decided by the immediate commander of the troops, according to his judgment of the situation. The fire of troops should be withheld until timely warning has been given to the innocent who may be mingled with the mob. Troops must never fire into a crowd unless ordered by their commanding officer, except that single selected sharpshooters may shoot down individual rioters who have fired upon or thrown missiles at the troops. As a general rule the bayonet alone should be used against mixed crowds in the first stages of a revolt. But as soon as sufficient warning has been given to enable the innocent to separate themselves from the guilty, the action of the troops should be governed solely by the tactical considerations involved in the duty they are ordered to perform. They should make their blows so effective as to promptly suppress all resistance to lawful authority, and should. stop the destruction of life the moment lawless resistance has ceased. Punishment belongs, not to the troops, but to the courts of justice. (568, Army Regulations, 1901.)

FEDERAL AID IN DOMESTIC DISTURBANCES.

I. THE CONSTITUTIONAL GUARANTY: ITS HISTORY.

SHAYS'S REBELLION-THE FEDERAL CONVENTION-THE VIRGINIA CONVENTION-THE

PENNSYLVANIA CONVENTION.

The convention to frame a Constitution for the Government of the United States, which met at Philadelphia on the 14th of May, 1787, was confronted by a multitude of conditions such as had never before been experienced by a similar body in the history of popular government. For their proposed undertaking there was no precedent and scarcely an analogy. The Revolution had settled as a fundamental principle that all sovereignty resides originally in the people, and that consequently no powers nor privileges must be permitted to exist in any portion, class, or section of the people that does not exist in the whole. The spectacle was presented of thirteen State governments, each independent of the other, but each so dependable upon the other that it were madness to hope to stand alone. None of them possessed any standing military forces; their militia was unorganized and uncertain; none could call upon its neighbor for assistance in repelling an invasion or suppressing an insurrection, for the neighbor had nothing but its militia to offer, and the militia would not have obeyed the summons had it been issued; nor could any of them call upon the Federal Government for aid in such emergency with any certainty of success. The chances were against it. That the States were in danger had been conspicuously demonstrated in Massachusetts but a few months before the assembling of the convention.

The legislature of that State had imposed customs and revenue duties for the purpose of raising a revenue sufficient to meet the interest on the State debt. To a people just emerging from a long and distressing war, already exhausted with public and private debts, this additional burden served to exasperate to the verge of resistance. The courts, unable to enforce their judgments, appealed to the governor, and the latter, after unsuccessful efforts to pacify the malcontents, called out the militia. The Congress (October, 1786), fearing the seizure of the

Shays's rebellion,

1786-1787.

Government armory at Springfield, voted the enlistment of 1,300 men, but before these troops could be raised the insurrection had broken out. On the 5th of December a body of something over a thousand men, under the command of one Daniel Shays, who had been a captain in the Continental Army, took possession of Worcester, and twenty days later of Springfield. Other thousands hurried to their support, and by the 1st of January, 1787, the insurrection had reached so formidable a state that the governor was compelled to increase his militia force to nearly 5,000. Of this number the orders for embodiment called for 700 from Suffolk County, 500 from Essex, 800 from Middlesex, 1,200 from Hampshire, and 1,200 from Worcester; two companies of artillery to be raised in Suffolk and two in Middlesex; the troops from the three eastern counties to rendezvous at Boston on the 19th of January; those from Hampshire at Springfield on the 18th; those from Worcester to join the troops from the eastern counties at Worcester; the whole to be raised for thirty days unless sooner discharged. The command of the entire force was given to Maj. Gen. Benjamin Lincoln, an officer of distinction and high reputation during the war of the Revolution, to whom was given the following orders: BOSTON, January 19, 1787.

SIR: You will take the command of the militia, detached in obedience to my orders of the 4th instant. The great objects to be effected are to protect the judicial courts, particularly those next to be holden in the county of Worcester, if the justices of the said courts should request your aid; to assist the civil magistrates in executing the laws, and in repelling or apprehending all and every such person and persons as shall in a hostile manner attempt or enterprise the destruction, detriment, or annoyance of this Commonwealth, and also to aid them in apprehending the disturbers of the public peace, as well as all such persons as may be named in the State warrants that have been or shall be committed to any civil officer or officers, or to any other person, to execute.

If to these important ends the militia already ordered out should, in your opinion, be incompetent you will call on the major-generals for further and effectual aid, and if you can rely on their attachment to Government you will, in the first instance, call on the militia in the neighborhood of your camp.

I can not minutely point out to you the particular line you shall pursue in executing these orders, but would observe, in general, that if, to answer the aforesaid valuable purposes, you should judge it necessary to march a respectable force through the western counties you will in that case do it. This would give confidence to the well affected, would aid and protect the civil officers in executing their duty, and would convince the misguided of the abilities of Government and its determination to pursue every legal and constitutional measure for restoring peace and order to the Commonwealth.

