The dollar weekly bulletin. [volume] (Maysville, Ky.) 1862-1864, 1863-07-30

| W OOuSECSS III 1914 10s
It WILDE remembered that in 1814-15
it was proposed in both Houses of Congress
to pass sort of Conscriptiou Law, in som
respects dependent upon the States. Tht
opinion of the Supreme Court of Massachu-
setts was asked upon the principle involved
IN that proposed act, and the following il
the reply OF the Supreme Court of Massa-
chusetts to the Governor: .- .,. -
To His Ercelencyth the Governor. and Honorabz.
Council Of the Commonwealth of Massaclu
sets: ~ ''rN's'- 'ii'tl ~
The undersigned Justices of the Supreme e
Judicial Court have considered the several
questions proposed by your Excellency and
Honors for their opinion. +tt .iaFsD
BY thefConstitution of this State the au-
thority of commanding the mailitia of the
Commonwealth is vested exclusively in the
Governor. who has all the powars incident
TO the Office OF fComm mander-in- Chief, and is
TO exercise them personally, or by subordi-
nate officers under his command, agreeablv
to the rules and regulations of the Constitu-
tion and laws of the land t1 o-
While the Governor ofthe Commonwealth
remained in the exercise of these powers,
the Federal Constitution was ratified. by
which was vested in the Congress a power
for calling forth the militia, to execute the
laws of the Union. suppress Instructions
and rspel invasions; and to provide for gov.
erning such part of them as may be employ.
ed in the service of the United States, re-
serving to the States respectively the ap-
pointment of officers. The Federal Con
stitution further provides that the President
shall be Commander-in-c chief of the army
ofthe United States, and of the militia of
the several States when called into the act
ual service of the United States.
On the construction of the Federal and
State Constitutions must depend the an
swers to the several questions proposed. As
the militia of the several States NAV be en-
ployed in the service of the United States
for the three specific purposes of executing
the laws of the Union of suppressing insur-
rections and repeiling invasions, the opinion
OF the judges is requested, whether the
Commanders-;n-c of the militia of the
several States have right to determine
whether any of the e1igeucies aforesaid ex-
lst. so as to require them to place the mill
tia, or any part of it, in the service of the |
nlted States, at the request of the Presi- |
dent, to be commanded by him pursuant to |
acts of Congress.
it is the opinion of the undersigned that I
this right is invested in the Comm mande in |
chief of the militia in 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
hat either of the said exigencies does ia |
act exist. As this power is not delegated
20 the United States by the Federal Cousti.
ution, nor prohibited by it to the States, it
q f0k kh
rom the nature of the power, it must be
exercised by those with whom the States
lave respectively intrusted the chief com
maud of the militia.
1t is the duty of these commanders to
execute the important trust agreeable to the
avs OF their several States respectively.
Without reference to the laws or officers of
he United States, in all cases except those
pecially provided for in the Federal Con-
tltution. They must, therefore, determine
1nether either of the special causes exists,
oIlglng them to relinquish the execution
this trust, and to render themselves and
ne militia subject to the command of the
resident =
A different construction, giving to Con-
ress the right to determine when those
peclal cases exist, authorizing them to call
'rth the whole of the militia, aud taking !
lem from the commanders -chi ief of the i
sveral States and subjecting them to the I
of the President, would place all !
no m llitia in effect at the will of Congress,
nd produce military consolidation of the
tates. without any constitutional remedy
galnst the intentions of the people when y
'tlfylnS the Federal Constitution. Indeed 8
nee the passing of the act of Congress of |
ebruary 28, 1875, vesting in the President t
a M uydr rs vol kI, ]
,e exigercies mentioned in the Constitution
lall exist; if the President has power of
etermining when those exigencies exist,
le militia of the several States is in fact at
is command, and subject TO bis control. !
No iDconveninces can reasonably be pre-
I'M ed to result from the construction which
ests in the commanders in chief of the 6
lilitia in the several States the rights of
etermining when the exigencies exist obli- !
ing them to place the militia in the SER
ice of the United States. These exigenciesl !,
-e of such a nature that the existence of .
lem can be easily ascertained by, and made :
uown to, the commanders-in -in-chief of the L
lilitis; and when ascertaiued, the public
,terest will induce a prompt obedience to
le acts of Congress. -... = 81.
Another question proposed for the con- $
Iteration of the Justices is, whether, when
ither of the exigencies exist, authorizing
ne employment of the militia in the SER +
ice of the United States, the militia thus
nployed can be lawfully commanded by /,
ny officer but Of the militia, except by the
resident CT the United States. ...-..
The Federal Constitution declares that
le President shall be chief
the Army of the United States. He
lay, undoubtedly, exercise the command $
y officers of the Army of the United States, a
Y him commissioned according to law
he President is also declared to be the
ommander-in-chiefo of the militia of the
sveral States when called into the actual
ervice ofthe United States. The officers 6
the militia are to be appointed by the Z
kaa md III D.. IL |