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Sir,

Boston, June, 26, 1812.

I have received your letter of this day, in which you request information of the measures which have been taken for calling the militia into the service of the United States.

I find that governor Gerry, on the 25th of April last, ordered that ten thousand men should be detached from the militia of this state; but I am informed by the adjutant-general, that the returns of those detachments have not come to hand, except in a very few instances.

I am, sir, with great respect, your most obedient servant, CALEB STRONG.

To major general Dearborn.

Sir,

War Department, July 21, 1812. By information received from major general Dearborn, it appears that the detachments from the militia of Massachusetts, for the defence of the maritime frontier, required by him under the authority of the president, by virtue of the act of the 10th of April, 1812, have not been marched to the several stations assigned them.

Inasmuch as longer delay may be followed with distress to a certain portion of our fellow-citizens, and with injurious consequences to our country, I am commanded by the president to inform your excellency, that this arrangement of the militia was preparatory to the march of the regular troops to the northern frontier. The exigencies of the service have required, and orders have accordingly been given to major general Dearborn to move the regular troops to that frontier, leaving a sufficient number to man the guns in the garrisons on the sea board. The execution of this order increases, as your excellency cannot fail to observe, the necessity of hastening the detached militia to their several posts as assigned by general Dearborn; in which case they will of course be considered in the actual service and pay of the United States.

The danger of invasion, which existed at the time of issuing the order of the president, increases, and I am specially directed by the president to urge the consideration to your excellency, as requiring the necessary order to be given for the immediate march of the several detachments specified by general Dearborn, to their respective posts. I have the honour to be, &c. W. EUSTIS.

(Signed)

His excellency Caleb Strong, governor of Massachusetts.

Sir,
Boston, 5th August, 1812.
I received your letter of the 21st July, when at Northamp-
ton, and the next day came to Boston. The people of this state

appear to be under no apprehension of an invasion. Several towns indeed on the sea coast, soon after the declaration of war, applied to the governor and council for arms and ammunition similar to the articles of that kind which had been delivered to them by the state in the course of the last war, and in some instances they were supplied accordingly. But they expressed no desire that any part of the militia should be called out for their defence, and in some cases we were assured such a measure would be disagreeable to them.

You observe in your last letter that the danger of invasion, which existed at the time of issuing the order of the president, increases. It would be difficult to infer from this expression, that in your opinion that danger is now very considerable, as the president's order must have been issued before war was declared, your former letter being dated the 12th of June, and general Dearborn's, who was then at Boston, on the 22d of that month. Besides, it can hardly be supposed that if this state had been in great danger of invasion, the troops would have been called from hence to carry on offensive operations in a distant province. However, as it was understood that the governor of Nova-Scotia had by proclamation forbid any incursions or depredations upon our territories, and as an opinion generally prevailed that the governor had no authority to call the militia into actual service, unless one of the exigencies contemplated by the constitution exists, I thought it expedient to call the council together, and having laid before them your letter, and those I had received from general Dearborn, I requested their advice on the subject of them.

The council advised, "that they are unable from a view of the constitution of the United States, and the letters aforesaid, to perceive that any exigency exists which can render it adviseable to comply with the said requisition. But as upon important questions of law, and upon solemn occasions, the governor and council have authority to require the opinion of the justices of the supreme judicial court, it is adviseable to request the opinion of the supreme court upon the following questions:

1st. Whether the commanders in chief of the militia of the several states have a right to determine whether any of the exigencies contemplated by the constitution of the United States exist, so as to require them to place the militia, or any part of it, in the service of the United States at the request of the president, to be commanded by him pursuant to acts of congress?

2d. Whether, when either of the exigencies exist, authorizing the employing of the militia in the service of the United States, the militia thus employed can be lawfully commanded by

any officer but of the militia, except by the president of the United States?"

