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 whenever 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 Congress, to determine that either of the said exigencies do 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 in the Federal Constitution. They must, therefore, determine whether 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 these 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 Constitution. Indeed, since passing the act of Congress of February 28, 1795, chapter 101, 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 in the several states is, in effect, at his command, and subject to his control.
No inconvenience 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
