Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1812-11-19

| exercise them personally, or by subordinate
ohcers under his Command, agreeably To the
rules and regulations Of the constitution, and
the laws of the land.
| Whiie the governor of the commonwealth
| renamed IN the exercise Of these powers,
the FEDERAL CO. stitutioI was ratified, by
which was vested in the congress a mower
| to provide for calling forth the militia to ex-
ecute the laws oEtheunion, suppress insurrcc-
tions and repel invasions, and to provide for
governing suchp part of them as NAV be en-.
| ployed in the service OF the United States.
! reserving to the states respectively the an
| pointment of the officers.
The federal constitution further provides
that the president shall be commander in
Chief OF the army of the United States, & 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 answer
TO the several questions proposed. As the
! militia ct the several states may be employ
ed in the service of tn. United States for the
three specific purposes ofexecutiug the laws
OF the union, of suppressing ipsurrections &
rei'elling invasions the opinion of the Judges
is requested, whether the commanders in
chief the militia of he several states have a
right TO determine whether any of the ext
! gencles aforesaid exist, so as % 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.
! 1t is the opinion of the undersigned that
this right IS vested in the commanders i'm
chief office militia of the several states.
! The federal constitution provides that
whenever either of these exigencies exist.
the militia may be c'npioved, pursuant t.
some act of Congress, in the service of the
United States; bnt no power Is given either
to the President or to the congress 20 deter
nine that either of the said e>lgencics do in
! fact exist. As this power is mt delegated
to the United States by the ftleral constitm-
ton, nor prohibited by it to the states, it is
| reserved to the states respectively and
from the nature of the power, it must be
f, exercised 5y those with whom the states have
respectively entrusted the chief command
| OF tine i'tia.
1t IS the duty OF these commanders to cX-
| ecute this important trust agreeably to the
| laws OF their several states respectively with
ont reference to the laws or officers of the
| United States, in all cases except those spc
ciaily provided 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
u the command vt tue president. differ
ent construction, giving to congress the right
| to determine when these special cases exist
| authorizing them to call forth the whole of
the militia, and taking them from the com
| manders in chief of the several states. ard
| subjecting them to'he command of the nresi-
dent, would place ali the militia, in effect, at
| the VIII OF congress, and produce military
consolidation OF the states, without any con
, stitutionai remedy, against the intentions of
the people when ratifying the constitution.
Indeed since passing the act Of Congress of
| February 2Sth, 1795, c. 101, vesting in the
president t's power of calling forth the mill
tia when the exigencies mentioned in the
constitution shall exist, if the president has
the power Of determining when those exi-
gencies exist, the militia Of the several states
, is in effect ut his command and subject to
, his confront.
| No Inconvenience can reasonably be pre-
! sumed to result from the construction which
/ vests in the commanders in chief of the mill
tia in the several states the right If deter
mining when the exigencies exist, obliginp
/ them 10 place the militia in the service Of the
! United States. These cXigcncics are of such
I. nature that the existence of them can he
easily ascertained bv, or made known to rhe
commander IN chief of the militia, and when
ascertained, the public interest will produce
! prompt obedience to the acts of Congress
! Another question proposed 20 the consi-
/, Iteration of the judges is, whether, when ci-
, thor OF the exigencies exist authorizing the
employing Of the militia in the service a. the
! United States, the militia thus employed can
be lawfully commanded by any officer bat of
the militia. except BY the President ofthe u
nitcd States.
| Sc,
! President shallbc commander in chief Of the
army Of the United States He NAV un-
! doubtedly exercise this command by officers
Of the army of the United States. by him
commissioned according to law. The Pre-
! sident is also declared To- he the commander
| III chief Of the militia uf the several states,
| when called into the actual service OF The
| United States. The ofhcers Cf the militia
are TO be appointed by the states, and the
| President may exercise his command of the.
militia by officers Of the rilitia duly appoint
cd But we know Of TO constitutional pro-
vision, authorizing any officer Of the army of
the United States IN Command the militia, or
authorship any officer Of the militia to com
maud tho army of the United States. The
Congress may provide laws for the govern
ment of tile militia when in actual service.
but to extend this power to the placing then,
under the command Of an officer not Of the
militia, except the President. would render
nugatory the provision, that the militia are tc
have officers appointed By the states
The union Of the militia, in the actual ser.
vice OF the United States. with the troops q
the United States, so far as to form enc ar
my, seems to be case not provided for o.
contemplated in the Constitution. IL Is there
fore not within our department to determine
on whom the command would devolvs Of