These militia court-martials are to be held and conducted in the manner prescribed by the articles of war; and the act of 18th of April, 1814, prescribes the manner of holding them.

During the war of 1812, the authority of the President of the United States over the militia became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared and founded upon the existence of one of the specified exigencies; that, when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body of the company to which they belonged, and which was organized with proper officers. * 263 This would, in the opinion of the government of Connecticut, impair, and eventually destroy, the state militia. When the militia are duly called into the service of the United States, they must be called as militia, furnished with proper officers by the state.

Similar difficulties arose between the government of the United States and the state of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on an exposition of the constitution, which they deemed sound and just.

In Connecticut, the claim of the governor, to judge whether the exigency existed, authorizing a call of the militia of that state, or any portion of it, into the service of the Union, and the claim on the part of that state to retain the command of the militia, when duly ordered out, as against any subordinate officer of the army of the United States, were submitted to, and received the strong and decided sanction, not only of the governor and council of that state, but of the legislature itself. (a)

(a) See Official Documents of the State of Connecticut, August, 1812. The jealousy of the exercise of any power (other than that of the local governments) over the

In Massachusetts, the governor consulted the judges of the Supreme Judicial Court as to the true construction of the constitution on these very interesting points. The judges of the Supreme Court were of opinion that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the constitution of the United States existed, so as to require them to place the militia,

*264

*

or any part of it, in the service of the Union, and under the command of the President. It was observed, that the constitution of the United States did not give that right, by any express term, to the President or congress, and that the power to determine when the exigency existed, was not prohibited to the states, and that it was, therefore, as of course, reserved to the states. A different construction would place all the militia in effect at the will of congress, and produce a military consolidation of these states. The act of 28th of February, 1795, vested in the President the power of calling forth the militia when any one of the exigencies existed, and if to that be superadded the power of determining when the casus fœderis occurred, 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 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 states. The militia could not be placed under the command of any officer not of the militia, except that officer be the President of the United States. But the judges did not determine how the militia were to be commanded, in case of the absence of the President, and of a union of militia with troops of the United States; and whether they were to act under their separate officers, and in concert as allied forces, or whether the officer present who was highest in rank, be he of the militia or of the federal troops, was to command the whole, was a difficult and

militia, was very strongly manifested by the legislature and people of Connecticut, as early as 1693, when they fearlessly and successfully resisted the claim of Governor Fletcher, of New York, resting on a commission for that purpose, from the king, to the exclusive command of the militia of Connecticut. 1 Trumbull's Hist. 410-414.

perplexing question, which the judges did not undertake to decide. (a)

* 265

The President of the United States declared, that these constructions of the constitutional powers of the general government over the militia were novel and unfortunate, *and he was evidently and decidedly of a different opinion. He observed, in his message to congress on the 4th November, 1812, that if the authority of the United States to call into service and to command the militia, could be thus frustrated, we were not one nation, for the purpose most of all requiring it. These embarrassing questions, and the high authority by which each side of the argument was supported, remained unsettled by the proper and final decision of the tribunal that is competent to put them to rest, until the case of Martin v. Mott, (b) in 1827. In that case it was decided and settled by the Supreme Court of the United States, that it belonged exclusively to the President to judge when the exigency arises, in which he had authority under the constitution to call forth the militia, and that his decision was conclusive upon all other persons.

The case of Houston v. Moore (c) settled some important questions arising upon the national authority over the militia. The acts of congress already referred to, and the act of 8th March, 1792, for establishing a uniform militia, were considered as covering the whole ground of congressional legislation over the subject. The manner in which the militia were to be organized, armed, disciplined, and governed, was fully prescribed; provision was made for drafting, detaching, and calling forth the state quotas, when requested by the President. His orders were to be given to the chief executive magistrate, or to any militia officer he might think proper. Neglect or refusal to obey his orders was declared to be a public offence, and subjected the offender to trial and punishment, to be adjudged by a court-martial, and the mode of proceeding was perspicuously detailed.

The question before the Supreme Court of the United States was, whether it was competent for a court-martial, deriving its jurisdiction under state authority, to try and punish militia

(a) 8 Mass. Rep. 548.

(b) 12 Wheaton, 19.

(c) 5 Wheaton, 1.

men, drafted, detached, and called forth by the President * 266 * into the service of the United States, and who had refused or 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, or in the character of national militia, until they were mustered at the place of rendezvous, and that until then, the state retained a right, concurrent with the government of the United States, to punish their delinquency. But after the militia had been called forth, and had entered into the service of the United States, their character changed from state to national militia, and the authority of the general government over such detachments was exclusive. Actual service was considered by congress as the criterion of national militia, and the place of rendezvous was the terminus a quo the service, the pay and subjection to the articles of war were to commence. And if the militia, when called into the service of the United States, refuse to obey the order, they remain within the military jurisdiction of the state, and it is competent for the state to provide for trying and punishing them by a state court-martial, to the extent and in the manner prescribed by the act of congress. The act of Pennsylvania, of 1814, provided for punishing, by a state court-martial, delinquent militia-men, who were called into the service of the United States, and neglected or refused to serve; and they were to be punished by the infliction of the penalties prescribed by the act of congress, and such an act was held not to be repugnant to the constitution and laws of the United States. It was the lawful exercise of concurrent power, and could be concurrently exercised by the national and state courts-martial, as it was authorized by the laws of the state, and not prohibited by those of the United States. It would remain to be so exercised, until congress should vest the power exclusively elsewhere, or until the states should divest their courts-martials of such a

jurisdiction. This was the decision in the first instance, 267 of the Supreme Court of Pennsylvania; (a) and it was affirmed, on appeal, by the majority of the Supreme Court of the United States.

(a) Moore v. Houston, 3 Serg. & Rawle, 169.

to internal

(7.) The authority of congress to appropriate public Powers of moneys for internal improvements, has been much dis- congress as cussed on public occasions, and between the legislative improveand executive branches of the government; but the ments. point has never been brought under judicial consideration.

It has been contended, that, under the power to establish post-offices and post-roads, and to regulate commerce among the states, and to raise moneys to provide for the general welfare, and as incident thereto, congress have the power to set apart funds for internal improvements in the states, with their assent, by means of roads and canals. Such a power has been exercised to a certain extent. It has been the constant practice to allow to the new states a certain proportion of the proceeds arising from the sale of public lands, to be laid out in the construction of roads and canals within those states, or leading thereto. In 1806, congress authorized a road to be opened from Nashville, in Tennessee, to Natchez; and in 1809, they authorized the canal of Carondelet, leading from lake Pontchartrain, to be extended to the river Mississippi. So late as the 8th of August, 1846, congress granted lands to aid in the improvement of the Fox and Wisconsin rivers, and to connect the same by a canal, in the state of Wisconsin. The Cumberland road was constructed under the act of March 29th, 1806, and this road had been made under a covenant with the state of Ohio, by the act of April 30, 1802, that a portion of the proceeds of lands lying within that state should be applied to the opening of the roads leading to that state, with the consent of the states through which the roads might pass. But the expenditures on that road far exceeded the proceeds of sales of public lands in Ohio, and, in 1817, the President of the United States objected to a bill, on the ground that the constitution did not extend to. making roads and canals, and improving watercourses through the different states; nor could the assent of those states confer the power. Afterwards, in 1822, the President objected to a bill appropriating money for repairing the Cumberland road, and establishing gates and tolls on it.

On these and other occasions, there has been a great and decided difference of opinion between congress and 268 the President on the constitutional question. President