Article 1, Section 8, Clause 15
[Volume 3, Page 185]
James Monroe to Chairman of Senate Military CommitteeFeb. 1815Writings 5:308--18
D. is a copy of a correspondence between the Governor of New Jersey and the Department of War relating to the appointment of the Governor of New York to the command of the military district No. 3. A copy of this correspondence is presented to communicate to the committee every circumstance that has occurred relating to the command of the militia in the service of the United States.
It appears by these documents that the Governors of Massachusetts, Connecticut & Rhode Island have objected to the requisitions made on the several States for parts of their respective quotas of militia on the following grounds: 1st., That the President has no right to make a requisition for any portion of the militia for either of the purposes specified by the Constitution unless the Executive of the State on whose militia such call is made admits that the case alleged exists, and approves the call. 2ndly. That when the militia of a State should be called into the service of the United States no officers of the regular army had a right to command them, or other person not an officer of the militia, except the President of the United States in person. These being the only difficulties which have arisen between the Executive of the United States and the Executive of any of the individual States relative to the command of the militia, known to the Department, are, it is presumed, those respecting which the Committee has asked information.
By these documents it is also shewn that certain portions of the militia were called out by the Executives of these States, and a part of them put into the service of the United States. These doctrines were nevertheless adhered to. I do not go into a detail on these points, deeming it unnecessary, as all the facts will be found in the documents.
Respecting as I do and always have done the rights of the individual States, and believing that the preservation of those rights, in their full extent, according to a just construction of the principles of our Constitution, is necessary to the existence of our Union, and of free government in these States, I take a deep interest in every question which involves such high considerations. I have no hesitation however in declaring it as my opinion that the construction given to the Constitution by the Executives of these States is repugnant to its principles, and of dangerous tendency.
By the Constitution Congress has power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. 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.
The President is likewise made Commander in Chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States.
The power which is thus given to Congress by the people of the United States, to provide for calling forth the militia for the purposes specified in the Constitution, is unconditional. It is a complete power, vested in the National government, extending to all those purposes. If it was dependent on the assent of the Executives of the individual States it might be entirely frustrated. The character of the government would undergo an entire and radical change. The State Executives might deny that the case had occurred which justified the call, and withhold the militia from the service of the general government.
It was obviously the intention of the framers of the Constitution that these powers vested in the general government should be independent of the State authorities, and adequate to the end proposed. Terms more comprehensive than those which have been used cannot well be conceived. Congress shall have power to provide for calling forth the militia to execute the laws of the Union; what laws? All laws which may be constitutionally made. Whatever laws are adopted for that purpose within the great scope of that power, which do not violate the restraints provided in favor of the great fundamental principles of liberty, are constitutional, and ought to be obeyed. They have a right to provide for calling forth the militia to suppress insurrections. This right is also unqualified. It extends to every case of insurrection against the legitimate authority of the U. States. It may be said that the government may abuse its authority, and force the people into insurrection in defence of their rights. I do not think that this is a probable danger under our system, or that it is the mode of redress, even if such abuse should be practised, which a free people, zealous of their rights, ought to resort to. The right which they have to change their Representatives, in the legislative & executive branches of the government, at short intervals, and thereby the whole system of measures, if they should think proper, is an ample security against the abuse, and a remedy if it should occur. [Volume 3, Page 186] Congress have also a right to provide for calling forth the militia to repel invasions. This right, by fair construction, is in my judgment, an exemplification of the power over the militia, to enable the government to prosecute the war with effect, and not a limitation of it, by strict construction, to the special case of the descent of the enemy on any particular part of our territory. War exists; the enemy is powerful; his preparations are extensive. We may expect his attacks in many quarters. Shall we remain inactive spectators of the dangers which surround us, without making the arrangements suggested by an ordinary instinctive foresight for our defence?
A regular army in sufficient extent may not exist. The militia is the principal resource. Is it possible that a free people would thus intentionally trammel a government which they had created for the purpose of sustaining them in their just rank, and in the enjoyment of all their rights as a nation, against the encroachments of other powers, more especially after they had experienced that reliance could not be placed on the States individually, and that without a general government thus endowed, their best interests would be sacrificed, and even their independence insecure?
A necessary consequence of so complete and absolute a restraint on the power of the general government over the militia would be to force the United States to resort to standing armies for all national purposes. A policy so fraught with mischief, and so absurd, ought not to be imputed to a free people in this enlightened age. It ought not, more especially, to be imputed to the good people of these States. Such a construction of the Constitution is, in my opinion, repugnant to their highest interests, to the unequivocal intention of its framers, and to the just and obvious import of the instrument itself.
