time of peace for domestic purposes, it is plain that the government might be in danger of being overthrown by the combinations of a single faction.1

§ 1187. The danger of an undue exercise of the power is purely imaginary. It can never be exerted, but by the representatives of the people of the States; and it must be safe there, or there can be no safety at all in any republican form of government.2 Our notions, indeed, of the dangers of standing armies, in time of peace, are derived in a great measure from the principles and examples of our English ancestors. In England, the king possessed the power of raising armies in the time of peace according to his own good pleasure. And this prerogative was justly esteemed dangerous to the public liberties. Upon the revolution of 1688, Parliament wisely insisted upon a bill of rights, which should furnish an adequate security for the future. But how was this done? Not by prohibiting standing armies altogether in time of peace; but (as has been already seen) by prohibiting them without the consent of Parliament. This is the very proposition contained in the Constitution; for Congress can alone raise armies; and may put them down, whenever they choose.

4

§ 1188. It may be admitted, that standing armies may prove dangerous to the State. But it is equally true, that the want of them may also prove dangerous to the State. What, then, is to be done? The true course is to check the undue exercise of the power, not to withhold it. This the Constitution has attempted to do by providing, that "no appropriation of money to that use shall be for a longer term than two years." Thus, unless the necessary supplies are voted by the representatives of the people. every two years, the whole establishment must fall. Congress may, indeed, by an act for this purpose, disband a standing army at any time; or vote the supplies only for one year, or for a shorter period. But the Constitution is imperative, that no appropriation shall prospectively reach beyond the biennial period. So that there would seem to be every human security against the possible abuse of the power.5

1 2 Elliot's Debates, 92, 93.

2 The Federalist, No. 23, 26, 28.

3 The Federalist, No. 26; 1 Black. Comm. 413.

4 The Federalist, No. 41; 2 Elliot's Debates, 93, 308, 309.

5 The Federalist, No. 26, 41.

§ 1189. But, here again it was objected, that the executive might keep up a standing army in time of peace, notwithstanding, no supplies should be voted. But how can this possibly be done? The army cannot go without supplies; it may be disbanded at the pleasure of the legislature; and it would be absolutely impossible for any President, against the will of the nation, to keep up a standing army in terrorem populi.1

2

§ 1190. It was also asked, why an appropriation should not be annually made, instead of biennially, as is the case in the British Parliament. The answer is, that Congress may in their pleasure limit the appropriation to a single year; but exigencies may arise, in which, with a view to the advantages of the public service and the pressure of war, a biennial appropriation might be far more expedient, if not absolutely indispensable. Cases may be supposed, in which it might be impracticable for Congress, in consequence of public calamities, to meet annually for the despatch of business. But the supposed example of the British Parliament proves nothing. That body is not restrained by any constitutional provision from voting supplies for a standing army for an unlimited period. It is the mere practice of Parliament, in the exercise. of its own discretion, to make an annual vote of supplies. Surely,

if there is no danger in confiding an unlimited power of this nature to a body chosen for seven years, there can be none in confiding a limited power to an American Congress, chosen for two years.3

4

§ 1191. In some of the State conventions an amendment was proposed, requiring, that no standing army or regular forces be kept up in time of peace, except for the necessary protection and defence of forts, arsenals, and dock-yards, without the consent of two-thirds of both houses of Congress. But it was silently suf fered to die away with the jealousies of the day. The practical course of the government on this head has allayed all fears of the people, and fully justified the opinions of the friends of the Constitution. It is remarkable, that scarcely any power of the national government was at the time more strongly assailed by appeals to 1 The Federalist, No. 26.

2 1 Tuck. Black Comm. App. 272; 1 Black. Comm. 414, 415.

3 The Federalist, No. 41.

4 1 Tuck. Black. Comm. App. 271, 272, 379. An attempt was also made in the convention to insert a clause, limiting the number of the army in time of peace to a number; but it was negatived. Journal of Convention, p. 262.

popular prejudices, or vindicated with more full and masculine discussion. The Federalist gave it a most elaborate discussion, as one of the critical points of the Constitution.1 In the present times the subject attracts no notice, and would scarcely furnish a topic even for popular declamation. Ever since the Constitution was put into operation, Congress have restrained their appropriations to the current year; and thus practically shown the visionary nature of these objections.

