fact invaded pending the proceedings in regard to Annexation, and so, as it happened, there was nothing for our army there to do in her defence, yet, besides that the act of the Executive was not a whit the less reprehensible for that reason, this very act it was, undoubtedly-this act of imperial authority exercised over the army of the United States in moving it beyond the proper limits of the country, and within a foreign jurisdiction-which emboldened the President, probably in the belief that this show of force on his part in Texas had had the effect to turn aside the threatened purpose of invasion from Mexico, to push his experiment still farther, and carry forward his menace of war into the proper possessions of that power, and up to the gates of one of her principal cities. Probably he thought, in his pride and vanity of power, once used with apparent effect, that if he now pressed on, bearing this same front of frowning War, belted and helmeted for ready action, full into the presence and face of Mexico, he might thus secure advantages towards the acquisition of coveted territories, far beyond the limits of any just claim of boundary on our part, which Mexico, frightened from her propriety, might be induced to yield to his imperative and haughty demands ! At any rate, it was no very difficult step for the President, having, as commanderin-chief of the army, once thrown the Constitution behind him, to go from the proposed and attempted employment of the military power in defending the proper soil of one foreign nation from invasion, to the invasion himself of the proper possessions of another foreign nation, with as little just pretence of authority or right in the latter case as in the former.

We have heretofore, in this journal, explained and exhibited, in a pretty ample manner, the way in which our war with Mexico was brought on by the act of the President, and with how little of justification or excuse. We shall not repeat what we have before felt it our duty to say on this subject. Our present business is with this proceeding as it affects the Constitution of the country. Nor shall we need to dwell on the subject in this point of view. Everybody knows that the power of war is not lodged with the President by the written Instrument, but with Congress; and that if the President actually makes war, whether it is formally declared or not, it is done

without authority. Such an act under our government ought to be deemed the highest crime which any citizen could commit. Treason is not so dangerous and deadly an offence. The offence itself, indeed, is treason of the worst kind, though not within the statutory definition, since it subverts the Constitution and the government, by a single blow. Now we do not hesitate to declare again and again, as we have done before, that, beyond all doubt or cavil, the President is responsible for this war; he brought it on by his own act, or it was brought on by acts done under his orders; he made the war. He sent an army to occupy a country, then in the undisturbed possession of Mexico, as it had been since she became a nation, and which she claimed as her own by an undoubted title, with orders to fight for it, if Mexico should offer to dispute the possession by force of arms. Mexico did so dispute the possession, and the war was begun. The President we say, therefore, made the war. The army was not marched into the Mexican department of Tamaulipas, and up to the Rio Grande, in the performance of any duty imposed on the Executive by the Constitution or laws. No obligation of office required, or permitted, him to make or direct this hostile movement. It was not the soil of the United States which he was bound to defend. The territory did not belong to the United States, and was not in its possession; and if we had acquired a claim to it at all, it was one of pretence much more than of right, and whatever. it might be, though ever so strong, there was a strong claim of right on the other side, accompanied by actual possession constantly maintained for long years, which would not be yielded to any demand of right on our part, but at the end of a bloody and hopeless defence. This consideration alone-the fact of possession by Mexico, an ancient possession, with an undoubting conviction of clear title--is enough to put at rest forever all attempts to justify this proceeding by the President, on the assumed ground that the territory was ours, and must be defended by our arms, as any and every other part of the American soil. All our ownership of this territory was a naked claim of title, against an adverse possession with a claim of title quite as strongly insisted on as our own; and this was the "American soil" which the President said, in his instructions to

the commander of the army, "must be protected from hostile invasion by Mexico! Mexico was expected to invade her own possessions! and on this absurd pretence, so insulting to an intelligent country, the President would justify his own invasion of those possessions, and his orders to make war for their conquest and subjugation, on the least attempt by Mexico to defend and protect them. If a territory, in dispute between this country and any other, were wholly vacant and unoccupied, who would venture to maintain that the President would have a right, without the direction of Congress, to attempt to take military possession of it, with the moral certainty of bringing on a war? surely, no one. But such an attempt, made under a naked claim of title, in reference to territory in the actual holding, occupation and culture of an adverse party, would, of itself, be an act of war. A demand on the highway, to stand and deliver, with a hand on the throat and a pistol at the breast, would not be more unequivocal. The adverse party has but one alternative-to yield at discretion, or to fight. In either case it is an act of hostility and war on the part of the assailant. But the truth is, this matter is too plain for argument, when the facts are understood; and so would be considered universally, if it were not so difficult for us generally to bring our minds to believe that any President of these United States, in the face of the plain provisions of the Constitution, would dare deliberately to take on himself the authority and re'sponsibility of making war. So, nevertheless, Mr. Polk has done, beyond a possible doubt. So, beyond a doubt, has the written Constitution been subverted, for the time-and who knows but for all time?-and the most delicate and dangerous power in it, been seized and wielded by the Executive as his personal prerogative.

