chief of the militia in the several states were not required or authorized by the constitution to obey his military orders.

It fortunately happened that no military operations of a serious character occurred in that part of the country during the war. If an invasion in much force had taken place, the probability is, that with a paternal disregard of these unconstitutional opinions, the president would have employed the force of the Union to repel it, and the temporary exhibition of local jealousy, would have been lost in the sense of the necessity of a common exertion, and the gratitude for the aid which produced a successful defence.

As it is the only instance in which a construction hostile to the full exercise of the president's authority has been distinctly avowed, and as it presents the opportunity of shortly elucidating this part of the constitution, the author has felt it a duty to take some notice of it, though without the smallest intention to revive heats, now happily extinguished.

The governors of the several states are commanders in chief of their militia, except when they shall be called into the actual service of the United States. In fixing the moment when this power over them ceases, and that of the president commences, the language used in some of the state constitutions, and in the constitution of the United States, is the same. The calling into actual service, and not the actual commencement of the service, is the period alluded to, and it would in some degree impair the energetic power, which in times of public danger is to be exercised by the president, if he possessed no right to enforce obedience to the call. It may therefore be doubted, whether an act of congress postponing the commencement of the president's authority till the militia shall have obeyed the call, is perfectly consistent with

the constitution. The legislature can no more abridge, than it can enlarge the executive powers under the constitution. This question was discussed, but not directly decided in the case of Houston v. Moore. (65)

The president during the war had called upon the state of Pennsylvania, (as well as other states,) for a portion of the militia. A person who was draughted for that purpose, disobeyed the summons and was fined by a court martial held under the authority of an act of assembly of Pennsylvania.

The main question was, whether the court martial ought to have been convened under the authority of the United States or of the state. The acts of congress of 28th February, 1776, and of the 10th April, 1814, were much considered. It was held that congress not having legislated on the subject of holding courts martial in such cases, an act of the state legislature to that effect was constitutional. The 10th section of the latter provides for the expense of marching the militia to the place of rendezvous. Immediately on arriving there, they are undoubtedly in actual service, and if in their way to it they are under any military command whatever, it must be that of the president.

Circumstances may render it necessary for the president to appoint another place of rendezvous, before that previously appointed has been reached, and military operations may, from a change of the enemy's position, become necessary even on the march: surely in such case, any the military power of the president alone ought to be exercised over them. Considerations of economy in respect to their pay ought in such cases to be disregarded.

A case which in 1818 was decided in the supreme

(65) 8 Wheaton, p. 1, and S Serg. & Rawle, 169.

court of Pennsylvania, supports most of these principles, and is not at variance with any of them. That highly respectable court adopted the following construction of the constitution and the powers of congress under it.

1. The president has a right to issue his orders for calling out the militia, not through the medium of the governor only, but directly to any officer he thinks proper.

2. If he makes a requisition on the governor in the first instance, and the latter declines to comply with it, the president may issue his command to any officer of the militia.

3. The governor is not justified in disobeying the requisition, because he differs in opinion as to the necessity of calling forth the militia.

4. The governor without the authority of congress, or of the state legislature, has no right to direct courts martial affecting those who disobey the call of the president.

5. A person enrolled, draughted, and regularly notified when and where to attend for muster and inspection, is liable to a penalty on the judgment of a court martial constituted under the authority of the United States-although such person, before he appears at the place of rendezvous, may not be justly considered as in actual service. The calling forth must precede the actual service. It would render the constitution a dead letter to suppose that he who is enrolled and draughted, but refuses to appear, shall be exempted from punishment because he has refused.

6. It is no infringement of the rights of citizens to proceed to the trial of delinquent militia-men by courts martial. (66)

(66) 3 Sergeant & Rawle. 590. Duffield v. Smith.

The regular troops of the United States are under the immediate command of the president from the time of their enlistment; they may be marched to, or stationed at any part of the United States, at his discretion, unless prevented by some special legislative act, and although the genius of a republic and the peculiar character of our country would indicate that their employment should be only in its defence, yet since a defensive war is sometimes best carried on by invading the territory of the aggressor, the president may cause them to be marched out of the United States to effect this purpose, and there can be no doubt that in such a case he would possess the same power over the militia.

It may perhaps be made a question, whether for the suppression of insurrection, and in cases of a similar nature, the president can employ the regular troops in aid of the civil authority. The acts of congress are silent on the subject, and no power given by them would be valid unless it could be supported by the principles of the constitution. It must be admitted to be a question of great delicacy and importance. No power is so likely to be abused as the command of a regular army—no measure would be more dangerous to civil liberty than an habitual recurrence to military force in other cases than actual war, yet on the other hand, in times of dangerous commotion, when law is prostrated and the civil power is felt to be inadequate, the public good would appear to justify the most prompt and efficient remedy.

Soldiers do not cease to be citizens by being incorporated into a regular army, and it is the duty of every citizen in cases of this sort, to render his best services to his country. It can be no objection to the fulfilment of this duty, that it is rendered more efficacious by previous discipline, and by being performed in a regular

and not a desultory manner. It is however, always to be kept in mind, that the military should be subordinate to the civil power. The orders for the employment of this force on such occasions must emanate from the president in his civil capacity, or from civil officers of the United States, possessing the authority of conservators of the peace if any such there be.

That the exercise of this power should be attended with great caution, no one will deny; real necessity alone will justify its being exercised at all. There can be no doubt that, if it occasioned the loss of human life, the whole measure would be liable to severe judicial scrutiny.

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