§ 1192. Congress in 1798, in expectation of a war with France, authorized the President to accept the services of any companies of volunteers who should associate themselves for the service, and should be rmed, clothed, and equipped at their own expense, and to commission their officers.2 This exercise of power was complained of at the time, as a virtual infringement of the constitutional authority of the States in regard to the militia; and as such, it met with the disapprobation of a learned commentator.3 His opinion does not, however, seem since to have received the deliberate assent of the nation. During the late war with Great Britain, laws were repeatedly passed authorizing the acceptance of volunteer corps of the militia, under their own officers; and eventually, the President was authorized, with the consent of the senate, to commission officers for such volunteer corps. These laws exhibit the decided change of the public opinion on this subject; and they deserve more attention, since the measures were promoted and approved under the auspices of the very party which had inculcated an opposite opinion. It is proper to remark, that The Federalist maintained, that the disciplining and effective organization of the whole militia would be impracticable; that the attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles as would really fit them for service in case of need; and that such select corps would constitute the best substitute for a large standing army, and the most formidable check upon any undue military

1 The Federalist, No. 24 to 29.

2 Act of 28th of May, 1798, ch. 64; Act of 22d of June, 1798, ch. 74; Act of 2d of March, 1799, ch. 187.

3 1 Tuck. Black. Comm. App. 273, 274, 329, 330. See also Virginia Report and Resolutions, 9th of January, 1800, p. 53 to 56.

See Act of 8th of Feb. 1812, ch. 22; Act of 6th of July, 1812, ch. 138; Act of 24th of Feb. 1814, ch. 75; Act of 30th of March, 1814, ch. 96; Act of 27th of Jan. 1815, ch. 178. See also Act of 24th of Feb. 1807, ch. 70.

powers, since it would be composed of citizens well disciplined and well instructed in their rights and duties.1

1 The Federalist, No. 29. [Near the close of the war of 1812, the Secretary of War made an elaborate report recommending conscription as a means of recruiting the national armies. This was strongly protested against in some quarters as unconstitutional (see Dwight's History of the Hartford Convention, 359), and the recommendation was not adopted. During the late civil war, however, conscription became a necessity, and was carried out not only by the government but also by the insurgents under constitutional provisions like those of the Union. The right to do this was but feebly contested, and indeed cannot be seriously doubted.

It is remarkable that during the civil war but few questions respecting the war power were passed upon by the courts. Some most extravagant claims were put forth on behalf of this power by theorists, as if where war existed, Constitution and laws alike were to give way, and the military authority to be supreme and unlimited. Undoubtedly the war power is great and terrible, and there is no calamity to the country or its institutions even to the dismemberment of the former, or the overthrow of the latter — that might not by possibility result from an exercise of the power to declare war and make peace. In a great and desperate struggle for existence, the laws of necessity may become the absolute ruler, and private and public rights may alike give way before it. But these are what Mr. Walpole once called the "never-to-be-expected-occasions," "never to be thought of but when an utter subversion of the laws of the realm threatens the whole frame of the Constitution, and no redress can otherwise be hoped for." The people have never delegated to any department of the government, or to any officer, civil or military, the authority to subvert the laws, or put aside the Constitution, either temporarily or permanently; and whoever finds himself tempted to do either, would do well to ponder the words of Gov. Wm. Livingston: "If any necessity demands any measures contrary to the law, I hope those measures will be executed by officers who never have been sworn to act agreeably to it."

.

In ex parte Milligan, 4 Wall. 118, Mr. Justice Davis, speaking for the majority of the court, denied that military commissions could be empowered to try citizens not in military service for treasonable acts or conspiracies in those parts of the country where the courts were open and the laws unobstructed. The point is so important that we copy his remarks at some length.

"The controlling question in the case is this: Upon the facts stated in Milligan's petition, and the exhibits filed, had the military commission mentioned in it jurisdiction legally, to try and sentence him? Milligan, not a resident of one of the rebellious States, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service, is, while at home, arrested by the military power of the United States, imprisoned, and on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man?

"No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided. for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the

§ 1193. The next power of Congress is "to provide and maintain a navy."

protection of the law, human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty, and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written Constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says: that 'the trial of all crimes except in case of impeachments shall be by jury;' and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure; and directs that a judicial warrant shall not issue without proof of probable cause supported by oath or affirmation.' The fifth declares that 'No person shall be held to answer for a capital or other infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, nor be deprived of life, liberty, or property without due process of law.' And the sixth guarantees the right of trial by jury, in such manner and with such regulations that with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words: In all criminal trials the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.' These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original Constitution was proposed for adoption it encountered severe opposition; and but for the belief that it would be so amended as to embrace them, it would never have been ratified.

"Time has proved the discernment of our ancestors; for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving