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of the supreme judicial court, it was advisable to request their opinion on the present occasion, whether the governors of the several states have a right to determine whether the exigencies contemplated by the constitution exist, and whether, when they do exist, the militia in the service of the United States can be lawfully commanded by any officer but of the militia, except by the president of the United States.
The judges, on being consulted, expressed their opinion, that, as the power of judging of the exigencies was not delegated to the United States by the federal constitution, nor prohibited by it to the states, it was reserved to the states respectively; and that, from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia. That it is the duty of these commanders to execute this important trust agreeably to the laws of their several states, without reference to the laws or officers of the United States, in all cases except those specially provided for in the federal constitution. They must, therefore, determine when either of the special cases exist, obliging them to relinquish the execution of this trust, and to render themselves and the militia subject to the command of the president. A different construction, giving to congress the right to determine when these special cases exist, authorizing them to call forth the whole of the militia, and taking them from the commanders in chief of the several states, and subjecting them to the command of the president, would place all the militia, in effect, at the will of congress, and produce a military consolidation of the states, without any constitutional remedy, against the intentions of the people when ratifying the constitution. No inconveniences could reasonably be presumed to result from this construction, as these exigencies are of such a nature that the existence of them can be easily ascertained by, or made known to the commander in chief of the militia, and, when ascertained, the public interest will produce prompt obedience to the acts of congress. With respect to the question whether the militia could be lawfully commanded by any officer appointed by the president, the judges expressed their opinion, that the congress may provide laws for the government of the militia when in actual service, but to extend this power to the placing them under the command of an officer not of the militia, except the president, would render nugatory the provision, that the militia are to have officers appointed by the states.
The governor further stated, that by the request of the inhabitants on the eastern boundary of Passamaquoddy, he had called out three companies of militia for their protection from
unauthorized predatory incursions of lawless people on the borders ; and that two of the companies would be stationed at Eastport and one at Robinston, until the president should otherwise direct. The governor disclaims the intention of officiously interfering in the measures of the general government, but -thinks, that if the president was fully acquainted with the situation of the state, he would have no wish to call the militia into service in the manner proposed by general Dearborn.
“It is well known,” the governor says, “that the enemy will find it difficult to spare troops sufficient for the defence of their own territory, and predatory incursions are not likely to take place in this state ; for at every point, except Passamaquoddy, which can present no object to those incursions, the people are too numerous to be attacked by such parties as generally engage in expeditions of that kind.
“General Dearborn proposed that the detached militia should be stationed at only a few of the ports and places on the coast : from the rest a part of their militia were to be called away. This circumstance would increase their danger: it would invite the aggressions of the enemy, and diminish their power of resistance.
« The whole coast of Cape Cod is exposed as much as any part of the state to depredations. Part of the militia must, according to this detaching order, be marched from their homes, and yet no place in the old colony of Plymouth is assigned to be the rendezvous of any of the detached militia.
“Every harbour or port within the state has a compact settlement, and generally the country around the harbours is populous. The places contemplated in general Dearborn's specification as the rendezvous of the detached militia, excepting in one or two instances, contain more of the militia than the portion of the detached militia assigned to them. The militia are well organized, and would undoubtedly prefer to defend their firesides in company with their friends under their own officers, rather than to be marched to some distant place, while strangers might be introduced to take their places at home.”
Against predatory incursions the militia of each place would be able to defend their property, and in a very short time they would be aided, if necessary, by the militia of the surrounding country. In case of a more serious invasion, whole brigades or divisions could be collected seasonably for defence. Indeed, considering the state of militia in this commonwealth, I think there can be no doubt that detaching a part of it, and distributing it into small portions, will tend to impair the defensive power.
The governor of Connecticut grounded his refusal of the militia upon similar reasons to those of the governor of Massachusetts. He did not conceive that any of the contingencies enumerated in the constitution existed. “The war which has commenced, and the cruizing of a hostile fleet on our coast, is not invasion, and the declaration of the president, that there is imminent danger of invasion, is evidently a consequence drawn from the facts now disclosed, and is not in my opinion warranted by those facts.” He trusted that the general government would speedily provide an adequate force for the security and protection of the sea coast, and in the mean time he had issued the necessary orders to the general officers commanding the militia in that quarter to be in readiness to repel any invasion which might be attempted upon that portion of the state, and to co-operate with such part of the national forces as should be employed for that purpose.
The president, in his observations upon this correspondence, remarks," that if the authority of the United States to call into service and command the militia for the public defence can be thus frustrated, even in a state of declared war, and of course under apprehensions of invasion preceding war, they are not one nation for the purpose most of all requiring it; and that the public safety may have no other resource than in those large and permanent military establishments which are forbidden by the principles of our free government, and against the necessity of which the militia were meant to be a constitutional bulwark.”