I enclose a copy of the answers given by the judges to these questions. Since the council were called, a person deputed by the towns of Eastport and Robinston, on our eastern boundary at Passamaquoddy, applied to me, representing that they had no apprehensions of an invasion by an authorized British force, but that there were many lawless people on the borders from whom they were in danger of predatory incursions, and requesting that they might be furnished with some arms and ammunition, and that three companies of militia might be called out for their protection. The council advised that they should be supplied with such arms and ammunition as were necessary for their present defence, which has been ordered. They also advised me to call into the service of the United States three companies of the detached militia for the purposes above mentioned. I have this day issued an order for calling out three companies of the detached militia, to be marched forthwith to Passamaquoddy, and to be commanded by a major; two of the companies will be stationed at Eastport, and one company at Robinston, until the president shall otherwise direct.

I have no intention officiously to interfere in the measures of the general government; but if the president was fully acquainted with the situation of this state, I think he would have no wish to call our militia into service in the manner proposed by general Dearborn.

It is well known 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 resis

tance.

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.

In Boston the militia are well disciplined, and could be mustered in an hour upon any signal of an approaching enemy; and in six hours the neighbouring towns would pour in a greater force than any invading enemy will bring against it. The same remark applies to Salem, Marblehead, and Newburyport; places whose harbours render an invasion next to impossible. In all of them there are, in addition to the common militia, independent corps of infantry and artillery, well disciplined and equipped, and ready, both in disposition and means, to repair to any place where invasion may be threatened, and able to repel it, except it should be made by a fleet of heavy ships, against which nothing perhaps but strong fortifications, garrisoned by regular troops, would prove any defence, until the enemy should land, when the entire militia would be prepared to meet them.

Kennebunk is unassailable by any thing but boats, which the numerous armed population is competent to resist. Portland has a militia and independent corps sufficiently numerous for its defence, and the same is the case with Wiscassett and Castine.

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.

I have thus freely expressed to you my own sentiments, and, so far as I have heard, they are the sentiments of the best informed men. I am fully disposed to afford all the aid to the measures of the national government which the constitution requires of me; but I presume it will not be expected or desired that I shall fail in the duty which I owe to the people of this state, who have confided their interests to my care.

I am, sir, with respect, your most obedient and humble servant, CALEB STRONG.

Honourable W. Eustis, Secretary of War. [K]

VOL. I. PART I.

To his Excellency the Governor, and the Honourable the Council of the Commonwealth of Massachusetts.

The undersigned justices of the supreme judicial court, have considered the questions proposed by your excellency and honours for their opinion.

By the constitution of this state, the authority of commanding the militia of the commonwealth is vested exclusively in the governor, who has all the powers incident to the office of commander in chief, and is to exercise them personally, or by subordinate officers under his command, agreeably to the rules and regulations of the constitution, and the laws of the land.

While the governor of the commonwealth remained in the exercise of these powers, the federal constitution was ratified, by which was vested in the congress a power to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, and to provide for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers.

The federal constitution further provides, that the president shall be commander in chief of the army of the United States, and of the militia of the several states when called into the actual service of the United States.

On the construction of the federal and state constitutions must depend the answers to the several questions proposed. As the militia of the several states may be employed in the service of the United States for the three specific purposes of executing the laws of the union, of suppressing insurrections, and of repelling invasions, the opinion of the judges is requested, whether the commanders in chief of the militia of the several states have a right to determine whether any of the exigencies aforesaid exist, so as to require them to place the militia, or any part of it, in the service of the United States, at the request of the president, to be commanded by him pursuant to acts of congress.

It is the opinion of the undersigned that this right is vested in the commanders in chief of the militia of the several states.

The federal constitution provides, that whenever either of these exigencies exist, the militia may be employed, pursuant to some act of congress, in the service of the United States; but no power is given either to the president or to the congress to determine that either of the said exigencies do in fact exist. As this power is not delegated to the United States by the federal constitution, nor prohibited by it to the states, it is reserved to the states respectively; and from the nature of the power, must be exercised by those with whom the states have respectivey entrusted the chief command of the militia.

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