§ 463. What laws Congress may pass by virtue of this power, has not been illustrated to any extent by judicial de cision; nor is there room for much doubt or question. "Raising" armies, includes the determination of the number of men who shall be enlisted; the different arms of the service into which they shall be separated; the number and arrangement of companies, regiments, brigades, and corps; the number and rank of officers; the time of service of men and officers, and other like matters. "Providing a navy, includes the determination of the same class of subjects relating to seamen and officers, and also the number, size, character, and cost of ships and other vessels of war; the number, size, situation, and cost of navy and dock yards, and other places of construction.

"Supporting" an army, includes not only the provisions for the food, clothing, cost of transportation of men and officers, but also provision for their warlike equipment, arms, ammunition, medical attendance; also provision for their and the country's defence by the construction and maintenance of barracks, arsenals, depots, forts and all other fortifications, both temporary and permanent; in short, any thing that can make an army effective for offensive or defensive purposes. The same is true in reference to "maintaining" a navy.

§ 464. In accomplishing these direct objects, Congress may adopt all measures necessary and proper for effecting the required purpose. They may either purchase or manufacture arms, ammunition, etc.; they have done both; they may educate officers in military science, as is done in the national military school at West Point, and the naval school at Annapolis; they have organized the war and navy departments, with their many subordinate bureaus; they have provided for the payment of bounties in money and land, and pensions to soldiers and their families. It is claimed by many statesmen, that they may construct, or aid in the construction of great highways, or railways, as means for the ready transport of troops. The action of Congress in aid of the Pacific Railway, is partly supported by this view of their constitutional power.

§ 465. In what manner Congress shall proceed to raise men

for the army and navy, may admit of some question. The common practice, under ordinary circumstances is, to enlist them for a definite period of years, as they shall voluntarily apply. This, doubtless, suffices as the general procedure But emergencies may arise, and have arisen, when this slow process would be utterly inadequate to the exigencies of the times. Then the government may call for volunteers; and as an incentive, offer bounties, and permit those volunteering to organize themselves into regiments, under their own officers partly or wholly. This plan was adopted in the Mexican War. The volunteers then called out, were not a part of the militia, for they were required to depart from the territory of the United States, which the militia, as we shall see, cannot be compelled to do.

§ 466. During the late war, the general government seems to have acted under its powers of raising armies and of calling out the militia combined, as, beyond a question, it might do. The first call of 75,000 men was in terms made under an old statute of Congress permitting the President to call forth the militia in order to suppress an insurrection. The subsequent calls for volunteers seem to have been made under the power to raise armies; for the men were enlisted for a definite period, three years or until the end of the war; they were often added to existing regiments; the general officers were appointed by the Executive. Still the idea of militia was not entirely abandoned; regiments were organized by states, quotas were demanded from states, state governors appointed the regimental officers. There can be no doubt, however, that these forces were organized under the general power to raise armies; that they formed a part of the army of the United States, and not of the militia in active service; and that this procedure on the part of the government was entirely constitutional. None but mere verbal theorists and critics objected to it, although such objections were raised.

Whether Congress may resort to conscription as a means of filling their armies, cannot be fully considered until the power to call forth the militia is examined. The discussion of the question will therefore be postponed till the close of this sec

tion.

II. The Power to Govern the Forces.

§ 467. Congress may make rules for the government and regulation of the land and naval forces. It is to be noticed that this power is entirely independent of the ordinary judicial department of the general government. It is applicable only to a special class of men, - those in the land or naval forces. The fifth Amendment of the Constitution shows conclusively that the rules to be made under this clause were to be outside of ordinary civil judicial proceedings; for it excepts persons in the land or naval forces, and those in the militia when in actual service in time of war or public danger, from the safeguard of an indictment.

