AMONG the means provided to enable the president to perform his public 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 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 needs at present to 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 subsequent exigencies, 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 men, 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. 1
But notwithstanding their inferiority to soldiers schooled and practised 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 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 a "military consolidation of the states," without any constitutional remedy. And that under the act of February 28th, 1795, the militia of the several states would be in fact at his command at any time when he thought proper, whether the exigency existed or not. 2
But whatever weight might have been found in such objections against adopting the Constitution, they ceased when it was adopted. It was then the choice of the people to repose this confidence in congress to enable them to provide for the common defence and general welfare. If it had been thought necessary to impose any check or control; if in opposition to the whole spirit of the instrument, it had been deemed expedient to disunite the system, by requiring the concurrence of the states, it could undoubtedly have been so expressed, and in this respect at least we should not have advanced a step beyond the imbecility of the old government. Nothing would be more likely to enfeeble the Union than to have subjected the right of exercising these powers to the governors, or even the legislatures of the different states, some of which might hold one opinion, and some insist upon another; and it is by no means clear that the people did not apprehend a greater danger of abuse of confidence from the governor and legislature of a state, than from the government of the United States.
The act of February 28th, 1795, certainly vests in the president alone the power to call out and employ the militia, without waiting for, or pointing out any particular mode by which the evidence of the necessity for it shall be furnished. The former act had required that before the militia was called out to suppress an insurrection, a certificate should be given to the president by an associate judge of the supreme court, or the judge of the district court, that the laws of the United States were opposed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, &c. But besides the incongruity of thus requiring members of the judicial authority to decide in this manner upon facts, it was shifting a responsibility from the proper officer, the president, and throwing it upon those who were less amenable, if amenable at all, in such a case. The second act, therefore, very properly leaves it with the president to determine on the exigency which shall authorize the measure. Power so serious and important, it was believed would not be lightly or prematurely exercised by him. He who is charged with executing the laws of the Union, is naturally the best apprized of resistance to them, and for his own justification he will take care to be prepared with adequate proof of the fact.
In respect to foreign invasion, its public notoriety, when it actually takes place, renders no form of evidence necessary, and his power on such an occasion to call forth the militia, not merely of the state invaded, but from other parts, to assist in repelling an enemy, who, by the terms and spirit of our Constitution, is the enemy of the whole, is surely too salutary to be denied. Of the danger of an invasion before it happens, no one can be a better judge than he, who, being charged with all our foreign relations, must be the best informed of the proceedings of foreign powers. But in the case of war actually declared by law, it is difficult to conceive even a plausible doubt. The law itself constitutes the fact, and unless it should be seriously contended that congress was bound, before it declared war, to obtain the consent of the several states, there can be no pretence for saying that the commanders in 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. 3
The president during the war had called upon the state of Pennsylvania, (as well as on 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 any such case, 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 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.
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.
1. How well this is explained by Adam Smith in his Wealth of Nations, vol. 3. p. 56.
2. See 8 Mass. Reports, 551. Niles' Reg. vol. 3, 116.
3. 8 Wheaton, p. 1, and 3 Serg. & Rawle, 169.
4. 3 Sergeant & Rawle, 590. Duffield v. Smith.
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