BOSTON, May 17, 1853.

Dear Sir,--I know Mr. Schmidt by the good name he has won, and I have also had the pleasure of making his personal acquaintance. I understand him to be a scholar, believing in the demand which Liberty in our country now makes upon every citizen. Thus endowed in mind and character, he will address his compatriots from Germany, in their own language, with persuasive power. I trust he will find the opportunity he covets; and I know of none which promises better than his present plan of a Weekly German Antislavery Newspaper at Washington.

The number of persons to be addressed by such a journal is very large; and they should be easy converts. The German emigrant who is not against Slavery here leads us to doubt the sincerity of his opposition to the Tyranny he has left behind in his native land.

Believe me, dear Sir, faithfully yours,

CHARLES SUMNER.

LEWIS TAPPAN, ESQ.

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.

POWERS OF THE STATE OVER THE MILITIA: COLORED COMPANIES.

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.