soon be thought indispensable to protect it. But the attempt on our part to provide a navy would provoke these powers, who would not suffer us to become a naval power. Thus, we should be immediately involved in wars with them. The expenses, too, of maintaining a suitable navy would be enormous, and wholly disproportionate to our resources. If a navy should be provided at all, it ought to be limited to the mere protection of our trade.1

ment resisted this; and as the rebellion was formidable, called out the militia to subdue it, and passed an act declaring martial law. Borden, in the military service of the old government, broke open the house of Luther, who supported the new, in order to arrest him. Luther brought suit against Borden; and the question was, whether, under the Constitution and laws of the State, Borden was justified. This court held that a State 'may use its military power to put down an armed insurrection too strong to be controlled by the civil authority;' and, if the legislature of Rhode Island thought the peril so great as to require the use of its military forces and the declaration of martial law, there was no ground on which this court could question its authority; and as Borden acted under military orders of the charter government, which had been recognized by the political power of the country, and was upheld by the State judiciary, he was justified in breaking into and entering Luther's house. This is the extent of the decision. There was no question in issue about the power of declaring martial law under the Federal Constitution, and the court did not consider it necessary even to inquire to what extent nor under what circumstances that power may be exercised by a State.

"We do not deem it important to examine further the adjudged cases; and shall therefore conclude without any additional reference to authorities."

The Chief Justice, speaking for himself and Justices Wayne, Swayne, and Miller, concurred in holding that Congress had never authorized the action of the commission, but they differed with the majority as to its power to do so.

See further, In re Egan, 5 Blatch. 319.

The most important cases of the exercise of unusual authority during the late civil war were the following:

1. The proclamation by President Lincoln of the emancipation of slaves within all the territory held by the insurgents. This was sustained by the courts as a war measure. See Slabach v. Cushman, 12 Fla. 472; Dorris v. Grace, 24 Ark. 326; Weaver v. Lapsley, 42 Ala. 601; Morgan v. Nelson, 43 Ala. 586; Hall v. Keese, 31 Texas, 504. And see Texas v. White, 7 Wall. 200.

2. The establishment by proclamation of the President of a provisional United States Court in Louisiana when the federal forces took possession of that State in 1862. This was held competent under the war power in the Grape Shot, 9 Wall. 129.

3. The appointment by the President of provisional governors over the States in revolt until, in pursuance of acts of Congress, the State governments could be reconstructed. "So long as the war continued it cannot be denied that he might institute temporary governments within insurgent districts, occupied by the national forces, or take measures, in any State, for the restoration of State governments faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws." Texas v. White, 7 Wall. 730, per Chase, C. J. 1 2 Elliot's Deb. 224, 319, 320.

It was further urged, that the Southern States would share a large portion of the burdens of maintaining a navy, without any corresponding advantages.1

§ 1195. With the nation at large, these objections were not deemed of any validity. The necessity of a navy, for the protection of commerce and navigation, was not only admitted, but made a strong ground for the grant of the power. One of the great objects of the Constitution was the encouragement and protection of navigation and trade. Without a navy it would be utterly impossible to maintain our right to the fisheries, and our trade and navigation on the lakes, and the Mississippi, as well as our foreign commerce. It was one of the blessings of the Union that it would be able to provide an adequate support and protection for all these important objects. Besides, a navy would be absolutely indispensable to protect our whole Atlantic frontier, in case of a war with a foreign maritime power. We should otherwise be liable, not only to the invasion of strong regular forces of the enemy, but to the attacks and incursions of every predatory adventurer. Our maritime towns might all be put under contribution; and even the entrance and departure from our own ports be interdicted, at the caprice or the hostility of a foreign power. It would also be our cheapest, as well as our best defence; as it would save us the expense of numerous forts and garrisons upon the sea-coast, which, though not effectual for all, would still be required for some purposes. In short, in a maritime warfare, without this means of defence, our commerce would be driven from the ocean, our ports would be blockaded, our sea-coast infested with plunderers, and our vital interests put at hazard.2

3

§ 1196. Although these considerations were decisive with the people at large, in favor of the power, from its palpable necessity and importance to all the great interests of the country, it is within the memory of all of us, that the same objections for a long time prevailed with a leading party in the country, and nurtured a policy which was utterly at variance with our duties, as well as our honor. It was not until during the late war with Great Britain, when our little navy, by a gallantry and brilliancy of achievement almost without parallel, had literally fought itself

1 2 Elliot's Deb. 319, 320.

