perceive that any exigency exists which can render it advisable to comply with the said requisition. But, as upon important questions of law, and upon solemn occasions, the Governor and Council have authority to require the opinion of the Justices of the Supreme Judicial Court, it is advisable to request the opinion of the Supreme Court upon the following questions, viz.:
"1st. Whether the commanders in chief of the militia of the several states have a right to determine, whether any of the exigencies contemplated by the constitution of the United States exist; so as to require them to place the militia, or any part of it, in the service of the United States, at the request of the President, to be commanded by him pursuant to acts of Congress?"
"2nd. Whether, when either of the exigencies exist, authorizing the employing the militia in the service of the United States, the militia thus employed, can be lawfully commanded by any officer, but of the militia, except by the President of the United States?"
I enclose a copy of the answer given by the judges to these questions. * * * I am fully disposed to afford all the aid to the measures of the national government which the constitution requires of me, but, I presume it will not be expected, or desired, that I shall fail in the duty which I owe to the people of this state, who have confided their interests to my care.
29. Extract from the Opinion of the Judges of Massachusetts on the Militia Question, 1812.[1]
On the construction of the Federal and State constitutions must depend the answers to the several questions proposed. As the militia of the several states may be employed in the service of the United States, for the three specific purposes of executing the laws of the Union, of suppressing insurrections, and of repelling invasions, the opinion of the judges is requested, whether the Commanders-in-Chief of the militia of the several states have a right to determine whether any of the exigencies aforesaid exist, so as to require them to place the militia, or any part of it, in the
- ↑ Signed by Judges Parsons, Sewall and Parker.
