3.

CHAPTER VIII.

THE STATE IS ABSOLUTE OVER THE SOLDIERY.

HE state being the citizens thereof, and the arms-bearing citizens being the military force, the state has the original and supreme right, coupled with the duty, to control the said force, for her defence.

Their social instinct, and their instinct, right, and duty of self-preservation, moved the people to form themselves into commonwealths, to protect themselves and their belongings. For further security they, as states, afterwards united in federal union: "to bind, in one ligament, the strength of thirteen states." [Pendleton in Va. conv.]

Politically speaking, "the people" -as has been said could only exist and exert will as states. It was only as states that they could create and operate a federal government, or governmental agency. Now, look at the proposition, that "the people's" own agent-the federal government can draw them, as individual soldiers, from the state, and arm, train, and compel them, under penalties, to fight the body politic they themselves, and their families, friends, and neighbors, compose; or, in other words, that the voting and fighting men, who practically constitute the state, can by her federal agency be marshalled, armed, and led to whip the women and children thereof!

The military force contemplated for the united states was primarily the people the citizen soldiery. The people were to think for themselves, vote for themselves, fight for themselves; and since independence, they never have had the slightest sparkle of political existence, or capacity for political action, either in peace or war, except as states

absolute commonwealths.

What does Massachusetts say? - The old Bay State never thought otherwise. She regards the militia as her soldiers, and the only purpose of them to be her defence; and she considers federal control as exceptional, and as specifically agreed upon and ordained by herself and her sister states for her and their "defence" and "welfare," and

the preservation of "the blessings of liberty" common to all of them, principal among which blessings, are the rights of complete self-organization and existence, self-association, self-protection, and self-ruling, as commonwealths, whether several or united.

Hence she declares herself to be the absolute sovereign of her territory and people; she organizes her citizens as soldiers; she appoints and commissions all military officers; she requires of all officials an oath of allegiance to her; she defines treason of her citizens or subjects to be the waging of war against her, and giving aid and comfort to her enemies; and she attaches to it the penalty of death; and by these means she, with original, inherent, and supreme right, absolutely controls her militia, i. e. the whole body of her citizens capable of bearing arms.

Her fundamental law declares that her governor is the "commander-in-chief of all her land and naval forces," and is empowered and instructed, "for the special defence and safety of the commonwealth, to assemble in martial array, and put in warlike posture, the inhabitants thereof, and to lead and conduct them; and with them to encounter, repel, resist, expel and pursue, by force of arms, . and also to kill, slay, and destroy, . . all and every such person and persons as shall at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of this commonwealth." Here is provision for her whole military force to be used to defeat usurpation, or repel aggression of the federal government; and this would have been done, in the second British war, if the said government had persisted in its claims, and peace had not supervened. If she thought the federal government sovereign over her as a political body, why, in 1795, did she deem it unnecessary and inexpedient to change the above, and her declaration of "sovereignty"? And why did she, in the convention of 1820, reject an amendment modifying the above article? Simply because she has never parted with her sovereignty, and she is determined, when occasion shall arise, to defend it with her whole physical force. Her declarations of absolute sovereignty, and the provisions for the use of all her strength, remain her organic laws now. She claims the right to use force against the federal government; and, as will be seen, she says emphatically, that she intends to use it when she deems it necessary. And she is right, for the militia are her subjects, and the federal government can have no authority over them but what she expressly confides or entrusts.

And she and the other states always meant by the maxim that the military is and must be kept subordinate to the civil authority, that it belongs to and is under the state, as its means and instrument of self

government and self-protection, whenever public fighting, or a show of public force, is, or may be, needed. It can only have power and existence under the law, and must of course be always subordinate to, and controlled by, the source of the law, the organized will of the people.

And it is well to say here, that the constitution throughout contemplates the use of men and means in warfare, for the "defence" of the people, and never for attack. Self-attack, and possible self-destruction, could never be predicated or presumed of the intention of states, in uniting for "defence" and "welfare."

