CHAPTER XII.

Of the means provided for the Performance of the Executive Duties.

OF the means provided to enable the president to perform those duties, the command of the military force will first be considered.

The principal clauses in the constitution which affect the subject are the following:

The congress shall have power to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the army, the navy, and also of the militia, when the latter are in the service of the United States.

The president shall be commander in chief of the army and navy, and of the militia of the several states when called into the actual service of the United States.

These are the modes of action expressly provided in the constitution for the executive magistrate, whenever his functions assume a military cast. In relation to those of a nature merely civil, the constitution is silent, because particular description would not be equally practicable, and hence as before observed, congress is empowered to pass such laws as may be requisite and proper for carrying into execution the powers vested in the officers of government.

Subordinate offices are therefore created by congress when necessary, whose functions are either expressly defined, or implied from the nature of the office-or left wholly or in part to the direction of the president.

But the military power is at present to be considered, and this, it appears, consists of two classes; first, those who are regularly retained on stipulated compensations to serve in the army or navy, and secondly, the militia who are called forth as occasion may require, but when in service are subject to the same regulations as regular troops.

On the nature and character of the first, little need at present be said. The caution that no appropriation of money for the support of an army for a longer term than two years has been mentioned. The manner of employment may be directed by congress, or confided to the president. Congress, which may direct when and where forts shall be built, may also prescribe that they shall be garrisoned either with specific numbers, or with such a number as the president may think proper. So in times of peace, troops may be stationed by congress in particular parts of the United States, having a view either to their health and easy subsistence, or to the security of distant and frontier stations; but during the emergencies of a war, when the defence of the country is cast on the president, and dangers not foreseen may require measures of defence not provided for, the president would certainly be justified in preferring the execution of his constitutional duties, to the literal obedience of a law, the original object of which was of less vital importance than that created by the exigencies of the moment, and there can be no doubt that this necessary power would extend to the erecting of new fortresses, and to the abandoning of those erected by order of congress, as well as to the concentration, division or other local employment of the troops, which in his judgment or that of the officers under his command, became expedient from circumstances. This would not be a violation of the rules

laid down in the preceding pages, since the obligation of the law is lost in the succession of causes that prevent its operation, and the constitution itself may be considered as thus superseding it.

The power of the president over the militia depends on the same principle, the necessary supply of the means to enable him to perform his executive duties.

In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war. Their civil occupations are not relinquished, except while they are actually in the field, and the inconvenience of withdrawing them from their accustomed labours, abridges the time required for military instruction. Militia therefore never amount to perfect soldiers, unless the public exigencies shall have kept them so long together as to absorb the civil, in the military character.

The human mind is of a nature so flexible, that it may by perseverance, be disciplined to results, which at first view would be deemed almost impossible. The fear of death is certainly one of the earliest, and most natural passions; yet in a well regulated army, it gives way to the fear of disgrace; and the soldier becomes more apprehensive of the displeasure of his commanders, than of the fire of the enemy. Another sort of mechanism also contributes to actuate a disciplined army; it is the voluntary and entire surrender of its own judgment to that of the commander. Obedience would be slow and uncertain, if the soldier was to allow himself to reflect on the propriety of the orders given: he is habituated to deem them right, merely because they are orders, and from the common soldier to the highest subordinate officer, no other rule is known

than that of implicit obedience. The confidence thus reposed is not of a personal nature; it does not depend merely on the character of the individual in command. If the commander should fall during an engagement, it is immediately transferred to his successor, who on his part, at once assumes the suspended faculty of deciding what is proper to be done, in lieu of the implicit obedience without inquiry, under which till that moment he had acted. This at first view appears inconsistent with individual freedom and independence, and hence it is that militia are systematically less tractable than regular troops. Devoted patriotism and personal courage, although they frequently produce feats of exalted merit, are insufficient for the combinations of an army. The conquests of the Macedonian Alexander may easily be accounted for on this ground; he had received from his father Philip the first regular army of which we have an account in history, and with these he fearlessly advanced into distant countries, and successively defeated immense multitudes of the Persian and Indian militia, among whom there were doubtless much individual bravery, and strong desires of defending their country. (63)

But notwithstanding their inferiority to soldiers schooled and practiced in the field, gallant actions have been performed by our militia collectively. The capture of an entire army under General Burgoyne in 1777, and the celebrated defence of New Orleans in 1814, were chiefly effected by militia.

But however inferior in military estimate to armies regularly trained, the militia constitutes one of the

(63) How well this is explained by Adam Smith in his Wealth of Nations, vol. 3. p. 56.

great bulwarks of the nation, and nothing which tends to improve and support it should be neglected.

The power given to congress over it is from its nature exclusive, to the extent that it is carried in the constitution.

During the late war, a construction of this part of the constitution was given in a highly respectable state, which excited no small uneasiness at the time, and ought not to be passed over in silence. The act of congress declaring war took place on the 18th of June, 1812, and the president was expressly authorized by the act to use the whole land and naval forces to carry it into effect. Orders were soon afterwards issued by him for calling out certain portions of the militia from each state. The opinions of the judges of the supreme judicial court of Massachusetts were required by the governor, and three of them in the absence of the others, declared their sentiments that the commander in chief of the militia of a state had a right to decide whether or not the exigencies to warrant the call existed. Of course that whatever were the declarations of congress, or the course pursued by the president, if the governor of a state thought differently; if he thought there was no war, no insurrection, no invasion, he was not obliged to obey such requisitions. The governor expressed the same opinion in a message to the legislature; and a line of conduct was adopted greatly tending to impair the energies of the country, and encourage the hopes of the enemy.

The apprehension professed was, that if congress by determining that those special cases existed, could at any time call forth the whole of the militia and subject them to the command of the president, it might produce 66 a military consolidation of the states," without any constitutional remedy. And that under the act of Febru