in the elementary and theoretic sciences involved in the military art, to be tested by an annual examination of such applicants, who, if they pass it favourably, are then to enter the academy and undergo a course of application and practice with reference to the duties of particular corps. During that course, they are to be arranged according to proficiency, and are to be appointed to the army by the president in its respective branches of service, according to the recommendation of the secretary of war. This is a summary of the plan submitted; and the plan itself is a summary, as will readily be perceived, of the changes supposed to be practically sufficient to remove all the alleged objectionable features of the present organization of the academy. Its basis is, that what has been done for the diffusion of military knowledge by the government from the beginning is all wrong, and therefore it must begin de novo, in order, constitutionally and with a due regard to sound policy, to obtain the desired object.

"The Remarks" on the report of the select committee just noticed, is an anonymous publication of sixty-three pages, and is evidently the production of one who has given much attention to the subject. It takes up the positions of the report in order, both as to its facts and reasoning, as well as the plan it submits, and places in contra position, page for page, the grounds upon which the author contends that the present institution should be maintained.

Having thus presented a brief sketch of these documents and essays, we propose to extract the substance of them all, in doing which we think the merits of the whole controversy will be understood, and in relation to which we shall not hesitate to express our opinions freely, because the subject is of admitted importance in every point of view.

The most grave, because the most radical objection, if borne out, is that which relates to the alleged want of power in the federal government, under the constitution, to create a military academy. Constitutional questions, in this country, are as plenty as the fruit which the imaginative fat knight of Shakspeare used by way of illustration, when he refused to give his reasons upon compulsion. Indeed, it is a difficult matter to reflect upon any topic of general concern, in which either its friends or foes have not found a door, a window, or a crevice of the national compact, out of or in at which to creep. We do not know that this is to be found fault with, inasmuch as the natural tendency in practice, arising from sudden and unforeseen wants, is to a departure from the fixed principles of the contract between the states, whereby each locality, seeking an advantage, endeavours to obtain it at the expense of the good of the whole, and this meeting with opposition creates jealousies

and strife, only to be quelled and settled by a recurrence and submission to the original concessions and provisions of the parties in the beginning. The present question would seem to be the last in which the point of constitutionality could have been raised, and yet, in the history of the subject, it was the first. Congress having passed an act in 1792 for establishing a uniform militia throughout the United States, President Washington, in his message of December 3, 1793, adverts to it by saying, that "it is an enquiry which cannot be too solemnly presented, whether a material feature in an improvement of it ought not to be, to afford an opportunity for the study of those branches of the military art which can scarcely ever be attained by practice alone." In Jefferson's Anas is the following passage, explanatory of the debates in the cabinet, preparatory to that message:

"November 28, 1793. Met at the president's, *** Randolph had prepared a draught of the speech. The clause recommending fortifications was left out, but that for a military academy was inserted. I opposed it, as unauthorized by the constitution. Hamilton and Knox approved it without discussion. Randolph was for it, saying that the words of the constitution authorizing congress to lay taxes, &c., for the common defence, might comprehend it. The president said he would not choose to recommend any thing against the constitution, but if it were doubtful, he was so impressed with the necessity of the measure that he would report it to congress, and let them decide for themselves whether the constitution authorized it or not. It was therefore left in.”—Jefferson's Memoirs, Correspondence, &c. vol. iv. p. 499.

It further appears, by a report of a committee of the house of representatives of the 24th of March, 1794,' that doubts were entertained in that body. They say: "That they are impressed with the importance of a more energetic system for the establishment of a uniform militia than what is contemplated by the present existing laws of the United States; but in viewing this subject as applied to the constitution of the United States, and the powers therein expressly reserved to the different states, they have their doubts how far congress can, consistent therewith, make any important alterations or amendments to the present law; and as the right of training the militia is constitutionally reserved to the states," &c. &c.

Yet the very same year was passed the act to organize the corps of artillerists and engineers-the germ of the institutionand we have seen by his message of March 18th, 1808, Mr. Jefferson, when president, overcame his constitutional scruples, voluntarily proposed an enlargement of the academy, and approved of the act of that year adding one hundred and fiftysix cadets to the army. It was natural that immediately after

'Am. State Papers, vol. i. Mil. Aff, p. 66, ed. 1832.

the adoption of the federal constitution, much doubt should exist in the minds of politicians as to the extent of the powers granted, but especially in reference to subjects where the wants of the government in any particular branch were then unascertained, and could not be arrived at but by the aid of experience. To this, Mr. Jefferson and the administration of every other president of the United States have yielded in their judgment upon the question of the military academy. The whole nation seems to have concurred in opinion against the constitutional objection for upwards of forty years, till in the years 1833-34, and 1837, it has been reasserted by resolutions of the states of Tennessee and Ohio, and suggested in this report of the "select committee" of the house of representatives.

