Richmond. March 17 1808
I received by the last nights mail your favor of the 13th. and shall forward the letters alluded to according to their address.
I sent you by the mail before the last a copy of the Acts of our last Assembly, and requested your attention to that clause in the Militia law which prohibits the Executive from granting certain commissions—You will readily perceive its effect—I regret it extremely, and fear it may embarrass the General Government in their military preparations. But is it not almost incredible that the State Governments should object to their own exercise of a necessary power, which had been granted to them from a respect to their authority, & from a fear that any other exercise of it might be used to their disadvantage—It would seem difficult to account for this fact on any other principle than that of determined hostility to the General Government—But every body knows that not to have been the cause—It arose from the extraordinary prejudice excited against a particular measure of the State Executive, the attempt to raise, under the Act of Congress of the 24th. Feby. 1807, a corps of Volunteers called the Virginia Legion—Altho I at one time entertained some doubts of the legality of granting commissions to the field Officers before the formation of the Battalions and Regiments, those doubts were very quickly & entirely removed, and it was impossible for my mind to entertain any other, either as to the legality or patriotism of the scheme—Yet I have never known any measure excite a prejudice so general & so strong—argument was used in vain—A voice from heaven itself would not have been heard—The utmost that they could be induced to believe was that the Executive had not been influenced by improper motives; for as to the measure itself, to the very last, the term “Legion” excited infinite disgust & horror. This State of the public mind had been produced entirely by the ridiculous idea that the Executive were aiming a blow at the priviledges of the Militia Officers and were attempting to raise a “favored Band” on whom the honors of the State were to be lavished—In a government, like ours depending for its support & even for its permanent existence on the virtue & intelligence of the people, it is a most melancholly cause of the deepest regret that they should be so blinded & infuriated by prejudices so easily excited & so destitute of foundation—The clause above alluded to in the Militia law is one effect of those prejudices—I verily believe it would not have been adopted had its real bearings been seen—In fact nothing was seen but the frightful picture which they had drawn of the “Legion”, and nothing was intended but to take from the Executive the power of creating such another Monster—How are the real effects of the clause to be obviated? May not Congress grant to the President, or to the President & Senate, the power of granting commissions to the Volunteers proposed to be raised, as was done during the administration of Mr. Adams? I know that the measure was very much reprobated by the Republicans, and I think very justly—But the objections, as well as I remember, were not against the unconstitutionality, but the impolicy of the measure—If the Volunteers are really Militia in the constitutional sense of the term, then the States, in which they are raised, may constitutionally claim the power of commissioning them—If however, the States shall refuse to exercise the power, does it not necessarily result to Congress for the purpose of carrying into effect other powers expressly given, and essential to the safety of the Republic? But, as to those Volunteers, which do not already constitute companies battalions &c in the regularly organized Militia of some one of the States being formed by voluntary associations of individuals from different Regiments, perhaps of persons exempt from the performance of militia duty, can they be considered as Militia? I confess I have not considered such Corps as the Militia of the State; and if they are not the Militia of the State, I have supposed that they could not be considered as Militia of the United States, which is nothing more than the Militia of the Several States—If then they are not Militia, there is not, in the Constitution, any restriction on the power of Congress to commission them—It may be said that they differ from the regular armies of the U States; but they equally differ from the organized Militia of the U. States, and this latter difference will defeat the claim of the States to the exclusive power of commissioning them—In every view of the subject, it would therefore seem to me that Congress might grant to the President or to the President & Senate, the power of commissioning Volunteers raised in those States which refuse to exercise the power— The States so refusing could not, and those left in the undisturbed enjoyment of the right, would not complain—But it was not my intention to have gone farther than a mere statement of facts, in relation to the clause in the Militia law of our last Assembly; and I ought to apologize to you for having permitted myself to be drawn, by my anxiety on the occasion, into remarks which, if just, have already occurred to you, and if otherwise, you ought not to have been troubled with—
I am with the most unfeigned respect Sir yr. mo.— Ob: St.
Wm. H: Cabell
DLC: Papers of Thomas Jefferson.