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by Congress for the maintenance of them. So that, ai furthest,
every two years, the propriety of retaining an ex. isting army must regularly come before the Representatives of the people in Congress for consideration ; and if no appropriation is made, the army is necessarily disbanded. Thus, the army may, at any time within two years, be in effect dissolved, by a majority of Congress, without the consent of the President, by a simple refusal to grant supplies.. In point of fact, Congress have hitherto made the appropriations annual, as they have a constitutional right to do, if it is deemed expedient. The power, therefore, is surrounded by all reasonable restrictions, as to its exercise ; and it has hitherto been used in a manner, which has conferred lasting benefits on the country.
$ 191. The next power of Congress is, “ to provide, and maintain a navy.” This power has the same general object, as that to raise armies. But, in its own nature, it is far more safe, and, for a maritime nation, quite as indispensable. No nation was ever deprived of its liberty by its navy.
The same cannot be said of its army. And a commercial nation would be utterly without its due share of sovereignty upon the ocean, its means of selfprotection at home, and its power of efficient acțion abroad, without the possession of a navy. Yet this power, until a comparatively recent period, found little favor with some of our statesmen of no mean celebrity. It was not until the brilliant achievements of our little navy, during the late war, (1812–1814,) had shed a glory, as well as a protection, over our national flag in every sea, that the country became alive to its vast importance and efficiency. At present, it enjoys an extensive public favor, which, having been earned by the most gallant deeds, can scarcely fail of permanently engrafting it into the solid establishments of our national strength.
§ 192. The next power of Congress is, “ to make rules, for the government and regulation of the land and naval forces." Upon the propriety of this power, as an incident to the preceding, it is unnecessary to enlarge. It is equally beyond the reach of cavil and complaint.
Power over Militia.
193. The next power of Congress is, “ to provide for calling forth the militia to execute the laws wf the Union, suppress insurrections, and repel invasions.” This is a natural incident to the duty, devolved on the General Government, of superintending the common defence, and providing for the general welfare in matters confided to it by the Constitution. There is but one of two alternatives, which can be resorted to in cases of insurrections, invasions, or violent oppositions to the execution of the laws ; either to employ regular troops, or to employ the militia. In ordinary cases of riots ana public disturbances, the magistracy of the country, with the assistance of the civil officers, and private individuals, may be sufficient to restore the public peace. But when force is contemplated by a discontented and lawless faction, it is manifest, that it must be met, and overthrown by force. Among a free people, there is a strong objection to the keeping up of a large standing army. But this will be indispensable, unless the power is delegated to command the services of the militia in such exigencies. The latter is, therefore, conferred on Congress, because it is the most safe, and the least obnoxious to popular jealousy. The employment of the militia is economical, and will generally be found to be efficient, in suppressing sudden and transitory insurrections, and invasions, and resistances of the laws.
$ 194. It is observable, that the power given to Congress over the militia is not limited as to the time of ser vice, or as to the place of operation. And it is obvious, that to be effective, the power could not safely be limited in either respect; for it is impossible to foresee either the nature, or extent, or place, or duration, of the exigency, for which the militia might properly be called forth.
be left, therefore, to the sound discretion of Congress, ac .ing with a wise regard to the public interests and the convenience of military operations. If Congress had no authority to march the militia beyond the territorial boundaries of a particular State, either to execute the laws, or to suppress insurrections, or to repel invasions, the power over the militia might be perfectly nugatory for all the purposes of common safety, or common defence. Suppose there should be an invasion of Rhode Island by a public enemy, if the militia of the neighboring States could not be ordered into that State for military duty, it is obvious, that the militia would be utterly worthless for the general protection of the Union. Suppose a battle to be fought on the confines of two States, and the militia to stop at the boundary, and thus to lose all the advantages of mutual cooperation, and even of a victory almost achieved ? In times of insurrection or invasion, it cannot admit of a reasonable doubt, that it would be both natural and proper, that the militia of the neighboring States should be marched into the suffering State to repel the invaders, or to suppress the insurgents. But it would rarely occur, if ever, that the militia of any one State would be required to march to a great distance from their homes, or for a long period of service, since it would be at once the most inconvenient, as well as the most expensive force, which could be employed upon distant expeditions. And yet an occasion might occur, when even such a service might be indispensable to the public safety ; as it was in the late war with Great Britain, (1814,) when the militia of Tennessee and Kentucky were required to go to New Or. leans; and there saved the country from the dreadful ca lamity of having the mouth of the Mississippi in the hands
$ 195. The next power of Congress is, “to provide for organizing, arming, and disciplining the militia, and 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, and the authority of training the militia, according to the discipline prescribed by Congress." And here again, we have
of the enemy:
another instance of the distribution of powers, between the National and State Governments, over the same subject matter. Unless there is uniformity in the organiza tion, arming, and disciplining of the militia, there can be little chance of any energy, or harmony of action, between the corps of militia of different States, when called into the public service. Uniformity can alone be prescribed by the General Government; and the power is accordingly given to it. On the other hand, as a complete control of the militia by the General Government would deprive the States of their natural means of military defence, even upon the most urgent occasions, and would leave them absolutely dependent upon the General Government,
of the latter is limited to a few cases ; and the former retain the appointment of all the officers, and also the authority to train the militia, according to the discipline prescribed by Congress. With these limitations, the authority of Congress would seem to be above all reasonable objections.
$ 196. Several questions, of great practical importance, have arisen under these clauses of the Constitution respecting the power of the National Government over the militia, which deserve mention in this place. Congress are authorized to provide for calling forth the militia,” in the particular exigencies above stated. And accordingly, by an act passed in 1795, under President Washington's administration, authority was given to the President to call forth the militia in case any of those exigencies occurred. The delegation of this power to the President would seem indispensable, since the exigency might occur in the recess of Congress; and by the Constitution, the President is not only Commander-in-Chief of the army and navy, and of the militia, when called into service, but he is also (as we shall see) bound to see the laws duly executed. But the question has arisen, whether the President has the sole and exclusive authority to judge and decide, whether the exigency has arisen, or not ; or, in other words, whether any subordinate officer of the militia, or any State magistrate, has a right to judge and decide for himself, whether the exigency has arisen, and whether, when called upon, he is bound to obey the re quisitions of the President or not.
This question was formerly a matter of heated controversy, and at last came before the Supreme Court of the United States for decision, where it was finally settled, upon full deliberation, that, from the necessity of the case, the President is the exclusive judge of the exigency; and that his decision was conclusive. The reasoning, which led to this conclusion, cannot be repeated in this work; but it deserves the al *entive consideration of every statesman.
§ 197. Another question, of great practical importance, is, Who, in the personal absence of the President, is to command the militia called forth in the service of the National Government ? Are the commanding officers of the militia of each State, so in service, to command their separate detachments during his absence, or has the President a right to delegate his authority to any superior military officer of the United States, or of the militia, to act as commander of the whole force during his absence? This question was also formerly a matter of great controversy; and perhaps is not now definitively settled. Practically, however, the National Government has constantly insisted upon the right of the President, in such cases,
to appoint a person to act as his delegate in the command ; and most of the States of the Union lave acquiesced in this decision, as indispensable to any effective military operations.
Seat of Government, and other Ceded Places. § 198. The next power of Congress is, “ to exercise exclusive legislation, in all cases whatsoever, over such District, not exceeding ten miles square, as may, by cession of particular States, and the acceptance of Congress, become the SEAT OF THE GOVERNMENT of the United States ; and to exercise like authority over all piaces purchased by the consent of the Legislature of the