Memorandum from an Unidentified Correspondent
[post 1 July 1812]1
Can the President call forth the militia of the Union, or any part of that militia, without the aid of the State Executives?
This question must be decided by the constitution, and by the three acts of May 8, 1792—Feby 28, 1795, and April 10, 1812.2
The constitution authorizes the calling forth of the Militia on three occasions only. 1. To execute the laws of the union. 2. To suppress insurrections. 3. To repel invasions. By the same constitution, Congress is authorized “to declare war,” and “to provide for organizing, arming, and disciplining the militia, and for governing such part of these as may be employed in the service of the United States”—and at the same time creates the President “Commander in Chief of the Army and Navy.”
It may be proper to remark here, that the power of the State Executives over the militia extends to two cases only. 1 The appointment of the officers. 2 The training of the militia according to the discipline prescribed by Congress. If they are the immediate commanders of the militia, their command is casual, and ceases to exist as soon as the Militia are in the service of the United States. They might, indeed, head their own militia on such service, at least within the limits of their own States—but the law provides, that an Officer in the regular service, whatever be the date of his commission, shall command all Militia Officers of the same grade. The relative rank of the State Executives has never been settled—but it is believed, that it cannot exceed that of Major General.
The act of May 8 1792 is limited to the organization of the Militia, prescribing the duties of all ranks of Militia Officers in the line, as also those belonging to the General and Regimental Staff—and requiring the Adjutant Generals of States, at least once in each year, to furnish the President of the United States with returns of the Militia.
The power of the President over the militia is more particularly defined by the act of Feby 28, 1795. This act, as it respects the Militia of the Union, is both directory and imperative; directory as to the performance of stated duties—and imperative as to the obedience due to the orders of the President: It confides to the State Executives no powers nor duties, except in the two cases already mentioned. In fine—it confides to the President the power of calling forth the Militia “to execute the laws of the Union—to suppress insurrections—and to repel invasions”—and likewise in case there “be imminent danger of invasion.”
In what manner ought he to proceed to call forth the Militia? Two modes only present themselves, either of which may be pursued. 1 By means of the State Executives. 2 By directing the Major Generals, or other officers, to assemble the Militia, and march them to such points as may be designated. The militia officers are obliged to obey the orders of the President; he is their Commander in Chief; their existence as officers, at least all the military powers they possess, emanate from the constitution and laws of the United States; the 5th. section of the act of Feby 28, 1795 annexes penalties and forfeitures to the disobedience of the orders of the President in any of the cases before recited; by this section every officer, who thus disobeys, is liable to forfeiture and incapacity by the sentence of a Court martial; non Commissioned Officers and Privates are likewise liable to fines, and even to imprisonment, in case they be unable to pay them.
It therefore results from the provisions of this act, that the power of the President to call forth the militia is complete, and not weakened by any conflicting power. The State Executives may also call forth the militia on all proper occasions—but this by no means impairs their obligations to obey the orders of the President, when issued in conformity to the constitution.
Who is to be the Judge of the “imminent danger of invasion,” as recognized in the law of Feby 28. 1795? The State Executives, or the President of the United States? The law has unquestionably placed it in the general Government. What incident is necessary to constitute “imminent danger of invasion”? Here again the general Government is to determine. If “imminent danger of invasion” does not result from a state of war with the greatest maratime power in the world, especially when our extensive sea coast is so extremely vulnerable, no such danger can be said to exist till an actual invasion takes place. The constitution could not intend, that we should wait patiently for the blow to be struck before we assumed an at[t]itude of Defence.
The militia are considered as under the control of the State Executives till called into the service of the United States. What act constitutes this call? The very issuing of the necessary orders is an act calling forth the militia: the militia must be considered as in the service of the United States from the time of issuing such orders—at least they must be considered as taken from under the immediate command of the State Executives, and placed under the command of the officers appointed by the President. If the officers refuse to assemble and march the Militia on the orders of the President, they are liable by law to the fines and incapacities already mentioned.
There can be no dispute relative to the “Voluntary military corps,” raised under the act of Feby 6. 1812;3 because, after tendering their services, they are to be enrolled, and their officers Commissioned by the President—organized under his direction, and called forth by him when he pleases. They are, in effect, regular troops of the United States.
