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.*

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.

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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.*

See 8 Mass. Reports, 551. Niles' Reg. vol. 3. 116.

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.

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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.*

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