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vasion, are incident to the duties of superintending the common defence, and of watching over the internal peace of the Union.
Uniformity in the organization and discipline of the militia must evidently be attended with the most beneficial results whenever they are called into service, as it enables them to discharge their duties with mutual intelligence and concert. This desirable uniformity could only be accomplished by confiding the regulation of the militia of the several states to the General Government. It was therefore essential that Congress should have authority, not only “to provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and repel invasions,” but also “ to provide for organizing, arming, and disciplining them; and for governing such parts of them as may be employed in the service of the United States."
The President is constituted, as we have seen, commander-in-chief of the militia when called into the actual service of the Union; and he is author. ized by law, in cases of invasion, or imminent danger thereof, to call forth such numbers of the militia most convenient to the scene of action as he may judge necessary. The militia so called forth are subject to the rules of war; and the law imposes a fine on every delinquent who disobeys the summons, to be adjudged by a court-martial composed of militia officers only, and held and conducted according to the articles of war. During the war of 1812, the authority of the President over the militia of the several states became the subject of doubt and difficulty between the Federal Government and some of the state governments. It was the opinion of the Connecticut Government, not only that the militia could not be called out at the requisition of the General
Government except in a case founded upon
the istence of one of the specified exigencies, to be judged of by the state government; but that, when called out, they could not be taken from the command of the officers duly appointed by the state, and placed under the immediate command of an officer of the United States army: nor could the United States, in the opinion of that government, lawfully detach a portion of the privates from the body of their company. Similar difficulties arose between the Federal authorities and the government of Massachusetts; the governor of which state, as well as the governor of Connecticut, refused to furnish detachments of militia for the defence of the maritime frontier on an exposition of the Federal Constitution which they, no doubt, believed to be sound and just. In Connecticut, the claim of the governor to judge whether the exigency existed to authorize a call of the militia of the state, or any portion of it, into the service of the Union, and the claim on the part of the state to retain the command of them when duly ordered out against any subordinate officer of the United States army, were submitted to the consideration of the State Legislature, and received the strong and decided sanction of that body. In Massachusetts, the governor consulted the judges of the Supreme Court of that state as to the true construction of the Constitution on both those points. The judges were of opinion that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the Federal Constitution existed to require them to transfer the militia, or any part of it, to the service of the Union and command of the President. It was supposed that the Constitution did not give the power of judging as to the existence of the exigency, by any express terms, to the
President or to Congress ; and that, inasmuch as it was not prohibited to the states, the right of deciding upon that point was, of course, reserved to them. A different construction would, it was alleged, place all the militia in effect at the will of Congress, and produce a military consolidation of the states. The act of Congress vested in the President the power of calling forth the militia when any one of the exigencies existed ; and if to that were superadded the power of determining the casus fæderis, the militia would, in fact, be under the President's control.
As to the question how the militia were to be commanded when duly called out, the Massachusetts judges were of opinion that the President alone, of all the officers acting under the United States, was authorized to command them; and that he must command them as they were organized under officers appointed by the state, as could not be transferred to the command of any officer, not of the militia, except the President. But these learned judges, acting as councillors, did not undertake to determine how the militia were to be commanded in case of the absence of the President; or of a junction of militia with regular troops ; or whether they were to act under their separate officers, but in concert, as foreign allies ; or whether the officer present of the highest rank, either of the militia or of the regular army, was authorized to command the united forces: these were found, it seems, to be questions too difficult and perplexing for extra-judicial decision.
Mr. Madison, one of the most prominent members of the Convention which formed the Constitution, and one of its ablest defenders, was, at the time of these disputes, President of the United States, and as such declared that these constructions of the constitutional powers of the General Government over the militia
" novel and unfortunate.” In a message to Congress, to which they gave occasion, he observed that, “ if the authority of the United States to call into service, and to command the militia, could thus be prostrated, we were not one people for the purpose most of all requiring that we should be united.” Since that period, many and deeply interesting questions arising on the powers of the Union have been investigated and decided in the Federal Courts ; and the progress of public opinion, as well as the tenour of those decisions, have been favourable to a much more liberal and enlarged construction of the Constitution than that which was adopted by the states in question ; so that the doctrines of the General Government, as now understood, fully support the claim of Mr. Madison, as President of the United States, to judge, exclusively of state authority, of the existence of the exigency upon which the militia may be called into the service of the Union. The acts of Congress already referred to, as well as the act for establishing a uniform militia throughout the Union, were considered by the Supreme Court of the United States, in the first case* that came before them on the subject, as covering the whole ground of Federal legislation in regard to it. The manner in which the militia are to be organized, armed, disciplined, and governed, is fully prescribed; provision is made for draughting, detaching, and calling forth the state quotas when required by the President; his orders are to be given to the chief magistrate of the state, or to any inferior militia officer he
proper; neglect or refusal to obey his orders is declared to be a public offence, and subjects the offender to trial and punishment by a court-martial ; and the mode of pro
* 5 Wheat. R., 1.
ceeding is perspicuously detailed. The question before the court was whether it was competent for a court-martial, deriving its jurisdiction under state authority, to try and punish militiamen draughted, detached, and called forth by the President into the service of the United States, and who had refused and neglected to obey the call. The court decided that the militia, when called into the service of the United States, were not to be considered as being in that service until they were mustered at the place of rendezvous ; and that, until then, the state retained a right concurrent with the United States to punish their delinquencies. But after the militia had thus actually entered into the service of the Union, their character changed from state to national militia ; and the authority of the General Government over such detachments became exclusive.
In a subsequent case,* which came up on a writ of error on a judgment of the highest court in the State of New York, where the decision had been against this
of the President over the militia, his claim was unanimously sustained by the Supreme Court. The power confided to the President was, indeed, considered of a very high and delicate nature, but one which could not be executed without corresponding responsibility. It is, nevertheless, limited in its terms, and confined to cases of actual invasion or imuninent danger; and upon the question whether the President was the sole and exclusive judge of the existence of the exigency, or whether it was one which every officer to whom his order was addressed might decide for himself, the court was of opinion that the authority to decide belonged exclusively to the President, and that his decision was conclu
* 12 Wheaton, 19.