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. 1
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 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. 2 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. 3
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 violence 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. 4 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. 5
At one time it was said, 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. 6 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,
7 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
§ 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 moment in the operations of an army; and it
will enable them to acquire, in a much shorter period, that degree of
proficiency 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. 8
§ 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. 9
§ 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. 10 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. Congress might, under pretence of organizing and
disciplining them, inflict severe and ignominious punishments on them.
11 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. 12 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.
13 The militia might be put under
martial law, when not under duty in the public service. 14
§ 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
15 ) 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 martial law. 16 If
congress did not choose to arm, organize, or discipline the militia, there would
be an inherent right in the states to do it. 17
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. 18
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. 19 The idea of congress
inflicting severe and ignominious punishments upon the militia in times of peace
was absurd. 20 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. 21 The power to
discipline and 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. 22
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.
23 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; 24 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, 25 more effectually to
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. 26 No jealousy of
military power, and no dread or 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
insurrections, 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.
27 The constitutionality of this act has
not been questioned, 28 although it
provides for calling forth the militia, not only in cases of invasion, but of
imminent danger of invasion; for the power to repel invasions must include the
power to provide against any attempt and danger of invasion, as the necessary
and proper means to effectuate the object. One of the best means to repel
invasion is, to provide the requisite force for action, before the invader has
reached the territory of the nation. 29
Nor can there be a doubt, that the president, who is (as will be presently seen)
by the constitution the commander-in-chief of the army and navy of the United
States, and of the militia, when called into the actual service of the United
States, is the proper functionary, to whom this high and delicate trust ought to
be confided. A free people will naturally be jealous of the exercise of military
power; and that of calling forth the militia is certainly one of no ordinary
magnitude. It is, however, a power limited in its nature to certain exigencies;
and by whomsoever it is to be executed, it carries with it a corresponding
responsibility. 30 Who is so fit to
exercise the power, and to incur the responsibility, as the president?
§ 1205. But a most material question
arises: By whom is the exigency (the
casus fæderis, if one may so say) to be decided? Is the president
the sole and exclusive judge, whether the exigency has arisen, or is it to be
considered, as an open question, which every officer, to whom the orders of the
president are addressed, may decide for himself, and equally open to be
contested by every militia-man, who shall refuse to obey the orders of the
president? 31 This question was much
agitated during the late war with Great Britain, although it is well known, that
it had been practically settled by the government, in the year 1794, to belong
exclusively to the president; 32 and no
inconsiderable diversity of opinion was then manifested in the heat of the
controversy, pendente lite, et flagrante bello. In Connecticut and
Massachusetts, it was held, that the governors of the states, to whom orders
were addressed by the president to call forth the militia on account of danger
of invasion, were entitled to judge for themselves, whether the exigency had
arisen; and were not bound by the opinion or orders of the president? This
doctrine, however, was disapproved elsewhere. 33
It was contested by the government of the United States; 34
and was renounced by other states. 35
§ 1206. At a very recent period, the
question came before the Supreme Court of the United States for a judicial
decision; and it was then unanimously determined, that the authority to decide,
whether the exigency has arisen, belongs exclusively to the president; and that
his decision is conclusive upon all other persons. The court said, that this
construction necessarily resulted from the nature of the power itself, and from
the manifest objects contemplated by the act of congress. The power itself is to
be exercised upon sudden emergencies, upon great occasions of state, and under
circumstances, which may be vital to the existence of the Union. A prompt and
unhesitating obedience to orders is indispensable to the complete attainment of
the object. The service is a military service, and the command of a military
nature; and in such cases, every delay and every obstacle to an efficient and
immediate compliance would necessarily tend to jeopard the public interests.