Altho’ the act of April 10 1812 authorizes the President to require of the State Executives their due proportions of the 100,000 militia—yet he is by no means restricted to this mode; he is still at liberty, if he thinks proper, to act under the law of Feby 28. 1795. The act of April 10. 1812 was intended to answer two purposes only. 1 To designate the aggregate number wanted, and to provide for a due apportionment of them among the several States. 2. To prolong the terms of their service from three to six months. This act is not inconsistent with, nor does it repeal any former one; so that the President is at liberty to act under which he pleases.
Note—vide also the act of 29th. Nov. 1794,4 relative to the employment of militia “to suppress unlawful combinations” &c. &c.
P. S.—The President, it is said, acts in two capacities—civil and military. In calling forth the militia, he must necessarily act in his civil capacity, because his military one does not attach till the Militia are in actual service. This is the argument on the other side of the question, and, if well founded, the officers of Militia are under no obligations to obey the orders of the President till they are in actual service.
By the former reasoning the Presdt. acts in his military capacity when he gives the order.5
RC (DLC: Rives Collection, Madison Papers). In an unidentified hand except for the last sentence (see n. 5). Headed by the author, “Militia,” to which JM, probably at a later date, added the prefatory docket: “answers relating to the power of the Prest. of U. S. over.” Mistakenly attributed to Albert Gallatin by the editors of The Papers of Albert Gallatin (microfilm ed., reel 25). Undated; conjectural date assigned here on the basis of evidence presented in n. 1. Addressee not indicated.
1. This document may have been a response to Dearborn’s reports to the War Department that the Federalist governors in the New England states were not likely to call out detachments of their militias for U.S. service. On 24 June 1812 Dearborn informed Eustis that he had received no response from Governor Strong of Massachusetts concerning his request for militia detachments, and he warned that the president should “be prepared for the worst” (DNA: RG 107, LRRS, D-93:6). The next day Dearborn wrote that Rhode Island’s governor was also slow to respond, pointing out to Eustis that the fourth section of the 10 Apr. 1812 law gave “special authority to the President of the U. S. to call into actual service any part, or the whole of the detachments, without any reference to the Governors.” He suggested that the War Department issue direct orders, without reference to the governors, to militia officers liable for detachment in Massachusetts and perhaps to officers in Connecticut and Rhode Island as well. In a postscript Dearborn added that the 28 Feb. 1795 law “clearly gives the authority to the Presidt. to call on the officers and not on the Governors” (DNA: RG 107, LRRS, D-96:6). Dearborn’s letter was received in the War Department on 30 June, and Eustis replied the next day, assuring Dearborn that “the Subject of calling out the Militia is under consideration of the President, and appears to have engaged the earnest attention of the Members of the Legislature.” However, when Eustis again raised the subject of militia detachments with Governor Strong on 21 July 1812, he did not assert that the president could issue orders directly to state militia officers, and he merely urged the governor to consider complying with Dearborn’s requests (DNA: RG 107, LSMA).
Another possibility is that the writing of this memorandum was provoked by Governor Strong’s 5 Aug. 1812 letter to Eustis stating his reasons for refusing to comply with the secretary’s request of 21 July and enclosing a written opinion from three of the judges of the Massachusetts Supreme Court. The judges confirmed the views of the Federalist governors in New England that the power to call out the militia, with the exception of the instances clearly specified in the laws of 8 May 1792, 28 Feb. 1795, and 10 Apr. 1812, was vested in the governors of the states and not in the president of the U.S. (PHi: Daniel Parker Papers; printed in ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Military Affairs, 1:323–24). Eustis forwarded this correspondence to JM at Montpelier, and JM returned it on 8 Sept. 1812, adding that he would shortly set out for Washington to consult with the secretary “as to the proper answer” (PHi: Daniel Parker Papers). However, the editors have been unable to locate any additional evidence to confirm the possibility that the memorandum was written after the second week of September 1812, nor have they been able to identify any context in which the administration made use of the arguments it contains.
3. Ibid., 2:676–77.
4. Ibid., 1:403.
5. This sentence, written in pencil, is in the hand of Eustis.