Part 3

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.

I.

I begin with the Origin and Nature of the Representative System. This is an invention of modern times. In antiquity there were republics and democracies, but there was no Representative System. Rulers were chosen by the people, as in many Commonwealths; senators were designated by the king or by the censors, as in Rome; ambassadors or legates were sent to a Federal Council, as to the Assembly of the Amphictyons; but in no ancient state was any body of men ever constituted by the people to represent them in the administration of their internal affairs. In Athens, the people met in public assembly, and directly acted for themselves on all questions, foreign or domestic. This was possible there, as the State was small, and the Assembly seldom exceeded five thousand citizens,--a large town-meeting, or mass-meeting, we might call it,--not inaptly termed "that fierce democratie" of Athens.

But where the territory was extensive, and the population scattered and numerous, there could be no assembly of the whole body of citizens. To meet this precise difficulty the Representative System was devised. By a machinery so obvious that we are astonished it was not employed in the ancient Commonwealths, the people, though scattered and numerous, are gathered, by their chosen representatives, into a small and deliberative assembly, where, without tumult or rashness, they consider and determine all questions which concern them. In every representative body, properly constituted, the people are practically present.

Nothing is invented and perfected at the same time; and this system is no exception to the rule. In England, where it reached its earliest vigor, it has been, and still is, anomalous in character. The existing divisions of the country, composed of boroughs, cities, and counties, were summoned by the king's writ to send representatives, with little regard to equality of any kind, whether of population, taxation, or territory. Their existence as corporate units was the prevailing title. The irregular operation of the system, increasing with lapse of time, provoked a cry for Parliamentary Reform, which, after a struggle of more than fifty years, ending in a debate that occupied the House of Commons more than fifty days, was finally carried; but, though many abuses and inequalities were removed, yet the anomalous representation by counties, cities, and boroughs still continued. And this, Sir, is the English system.

Pass now to the American system. I say American system,--for to our country belongs the honor of first giving to the world the idea of a system which, discarding corporate representation, founded itself absolutely on equality. Let us acknowledge with gratitude that from England have come five great and ever memorable institutions, by which Liberty is secured: I mean the Trial by Jury,--the writ of _Habeas Corpus_,--the Representative System,--the Rules and Orders of Debate,--and, lastly, that benign principle which pronounces _that its air is too pure for a slave to breathe_: perhaps the five most important political establishments of modern times. This glory cannot be taken from the mother country. But America has added to the Representative System another principle, without which it is incomplete, and which, in the course of events, is destined, I cannot doubt, to find acceptance wherever the Representative System is employed: I mean the _principle of equality_.

Here in Massachusetts, home of the ideas out of which sprang the Revolution, this principle had its earliest expression. And it is not a little curious that this very expression was suggested by the two evils of which we now complain,--namely, a practical inequality of representation, and a too numerous House.

In the earliest days of the Colony, while the number of freemen was small and gathered in one neighborhood, there was no occasion for any representative body. All could then meet in public assembly, as at ancient Athens; in fact, they did so meet, and in this way discharged the duties of legislation. But as the freemen became scattered and numerous, it was found grievous to compel the personal attendance of the whole body, and, as a substitute, the towns were empowered, in 1634, to assemble in General Court by deputies.[10] Here was the establishment of the Representative System in Massachusetts, which has continued, without interruption, down to our day. The size of the House and the relative representation of towns have varied at different times; but the great principle of representation, by which a substitute is provided for the whole body of the people, has constantly been preserved. Still a feeling has long prevailed that the system had not yet received its final form, while, with more or less precision, has been discerned that principle of equality which is essential to its completeness.

[10] Hutchinson, History of Massachusetts, Vol. I. pp. 30, 39. Charters and General Laws of the Colony and Province of Massachusetts Bay, Appendix, p. 713. Records of the Governor and Company of the Massachusetts Bay, Vol. I. pp. 116-118.

Among the acts of the first General Court of the Revolution was one passed in the summer of 1775, after the Battle of Bunker Hill, "declaratory of the right of the towns and districts to elect and depute a representative or representatives to serve for and represent them in the General Court." By this act all provisions of previous acts denying to certain towns and districts the right of sending a representative were declared null and void, and every town containing thirty qualified voters was authorized to send one.[11] The immediate consequence was the two evils to which I have already referred,--namely, inequality of representation, and a too numerous House: but the whole number of representatives which aroused the complaints of that day was three hundred and five.

[11] Charters and General Laws of Massachusetts Bay, Appendix, pp. 796, 797.

These grievances were the occasion of a Convention of delegates from the towns of Essex County, at Ipswich, April 25, 1776, where was adopted a Memorial, afterwards presented and enforced at the bar of the House by John Lowell. In this remarkable document occurs the first development, if not the first proclamation, of the principle of equality in representation. Here, Sir, is the fountain and origin of an idea full of strength, beauty, and truth. Listen to the words of these Revolutionary fathers.

"If this representation is equal, it is perfect; as far as it deviates from this equality, so far it is imperfect, and approaches to that state of slavery; and the want of a just weight in representation is an evil nearly akin to being totally destitute of it. An inequality of representation has been justly esteemed the cause which has in a great degree sapped the foundation of the once admired, but now tottering, fabric of the British Empire; and we fear, that, if a different mode of representation from the present is not adopted in this Colony, our Constitution will not continue to that late period of time which the glowing heart of every true American now anticipates....

"We cannot realize that your Honors, our wise political fathers, have adverted to the present inequality of representation in this Colony, to the growth of the evil, or to the fatal consequences which will probably ensue from the continuance of it.

"Each town and district in the Colony is by some late regulations permitted to send one representative to the General Court, if such town or district consists of thirty freeholders and other inhabitants qualified to elect; if of one hundred and twenty, to send two. No town is permitted to send more than two, except the town of Boston, which may send four. There are some towns and districts in the Colony in which there are between thirty and forty freeholders, and other inhabitants qualified to elect, only; there are others besides Boston in which there are more than five hundred. The first of these may send one representative; the latter can send only two. If these towns as to property are to each other in the same respective proportion, is it not clear to a mathematical demonstration that the same number of inhabitants of equal property in the one town have but an _eighth_ part of the weight in representation with the other?--and with what colorable pretext? we would decently inquire."[12]

[12] From the original MS. in the Massachusetts Archives, Vol. 156.

Under the pressure of this powerful state paper the obnoxious law was repealed, and one "providing for a _more equal_ representation" substituted; but the evil was only partially remedied. Then followed an unsuccessful effort to make a Constitution in 1777-8, which failed partly through dissatisfaction with its disposal of this very question. The County of Essex was again heard in another document, now known as the "Essex Result," and among the most able and instructive in our history, from which I take the following important words.