While subordinate officers or soldiers are pausing to consider, whether they
ought to obey, or are scrupulously weighing the facts, upon which the
commander-in-chief exercises the right to demand their services, the hostile
enterprize may be accomplished, without the means of resistance. If the power of
regulating the militia, and of commanding its services in times of insurrection
and invasion, are, as it has been emphatically said, they are, 36
natural incidents to the duties of superintending the common defence, and of
watching over the internal peace of the confederacy, these powers must be so
construed, as to the modes of their exercise, as not to defeat the great end in
view. If a superior officer has a right to contest the orders of the president,
upon his own doubts, as to the exigency having arisen, it must be equally the
right of every inferior officer and soldier. And any act done by any person in
furtherance of such orders would subject him to responsibility in a civil suit,
in which his defence must finally rest upon his ability to establish the facts
by competent proofs. Besides; in many instances the evidence, upon which the
president might decide, that there was imminent danger of invasion, might be of
a nature not constituting strict technical proof; or the disclosure of the
evidence might reveal important state secrets, which the public interest, and
even safety, might imperiously demand to be kept in concealment. 37
The act of 1795 was manifestly framed upon this reasoning. The president is by
it necessarily constituted, in the first instance, the judge of the existence of
the exigency, and is bound to act according to his belief of the facts. If he
does so act, and decides to call out the militia, his orders for this purpose
are in strict conformity to the law; and it would seem to follow, as a necessary
consequence, that every act done by a subordinate officer in obedience to such
orders is equally justifiable. The law contemplates, that under such
circumstances orders shall be given to carry the power into effect; and it
cannot be, that it is a correct inference, that any other person has a right to
disobey them. No provision is made for an appeal from, or review of the
president's opinion. And whenever a statute gives a discretionary power to any
person to be exercised by him upon his own opinion of certain facts, the general
rule of construction is, that he is thereby constituted the sole and exclusive
judge of the existence of those facts. 38
§ 1207. It seems to be admitted, that the
power to call forth the militia may be exercised either by requisitions upon the
executive of the states; or by orders directed to such executive, or to any
subordinate officers of the militia. It is not, however, to be understood, that
the state executive is in any case bound to leave his executive duties, and go
personally into the actual service of the United States. 39
§ 1208. The power to govern the militia,
when in the actual service of the United States, is denied by no one to be an
exclusive one. Indeed, from its very nature, it must be so construed; for the
notion of distinct and independent orders from authorities wholly unconnected,
would be utterly inconsistent with that unity of command and action, on which
the success of all military, operations must essentially depend. 40
But there is nothing in the constitution, which prohibits a state from calling
forth its own militia, not detached into the service of the Union, to aid the
United States in executing the laws, in suppressing insurrections, and in
repelling invasions. Such a concurrent exercise of power in no degree interferes
with, or obstructs the exercise of the powers of the Union. Congress may, by
suitable laws, provide for the calling forth of the militia, and annex suitable
penalties to disobedience of their orders, and direct the manner, in which the
delinquents may be tried. But the authority to call forth, and the authority
exclusively to govern, are quite distinct in their nature. The question, when
the authority of congress over the militia becomes exclusive, must essentially
depend upon the fact, when they are to be deemed in the actual service of the
United States. There is a clear distinction between calling forth the militia,
and their being in actual service. These are not contemporaneous acts, nor
necessarily identical in their constitutional bearings. The president is not
commander-in-chief of the militia, except when in actual service; and not, when
they are merely ordered into service. They are subjected to martial law only,
when in actual service, and not merely when called forth, before they have
obeyed the call. The act of 1795, and other acts on this subject, manifestly
contemplate and recognise this distinction. To bring the militia within the
meaning of being in actual service, there must be an obedience to the call, and
some acts of organization, mustering, rendezvous, or marching, done in obedience
to the call, in the public service. 41
§ 1209. But whether the power is exclusive
in congress to punish delinquencies in not obeying the call on the militia, by
their own courts-martial, has been a question much discussed, and upon which no
inconsiderable contrariety of opinion has been expressed. That it may, by law,
be made exclusive, is not denied. But if no such law be made, whether a state
may not, by its own laws, constitute courts-martial to try and punish the
delinquencies, and inflict the penalties prescribed by the act of congress, has
been the point of controversy. It is now settled, that, under such
circumstances, a state court-martial may constitutionally take cognizance of,
and inflict the punishment. But a state cannot add to, or vary the punishments
inflicted by the acts of congress upon the delinquents. 42
§ 1210. A question of another sort was also
made during the late war with Great Britain; whether the militia, called into
the actual service of the United States, were to be governed and commanded by
any officer, but of the same militia, except the president of the United States;
in other words, whether the president could delegate any other officer of the
regular army, of equal or superior rank, to command the militia in his absence.
It was held in several of the Eastern states, that the militia were exclusively
under the command of their own officers, subject to the personal orders of the
president; and that he could not authorize any officer of the army of the United
States to command them in his absence, nor place them under the command of any
such officer. 43 This doctrine was
deemed inadmissible by the functionaries of the United States. It has never yet
been settled by any definitive judgment of any tribunal competent to decide it.
44 If, however, the doctrine can be
maintained, it is obvious, that the public service must be continually liable to
very great embarrassments in all eases, where the militia are called into the
public service in connexion with the regular troops.
1. Journal of Convention. 212, 283.
2. 2 Elliot's Debates, 300, 304, 305,
3. The Federalist, No. 29; 2 Elliot's
Debates, 292, 293, 294, 308, 309.
4. The Federalist, No. 29; 2 Elliot's
Deb. 92, 107, 108, 292, 293, 294, 308, 109; 3 Elliot's Deb. 305, 306.
5. 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. 31, 34.
6. See the Federalist, No. 29; 2
Elliot's Deb., 285, 286, 287, 289, 307, 310.
7. 1 Tucker's Black. Comm. App. 273.
