First. The force contemplated by the Act of May, 1846, is a part of the army of the United States, or of its general military force, and not of the militia.
It is called "volunteers"; but on inquiry it will appear that it has elements inconsistent with militia, while it wants elements essential to militia.
Without stopping to consider what these elements are, it will be proper, first, to consider the powers of Congress over the land forces. Congress is not omnipotent, like the British Parliament. It can do only what is permitted by the Constitution of the United States, and in the manner permitted. We are, then, to search the Constitution.
Here we find two different species of land forces, and only two. These are "armies" and "militia." There is between the two no hybrid or heteroclite,—no tertium quid.
These forces are referred to and sanctioned by the following clauses, and by no others: "The Congress shall have power to raise and support armies; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress." (Art. I. § 8.) And again: "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." (Art. II. § 2.)
It has been ably argued by Mr. Lanier, in the Virginia Assembly, that the distinction between army and militia is, that the first stands on contract or voluntary enlistment, and the second on the law compelling parties to serve; that this simple test determines the character of the service, Did the party enter voluntarily or by operation of law? If voluntarily, then he is in the "army"; if compulsorily, or by operation of law, then he is in the "militia." This distinction is palpable, and is true, I think, beyond question, with regard to the "army" and "militia" under existing laws. I am not prepared to say that Congress, under the clause authorizing it "to raise and support armies," may not, following the example of other countries, enforce a conscription, or levy, which shall act compulsorily throughout the country, being in this respect like the militia, although unlike it in other respects. Such a plan was recommended by Mr. Monroe, when Secretary of War, October 17, 1814, who speaks of it as follows.
"The limited power which the United States have in organizing the militia may be urged as an argument against their right to raise regular troops in the mode proposed. If any argument could be drawn from that circumstance, I should suppose that it would be in favor of an opposite conclusion. The power of the United States over the militia has been limited, and that for raising regular armies granted without limitation. There was, doubtless, some object in this arrangement. The fair inference seems to be, that it was made on great consideration,—that the limitation in the first instance was intentional, the consequence of the unqualified grant of the second.
"But it is said, that by drawing the men from the militia service into the regular army and putting them under regular officers you violate a principle of the Constitution which provides that the militia shall be commanded by their own officers. If this was the fact, the conclusion would follow. But it is not the fact. The men are not drawn from the militia, but from the population of the country. When they enlist voluntarily, it is not as militia-men that they act, but as citizens. If they are drafted, it must be in the same sense. In both instances they are enrolled in the militia corps; but that, as is presumed, cannot prevent the voluntary act in one instance or the compulsive in the other. The whole population of the United States, within certain ages, belong to these corps. If the United States could not form regular armies from them, they could raise none."[205]
If Mr. Monroe's views are sound, the "army" of the United States, as well as the "militia," may be raised by draft. It may consist of regulars and irregulars.
But whatever may be the powers of Congress on this subject, it is certain that there is no legislation now in force, providing for the "army," except by means of voluntary enlistment. The whole army of the United States is, at present, an army of volunteers; and all persons who are volunteers are of the army, and not of the militia. To call them volunteers does not take them out of the category of the army, or general military force of the United States.
On the other hand, the militia, when in the service of the United States as militia, are not volunteers. They come by draft or conscription. This distinction is derived from England, to whom we are indebted for so much of our jurisprudence, and so many principles of constitutional law. We find from Blackstone (Vol. I. p. 412), that the English militia consists of "the inhabitants of the county, chosen by lot for three years." They are called "the constitutional security which the laws have provided for the public peace and for protecting the realm against foreign or domestic violence"; and "they are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm, nor in any case compellable to march out of the kingdom." They are "officered by the lord-lieutenant, the deputy-lieutenants, and other principal landholders, under a commission from the crown." It will be observed, from this description, that there are four distinct elements in the English militia. 1. It is in its nature a draft or conscription. 2. It is local in its character. 3. It is officered by persons in the county. 4. It can be called out only on peculiar exigencies, expressly designated. In all these respects it is distinguishable from what is called the army of England.