The first of the two branches of this part of the question is, whether congress have the constitutional right to establish any military academy. Here arises the question of express and reserved powers. The power, say the opponents, to erect a military school is not expressly granted to congress; it is reserved to the states. The advocate replies that it is granted, not in totidem verbis, but in the comprehensive powers in relation to the national defence and the army, and argues that in toto et pars continetur. That some powers of the general government exist upon the doctrine of necessary implication, all parties are agreed. For example-congress has express power to coin money. Yet the constitution does not prescribe of what metal, value, divisions, or denominations the money shall be coined. In like manner may this question be determined. The constitution has specified a general power in reference to a distinct object, agreed by the compact to be necessary, though in many instances, perhaps in this, the mode in which the power is to be exercised is left to the discretion of congress. To render the mode valid, therefore, it must be within the scope of the power. One of the objects of the union of the states into a federal government is expressly declared in the preamble to the constitution to be, to "provide for the common defence." The general powers in reference to that object are declared to be, first, to lay and collect taxes, duties, &c., to provide for the common defence; second, to raise and support armies; and third, to provide for organizing, arming, and disciplining the militia, &c. Under the first of these are the appropriations for the maintenance of the military school made, and under the second, the cadets form a part of the regular army, bound to serve for five years, and liable at any moment to be called into actual service. We should be guilty of unpardonable prolixity did we bestow more time on this branch of the question.

The second point in the constitutional objection takes a much wider range, and is the stronghold of the author of the "report

of the select committee." But, to our mind, his argument is a mere brutum fulmen. The point is, as contended, not that the establishment of a school of military instruction is contrary to the constitution, but that the present one is altogether so, as well in its plan as particularly by force of its results. From the character of the alleged fruit the tree is described, and the question is made to depend upon the syllogism that the results of the academy are inexpedient, useless, unequal, and extravagant; that they are evidences of the purposes of the academy; and that the latter being like the former, the whole is contrary to the genius and spirit of our political institutions, and should therefore be abolished. In other words, it is said that the school, instead of being exclusively devoted to the constitutional objects which we have specified in relation to the common defence and the army, has become a national university, in which a large portion of its pupils, on receiving an extensive education at the public expense, retire immediately into private life, are lost to the service, and that this arises from the fact that more cadets graduate than there are vacancies in the list of officers to be filled. Hence it is said, that the right to establish universities and seats of learning, for general purposes, not being granted to the general government, but reserved to the states respectively, this institution is unconstitutional. It is better, however, that the point should be stated in the words of the author of the report referred to. He thus puts his case:

"The three distinctive features of the change in the character of the academy, effected immediately by the act of April 29, 1812, as already delineated, viz:

1st. The provision for educating persons at the academy, who constitute no part of the effective military force of the government;

2d. The provision for educating such persons gratuitously at the public expense; and,

3d. The provision for thus educating such persons, independent of all obligation on their part to continue in the public service beyond the period of completing their education-form very grave objections to the present constitution of the academy; objections which are founded in the principles of the federal constitution, as well as a regard to a just economy in the national expenditures. Even upon the supposition that the number of persons thus educated only corresponds, annually, with the necessary additions to the public service, the constitutional power of congress thus to educate, without either a current recompense to the government, or the obligation for their future service, or to abide the wants of the government, is certainly of a very doubtful character, if the exercise of it falls in any degree short of positive assumption." p. 14.

To which he adds

"4th. The provision made for educating persons at the public expense, in numbers far exceeding and disproportioned to the wants of the public service." p. 16.

In relation to the first position, that the students of the

academy do not constitute a part of the effective military force of the government, there is a conclusive answer as to the constitutional difficulty, for that is now the matter in hand. If it is meant by the word effective that they do not constitute a part of the army at all, the author is guilty of gross error. The cadets are actually enlisted for a period of five years in the service, and, according to the law of 1812, sign articles, with the consent of their parents and guardians-the latter act being necessary in the case of army enlistments, in which there is a difference in the policy of the government in reference to minors who enter the navy service. The corps of cadets is, moreover, liable to be called into the field at any moment at the command of the war department, and is farther liable to all the army regulations.' There is nothing then in the objection so far. But if it be meant by the term effective, that the cadets are young-are not calculated to perform the duties of the common soldier, and are, therefore, seldom or never called into actual service-the objection is still without foundation. All new recruits in the army are ineffective; occasionally old ones, like some of the officers, now and then, are as unworthy of reliance and credit on the score of skill, industry, or competence, sufficient to constitute efficiency, as children are for the purposes of the profession of arms. The efficiency of the individual in the service, is to be judged of only by comparison with his fellows. If a standard of perfection in discipline is to be fixed, by which efficiency is to be tested, and it is further required that the army shall be officered solely by individuals whose professional merits come up to the requisitions of that standard, without any previous tuition obtained in the army itself, or by medium of a national institution-if all this is necessary to bring the acts of congress, made with reference to the common defence, within the scope of the constitution, the author is undoubtedly right. But we think the argument is pushed to the point of absurdity when it goes this length. To say nothing of the impossibility of such a state of things which in practice would render nugatory one of the objects of the association of the states, the express power "to raise armies" surely includes the right to provide for their efficiency by the ele mentary instruction of those who form a component part of them; and it can be no argument to say, that every individual who enters it, who is not from the beginning entirely effectiveby which we understand skilled and disciplined in the sense of the question before us-is unconstitutionally employed. Men cannot and do not, as in the days of old, spring forth from the earth, warriors armed to the teeth, and full of aptitude, ready to do battle; and until such things happen, our armies must be

Opinion Attorney Gen. U. S., Aug. 21, 1819, 2d vol. Mil. Aff. p. 90.