8. The Federalist, No. 4, 29; 1 Tucker's
Black. Comm. App. 273, 274; 5 Marshall's Life of Washington, ch. 1, p. 51. See
Virginia Report and Resolutions, 7 Jan. 1800, p. 51 to 57.
9. Journal of Convention, 221, 263, 272,
280, 281, 282, 357, 376, 377.
10. 2 Elliot's Deb. 92, 301, 310, 312,
11. 2 Elliot's Debates, 101, 307, 310,
12. 2 Elliot's Debates, 145, 290, 310,
311, 312; Luther Martin's Address, Yates's Minutes; 4 Elliot's Debates, 34, 35.
13. 2 Elliot's Debates, 310, 311, 312,
314, 315, 316, 317, 318.
14. 2 Elliot's Debates, 287, 288, 294.
15. 1 Tuck. Black. Comm. App. 273.
16. 2 Elliot's Debates, 299, 311.
17. 2 Elliot's Debates, 293, 294, 312,
313, 311, 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.
18. Houston v. Moore, 5 Wheat.
R. 1, 16, 17, 21, 22, 24, 32, 51, 52, 56; 3 Sergeant & Rawle, 169.
19. 2 Elliot's Debates, 312, 313, 316,
317, 318, 368; Rawle on the Constitution, ch. 9, p. 111.
20. 2 Elliot's Debates, 304, 309.
21. 2 Elliot's Debates, 368; Rawle on
the Constitution, ch. 9, p. 112.
22. See The Federalist, No. 29; 1
Tucker's Black. Comm. App. 274; Rawle on the Constitution, ch. 9, p. 112.
23. The Federalist, No. 29.
24. 5 Marsh. Life of Washington, ch. 8,
p. 576 to 592; 2 Pitk. Hist. ch. 23, p. 421 to 428.
25. Act of 8th May, 1792, ch. 13.
26. Act of 1820, ch. 97; Act of 1821,
27. Act of 1795, ch. 101.
28. Houston v. Moore, 5 Wheat.
R. 1, 60; Martin v. Mott, 12 Wheat. R. 19;
Houston v. Moore, 3 Sergeant & Rawle, 169; Duffield v. Smith,
3 Sergeant & Rawle, 590; Vanderheyden v. Young, 11 Johns. R. 150.
29. Martin v. Mott, 12 Wheat. R.
30. Martin v. Mott, 12 Wheat. R.
19, 29; Rawle on Constitution, ch. 13, p. 155, &c.
31. Martin v. Mott, 12 Wheat R.
19, 29, 30.
32. See Houston v. Moore, 5
Wheat. R. 37.
33. 1 Kent's Comm. Lect 12, p. 244 to
250; 8 Mass. R. Suppt. 547 et seq.; Rawle on the Constitution, ch. 13,
p. 155. &c. — At a later period this doctrine seems to have been
abandoned by Massachusetts. See Report and Resolves of Massachusetts, June 12,
1818, and February 15, 1830. See also Resolutions of Maine Legislature in 1820.
34. See President Madison's Message of
4th November, 1812, and President Monroe's Message, and other documents stated
in Report and Resolves of Massachusetts, 15th February, 1830.
35. See Vanderheyden v. Young,
11 Johns R. 150; Rawle on the Constitution, ch. 13, p. 155 to 160; Duffield
v. Smith, 3 Sergeant & Rawle, 590.
36. The Federalist, No. 29.
37. Martin v. Mott, 12 Wheat. R.
38. Martin v. Mott, 12 Wheat. R.
19, 31, 32.
39. See Houston v. Moore, 5
Wheat. R. 1, 15, 16, and Mr. J. Johnson's Opinion, Id. 36, 37, 40, 46.
40. The Federalist, No. 9, 29;
Houston v. Moore, 5 Wheat. R. 1, 17, 53, 54, 55, 56, 61, 62.
41. Houston. v. Moore, 5 Wheat.
R. 1, 17, 18, 20, 53, 60, 61, 63, 64; Rawle on Const. ch. 13, p. 159.
42. Houston v. Moore, 5 Wheat.
R. 1, 2, 3, 24, 28, 44, 69 to 75; Rawle on Const. ch. 13, p. 158, 159; Houston
v. Moore, 3 Serg. & Rawle, 169;
Duffield v. Smith, 3 Berg. & R. 590; 1 Kent's Comm. Lect 12, p. 248,
249, 250; Berg. on Const. ch. 28, [ch. 30]; Meade's case, 5 Hall's Law
Journ. 536; Bolten's case, 3 Serg. & Rawle, 176, note.
43. 8 Mass. Rep. Supp. 549, 550; 5
Hall's Amer. Law Journ. 495; 1 Kent's Comm. Lect. 12, p. 244 to 247.
44. 1 Kent's Comm. Lect. 12, p. 244 to
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