These provisions in the Constitution were made the ground of a most violent attack upon that instrument when it was before the people for adoption. It was urged with great vehemence that a standing army would become the instrument, in the hands of the President, of overthrowing the liberties of the people; that its numbers, at all events, should be limited; that a navy was useless, a mere means of expense and of irritation. In fact, the navy remained under a cloud until the war of 1812 brought it into favor. The futility of these objections has been so conclusively shown by the past history of our country, that I need not occupy time and space with stating the arguments by which they were met. These arguments are all summed up in the fact that the army is entirely under the control of the direct representatives of the people; and to say that they cannot be trusted, is to say that the people cannot be trusted, and that all republican government is a failure.

§ 461. Those who are familiar with the outlines of English history, know that one of the chief matters for a long time in dispute between the Crown and the Commons, was as to where the jurisdiction to raise and maintain armies lay. The Commons claimed that it rested exclusively with Parliament; the Crown asserted that its own prerogative enabled it to raise forces and collect money for their support by divers imposts. and duties. The controversy was finally decided in favor of the Commons. It needs no argument, at this day, to show that in any nation assuming to be republican, or even constitutional, there can be no liberty, no security, no certainty that the existing constitution of things, the settled public order and tranquillity, will remain, unless the power to raise and support the armed forces of the state is exclusively confided to the popular branch of the government. This has passed into an axiom of the public law. The power of the purse is yet stronger than the power of the sword. Armies and armed forces are, of all things, the most expensive; and if the supplies be withheld, the array will collapse. Thus the Constitution has given the people, through their direct representatives, a complete check upon any illegal and revolutionary designs

of the Executive; and even upon his ambitious or ill-considered methods of carrying on a war that had been authorized by Congress.

§ 462. But the Constitution goes farther even than this, farther than the organic law of Great Britain. Parliament has indeed adopted a practice, or policy, of making an appropriation for the army, and authorizing its maintenance for only one year; renewing annually the statute by virtue of which the army exists. But this is only a practice, which may be abandoned at any time. Parliament may, if it choose, pass a law establishing the army for ten, or any other number of years, and making an appropriation for its support during all that time. This Congress cannot do. The utmost limit to which they can extend their action in the way of support and maintenance, is two years. If they should withhold the supply, every officer and every private must go without his pay, clothing, and rations. The probable reason for adopting this limit was, that two years is made the time for the existence of each Congress; that every two years the people are called upon to elect new representatives, when the acts of their late delegates will be passed in review. It was considered that, by making the term of office two years in length, the people had delegated their entire discretion for such period to their representatives, retaining the power to mark their disapproval of any measure by rejecting their former agents, and by appointing others who will carry out their wishes.

§ 463. What laws Congress may pass by virtue of this power, has not been illustrated to any extent by judicial decision; nor is there room for much doubt or question. "Raising" armies, includes the determination of the number of men who shall be enlisted; the different arms of the service into which they shall be separated; the number and arrangement of companies, regiments, brigades, and corps; the number and rank of officers; the time of service of men and officers, and other like matters. "Providing" a navy, includes the determination of the same class of subjects relating to seamen and officers, and also the number, size, character, and cost of ships and other vessels of war; the number, size, situation,

and cost of navy and dock yards, and other places of construction.

"Supporting " an army, includes not only the provisions for the food, clothing, cost of transportation of men and officers, but also provision for their warlike equipment, arms, ammunition, medical attendance; also provision for their and the country's defence by the construction and maintenance of barracks, arsenals, depots, forts and all other fortifications, both temporary and permanent; in short, any thing that can make an army effective for offensive or defensive purposes. The same is true in reference to " maintaining" a navy.

§ 464. In accomplishing these direct objects, Congress may adopt all measures necessary and proper for effecting the required purpose. They may either purchase or manufacture arms, ammunition, etc.; they have done both; they may educate officers in military science, as is done in the national military school at West Point, and the naval school at Annapolis; they have organized the war and navy departments, with their many subordinate bureaus; they have provided for the payment of bounties in money and land, and pensions to soldiers and their families. It is claimed by many statesmen, that they may construct, or aid in the construction of great highways, or railways, as means for the ready transport of troops. The action of Congress in aid of the Pacific Railway, is partly supported by this view of their constitutional power.

