laws of the Union, suppressing insurrections, or repelling invasions. The first was to suppress the insurrection in Pennsylvania, in 1794;1 and the other, to repel the enemy in the recent war with Great Britain. On other occasions, the militia has indeed been called into service, to repel the incursions of the Indians; but in all such cases, the injured States have led the way, and requested the co-operation of the national government. In regard to the other power, of organizing, arming, and disciplining the militia, Congress passed an act in 1792,2 more effectually to provide for the national defence, by establishing a uniform militia throughout the United States. The system provided by this act, with the exception of that portion which established the rules of discipline and field service, has ever since remained in force. And the militia are now governed by the same general system of discipline and field exercise which is observed by the regular army of the United States. No jealousy of military power and no dread of severe punishments are now indulged. And the whole militia system has been as mild in its operation as it has been satisfactory to the nation. § 1209. Several questions, of great practical importance, have arisen under the clauses of the Constitution respecting the power over the militia, which deserve mention in this place. It is observable, that power is given to Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." Accordingly, Congress, in 1795, in pursuance of this authority, and to give it a practical operation, provided by law, "that whenever the United States shall be invaded, or be in imminent danger of invasion, from any foreign nation or Indian tribe, it shall be lawful for the President to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary, to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper. Like provisions are made for the other cases stated in the Constitution.4 The constitution 1 5 Marsh. Life of Washington, ch. 8, pp. 576 to 592; 2 Pitk. Hist. ch. 23, pp. 421 to 428. 2 Act of 8th May, 1792, ch. 33. 3 Act of 1820, ch. 97; Act of 1821, ch. 68. 4 Act of 1795, ch. 101. ality of this act has not been questioned,1 although it provides for calling forth the militia, not only in cases of invasion, but of imminent danger of invasion; for the power to repel invasions must include the power to provide against any attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is, to provide the requisite force for action before the invader has reached the territory of the nation.2 Nor can there be a doubt that the President, who is, as will be presently seen, by the Constitution the commander-in-chief of the army and navy of the United States, and of the militia when called into the actual service of the United States, is the proper functionary to whom this high and delicate trust ought to be confided. A free people will naturally be jealous of the exercise of military power; and that of calling forth the militia is certainly one of no ordinary magnitude. It is, however, a power limited in its nature to certain exigencies; and, by whomsoever it is to be executed, it carries with it a corresponding responsibility.3 Who is so fit to exercise the power and to incur the responsibility as the President? § 1210. But a most material question arises: By whom is the exigency (the casus fœderis, if one may so say) to be decided? Is the President the sole and exclusive judge whether the exigency has arisen; or is it to be considered as an open question, which every officer, to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President? (a) This question was much agitated during the late war with Great Britain, although it is well known that it had been practically settled by the government, in the year 1794, to belong exclusively to the President; and no inconsiderable diversity of opinion was then manifested in the heat of the controversy, pendente lite, et flagrante bello. In Connecticut and Massachusetts it was held, that the governors of the States 5 1 Houston v. Moore, 5 Wheat. R. 1, 60; Martin v. Mott, 12 Wheat. R. 19; Houston v. Moore, 3 Sergeant & Rawle, 169; Duffield v. Smith, 3 Sergeant & Rawle, 590; Vanderheyden v. Young, 11 Johns. R. 150. 2 Martin v. Mott, 12 Wheat. R. 19, 29. Martin v. Mott, 12 Wheat. R. 19, 29; Rawle on Constitution, ch. 13, p. 155, &c. 5 See Houston v. Moore, 5 Wheat. R. 37. (a) See Luther v. Borden, 7 How. 44. to whom orders were addressed by the President to call forth the militia, on account of danger of invasion, were entitled to judge for themselves whether the exigency had arisen, and were not bound by the opinion or orders of the President.1 (a) This doctrine, however, was disapproved elsewhere. It was contested by the government of the United States,2 and was renounced by other States.3 11 Kent's Comm. Lect. 12, pp. 244 to 250; 8 Mass. R. Supp. 547 et seq.; Rawle on the Constitution, ch. 13, p. 155, &c. At a later period, this doctrine seems to have been abandoned by Massachusetts. See Report and Resolves of Massachusetts, June 12, 1818, and February 15, 1830. See also Resolutions of Maine legislature, in 1820. 2 See President Madison's Message of 4th November, 1812, and President Monroe's Message, and other documents stated in Report and Resolves of Massachusetts, 15th February, 1830. › See Vanderheyden v. Young, 11 Johns. R. 150; Rawle on the Constitution, ch. 13, pp. 155 to 160; Duffield v. Smith, 3 Sergeant & Rawle, 590. (a) The case on behalf of those States will be found very fully presented in Dwight's History of the Hartford Convention, p. 237 et seq. The first objection taken to the order of the President to call out the militia was that it did not show that one of the emergencies existed which, under the Constitution, empowered the President to issue the order, that is to say, that they were required to execute the laws of the Union, suppress insurrections, or repel invasions, or that the United States were in imminent danger of invasion; and when this objection was obviated by a further order, the one mentioned in the text was taken and insisted upon. In consequence, although the militia was ordered out for State