held that congress not having legislated on the subject of holding courts martial in such cases, an act of the state legislature to that effect was constitutional. The 10th section of the latter provides for the expense of marching the militia to the place of rendezvous. Immediately on arriving there, they are undoubtedly in actual service, and if in their way to it they are under any military command whatever, it must be that of the president.

Circumstances may render it necessary for the president to appoint another place of rendezvous, before that previously appointed has been reached, and military operations may, from a change of the enemy's position, become necessary even on the march; surely in any such case, the military power of the president alone ought to be exercised over them. Considerations of economy in respect to their pay ought in such cases to be disregarded.

A case which in 1818 was decided in the supreme court of Pennsylvania, supports most of these principles, and is not at variance with any of them. That highly respectable court adopted the following construction of the Constitution and the powers of congress under it.

1. The president has a right to issue his orders for calling out the militia, not through the medium of the governor only, but directly to any officer he thinks proper.

2. If he makes a requisition on the governor in the first instance, and the latter declines to comply with it, the president may issue his command to any officer of the militia.

3. The governor is not justified in disobeying the requisition, because he differs in opinion as to the necessity of calling forth the militia.

4. The governor without the authority of congress, or of the state legislature, has no right to direct courts martial affecting those who disobey the call of the president.

5. A person enrolled, draughted, and regularly notified when

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and where to attend for muster and inspection, is liable to a penalty on the judgment of a court martial constituted under the authority of the United States-although such person, before he appears at the place of rendezvous, may not be justly considered as in actual service. The calling forth must precede the actual service. It would render the Constitution a dead letter, to suppose that he who is enrolled and draughted, but refuses to appear, shall be exempted from punishment because he has refused.

6. It is no infringement of the rights of citizens to proceed to the trial of delinquent militia-men by courts martial.*

The regular troops of the United States are under the imme diate command of the president from the time of their enlistment; they may be marched to, or stationed at any part of the United States, at his discretion, unless prevented by some special legislative act: And although the genius of a republic and the peculiar character of our country would indicate that their employment should be only in its defence, yet since a defensive war is sometimes best carried on by invading the territory of the aggressor, the president may cause them to be marched out of the United States to effect this purpose, and there can be no doubt, that in such a case, he would possess the same power over the militia.

It may perhaps be made a question, whether for the suppression of insurrection, and in cases of a similar nature, the president can employ the regular troops in aid of the civil authority. The acts of congress are silent on the subject, and no power given by them would be valid unless it could be supported by the principles of the Constitution. It must be admitted to be a question of great delicacy and importance. No power is so likely to be abused as the command of a regular

* 3 Sergeant & Rawle, 590. Duffield v. Smith.

army-no measure would be more dangerous to civil liberty than an habitual recurrence to military force in other cases than actual war; yet on the other hand, in times of dangerous commotion, when law is prostrated and the civil power is felt to be inadequate, the public good would appear to justify the most prompt and efficient remedy.

Soldiers do not cease to be citizens by being incorporated into a regular army, and it is the duty of every citizen in cases of this sort, to render his best services to his country. It can be no objection to the fulfilment of this duty, that it is rendered more efficacious by previous discipline, and by being performed in a regular and not a desultory manner. It is, however, always to be kept in mind, that the military should be subordinate to the civil power. The orders for the employment of this force on such occasions must emanate from the president in his civil capacity, or from civil officers of the United States, possessing the authority of conservators of the peace, if any such there be.

That the exercise of this power should be attended with great caution, no one will deny; real necessity alone will justify its being exercised at all. There can be no doubt that, if it occasioned the loss of human life, the whole measure would be liable to severe judicial scrutiny.

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CHAPTER XIV.

OF THE APPOINTMENT TO OFFICES.

In addition to the power over the army, navy, and militia, already noticed, the president has a qualified power of appointing the executive and judicial officers. The former of these are held during his pleasure; the latter during good behaviour. In respect to both, the commissions are granted by the president, but they specify that it is by and with the advice and consent of the senate. It was deemed expedient that the approbation of the senate should be given, unless a vacancy happened during its recess, in which case commissions are granted which expire at the end of the next.

session.

It may, however, be questioned, whether this restraint on the power of the president fully corresponds with the confidence which is otherwise reposed in him, and whether it does not in some degree affect the responsibility to public opinion which would accompany an unlimited power of appointments.

If it were left entirely to himself to select such agents as he might deem qualified for public duties, he would of course be scrupulous in his choice; but if a senate, either actuated by party motives, or for want of information of the fitness of

the individual, rejects the nomination, not only may the public interests suffer in the immediate case, but the president be impelled to inadequate substitutions. It is true, that the converse of this proposition may also be admitted. Improper nominations, proceeding from personal or party influence, may be properly rejected by a virtuous and inflexible senate; but in the latter case, if it ever should be our misfortune to have a man so actuated, in possession of this high office, we may see him immediately after the rising of the senate, dismiss the incumbent, or in case of their rejecting one nomination, withholding another, and availing himself of the power to appoint during the recess. It would, therefore, appear upon the whole, that with the possibility of an evasion which would render the constitutional provision so entirely nugatory, it would have been more beneficial to have left this power in the president without restraint, and the more so, as the consent of the senate is not required for the dismission of the officer.

'*

It would be improper to pass over the construction given by the senate to the power of appointing during their recess. It has been held by that venerable body, that if new offices are created by congress, the president cannot, after the adjournment of the senate, make appointments to fill them. The vacancies do not happen during the recess of the senate.*

The text is not very explicit as to the officers whose appointments require the consent of the senate: it enumerates ambassadors, other public ministers, and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not therein otherwise provided for, and which shall be established by law; but the congress may by law vest the appointment of such inferior officers as they think proper in the

* See Sergeant's Constitutional Law, p. 360.