« AnteriorContinuar »
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 undoubtedly 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 into 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
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
river, under the command of captain Joshua Chamberlain, of Orrington; and the detached company in the same neighbourhood, under the command of captain Thomas George, of Brewer, to form a battalion, to be commanded by major Nathan Low, of Deer Isle, and directed them to march immediately to Eastport, and that they would probably march the next day. I shall immediately write to major Low, and direct him to conform to the above instructions in disposing of the companies, until the president of the United States shall otherwise direct.
I am, sir, with respect, your most obedient servant,
Honourable William Eustis, Secretary of War.
Northampton, Sept. 10, 1812. I received this morning a letter from major general Sewall, dated the 1st of this month, in which he mentions that the detached troops from the neighbourhood of Penobscot, had marched to Eastport five or six days before that time, with their adjutant and quartermaster; but that major Low, who was appointed to command them, had been released from that service, on account of bodily infirmity; and that major Jacob Ulmer, of Lincolnville, was appointed in his room, and had been notified to proceed immediately to Eastport.
General Sewall observes, that application had been made to him for the appointment of a commissary and surgeon for the post at Eastport, and if those appointments, or either of them, are thought necessary, he proposes Mr. Chevy, an officer in the artillery, for the former, and Dr. Baxtow, a surgeon in the militia, for the latter, both inhabitants of Eastport.
I am, sir, with sentiments of respect, &c.
Honourable William Eustis, Secretary of War.
War Department, April 15th, 1812. I am instructed by the president of the United States to call upon the executives of the several states, to take effectual measures to organize, arm, and equip, according to law, and hold in readiness to march at a moment's warning, their respective proportions of one hundred thousand militia, officers included, by virtue of an act of congress, passed the 10th instant, entitled, "An act to authorize a detachment from the militia of the United States."
This, therefore, is to require your excellency to take effectual measures for having three thousand of the militia of Connecticut (being her quota), detached and duly organized in com
panies, battalions, regiments, brigades, and divisions, within the shortest period that circumstances will permit, and as nearly as possible in the following proportions of artillery, cavalry, and infantry, viz. one twentieth part of artillery, one twentieth part of cavalry, and the residue infantry. There will, however, be no objection on the part of the president of the United States, to the admission of a proportion of riflemen duly organized in distinct corps, and not exceeding one tenth part of the whole quota of the states respectively. Each corps should be properly armed and equipped for actual service.
When the detachment and organization shall have been effected, the respective corps will be exercised under the officers set over them, but will not remain embodied, or be considered as in actual service, until by subsequent orders they shall be directed to take the field.
Your excellency will please to direct that correct muster rolls and inspection returns be made of the several corps, and that copies thereof be transmitted to this department as early as possible. I have the honour to be, &c.
W. EUSTIS. His excellency Roger Griswold, Governor of Connecticut.
Lyme, April 20th, 1812. I had the honour, this morning, to receive your letter of the 15th inst. containing the directions of the president of the United States, for detaching three thousand of the militia of this state, agreeably to the provisions of the act of congress of the 10th inst. The act itself has not been received, and it will be very satisfactory to me to receive a copy of it, by the next mail, from your department. In the mean time every preparation will be made for detaching the officers and men agreeably to the directions already received.
I have the honour to be, with great respect, your obedient and very humble servant,
Hon. the Secretary of War.
War Department, June 12th, 1812. I am directed by the president to request your excellency to order into the service of the United States, on the requisition of major-general Dearborn, such part of the quota of militia from the state of Connecticut, detached conformably to the act of April 10th, 1812, as he may deem necessary for the defence of the sea coast. I have the honour to be, &c.
WM. EUSTIS. His excellency Roger Griswold, Governor of Connecticut.
Lyme, June 17th, 1812.
I have had the honour, this afternoon, to receive your letter of the 12th instant, communicating to me the request of the president, that I would order into the service of the United States, on the requisition of major general Dearborn, such part of the quota of militia from the state of Connecticut, detached conformably to the act of congress of April 10th, 1812, as he may deem necessary for the defence of the sea coast.
In obedience to which request, I shall, on the requisition of general Dearborn, execute without delay, the request of the president.
With great respect, I have the honour to be, your obedient ROGER GRISWOLD.
Honourable Wm. Eustis, Secretary of War.
Sharon, Connecticut, July 2d, 1812. His excellency governor Griswold has received from major general Henry Dearborn, a letter under date of the 22d of last month, requesting that five companies of the militia of this state, detached conformably to the act of congress of April 10th, 1812, may be ordered into the service of the United States, to wit: "two companies of artillery, and two companies of infantry, to be placed under the command of the commanding officer at fort Trumbull, near New London, and one company of artillery, to be stationed at the battery at the entrance of the harbour of New Haven."
Impressed with the deep importance of the requisition, and the serious considerations it involves, his excellency deemed it expedient to convene the council at Hartford, on Monday, the 29th ultimo. He has taken their advice upon this interesting subject, and has formed his own deliberate opinion; but as he is under the necessity of leaving the state on a journey for the recovery of his health, it becomes my duty, as lieutenant governor, to communicate to you the result.
The assurance contained in the governor's letter of the 17th June last, in answer to yours of the 12th of the same month, was necessarily given in full confidence, that no demand would be made by general Dearborn, but in strict conformity to the constitution and laws of the United States. His excellency regrets to perceive that the present requisition is supported by neither.
The constitution of the United States has ordained, that congress may "provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions."
Accordingly the acts of congress of February, 1795, and of