Article 1, Section 8, Clause 15

Document 17

Governor Caleb Strong to Justices of the Supreme Judicial Court of Massachusetts, and Reply

The Honorable the Justices of the Supreme Judicial Court of the Commonwealth of Massachusetts.

Boston, August 1, 1812.

Gentlemen,

Having laid before the council of this state a letter from the secretary of war of the 12th of June last, and letters dated June 22d, and July 15th, which I received from Major Gen. Dearborn, and also a letter which I have received from the secretary of war of July 21, 1812, requesting their advice what measures ought to be adopted in consequence of the requisition expressed in the said letters:--The council thereupon advised that, as upon important questions of law, and upon solemn occasions, the governor and council have authority by the constitution to require the opinions of the justices of the Supreme Judicial Court, it is advisable to request the opinion of the justices of that court on the following questions, to wit:--

1. 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.

2. 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 officers but of the militia, except by the president of the United States.

In conformity with the foregoing advice of the council, I request you, gentlemen, to state to me your opinions on the questions above mentioned, as soon as conveniently [Volume 3, Page 184] may be. The secretary will deliver you herewith the letters above mentioned.

I am, gentlemen, with great respect,

Your most obedient servant,

Caleb Strong.

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

The undersigned, justices of the Supreme Judicial Court, have considered the several questions proposed by your Excellency and Honors 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 insurrection, 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 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 when 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 does 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 respectively 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 for 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 those 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 federal constitution. Indeed, since the passing of the act of congress of February 28th, 1795, 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 fact at his command, and subject to his control.

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 United States. These exigencies are of such a nature, that the existence of them can be easily ascertained by, or made known to the commanders in chief of the militia; and when ascertained, the public interest will induce a prompt obedience to the acts of congress.

Another question proposed to the consideration of the justices, 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 the 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 the 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 of 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 the troops of the United States, so as to form one army, seems to be a case not provided for or [Volume 3, Page 185] 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.

(SIGNED)     Theop. Parsons.

Samuel Sewall.[emsp4 ]

Isaac Parker.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 15, Document 17
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