cer of the district of Boston and Charlestown; he had not been informed of these orders, and it was intimated that these circumstances had prevented the circulation of the orders in the usual mode.

Your committee find that by the constitution of the United States, Congress is authorized" to provide for the calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ;" and that the president is the "commander in chief of the army and navy of the United States, and of the militia of the several states, when called into actual service of the United States."

Your committee also find that by a law of the United States, passed Feb. 28, 1795, entitled "An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasion, and to repeal the act now in force for those purposes," it is enacted, "that whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshal by this act, it shall be lawful for the president of the United States to call forth the militia of such state, or of any other state or states, as may necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of the militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress" "Provided always, that whenever it may be necessary in the judgment of the president to use the military force hereby directed to be called forth, the president shall forthwith, by proclamation, command such insurgents to disperse and retire peaceably to their respective abodes within a limited time."

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Your committee find that when there was an insurrection in the western parts of Pennsylvania, in the year 1794, and the insurgents finally perpetrated acts which amounted to treason, being overt acts of

levying war against the United States; President Washington then proceeded most scrupulously, in conformity to the act of Congress then in force, "to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions ;" and troops were called forth from several states, at the request of the president, by the governours of the same, in the usual manner, according to the law and custom. The committee presume, however, that it will be readily perceived that nothing in the constitution or laws of the United States authorizes the president, under the existing circumstances, to call forth the militia of this state, or any part thereof.

By the tenth section of an act of Congress passed January 9th, 1809, it is provided, "That it shall be lawful for the president of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces, or militia of the United States or the territories thereof, as may be judged necessary, in conformity with the provisions of this and other acts respecting the embargo, for the purpose of preventing the illegal departure of any ship or vessel, or of detaining, taking possession of, and keeping in custody and guarding any specie or articles of domestick growth, produse or manufacture; and also for the purpose of preventing and suppressing any armed or riotous assemblage of persons, resisting the custom house officers in the execution of the laws laying an embargo; or otherwise violating, or assisting and abetting violations of the same."

The present Legislature of this commonwealth have "Resolved, that the said act of Congress, passed on the ninth day of January, in the present year, for enforcing the act laying an embargo and the several acts supplementary thereto, is in the opinion of the legislature, in many respects unjust, oppressive and unconstitutional, and not legally binding on the citizens of this state."

But even if this act were admitted to be constitutional, your committee do not find that by the said act, Congress have provided any new mode of calling forth the militia; and they conceive that the militia cannot legally be "employed" by the president of the United States, or by any person empowered by him, till they have been called forth in the mode which congress had previously prescribed.

Your committee find that by the constitution of this commonwealth, chap. ii. sect. 1, art. 7, the governour is "entrusted" with all the " powers incident to the offices of captain general and commander in chief and admiral, to be exercised agreeably to the rules and regulations of the constitution and the laws of the land, and not otherwise."

The same constitution, bill of rights, art. 17, declares that "the military power shall always be held in exact subordination to the civil authority, and be governed by it." This great principle is repeatedly recognized by our laws, and was respected even amidst the horrours of a rebellion. By a law passed February 20th 1787, the preamble of which states that an unnatural and dangerous rebellion actually existed at that time in this commonwealth, it is declared, that in a free government, where the people have a right to bear arms for the common defence, the military power is held in subordination to the civil authority."

In the 32d section of the militia law of this commonwealth, passed June 22d, 1793, which provides for calling out the militia "in case of threatened or actual invasion, insurrection or other publick danger or emergency," it is enacted that whenever a detachment is made in any such case, "the officers, noncommissioned officers and privates, being able of body, shall be detailed from the rosters or rolls which shall be kept for that purpose." And your committee do not find that the commander in chief of this commonwealth is authorized, in calling out the militia, to select and designate particular officers and parti

cular corps or men, without regard, "to the rosters or rolls which shall be kept for that purpose."

Wherefore Resolved,

That in the opinion of this house, the said milita ry orders of the first of February instant, issued by His Honour Levi Lincoln, lieutenant governour, and commander in chief of this commonwealth, are irregular, illegal, and inconsistent with the principles of the constitution; tending to the destruction of military discipline, an infringement of the rights and derogatory to the honour of both officers and soldiers; subversive of the militia system, and highly dangerous to the liberties of the people.

All which is respectfully submitted.

ISAAC MALTBY, Per Order.

SPEECHES

Of the Gentlemen who composed the Committee, in the Debate, in the House, on accepting the foregoing Report.

Mr. Speaker,

GEN. MALTBY.

FEELING, sir, a responsibility as one of the committee who submitted the report now under the consideration of the house, and believing it proper that I should communicate some of the reasons which induced me to unite in that report, I claim your indulgence, while I attempt to perform this duty. And when I consider the importance of the report as it

respects the commonwealth and the commander in chief; when it is known, that I have not been in the habit of detaining the house by my observations in their debates; I may the more confidently hope for a few moments' attention.

I shall not deal in round assertions, unaccompanied with proof. It is my design to examine the constitution and laws of the United States and the constitution and the laws of this commonwealth. This examination may perhaps be thought more properly to belong to those whose profession is the study of law; but, sir, in another capacity, not as a legislator (while studying the duties incumbent on me as a militia officer) I ought at least to know something of the duties of my superiours. While I turn the attention of the house to the constitution and the laws; the report on your honours' table and the documents which accompany it, shewing the manner in which the orders have been issued and executed, will enable them to determine, whether the constitution and the laws of the country and the privileges of its citizens have been duly regarded.

By the United States constitution, art. 2d, sec. 2d, "The president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States." Here it will be found, that the president has no power over "the militia of the several states" until they are "called into actual service." How then (it will be inquired) are the militia to be called into actual service? The constitution, art. 1st, sect. 8, authorizes Congress to "provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions." Here, sir, it is evident that Congress have the power to point out the manner in which the militia shall be called into actual service, and the president has no power to call them into service, in any other way than the one prescribed by Congress. It will be proper then to inquire, what provision Con