moment in the operations of an army; and it will enable them to acquire, in a much shorter period, that degree of proficièncy in military functions, which is essential to their usefulness. Such an uniformity, it is evident, can be attained only through the superintending power of the national government.1

§ 1200. This clause was not in the original draft of the constitution; but it was subsequently referred to a committee, who reported in favour of the power; and after considerable discussion it was adopted in its present shape by a decided majority. The first clause in regard to organizing, arming, disciplining, and governing the militia, was passed by a vote of nine states against two; the next, referring the appointment of officers to the states, after an ineffectual effort to amend it by confining the appointment to officers under the rank of general officers, was passed without a division; and the last, referring the authority to train the militia according to the discipline prescribed by congress, was passed by a vote of seven states against four.2

1201. It was conceived by the friends of the constitution, that the power thus given, with the guards, reserving the appointment of the officers, and the training of the militia to the states, made it not only wholly unexceptionable, but in reality an additional security to the public liberties. It was nevertheless made a topic of serious alarm and powerful objection. It was suggested, that it was indispensable to the states, that they should possess the control and discipline of the militia.

1 The Federalist, No. 4, 29; 1 Tucker's Black. Comm. App. 273, 274; 5 Marshall's Life of Washington, ch. 1, p. 54. See Virginia Report and Resolutions, 7 Jan. 1800, p. 54 to 57.

2 Journal of Convention, 221, 263, 272, 280, 281, 282, 357, 376, 377. 3 2 Elliot's Deb. 92, 301, 310, 312, 314, 317.

Congress might, under pretence of organizing and disciplining them, inflict severe and ignominious punishments on them. The power might be construed to be exclusive in congress. Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence, and prostrate at the feet of the national government. It might also be said, that congress possessed the exclusive power to suppress insurrections, and repel invasions, which would take from the states all effective means of resistance. The militia might be put under martial law, when not under duty in the public service.1

3

§ 1202. It is difficult fully to comprehend the influence of such objections, urged with much apparent sincerity and earnestness at such an eventful period. The answers then given seem to have been in their structure and reasoning satisfactory and conclusive. But the amendments proposed to the constitution (some of which have been since adopted 5) show, that the objections were extensively felt, and sedulously cherished. The power of congress over the militia (it was urged) was limited, and concurrent with that of the states. The right of governing them was confined to the single case of their being in the actual service of the United States, in some of the cases pointed out in the constitution. It was then, and then only, that they could be subjected by the general government to

12 Elliot's Debates, 301, 307, 310, 312.

2 2 Elliot's Debates, 145, 290, 310, 311, 312; Luther Martin's Address, Yates's Minutes; 4 Elliot's Debates, 34, 35.

32 Elliot's Debates, 310, 311, 312, 314, 315, 316, 317, 318.

4 2 Elliot's Debates, 287, 288, 294.

51 Tuck. Black. Comm. App. 273.

martial law.1 If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it.2 All, that the constitution intended, was, to give a power to congress to ensure uniformity, and thereby efficiency. But, if congress refused, or neglected to perform the duty, the states had a perfect concurrent right, and might act upon it to the utmost extent of sovereignty. As little pretence was there to say, that congress possessed the exclusive power to suppress insurrections and repel invasions. Their power was merely competent to reach these objects; but did not, and could not, in regard to the militia, supersede the ordinary rights of the states. It was, indeed, made a duty of congress to provide for such cases; but this did not exclude the co-operation of the states. The idea of congress inflicting severe and ignominious punishments upon the militia in times of peace was absurd." It presupposed, that the representatives had an interest, and would intentionally take measures to oppress them, and alienate their affections. The appointment of the officers of the militia was exclusively in the states; and how could it be presumed, that such men would ever consent to the destruction of the rights or privileges of their fellow-citizens. The power to discipline and

1 2 Elliot's Debates, 299, 311.

2 2 Elliot's Debates, 293, 294, 312, 313, 314, 326, 327, 439; 1 Tuck. Black. Comm. App. 272, 273; Rawle on the Constitution, ch. 9, p. 111, 112; Houston v. Moore, 5 Wheat. R. 1, 21, 45, 48 to 52.

3 Houston v. Moore, 5 Wheat. R. 1, 16, 17, 21, 22, 24, 32, 51, 52, 56; 3 Sergeant & Rawle, 169.

4 2 Elliot's Debates, 312, 313, 316, 317, 318, 368; Rawle on the Constitution, ch. 9, p. 111.

5 2 Elliot's Debates, 304, 309.

62 Elliot's Debates, 368; Rawle on the Constitution, ch. 9, p. 112.

train the militia, except when in the actual service of the United States, was also exclusively vested in the states; and under such circumstances, it was secure against any serious abuses.' It was added, that any project of disciplining the whole militia of the United States would be so utterly impracticable and mischievous, that it would probably never be attempted. The most, that could be done, would be to organize and discipline select corps; and these for all general purposes, either of the states, or of the Union, would be found to combine. all, that was useful or desirable in militia services.

§ 1203. It is hardly necessary to say, how utterly without any practical justification have been the alarms, so industriously spread upon this subject at the time, when the constitution was put upon its trial. Upon two occasions only has it been found necessary on the part of the general government, to require the aid of the militia of the states, for the purpose of executing the laws of the Union, suppressing insurrections, or repelling invasions. The first was to suppress the insurrection in Pennsylvania in 1794; and the other, to repel the enemy in the recent war with Great Britain. On other occasions, the militia has indeed been called into service to repel the incursions of the Indians; but in all such cases, the injured states have led the way, and requested the co-operation of the national government. In regard to the other power of organizing, arming, and disciplining the militia, congress passed an act in 1792, 'more effectually to

3

1 See The Federalist, No. 29; 1 Tucker's Black. Comm. App. 274; Rawle on the Constitution, ch. 9, p. 112.

2 The Federalist, No. 29.

35 Marsh. Life of Washington, ch. 8, p. 576 to 592 ; 2 Pitk. Hist. ch. 23, p. 421 to 428.

4 Act of 8th May, 1792, ch. 33.

provide for the national defence, by establishing a uniform militia throughout the United States. The system provided by this act, with the exception of that portion, which established the rules of discipline and field service, has ever since remained in force. And the militia are now governed by the same general system of discipline and field exercise, which is observed by the regular army of the United States. No jealousy of military power, and no dread of severe punishments are now indulged. And the whole militia system has been as mild in its operation, as it has been satisfactory to the nation.

§ 1204. Several questions of great practical importance have arisen under the clauses of the constitution respecting the power over the militia, which deserve mention in this place. It is observable, that power is given to congress "to provide for calling forth the militia. "to execute the laws of the Union, suppress insurrec❝tions, and repel invasions." Accordingly, congress in 1795, in pursuance of this authority, and to give it a practical operation, provided by law, "that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president to call forth such number of the militia of the state, or states most convenient to the place of danger, or scene of action, as he may judge necessary, to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia, as he shall think proper." Like provisions are made for the other cases stated in the constitution. The constitutionality of this act has not

1 Act of 1820, ch. 97; Act of 1821, ch. 68.

2 Act of 1795, ch. 101.