You are to consider yourself in all your military offensive operations constantly as under the direction of the civil officer, saving where any armed force shall appear and oppose your marching to execute these orders.

That I may be fully acquainted with all the proceedings of the armed force under your command and with all matters that respect the great objects to be effected, you will please to give me regular information by every post, and for immediate and necessary intelligence you will order the quartermaster-general to provide the necessary expresses.

On these attempts to restore system and order I wish the smiles of Heaven, and that you may have an agreeable command, the most perfect success, and a speedy and safe return; and am, with much esteem,

Sir, your most obedient servant,

Hon. Major-General LINCOLN.

JAMES BOWDOIN.

On the 25th of January Shays appeared before the arsenal at Springfield and demanded its surrender. This being refused, he proceeded to assault it, but his men, frightened at the sight of the cannon with which the commandant confronted them, and which he twice discharged over their heads, broke and fled in confusion. Two days later General Lincoln arrived at Springfield with a strong body of troops, and the insurgents dispersed. Some of the leaders were captured, tried, and sentenced to death, but none were executed, inasmuch as the great mass of the people sympathized with them or their cause."

A year or two earlier Congress itself had been threatened by a body of some eighty discharged Pennsylvania soldiers of the Continental Army who had marched to Philadelphia, demanding a settlement of their accounts, and, "drawn up in line in the street before the statehouse, had uttered offensive words and wantonly pointed their muskets to the windows of the Hall of Congress." It had been proposed to call upon the executive of Pennsylvania for aid in suppressing this mutiny, but that gentleman had expressed his doubt as to the willingness of the militia of Philadelphia to take arms in the matter and thought it might hazard the authority of government to make the attempt. The Secretary of War was absent in Virginia, and General St. Clair, who interviewed the mutinous troops, gave no encouragement. In this emergency the presiding officer adjourned the Congress to meet at Trenton, thus virtually fleeing from danger, when the mutineers submitted and accepted the promise of Congress to take furloughs and await its pleasure. Again, while Congress was listening to the news from the Massachusetts insurrection, intelligence came that the Indian tribes on the frontier were becoming hostile and that the settlements were threatened. On the 30th of October, 1786, a resolve had been adopted calling upon New Hampshire, Massachusetts, Rhode Island, and Connecticut for a force of 1,340 additional troops to serve for three years, but so slowly and grudgingly was this requisition being honored that Congress recalled it on the 19th of February, 1787, despite the assurances of the Massachusetts members that the men would be furnished. In fact, so indisposed were certain classes of the people to recognize the Federal Congress as empowered to interfere in case of a rebellion

The Constitutional Convention, 1787.

a Minot's History of the Insurrection in Massachusetts, Boston, 1810.
Journals of Congress, June 19-21, 1783.

in any State that their numbers in New England alone were estimated at from 12,000 to 15,000 able-bodied men."

It was under these circumstances and with an appreciation of these conditions that the convention assembled on the 14th of May, 1787. "The framers of the Constitution assembled for their work," says Mr. George Ticknor Curtis, in his admirable History of the Constitution, "amidst difficulties and embarrassments of an extraordinary nature. No general concert of opinion had taken place as to what was best, or even as to what was possible to be done. Whether it were wise to hold a convention; whether it were even legal to hold it, and whether, if held, it would be likely to result in anything useful to the country, were points upon which the most opposite opinions prevailed in every State of the Union." Among the many complex and embarrassing subjects the convention was called upon to consider, there was none more serious or more important than that of providing for the common defense. There must be no standing army-on that head there was no disagreement-but the right of the Federal legislature to maintain a standing army, even in time of peace, was one that should never be abandoned. The militia had fought and won the conflict; in a well-regulated militia lay the best guaranty of liberty, but the militia system presented the only defense and protection which the States could have for the security of their rights against encroachments of a general government, and it should never be placed under the power of the Federal legislature. On this the debate was long and sometimes bitter, but the conclusion was emphatic. The power to raise armies, to organize and call out and govern the militia, when in the service of the United States, was deliberately and decisively given to Congress. This is perhaps to anticipate, but is essential to our purpose.

It having been agreed that Virginia, which had originated the convention, should propose the method of its proceeding, Mr. Randolph, of that State, on the 29th of May presented a series of fifteen resolutions looking to the "common defense, security of liberty, and general welfare" of the people of the United States. Among these resolutions, and numbered eleven in his schedule, was one which looked to the necessity for a guaranty to the States of a form of government that should rest on the foundation of popular sovereignty. It read thus:

11. Resolved, That a republican government, and the territory of each State, except in the instance of a voluntary junction of government and territory, ought to be guaranteed by the United States to each State.

In the debate upon these resolutions section 11 came up in regular order on the 5th of June, when it was agreed to postpone consideration to a future date. That date was reached on the 11th of that month,

a Curtis's History of the Constitution, vol. 1, p. 273.