§ 468. The language of this clause should be carefully observed. Congress may make rules, the object of which shall be regulation and government. It cannot utter exceptional, or transitory mandates which affect the management and disposition of the army or the navy. This particular grant of power confers no authority upon the legislature to usurp the functions of the commander-in-chief. The rules framed by Congress for the regulation and government of the land and naval forces, form, together, the military law of the land; they are a part of the general statutory legislation of Congress applicable to a special and designated class of persons, soldiers and sailors; they stand on exactly the same footing as any other statutes; are just as binding; and the decisions of courts thereunder are just as effective as any other laws, or any other judgments.

§ 469. This military law, or in other words, this code of positive, enacted, statutory rules for the government of the land and naval forces, is something very different from martial law, which, if it exists at all, is unwritten, a part and parcel of the means and methods by which the Commander-in-chief may wage effective war, something above and beyond the jurisdiction of Congress; for that body has no direct authority over the actual conduct of hostilities, when war has been initiated. Whether there be any martial law in this, its proper sense, will be considered in a subsequent chapter.

§ 470. Under this grant of power, Congress may establish a military discipline, - may adopt a system of tactics; define military offences, provide for their punishment; organize courts martial, and prescribe their jurisdiction, practice, and the mode of executing their sentences. This has been done, not only in our own country, but in every other land where there is a standing army. It should be carefully borne in mind, however, that the only legitimate subjects of this military code of regulations are the land and naval forces, — the officers and men of the army, the navy, and the militia when in active service of the United States.

§ 471. During a late session of Congress, a statute was enacted which prescribes in substance that all orders of the President to the army, or any portion thereof, shall be directed to, and shall issue through, the general; and that the general shall have his permanent headquarters at Washington. The President objected to these provisions on the ground that they interfered with his independent functions as Commander-in-chief. It may not be improper to express the opinion, that the first of these statutory requirements is clearly not obnoxious to the criticism made upon it. It is simply a rule for the regulation. of the army; a rule similar in its nature to hundreds of others which are found in the code of tactics adopted by authority of Congress. It does not limit in the least the power or discretion of the President as to the orders he may issue; but only regulates the manner in which those orders shall be communicated from superior to subordinate. The other requirement of the statute appears to be more open to objection. It seems to restrict the President in the exercise of his functions as Commander-in-chief; it prevents him from assigning the general to such place and position as he deems expedient; and so far forth it interferes with his power to dispose of the forces. If Congress may do this in respect to one officer high in rank, it may do it in respect to all officers, and the private soldiers, and may thus assume to itself the entire attributes of Com mander-in-chief.

Third.

Those Powers which relate to the Employment of the Militia in the Service of the General Government.

§ 472. In the first place it should be observed that the Constitution makes no provision for a national militia under the exclusive control and direction of the central government. The militia was, and still is, that of the states, the jurisdiction of the United States over it being at all times partial and exceptional. Thus the appointment of officers, and the training of this militia is, under every emergency, left to the states. Congress may adopt a mode of training, a system of tactics; and, if it does, the several states must follow that mode and system; if it does not, each state may choose one for itself. While any part of the militia are employed in the service of the United States, Congress may prescribe the rules for their government, that is, may bring them under its code of military law. At all other times, under all other circumstances, the regulation and government are exclusively within the control of the respective states.

§ 473. Finally, Congress may provide for calling forth the militia in order to execute the laws of the Union, - that is, to aid the civil authority when the posse comitatus fails; and in order to suppress insurrections and repel invasions, that is, when the civil authority is utterly powerless, is entirely abandoned, and a resort to actual hostilities, to war, is necessary. This is the extent of the power which the general government may exercise over the militia; and it will be observed that in no case can they be compelled to serve without the territory of the Union. The laws must be executed where they have force, and that is only within the country itself. Insurrections and invasions must be internal. We do not repel an invasion by attacking the invading nation upon its own soil. Still, there can be no question that the militia may be called out before the invaders have set foot upon our territory. It is a fair construction of language to say that one means of " repelling" an invasion is to have a force ready to receive the threatened intruders when they shall arrive. The same principle must