by a learned commentator on the laws of England, that the royal navy of England hath ever been its greatest defence and ornament. It is its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can be apprehended to liberty.1 Every American citizen ought to cherish the same sentiment, as applicable to the navy of his own country.

§ 1192. The next power of congress is "to make "rules for the government and regulation of the land and "naval forces." This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy. Its propriety, therefore, scarcely could be, and never has been denied, and need not now be insisted on. The clause was not in the original draft of the constitution; but was added without objection by way of amendment. It was without question borrowed from a corresponding clause in the articles of confederation, where it was with more propriety given, because there was a prohibition of all implied powers. In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating

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policy, that such prospect is ultimately delusive; and that a navy has ever in practice been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce. Nor is there any nation, in the judgment of the general assembly, to whose circumstances this remark is more applicable, than to the United States." p. 57, 58. And the senators and representatives were instructed and requested by one of the resolutions "to prevent any augmentation of the navy, and to promote any proposition for reducing it, as circumstances will permit, within the narrowest limits compatible with the protection of the sea-coasts, ports, and harbours of the United States." p. 59.

1 1 Black. Comm. 418.

2 Journal of Convention, p. 221, 262. 3 Art. 9.

fleets and armies.1 But parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for by acts of parliament. The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.

§ 1193. It is a natural result of the sovereignty over the navy of the United States, that it should be exclusive. Whatever crimes, therefore, are committed on board of public ships of war of the United States, whether they are in port or at sea, they are exclusively cognizable and punishable by the government of the United States. The public ships of sovereigns, wherever they may be, are deemed to be extraterritorial, and enjoy the immunities from the local jurisdiction belonging to their sovereign.3

11 Black. Comm. 262, 421.

21 Black. Comm. 413, 414, 415, 420, 421.

3 See United States v. Bevans, 3 Wheaton's R. 336, 390. The Schr. Exchange, 7 Cranch's R. 116.

CHAPTER XXII.

POWER OVER THE MILITIA.

§ 1194. THE next power of congress is "to provide "for calling forth the militia to execute the laws of the "Union, suppress insurrections, and repel invasions.”

§1195. This clause seems, after a slight amendment, to have passed the convention without opposition.' It cured a defect severely felt under the confederation, which contained no provision on the subject.

§ 1196. The power of regulating the militia, and of commanding its services to enforce the laws, and to suppress insurrections, and repel invasions, is a natural incident to the duty of superintending the common defence, and preserving the internal peace of the nation. In short, every argument, which is urged, or can be urged against standing armies in time of peace, applies forcibly to the propriety of vesting this power in the national government. There is but one of two alternatives, which can be resorted to in cases of insurrection, invasion, or violent opposition to the laws; either to employ regular troops, or to employ the militia to suppress them. In ordinary cases, indeed, the resistance to the laws may be put down by the posse comitatus, or the assistance of the common magistracy. But cases may occur, in which such a resort would be utterly vain, and even mischievous; since it might encourage the factious to more rash measures, and prevent the application of a force, which would at once destroy the hopes, and crush the efforts of the disaffected. The

VOL. III.

1 Journal of Convention, 221, 283.

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general power of the government to pass all laws necessary and proper to execute its declared powers, would doubtless authorize laws to call forth the posse comitatus, and employ the common magistracy, in cases, where such measures would suit the emergency.' But if the militia could not be called in aid, it would be absolutely indispensable to the common safety to keep up a strong regular force in time of peace. The latter would certainly not be desirable, or economical; and therefore this power over the militia is highly salutary to the public repose, and at the same time an additional security to the public liberty. In times of insurrection or invasion, it would be natural and proper, that the militia of a neighbouring state should be marched into another to resist a common enemy, or guard the republic against the violences of a domestic faction or sedition. But it is scarcely possible, that in the exercise of the power the militia should ever be called to march great distances, since it would be at once the most expensive and the most inconvenient force, which the government could employ for distant expeditions. The regulation of the whole subject is always to be in the power of congress; and it may from time to time be moulded so, as to escape from all dangerous abuses.

§ 1197. Notwithstanding the reasonableness of these suggestions, the power was made the subject of the most warm appeals to the people, to alarm their fears, and surprise their judgment. At one time it was said,

1 2 Elliot's Debates, 300, 304, 305, 308, 309.

2 The Federalist, No. 29; 2 Elliot's Debates, 292, 293, 294,308, 309. 3 The Federalist, No. 29; 2 Elliot's Deb. 92, 107, 108, 292, 293, 294, 308, 309; 3 Elliot's Deb. 305, 306.

4 2 Elliot's Deb. 66, 67, 307, 310, 314, 315; The Federalist, No. 29 ; Luther Martin's Address, Yates's Minutes; 4 Elliot's Deb. 33, 34.

that the militia under the command of the national government might be dangerous to the public liberty; at another, that they might be ordered to the most distant places, and burthened with the most oppressive services; and at another, that the states might thus be robbed of their immediate means of defence.1 How these things could be accomplished with the consent of both houses of congress, in which the states and the people of the states are represented, it is difficult to conceive. But the highly coloured and impassioned addresses, used on this occasion, produced some propositions of amendment in the state conventions, which, however, were never duly ratified, and have long since ceased to be felt, as matters of general concern.

§ 1198. The next power of congress is, "to provide "for organizing, arming, and disciplining the militia, and "for governing such part of them, as may be employed "in the service of the United States; reserving to the "states respectively the appointment of the officers, "and the authority of training the militia according to "the discipline prescribed by congress."

§ 1199. This power has a natural connexion with the preceding, and, if not indispensable to its exercise, furnishes the only adequate means of giving it promptitude and efficiency in its operations. It requires no skill in the science of war to discern, that uniformity in the organization and discipline of the militia will be attended with the most beneficial effects, whenever they are called into active service. It will enable them to discharge the duties of the camp and field with mutual intelligence and concert, an advantage of peculiar

1 See the Federalist, No. 29; 2 Elliot's Deb. 285, 286, 287, 289, 307, 310.

21 Tucker's Black. Comm. App. 273.