Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/103

§ 1210. A question of another sort was also made during the late war with Great Britain; whether the militia, called into the actual service of the United States, were to be governed and commanded by any officer, but of the same militia, except the president of the United States; in other words, whether the president could delegate any other officer of the regular army, of equal or superior rank, to command the militia in his absence. It was held in several of the Eastern states, that the militia were exclusively under the command of their own officers, subject lo the personal orders of the president; and that he could not authorize any officer of the army of the United States to command them in his absence, nor place them under the command of any such officer.^[1] This doctrine was deemed inadmissible by the functionaries of the United States. It has never yet been settled by any definitive judgment of any tribunal competent to decide it.^[2] If, however, the doctrine can be maintained, it is obvious, that the public service must be continually liable to very great embarrassments in all cases, where the militia are called into the public service in connection with the regular troops.

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1. 8 Mass. Rep. Supp. 549, 550; 5 Hall's Amer. Law Journ. 495; 1 Kent's Comm. Lect. 12, p. 244 to 247.
2. 1 Kent's Comm. Lect. 12, p. 244 to 247.