The construction given to the Constitution by the Executive is sanctioned by legislative authority, by the practice of the government, and by the assent and acquiescence of all the States, since the adoption of the Constitution to the period of the late unhappy differences, respecting which the Committee has asked to be informed. By the law of 1795 the President is authorized to call forth the militia, for the purposes mentioned in the Constitution, by a direct application to the militia officers, without any communication with, or reference to the Executives of the individual States, and penalties are prescribed for carrying the law into effect, should resort to them be necessary. It merits attention, in regard to the question under consideration, that the power given to the President to call forth the militia, is not made dependent, by this law, on the fact of our invasion having actually occurred, but takes effect in case of an eminent danger of it. In the year 1795 the President of the United States, on the certificate of a Judge of the Supreme Court that an insurrection existed in the western parts of Pennsylvania, called out the militia of several of the States, including the militia of Pennsylvania, to suppress it, which call was obeyed. In this instance the assent of the governor of Pennsylvania to the existence of an insurrection was not asked. General Washington, who then held the office of Chief Magistrate, relied exclusively on the powers of the general government for the purpose. The opinion of the same Chief Magistrate of the power of the general government over the militia was also made known by another distinguished act of his administration. By a report from General Knox, the then Secretary of War to Congress, bearing date on the [blank] this doctrine is maintained to the utmost extent, and exemplifications of it insisted on, which prove that from the nature of our population the militia was the force which, in his judgment, ought principally to be relied on for all national purposes. See the instances under consideration. Powers are granted to Congress for specified purposes, in distinct terms. A right to carry powers thus granted into effect follows of course. The government to whom they are granted must judge of the means necessary for the purpose, subject to the checks provided by the system. It adopts a measure authorized, supervises its execution, & sees the impediments to it. It has a right to amend the laws to carry the power into effect. If any doubt existed on this point in any case, on general principles, and I see cause for none, it cannot in the present, a power having been explicitly granted to Congress by the Constitution to pass all necessary & proper laws for carrying into execution the powers which are vested in the general government. Equally unfounded, in my opinion, is the other objection of the Executives of the States above mentioned, that when the militia of a State is called into the service of the United States no officer of the regular army, or other person not a militia officer, except the President of the United States in person, has a right to command them.
When the militia are called into the service of the United States all State authority over them ceases. They constitute a part of the national force, for the time, as essentially as do the troops of the regular army. Like the regular troops, they are paid by the nation. Like them, their operations are directed by the same government. The circumstance that the officers of the militia are appointed by, and trained under the authority of the States individually (which must however be done according to the discipline prescribed by Congress) produces no effect on the great character of our political institutions, or on the character and duties of the militia, when called into the service of the United States.
That the President alone has a right to command the militia in person, when called into the service of the United States, and that no officer of the regular army can take the command in his absence, is a construction for which I can see nothing in the Constitution to afford the slightest pretext. Is it inferred from the circumstance that he is appointed Commander in Chief of the Militia when called into the service of the United States? The same clause appoints him Commander in Chief of the land & naval forces of the United States. Equally sound therefore would the inference be that no other person could command either the land or naval forces of the United States. In construction of law he is Commander in Chief tho' not present. His presence is not contemplated in either case. Equally necessary is it in the one as in the other. What has been the practice under the Constitution, commencing with the first Chief Magistrate, and pursuing it under his successors to the present time? Has any President ever [Volume 3, Page 187] commanded in person either the land or naval forces, or the militia? Is it not known that the power to do it is vested in him principally for the purpose of giving him control over militia & naval operations, being a necessary attribute of the Executive branch of the government? That altho' he might take the command of all the forces under it, no President has ever done it? That a provision for the actual command is an object of legislative regulation, and the selection of the person to whom committed, of Executive discretion?
Under the commander, all the officers of every species of service and corps, regular and militia, acting together take rank with common consent and perfect harmony according to an article of war sanctioned by the Constitution. By this the officers of the regular army take rank of those of the militia of the same grade, without regard to the dates of their commission, and officers of any and every grade of the militia take rank of all officers of inferior grade of the regular army. When these troops serve together they constitute but one national force. They are governed by the same articles of war. The details for detachment, guard, or any other service are made from them equally. They are in truth blended together as much as are the troops of the regular army when acting by themselves only.
The idea advanced by the Honble. Judges of Massachusetts that when the regular troops and militia act together, and are commanded by the President in person, who withdraws, there can be no chief commander of right, of either species of force, over the whole; but that the regulars and militia as implied may even be considered as allied forces, is a consequence of the construction for which they contend. It pushes the doctrine of State rights further than I have ever known it to be carried in any other instance. It is only in the case of powers who are completely independent of each other, and who maintain armies, and prosecute war against a common enemy for objects equally distinct, and independent, that this doctrine can apply. It does not apply to the case of one independent power, who takes into its service the troops of another, for then the command is always at the disposal of the power making War, and employing such troops, whether regular or militia. How much less does it apply to the case under consideration, where there is but one power, and one government, and the troops, whether regular or militia, tho' distinguished by shades of character, constitute but one people, and are in fact countrymen, friends & brethren.
The President is in himself no bond of union in that respect. He holds his station as Commander in Chief of the land and naval forces, and of the militia, under a constitution which binds together as one people, for that, and many other important purposes. His absence would not dissolve the bond. It would not revive discordant, latent claims, or become a signal for disorganization.
The judicious selection of the Chief Commander for any expedition, or important station, is an object of high interest to the nation. Success often depends on it. The right to do this appears to me to have been explicitly vested in the President, by the authority given to Congress to provide for calling forth the militia, organizing, arming, disciplining and governing them, when employed in the service of the United States, and by the powers vested in him as Chief Executive of the United States. The rights of that highly respectable and virtuous body of our fellow citizens are I am persuaded completely secured when the militia officers commanding corps are retained in their command, a Major-General over his division, a Brigadier over his brigade, a Colonel over his regiment and inferior officers in their respective stations.
These rights are not injured or affected by the exercise of the right of the Chief Magistrate, a right incident to the executive power, equally applicable to every species of force, and of high importance to the public, to appoint a commander over them of the regular army when employed in the service of the United States, if he should deem it expedient. The rights of the militia officers, and those of the general government, are strictly compatible with each other, there is no collision between them. To displace militia officers for the employment of regular, or to multiply commands of a separate character, especially of small bodies, for that purpose, would be improper.
The Writings of James Monroe. Edited by Stanislaus Murray Hamilton. 7 vols. New York and London: G. P. Putnam's Sons, 1898--1903.
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