2 The Federalist, No. 11, 24, 41. See also 1 Tuck. Black. Comm. App. 272. 3 See 5 Marshall's Life of Washington, ch. 7, p. 523 to 531.

into favor, that the nation at large began to awake from its lethargy on this subject, and to insist upon a policy, which should at once make us respected and formidable abroad, and secure protection and honor at home.1 It has been proudly said by a learned commentator on the laws of England, that the royal navy of England hath ever been its greatest defence and ornament. It is its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can be apprehended to liberty. Every American citizen ought to cherish the same sentiment, as applicable to the navy of his own country.

2

§ 1197. The next power of Congress is " to make rules for the government and regulation of the land and naval forces." This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy. Its propriety, therefore, scarcely could be, and never has been denied, and need not now be insisted on. The clause was not in the original draft of the Constitution; but was added without objection by way of amendment. It was, without question, borrowed from a corresponding clause in the articles of confederation, where it was with more propriety given, because there was a prohibition of all implied powers. In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating fleets and armies.5 But Parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for

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1 Lest it should be supposed that these remarks are not well founded, the following passage is extracted from the celebrated Report and Resolutions of the Virginia legislature, of 7th and 11th Jan. 1800, which formed the text-book of many political opinions for a long period: "With respect to the navy, it may be proper to remind you, that whatever may be the proposed object of its establishment, or whatever the prospect of temporary advantages resulting therefrom, it is demonstrated, by the experience of all nations who have adventured far into naval policy, that such prospect is ultimately delusive; and that a navy has ever in practice been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce. Nor is there any nation, in the judgment of the general assembly, to whose circumstances this remark is more applicable than to the United States." p. 57, 58. And the senators and representatives were instructed and requested, by one of the resolutions, "to prevent any augmentation of the navy, and to promote any proposition for reducing it, as circumstances will permit, within the narrowest limits compatible with the protection of the sea-coasts, ports, and harbors of the United States." p. 59. 3 Journal of Convention, p. 221, 262. 5 1 Black. Comm. 262, 421.

2 1 Black. Comm. 418.

4 Art. 9.

by acts of Parliament. The whole power is far more safe in the hands of Congress than of the executive; since, otherwise, the most summary and severe punishments might be inflicted at the mere will of the executive.

§ 1198. It is a natural result of the sovereignty over the navy of the United States, that it should be exclusive. Whatever crimes, therefore, are committed on board of public ships of war of the United States, whether they are in port or at sea, they are exclusively cognizable and punishable by the government of the United States. The public ships of sovereigns, wherever they may be, are deemed to be extraterritorial, and enjoy the immunities from the local jurisdiction belonging to their sovereign.2

1 1 Black. Comm. 413, 414, 415, 420, 421.

2 See United States v. Bevans, 3 Wheaton's R. 336, 390. The Schr. Exchange, 7 Cranch's R. 116 [Brown v. Duchesne, 2 Curt. 371; and 19 How. 183.]

CHAPTER XXII.

POWER OVER THE MILITIA.

§ 1199. THE next power of Congress is "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions."

وو

§ 1200. This clause seems, after a slight amendment, to have passed the convention without opposition.1 It cured a defect severely felt under the confederation, which contained no provision on the subject.

§ 1201. The power of regulating the militia, and of commanding its services to enforce the laws, and to suppress insurrections, and repel invasions, is a natural incident to the duty of superintending the common defence, and preserving the internal peace of the nation. In short, every argument which is urged, or can be urged against standing armies in time of peace, applies forcibly to the propriety of vesting this power in the national government. There is but one of two alternatives, which can be resorted to in cases of insurrection, invasion, or violent opposition to the laws; either to employ regular troops, or to employ the militia to suppress them. In ordinary cases, indeed, the resistance to the laws may be put down by the posse comitatus, or the assistance of the common magistracy. But cases may occur, in which such a resort would be utterly vain, and even mischievous; since it might encourage the factious to more rash measures, and prevent the application of a force, which would at once destroy the hopes and crush the efforts of the disaffected. The general power of the government to pass all laws necessary and proper to execute its declared powers, would doubtless authorize laws to call forth the posse comitatus, and employ the common magistracy, in cases where such measures would suit the emergency.2 But if the militia could not be called in aid, it would be absolutely indispensable to the common safety to keep up a strong regular force in time of peace. The latter 1 Journal of Convention, 221, 283.

2 2 Elliot's Debates, 300, 304, 305, 308, 309.

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3 The Federalist, No. 29; 2 Elliot's Debates, 292, 293, 294, 308, 309.