prerogative, among others, led to the public execution of one king, and the expulsion of another; and to guard for the future against the exercise of power so dangerous, the Bill of Rights, framed by the Convention-Parliament, and acceded to by King William, at the revolution of 1688, declared that "raising or keeping a standing army in time of peace, unless with the consent of Parliament, was against law." The events which led to our own Revolution quickened the public sensibility on every point connected with the security of popular rights; and the principles which taught our fathers to be jealous of the power of an hereditary monarch, were afterward extended to their own representatives. In the constitutions of Pennsylvania and North Carolina, prohibitions of military establishments in time of peace were introduced; and in those of New-Hampshire, Massachusetts, Delaware, and Maryland, a declaration was inserted similar to that of the English Bill of Rights, although that declaration was inapplicable to any of the state governments; for the power of raising and keeping on foot standing armies could by no possible construction be deemed, at that time, to reside anywhere else than in the legislatures themselves. It was therefore superfluous, to say the least of it, to declare that a measure should not be adopted without the consent of that body which alone had the power of adopting it.

Those state constitutions which have been most approved are silent on the subject; and the only direct restriction on Congress in regard to the exercise of its military powers, is contained in an amendment to the Federal Constitution, which declares that " no soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war but in a manner to be

prescribed by law." Even in those state constitu tions which seem to have meditated a total interdiction of military establishments during peace, the expressions used are monitory rather than prohibitory; and the ambiguity of their terms appears to have resulted from a conflict between the desire of excluding such establishments, and the conviction that the measure would be unwise and hazardous. The union of the states under the National Constitution removes every pretext for a military establishment in any of the states which could be dangerous; while our distance from the powerful nations of Europe affords sufficient security that the Federal Government will never be able to persuade or delude the people into the support of large and expensive peace establishments. The danger, indeed, is the other way; and it is rather to be feared that mistaken notions of economy, if not of jealousy, will always tend to render our military force not merely too weak for the protection, but reduce it too low even for the preservation of our forts and arsenals. The

Union itself, however, is our best protection and defence, and our principal security against danger from abroad, internal commotion, or domestic usurpation. It may, moreover, be numbered among the blessings vouchsafed to our country, that the Uuion itself is the great source of our maritime strength; while the palpable necessity of a navy, and its proved efficiency as an arm of national defence, have silenced the jealousy or the scruples which at one period prevented due attention to fostering it in time of peace. It has since fought its way to the patronage of the government, and it always enjoyed the favour of the people.

V. The power of regulating the militia, and commanding its services in cases of insurrection or in

vasion, are incident to the duties of superintending the common defence, and of watching over the internal peace of the Union.

Uniformity in the organization and discipline of the militia must evidently be attended with the most beneficial results whenever they are called into service, as it enables them to discharge their duties with mutual intelligence and concert. This desirable uniformity could only be accomplished by confiding the regulation of the militia of the several states to the General Government. It was therefore essential that Congress should have authority, not only "to provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and repel invasions," but also" to provide for organizing, arming, and disciplining them; and for governing such parts of them as may be employed in the service of the United States."

The President is constituted, as we have seen, commander-in-chief of the militia when called into the actual service of the Union; and he is authorized by law, in cases of invasion, or imminent danger thereof, to call forth such numbers of the militia most convenient to the scene of action as he may judge necessary. The militia so called forth are subject to the rules of war; and the law imposes a fine on every delinquent who disobeys the summons, to be adjudged by a court-martial composed of militia officers only, and held and conducted according to the articles of war. During the war of 1812, the authority of the President over the militia of the several states became the subject of doubt and difficulty between the Federal Government and some of the state governments. It was the opinion of the Connecticut Government, not only that the militia could not be called out at the requisition of the General

Government except in a case founded upon the existence of one of the specified exigencies, to be judged of by the state government; but that, when called out, they could not be taken from the com mand of the officers duly appointed by the state, and placed under the immediate command of an officer of the United States army: nor could the United States, in the opinion of that government, lawfully detach a portion of the privates from the body of their company. Similar difficulties arose between the Federal authorities and the government of Massachusetts; the governor of which state, as well as the governor of Connecticut, refused to furnish detachments of militia for the defence of the maritime frontier on an exposition of the Federal Constitution which they, no doubt, believed to be sound and just. In Connecticut, the claim of the governor to judge whether the exigency existed to authorize a call of the militia of the state, or any portion of it, into the service of the Union, and the claim on the part of the state to retain the command of them when duly ordered out against any subordinate officer of the United States army, were submitted to the consideration of the State Legislature, and received the strong and decided sanction of that body. In Massachusetts, the governor consulted the judges of the Supreme Court of that state as to the true construction of the Constitution on both those points. The judges were of opinion that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the Federal Constitution existed to require them to transfer the militia, or any part of it, to the service of the Union and command of the President. It was supposed that the Consti tution did not give the power of judging as to the ex istence of the exigency, by any express terms, to the

President or to Congress; and that, inasmuch as it was not prohibited to the states, the right of deciding upon that point was, of course, reserved to them. A different construction would, it was alleged, place all the militia in effect at the will of Congress, and produce a military consolidation of the states. The act of Congress vested in the President the power of calling forth the militia when any one of the exigencies existed; and if to that were superadded the power of determining the casus fœderis, 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 Massachusetts 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 state, as they could not be transferred to the command of any officer, not of the militia, except the President. But these learned judges, acting as councillors, did not undertake to determine how the militia were to be commanded in case of the absence of the President; or of a junction of militia with regular troops; or whether they were to act under their separate officers, but in concert, as foreign allies; or whether the officer present of the highest rank, either of the militia or of the regular army, was authorized to command the united forces: these were found, it seems, to be questions too difficult and perplexing for extra-judicial decision.

Mr. Madison, one of the most prominent members of the Convention which formed the Constitution, and one of its ablest defenders, was, at the time of these disputes, President of the United States, and as such declared that these constructions of the constitutional powers of the General Government over the militia

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