No one, certainly, need be shocked or surprised, after this beginning, if the war should be found to be prosecuted with as complete a disregard of the restraints of the Constitution, in reference to the means employed for carrying it on, as was shown in getting the country into it. If the Executive can make war, we do not know why he should not be permittedat least he must be expected-to prosecute it after his own independent fashion. What he has actually done has been to organize and employ a species of military

force, which, as a force to be employed in a war of invasion and foreign conquest, is utterly unknown to the Constitution, and forbidden, indeed, by its whole tenor and spirit.

The war, be it remembered, has had, from the beginning, a very marked character, as one of invasion and conquest. It was begun by an invasion of the peaceable homes of the citizens of Mexico, in the Mexican State of Tamaulipas; and from the hour the first blow was struck, it has been waged exclusively on Mexican ground, and has been carried, indeed, far into the interior, and towards the heart of that republic. Not for one moment has it been a defensive war in any aspect or degree. No hostile foot has approached or threatened the proper soil and possessions of the United States. On the part of Mexico it has been wholly defensive. She has had all she could do, and a great deal more than she could do, to defend her own territories, and she has never dreamed of invading the United States, or engaging, in any way, in offensive operations on the land. It is not possible to conceive of a war more distinctly marked in this respect, than this war is.

Being wholly an offensive war on our part, (we use the term, offensive, in its well-understood legal acceptation,) no one, of course, will pretend for a moment that the militia of the country could be employed in it, except by a naked assumption of authority to that effect, in defiance of the plain provisions of the written Constitution. For any purpose of defence in and about a line of boundary between this country and any other, or across that line-the purpose and operation still being, in effect, defensivemilitia might be employed. But no such force can be used where the whole object is, as it was in this case, to carry on offensive and aggressive war to the heart of an enemy's country, and where every operation of the war, even from the first act of collision and bloodshed, is remote from the proper soil and possessions of the United States. Nothing can be plainer than that the militia, in the contemplation of the Constitution, is wholly a domestic force. In the first place, in its organization and uses, it is wholly a State force, except when it is handed over to the United States for certain specified objects. It is the home-guard of the States, and their only arm of defence. They are not allowed to have any other. They are expressly prohibited from keeping troops

a foreign land, and in an aggressive war. It is a case to demonstrate, if ever there was one, that it is no idle apprehension in which wise men have always indulged, in regard to the dangers necessarily attaching to the military power in a republic, and where there is a gallant and patriotic people to respond to its appeals, when we see what has actually been done in the use of this power, and the monstrous lengths of usurpation to which it has been pushed by the present Executive of the United States-the feeblest, out of all comparison, that the country has ever had.

The militia has been mustered into service, in this war, in a way designed to evade the Constitution and escape the responsibility of its violation. By calling for "volunteers" it seems to have been calculated that the public would get the impression that this was a kind of force different from militia, and if not regular United States troops, yet something very like them. But they were militia after all. They were soldiers who might volunteer from the ranks, or body, of the militia in the several States, having their officers created and appointed by the authority of the States, respectively, to which the companies, or corps, of volunteers belonged. They were mustered into the service of the United States, not enlisted; and in that service they were commanded by their own officers-company, battalion and field-having their sole authority and commission from the respective States. It is simply absurd to talk of any military corps as United States troops, when the officers in immediate command derive their commission, not from the Government of the United States, but from that of a State. A military officer, commissioned by the Governor of a State, and commanding a corps raised under State authority, is not an officer of the Federal Government, and does not command United States troops. They are State troops, and he is a State officer, and that is all that can be made of them. And they are militia, and nothing but militia. No State has any other troops but militia; and the government of the United States has no authority to employ, for any purpose, any other kind of State troops, if there were any such, but militia. Nothing can be plainer than that the Constitution limits the military power of the Federal Government to the employment, first, of its own army, raised and provided with officers by its own ex

clusive authority, and next, of militia, (when militia may be employed by it at all,) called into the service from the States. All the volunteers in the present war have been and are militia, and nothing else. They are State troops raised and commissioned by State authority, as militia. Many of the companies and corps have been mustered into service, just as they stood, officers and men, in the ranks of the militia at home.