96. The message next adverts to the propositions for an armistice and a peace with Great Britain. Immediately after the declaration of war, Mr. Russell, our charge d'affaires at London, was instructed to lay before the British government “ the terms on which its progress might be arrested, without awaiting the delays of a formal and final pacification.” These terms were, “that the orders in council should be repealed as they affected the United States, without a revival of blockades violating acknowledged rules; and that there should be an immediate discharge of American seamen from British ships, and a stop to impressment from American ships.” As an inducement to the British government to discontinue the practice of impressing from our vessels, Mr. Russell was instructed to give, assurance that a law would be passed (to be reciprocal) to prohibit the employment of British seamen both in public and private American vessels, and to urge that such an arrangement would be much more efficacious in securing to Great Britain her seamen than impressment, independent of all objections to it.
The repeal of the orders in council on the 23d of June, having removed one of the obstacles to pacification, it was hoped that beneficial effects would have resulted from this proposition of the American government. The British minister, however, in his answer to Mr. Russell's note, declared that the prince regent considered it, on various grounds, as absolutely inadmissible, and expressed his surprise, “that as a condition preliminary even to a suspension of hostilities, the government of the United States should have thought fit to demand, that the British government should desist from its ancient and accustomed practice of impressing British seamen from the merchant ships of a foreign state, simply on the assurance that a law shall hereafter be passed, to prohibit the employment of British seamen in the public or commercial service of that state." The British government is however, as heretofore, declared to be ready “to receive and discuss,” any proposition to accomplish the object of impressment; “but they cannot consent to suspend the exercise of a right upon which the naval strength of the empire mainly depends, until they are fully convinced that means can be devised, and will be adopted, by which the object to be ob. tained by the exercise of that right can be effectually secured.” Mr. Russell was likewise informed that the British admiral on the American station had been authorized to propose to the government of the United States “an immediate and reciprocal revocation of all hostile orders, with the tender of giving full effect, in the event of hostilities being discontinued, to the
provisions of the [order of revocation] upon the conditions therein specified.”
By a subsequent letter from the secretary of state, which was not received until after the rejection of the above proposition, Mr. Russell was instructed, that it was not particularly necessary that the several points should be specially provided for in. the convention stipulating the armistice. “A clear and distinct understanding with the British government on the subject of impressment, comprising in it the discharge of the men already impressed, and on future blockades, if the orders in council are revoked, is all that is indispensable. The orders in council being revoked, and the proposed understanding on the other points, that is, on blockades and impressment, being first obtain ed, in a manner, though informal, to admit of no mistake or disagreement hereafter, the instrument providing for the armistice may assume a general form, especially if more agreeable to the British government.”
The contents of this letter appearing to Mr. Russell to do away the objection that had been urged to his former proposi
tion, that the British government could not desist from the practice of impressing from American vessels simply on the assurance that a law should hereafter be passed to prohibit the employment of British seamen ; immediately on its receipt he called on lord Castlereagh, to communicate to him the powers under which he acted. Finding that the British minister was out of town, he transmitted an official note on the subject, accompanied with a private letter, offering any explanation which might be necessary. A few days after, Mr. Russell had an interview with lord Castlereagh, at which he put into his hands the instructions from the secretary of state. A very interesting conversation took place at this interview, in the course of which lord Castlereagh observed, that the question of impressment was attended with difficulties of which neither Mr. Russell nor the American government appeared to be aware. Indeed," he continued, "there has evidently been much misapprehension on this subject, and an erroneous belief entertained that an arrangement, in regard to it, has been nearer an accomplishment than the facts will warrant.
Even our friends in congress, I mean (observing perhaps some alteration in Mr. Russell's countenance) those who were opposed to going to war with us, have been so confident in this mistake, that they have ascribed the failure of such an arrangement solely to the misconduct of the American government. This error probably originated with Mr. King, for, being much esteemed here, and always well received by the persons then in
power, he seems to have misconstrued their readiness to listen to his representations, and their warm professions of a disposition to remove the complaints of America, in relation to impressment, into a supposed conviction on their part of the propriety of adopting the plan which he had proposed. But lord St. Vincent, whom he might have thought he had brought over to his opinions, appears never for a moment to have ceased to regard all arrangements on the subject to be attended with formidable, if not insurmountable obstacles. This is obvious from a letter which his lordship addressed to sir William Scott at the time.” Here lord Castlereagh read a letter, contained in the records before him, in which lord St. Vincent states to sir William Scott, the zeal with which Mr. King had assailed him on the subject of impressment, confesses his own perplexity and total incompetency to discover any practical project for the safe discontinuance of that practice, and asks for council and advice. “ Thus you see," proceeded lord Castlereagh, “that the confidence of Mr. King on this point was entirely unfounded.”