defence, yet as they were not placed under the orders of the federal authorities, the government refused to assume the expense. When the late civil war broke out, and the President issued his call for 75,000 militia, apportioned among the several States which had not declared their secession, the governors of several of the border States responded with either a peremptory or a qualified refusal. The gov ernors of Virginia, North Carolina, Kentucky, Tennessee, Missouri, and Arkansas refused in the most positive, and some of them in insulting terms; and upon the ground, either expressly stated or implied, that the call was unconstitutional because made for the purpose of coercing or subjugating the States, which the gov ernment had no authority to do. Of these governors it is to be said, that five fully sympathized with the rebellion, and that the sixth, when insurgent forces had invaded the State, vetoed a resolution of the legislature by which he was requested to order them to leave its territory. The governor of Maryland ordered out the troops, stating in his proclamation that they would be detailed to serve within the State or for the defence of the national capital. The governor of Delaware issued a proclamation recommending the forma tion of volunteer companies for the defence of the lives and property of the people of the State, but not to be subject to be ordered into the service of the United States. This action would proba bly not be a precedent on any future occasion, and must be referred to the peculiar condition of things then existing, and the divided feeling then prevailing in that portion of the country. In general, in all that portion of the country in which the national authority was sustained, a ready obedience was rendered to the orders of the executive. C. § 1211. At a very recent period, the question came before the Supreme Court of the United States for a judicial decision; and it was then unanimously determined, that the authority to decide whether the exigency has arisen belongs exclusively to the President; and that his decision is conclusive upon all other persons.1 The court said, that this construction necessarily resulted from the nature of the power itself, and from the manifest objects contemplated by the act of Congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a military service, and the command of a military nature; and, in such cases, every delay and every obstacle to an efficient and immediate compliance, would necessarily tend to jeopard the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the facts upon which the commander-inchief exercises the right to demand their services, the hostile enterprise may be accomplished, without the means of resistance. If the power of regulating the militia, and of commanding its services in times of insurrection and invasion, are, as it has been emphatically said they are, 2 natural incidents to the duties. of superintending the common defence, and of watching over the internal peace of the confederacy, these powers must be so construed, as to the modes of their exercise, as not to defeat the great end in view. If a superior officer has a right to contest the orders of the President upon his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer and soldier. And any act done by any person, in furtherance of such orders, would subject him to responsibility in a civil suit, in which his defence must finally rest upon his ability to establish the facts by competent proofs. Besides, in many instances the evidence upon which the President might decide that there was imminent danger of invasion, might be of a nature not constituting strict technical proof; or the disclosure of the evidence might reveal important state secrets, which the public interest, and even safety, might imperiously demand to 1 Luther v. Borden, 7 Howard, 1. 2 The Federalist, No. 29. be kept in concealment.1 The act of 1795 was manifestly framed upon this reasoning. The President is by it necessarily constituted, in the first instance, the judge of the existence of the exigency, and is bound to act according to his belief of the facts. If he does so act, and decides to call out the militia, his orders for this purpose are in strict conformity to the law; and it would seem to follow, as a necessary consequence, that every act done by a subordinate officer in obedience to such orders, is equally justifiable. The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot be that it is a correct inference, that any other person has a right to disobey them. No provision is made for an appeal from, or review of, the President's opinion. And whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the general rule of construction is, that he is thereby constituted the sole and exclusive judge of the existence of those facts.2 § 1212. It seems to be admitted, that the power to call forth the militia may be exercised either by requisitions upon the executive of the States, or by orders directed to such executive, or to any subordinate officers of the militia. It is not, however, to be understood, that the State executive is in any case bound to leave his executive duties, and go personally into the actual service of the United States. 3 3. § 1213. The power to govern the militia, when in the actual service of the United States, is denied by no one to be an exclusive one. Indeed, from its very nature, it must be so construed; for the notion of distinct and independent orders from authorities wholly unconnected, would be utterly inconsistent with that unity of command and action, on which the success of all military operations must essentially depend. But there is nothing in the Constitution which prohibits a State from calling forth its own militia, not detached into the service of the Union, to aid the United States in executing the laws, in suppressing 1 Martin v. Mott, 12 Wheat. R. 30, 31. 2 Martin v. Mott, 12 Wheat. R. 19, 31, 32. (a) 8 See Houston v. Moore, 5 Wheat. R. 1, 15, 16, and Mr. J. Johnson's Opinion, Id. 36, 37, 40, 46. The Federalist, Nos. 9, 29; Houston v. Moore, 5 Wheat. R. 1, 17, 53, 54, 55, 56, 61, 62. (a) Approved in Luther v. Borden, 7 How. 44. |