Nor is the character of this force changed at all from the fact that general officers, bearing State commissions, have not been called into service along with the militia. The Government has seen fit to select, appoint and commission, its own general officers. They are officers in the army of the United States, and so commissioned, and in no respect as officers of militia or of volunteers. Nor is the employment of militia, called volunteers, in the present war, justified or excused by any example of the employment, or proposed employment, of volunteers, in the public service, at any period in our past history. There have been repeated instances of volunteer organization and service. Sometimes they have been troops of the United States, with officers appointed and commissioned, all of them, by Federal authority. These were as much troops of the United States, as those of the line of the regular army. Every soldier was an enrolled or enlisted soldier of the United States. But more frequently, these volunteer forces have been mustered, or proposed to be mustered, into the service of the United States, with their State officers, from the militia; and these were militia, and nothing else, just as the volunteer forces in the present war are militia, and nothing else. The difference in the cases is, that in no instance, until the present, has such a volunteer force as this last, being militia, been employed, or proposed to be employed, by the General Government, for any service or purpose, but "to execute the laws of the Union," to "sup press insurrections," or "to repel invasions;" in no instance, until the present, has such a force, being militia, and nothing else, been called into the service of the United States, to carry forward a war of invasion and conquest in a foreign land.

And the responsibility of this proceeding rests with the President. The conduct and management of the war is in his hands. Congress gave him authority

to accept the services of 50,000 volunteer militia, upon his appeal to it for such a force, and upon the allegation that war had been begun, and "American blood had been shed on American soil." The country must, of course, be defended, and nothing is better, or more appropriate, than militia, with which to drive invaders from its soil. We certainly could have wished, that, while Congress was granting the most liberal supplies of men and money, at the demand of the President, the truth should have been insisted on, instead of echoing, though by a kind of compulsion, a false allegation, and some security taken, which might easily have been done, that the means and forces placed at his command, should not be improperly and unconstitutionally applied and employed. Still the responsibility rests on him. He has taken upon himself to prosecute a foreign war, in a foreign land, and for purposes of conquest, and to employ the militia of the country in this service. And so far as his example can go, and at any rate while power remains in his hands, the Constitutional restriction on the employment of militia is abrogated, and a new unwritten provision substituted, to the effect that militia may be employed in war, not only to repel invasion, but to make invasion, and prosecute foreign conquests.

The next usurpation in order, in the conduct of this war, was that by which the President has claimed the right in all cases of territorial conquest, to be deemed himself the conqueror, and, by his own unaided authority, to establish and administer governments over the conquered countries. On this particular topic, however, we shall not now add anything, but content ourselves with referring the reader back to an article in the March number of this Review,* where the subject has been fully discussed and exposed. A reference to that article will show how flagrant and bold this usurpation has been, and a little reflection will serve to convince every candid mind, that if the Constitution is now to be taken with this notable amendment, a vast progressive movement has indeed been made, all in the name of Democraey, towards despotic power.

But the President has lately gone a step further, in his usurpations, and performed the crowning act of all. Proceeding on the same beautiful idea, of

easy assurance, that he, by virtue of his office, is to be deemed, personally, the conqueror of all provinces and places, which may submit to the power of the American arms, he has gone so far as to establish a regular system for the collection of duties on imports, under a regular tariff, in all the ports and places of Mexico, of which the army has taken military possession. "It is the right of the conqueror (he says) to levy contributions upon the enemy, in their seaports, towns or provinces, which may be in his military possession by conquest, and to apply the same to defray the expenses of the war. The conqueror possesses the right also to establish a temporary military government over such seaports, towns or provinces," &c. And therefore, he, the President, being the conqueror, enacts a tariff of duties on all goods and merchandise admitted into these ports, and which is invited to come there from all nations, the United States included, appoints his collectors and corps of custom-house officers, makes his military chest his independent treasury--independent indeed--and directs that all collections be paid into it, from which the money is to be drawn, as he shall personally prescribe or allow, for carrying forward his war of invasion and conquest!

The President finds it convenient to see no distinction between the mere military occupation of a position, or place, in an enemy's country, in time of war, and the complete possession of a province, or town, held under conquest, with the full right and actual exercise of sovereignty and civil jurisdiction. As little does he distinguish between the rights and duties of a commander in the field as a conqueror, and the rights and duties of a sovereign who, by right of conquest, takes possession of a province, or town, subdued by his arms, and receives the submission of its inhabitants as the subjects of his rightful government. A military commander in the field is the master, under the law martial, of the post or place he occupies, as a conqueror. It is his camp, for the time being, and the law of the camp prevails. It may embrace a whole town or city. But his authority, though arbitrary and summary in its tone and character, is not unlimited. It is restricted by the military law under which he holds his commission; and the military law of the