Her Political Action in the Union. - In her law entitled "An act for regulating, governing, and training the militia of this commonwealth," passed March 6, 1810, she quotes from the act of congress "to provide for the national defence, by establishing a uniform militia throughout the united states," passed May 8th, 1792, the provision "that each and every free able-bodied citizen of the respective states, resident therein," who is over eighteen and under forty-five, shall be enrolled, etc.; and she then proceeds to provide for her most absolute control of her militia. Among other provisions showing her autocratic determination in this regard, are those referring to the appointment and commissioning of the officers, and the oaths to be exacted from each. The latter are as follows:

1. “I, A. B., do truly and sincerely acknowledge, profess, testify, and declare, that the commonwealth of Massachusetts is, and of right ought to be, a free, sovereign, and independent state. And I do swear that I will bear true faith and allegiance to the said commonwealth, and that I will defend the same against traitorous conspiracies, and all hostile attempts whatsoever; and that I do renounce all allegiance, subjection, and obedience to the king, queen, or government of Great Britain, and every other foreign power whatsoever; and that no foreign prince, person, prelate, or state hath, or ought to have, any jurisdiction, superiority, pre-eminence, authority, dispensing or other power in any matter, civil, ecclesiastical, or spiritual, within this commonwealth, except the authority and power which is, or may be vested, by their constituents, in the congress of the united states. And I do further testify and declare that no man, nor body of men, hath or can have any right to absolve or discharge me from the obligation of this oath, declaration, or affirmation; and that I do make this acknowledgment, profession, testimonial, declaration, denial, renunciation, and abjuration, heartily and truly, according to the common meaning and acceptation of the foregoing words, without any equivocation, mental evasion, or secret reservation whatsoever, so help me God"!

2. The oath of office to discharge the duties faithfully according to "the constitution and laws of this commonwealth.”

3. "I, A. B., do swear that I will support the constitution of the united states."

Ah! in the brave days of old, she was autocratic in voice and act. She had not then been degraded by her own sons to a county or province a mere jewel in the crown of King Union!

...

How did she act in 1814 when her federal government was warring in defence of her rights? As a county? Oh, no! Her agency at Washington wanted some of her soldiers to use "for the common defence "— including hers, of course." She constantly opposed the war and requisitions, and when she feared the federal powers she thought to be usurped were about to be executed on her men and means, she, with Connecticut and Rhode Island, and a few delegates from other states, held the Hartford Convention, which thus expressed her views as a sovereign: "In this whole series of devices and measures for raising men, this convention discern a total disregard for the constitution, . . . and a disposition to violate its provisions, demanding from the individual states a firm and decided opposition. . . . Acts of congress, in violation of the constitution, are absolutely void. . It will be proper for the several states to await the ultimate disposal of the obnoxious measures recommended by the secretary of war, or pending before congress; and so to use their power, according to the character these measures shall finally assume, as effectually to protect their own sovereignty, and the rights and liberties of their citizens." The convention proceeds "to recommend to the legislatures of the states represented therein, to adopt all such measures as may be necessary effectually to protect the citizens of the said states from the operation and effects of all acts of congress"— such as those above characterized; also to recommend negotiations with the federal government; and also, "if the application of these states be unsuccessful, that they hold a convention at Boston next June, with such powers and instructions as the exigency of a crisis so momentous may require."

Fortunately, however, the ambassadors sent by Queen Massachusetts soon reported that "peace" "happily superseded the necessity of the arrangements [being made] for the defence of the commonwealth."

To sum up, then, although Massachusetts may have been, as some think, selfish and ungenerous, as well as morally wrong, she was constitutionally on impregnable ground. She was no mere province. Possessing original, inherent, and unlimited rights, but no derivative ones whatever, she was an independent state, with a sovereign

will; and she simply acted as such. And though she and others may by war have forced the subject states to "consent" to a change of faith and works, yet she keeps the old faith. By legislative act of May 8th, 1866, she puts herself on a war footing, evidently knowing that the precedent of coercing states might be applied to her. In said act, she provides that every commissioned officer shall, before doing duty, take and subscribe the following oaths and declarations: "I, A. B., do solemnly swear that I will bear true faith and allegiance to the commonwealth of Massachusetts; and I will support the constitution thereof; so help me God." He is also sworn to do the duties of the office, and to support the constitution of the united states.

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I reiterate, then, on the high and august authority of Queen Massachusetts, the third idea of the point under discussion, the republican idea that the state being the citizens thereof, and the arms-bearing citizens being the military force, the state has the original and supreme right, coupled with the duty, to control the said force, for her defence. Q. E. D.