A Compilation of the Messages and Papers of the Presidents. Volume 2, part 1: James Monroe

by Unknown

WASHINGTON, February 23, 1824.

To the Senate and House of Representatives of the United States:

I herewith transmit to Congress certain documents relating to a claim of Massachusetts for services rendered by the militia of that State in the late war, and for which payment was made by the State. From the particular circumstances attending this claim I have thought it proper to submit the subject to the consideration of Congress.

In forming a just estimate of this claim it will be necessary to recur to the cause which prevented its admission, or the admission of any part thereof, at an earlier day. It will be recollected that when a call was made on the militia of that State for service in the late war, under an arrangement which was alike applicable to the militia of all the States and in conformity with the acts of Congress, the executive of Massachusetts refused to comply with the call, on the principle that the power vested in Congress by the Constitution to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions was not a complete power for those purposes, but conditional, and dependent on the consent of the executives of the several States, and, also, that when called into service, such consent being given, they could not be commanded by a regular officer of the United States, or other officer than of the militia, except by the President in person. That this decision of the executive of Massachusetts was repugnant to the Constitution of the United States, and of dangerous tendency, especially when it is considered that we were then engaged in a war with a powerful nation for the defense of our common rights, was the decided opinion of this Government; and when the period at which that decision was formed was considered, it being as early as the 5th of August, 1812, immediately after the war was declared, and that it was not relinquished during the war, it was inferred by the Executive of the United States that the decision of the executive of that State was alike applicable to all the services that were rendered by the militia of the State during the war.

In the correspondence with the governor of Massachusetts at that important epoch, and on that very interesting subject, it was announced to him by the Secretary of War that if the militia of the State were called into service by the executive of the State, and not put under the command of the Major-General of the United States, as the militia of the other States were, the expense attending their service would be chargeable to the State, and not to the United States. It was also stated to him at the same time that any claim which the State might have for the reimbursement of such expenses could not be allowed by the Executive of the United States, since it would involve principles on which that branch of the Government could not decide.

Under these circumstances a decision on the claim of the State of Massachusetts has hitherto been suspended, and it need not be remarked that the suspension has proceeded from a conviction that it would be improper to give any sanction by its admission, or by the admission of any part thereof, either to the construction of the Constitution contended for by the then executive of that State or to its conduct at that period toward the General Government and the Union.

In January, 1823, the Representatives in Congress from Massachusetts and Maine suggested, by memorial, that the constitutional objection could not apply to a portion of the claim, and requested that the accounting officer of the Government might be instructed to audit and admit such part as might be free from that objection. In all cases where claims are presented for militia service it is the duty and the practice of the accounting officer to submit them to the Department for instruction as to the legality of the claim; that is, whether the service had been rendered by order of the competent authority, or otherwise, under circumstances to justify the claim against the United States, admitting that the evidence in support of it should be satisfactory. To this request there appeared to be no well-founded objection, under the reservation as to the constitutional principle, and accordingly an order was given to the accounting officers of the Treasury to proceed in auditing the claim with that reservation.

In conformity with this arrangement, the executive of Massachusetts appointed two citizens of that State commissioners to attend to the settlement of its claim, and who, in execution of the trust reposed in them, have presented to the accounting officer of the Treasury that portion comprehending the services of the fifth division of the militia of the State, which has been audited and reported for consideration, subject to the objection above stated. I have examined this report, with the documents presented by the commissioners, and am of opinion that the services rendered by that division were spontaneous, patriotic, and proper, necessary for self-defense, to repel in some instances actual invasion and in others to meet by adequate preparation invasions that were menaced. The commissioners of the State having intimated that other portions of service stood on similar ground, the accounting officer has been instructed, in auditing the whole, to do it in such manner as to enable the Department to show distinctly under what circumstances each portion of service was rendered, whether voluntary, called out by invasion or the menace of invasion, or by public authority, and in such case whether the militia rendering such service was placed under the authority of the United States or retained under that of the State.

It affords me great pleasure to state that the present executive of Massachusetts has disclaimed the principle which was maintained by the former executive, and that in this disclaimer both branches of the legislature have concurred. By this renunciation the State is placed on the same ground in this respect with the other States, and this very distressing anomaly in our system is removed. It is well known that the great body of our fellow-citizens in Massachusetts are as firmly devoted to our Union and to the free republican principles of our Government as our fellow-citizens of the other States. Of this important truth their conduct in every stage of our Revolutionary struggle and in many other emergencies bears ample testimony; and I add with profound interest and a thorough conviction that, although the difficulty adverted to in the late war with their executive excited equal surprise and regret, it was not believed to extend to them. There never was a moment when the confidence of the Government in the great body of our fellow-citizens of that State was impaired, nor is a doubt entertained that they were at all times willing and ready to support their rights and repel an invasion by the enemy.

The commissioners of Massachusetts have urged, in compliance with their instructions, the payment of so much of their claim as applies to the services rendered by the fifth division, which have been audited, and I should have no hesitation in admitting it if I did not think, under all the circumstances of the case, that the claim in all its parts was cognizable by Congress alone. The period at which the constitutional difficulty was raised by the executive of the State was in the highest degree important, as was the tendency of the principle for which it contended, and which was adhered to during the war. The public mind throughout the Union was much excited by that occurrence, and great solicitude was felt as to its consequences. The Executive of the United States was bound to maintain, and did maintain, a just construction of the Constitution, in doing which it is gratifying to recollect that the most friendly feelings were cherished toward their brethren of that State. The executive of the State was warned, in the correspondence which then took place, of the light in which its conduct was viewed and of the effect it would have, so far as related to the right of the Executive of the United States, on any claim which might afterwards be presented by the State to compensation for such services. Under these circumstances the power of the Executive of the United States to settle any portion of this claim seems to be precluded. It seems proper, also, that this claim should be decided on full investigation before the public, that the principle on which it is decided may be thoroughly understood by our fellow-citizens of every State, which can be done by Congress alone, who alone, also, possess the power to pass laws which may be necessary to carry such decision into effect.