§ 465. In what manner Congress shall proceed to raise men for the army and navy, may admit of some question. The common practice, under ordinary circumstances is, to enlist them for a definite period of years, as they shall voluntarily apply. This, doubtless, suffices as the general procedure. But emergencies may arise, and have arisen, when this slow process would be utterly inadequate to the exigencies of the times. Then the government may call for volunteers; and as an incentive, offer bounties, and permit those volunteering to organize themselves into regiments, under their own officers partly or wholly. This plan was adopted in the Mexican War. The volunteers then called out, were not a part of the militia, for they were required to depart from the territory of the

United States, which the militia, as we shall see, cannot be compelled to do.

§ 466. During the late war, the general government seems to have acted under both their powers of raising armies, and calling out the militia combined, as they, beyond a question, might do. The first call of 75,000 men was in terms made under an old statute of Congress permitting the President to call forth the militia in order to suppress an insurrection. The subsequent calls for volunteers seem to have been made under the power to raise armies; for the men were enlisted for a definite period, three years or until the end of the war; they were often added to existing regiments; the general officers were appointed by the Executive. Still the idea of militia was not entirely abandoned; regiments were organized by states, quotas were demanded from states, state governors appointed the regimental officers. There can be no doubt, however, that these forces were organized under the general power to raise armies; that they formed a part of the army of the United States, and not of the militia in active service; and that this procedure on the part of the government was entirely constitutional. None but mere verbal theorists and critics objected to it, although such objections were raised.

Whether Congress may resort to conscription as a means of filling their armies, cannot be fully considered until the power to call forth the militia is examined. The discussion of the question will therefore be postponed till the close of this section.

II. The Power to Govern the Forces.

§ 467. Congress may make rules for the government and regulation of the land and naval forces. It is to be noticed that this power is entirely independent of the ordinary judicial department of the general government. It is applicable only to a special class of men,- those in the land or naval forces. The fifth Amendment of the Constitution shows conclusively that the rules to be made under this clause, were to be outside of ordinary civil judicial proceedings; for it excepts those persons in the land or naval forces, and those in the militia when

in actual service in time of war or public danger, from the safeguard of an indictment.

§ 468. The language of this clause should be carefully observed. Congress may make rules, the object of which shall be regulation and government. It cannot utter exceptional, or transitory mandates which affect the management and disposition of the army or the navy. This particular grant of power confers no authority upon the legislature to usurp the functions of the commander-in-chief. The rules framed by Congress for the regulation and government of the land and naval forces, form, together, the military law of the land; they are a part of the general statutory legislation of Congress applicable to a special and designated class of persons, soldiers and sailors; they stand on exactly the same footing as any other statutes; are just as binding; and the decisions of courts thereunder are just as effective as any other laws, or any other judgments.

§ 469. This military law, or in other words, this code of positive, enacted, statutory rules for the government of the land and naval forces, is something very different from martial law, which, if it exists at all, is unwritten, a part and parcel of the means and methods by which the Commander-in-chief may wage effective war, something above and beyond the jurisdiction of Congress; for that body has no direct authority over the actual conduct of hostilities, when war has been initiated. Whether there be any martial law in this, its proper sense, will be considered in a subsequent chapter.

§ 470. Under this grant of power, Congress may establish a military discipline, - may adopt a system of tactics; define military offences, provide for their punishment; organize courts martial, and prescribe their jurisdiction, practice, and the mode of executing their sentences. This has been done, not only in our own country, but in every other land where there is a standing army. It should be carefully borne in mind, however, that the only legitimate subjects of this military code of regulations are the land and naval forces, — the officers and men of the army, the navy, and the militia when in active service of the United States.

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