State Documents on Federal Relations/28
28. Extracts from the Letter of Governor Strong of Massachusetts to Secretary of War Eustis.
August 5, 1812.
The following extracts, together with the Opinion of the Judges, present briefly the reasons for the refusal of Governor Strong to honor the call for the militia. The Governor's views are set forth more fully in his Speech to the General Court, October 14, 1812. (Resolves of Mass., 1812–15, 75, 78; also extract in Dwight, 241–243.) The Federalist House in their Answer, expressed their "unqualified approbation of the Governor's course." (Ibid., 82, 83.) The Republican Senate, in their Answer, dissented from the opinions of the Governor, and declared that "the jealousy with which your Excellency regards the authority of the National Administration might suggest an apprehension for the safety of the Union." (Ibid., 86–88.)
* * * As an opinion generally prevailed, that the Governor had no authority to call the militia into actual service, unless one of the exigencies contemplated by the constitution exists,[1] I thought it expedient to call the council together, and, having laid before them your letter, and those I have received from General Dearborn, I requested their advice on the subject of them.
The Council advised "that they were unable from a view of the Constitution of the United States, and the letters aforesaid, to 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.
- ↑ "Congress may provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion."