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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 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 militią 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 feet 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.
VOL. I. PART I.
To his Excellency the Governor, and the Honourable the Coun
cil 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, it must be exercised by those with whom the states have respectivedy entrusted the chief command of the militia.
It is the duty of these commanders to execute this important trust agreeably to the laws of their several states respectively, without reference to the laws or officers of the United States, in all cases except those specially provided 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. Indeed since passing the act of congress of February 28th, 1795, C. 101, vesting in the president the power of calling forth the militia when the exigencies mentioned in the constitution shall exist, if the president has the power of determining when those exigencies exist, the militia of the several states is in effect at his command, and subject to his controul.
No inconveniences can reasonably be presumed to result from the construction which vests in the commanders in chief of the militia in the several states the right of determining when the exigencies
exist, obliging them to place the militia in the service of the U. States. 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.
Another question proposed to the consideration of the judges is, 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.
The federal constitution declares that the president shall be commander in chief of the army of the United States. He may andoubtedly exercise this command by officers of the army of the United States, by him commissioned according to law. The president is also declared to be the commander in chief of the militia of the several states, when called ihto' the actual service of the United States. The officers of the militia are to be appointed by the states, and the president may exercise his command of the militia by officers of the militia duly appointed. But we know of no constitutional provision authorizing any officer of the army of the United States to command the militia, or authorizing any officer of the militia to command the army of the. United States. 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 union of the militia, in the actual service of the United States, with troops of the United States, so far as to form one army, seems to be a case not provided for or contemplated in the constitution. It is therefore not within our department to determine on whom the command would devolve on such an emergency, in the absence of the president. Whether one officer, either of the militia or of the army of the United States, to be settled according to military rank, should command the whole ; whether the corps must be commanded by their respective officers, acting in concert as allied forces, or what other expedient should be adopted, are questions to be answered by others.
The undersigned regret that the distance of the other justices of the supreme judicial court, renders it impracticable to obtain their opinions, seasonably, upon the questions submitted.
Boston, August 21, 1812. I mentioned in my letter to you of the 5th of August, that I had that day issued an order for calling out three companies of the detached militia, to be marched immediately to Passamaquoddy, for the defence of that frontier, and to be commanded by a major. In my instructions to major-general Sewall, to be communicated to the major to be designated by him, I directed that two of the companies should be stationed at Eastport, and one company at Robinston, until the president should direct otherwise ; unless in the mean time, the major, with the advice of brigadier general Brewer, who lives at Robinston, and to whom I wrote on the subject, should think a different disposition of the companies would be more advantageous.
I have this day received a letter from general Sewall, dated the 17th instant, in which he says, that he had designated the detached company in the neighborhood of Eastport, under the command of captain Thomas Vose, junior, of Robinston ; the detached company in the interior neighbourhood of Penobscot