Imágenes de páginas

cording to the laws and customs in such cases at sea. A seaman was charged with desertion and found guilty of attempting to desert, the Court had jurisdiction over the subject-matter and an action of trespass for false imprisonment will not lie against the ministerial officer, who executes the sentence for attempting to desert. Dynes v. Hoover, 20 How., 65.

3. The Acts of Congress (R. S., Sec. 1547) authorize the Secretary of the Navy to establish regulations for the navy with the approval of the President. Such regulations have the force of law. Ex parte Reed, 100 U. S., 13.


The Congress shall have power, *

"To make rules for the government and regulation of the land and naval forces."

1. The law has conferred on the Secretary of War the power to make army regulations and these, when in conformity to the laws and articles of war, have the force of law. Gratiot v. United States, 4 How., 80; Ex parte v. Reed, 100 U. S., 13.

2. The authority of the head of an executive department to issue orders and regulations under direction of the President to have the force of law is subject to the condition that they conflict with no act of Congress. An order by the Secretary of the Navy that a service shall

not be a sea service, which the Congress has directed shall be a sea service, is invalid. United States v. Symonds, 120 U. S., 46.

3. Section 1547 of the R. S. passed since the adoption of the Navy Regulations of 1870, recognized those regulations as being in force, and declared that they should be recognized as the regulations of the navy, subject to alterations adopted in the same manner. The recognition must be understood as giving them the sanction of law. Smith v. Whitney, 116 U. S., 167, citing United States v. Maurice, 2 Brock., 96, 105.


The Congress shall have power, *



"To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions."

The Act of Pennsylvania, March 28, 1814 (Sec. 21) provided that officers and privates of the militia of that State neglecting or refusing to serve, when called into actual service pursuant to the order or requisition of the President, shall be liable to penalties imposed by the Act of Congress (1 Stat. at L., 424), or to any penalties since prescribed or thereafter to be prescribed. Held, not repugnant to the Constitution of the United States. Houston v. Moore, 5 Wheat., 1. It is here held that the Constitution intended that the Congress might pro

vide for calling them forth; and that the State might punish those who refused or neglected to obey, Judges Story and Johnson dissenting. The points resolved in this and later opinions appear to be:

1. That under the Act 1795 (Stat. at L., Ch. 36, Sec. 1), the President is the one who is authorized to decide whether the militia should be called out and his de cision is conclusive upon all persons; and the law is constitutional. Martin v. Mott, 12 Wheat., 19. In this case a militiaman had refused to enter the service of the United States on the call of the President. He had been court-martialed, found guilty and his property, seized to satisfy the fine imposed. He brought replevin to recover the property; and the plea of the officer justifying under the proceedings was demurred to, thus raising the question of the constitutionality of the law.

2. The State has the power to control and regulate the organization of the military bodies and associations except when they are authorized by the United States. Presser v. Illinois, 116 U. S., 252.

3. The case of Luther v. Borden, 7 How., 1, is an important one. The facts briefly are: Rhode Island long after admission into the Union had the old Colonial Charter of 1663 for her Constitution. It restricted the suffrage to freeholders, and the representation in the legislature was grossly unequal, the political power virtually in a few hands, who refused to call a convention to amend or adopt a Constitution, extending the

suffrage and equalizing the representation. The disfranchised people and their sympathizers called a convention (outside of law and without legal authority), framed a Constitution and undertook by force, under a man named Dorr, who by their illegal votes had been chosen as governor, to set up a government. The Charter government resisted. There was martial law declared; and Borden by order of his superior officers broke and entered the plaintiff Luther's house. He was sued for trespass and his plea was that he acted by competent authority under the Charter government. This raised the question as to the legality of the two governments. The question came to the Supreme Court of the United States, which held: (1) Congress had delegated to the President by an earlier act (1 Stat. at L., 424; Act Feb. 28, 1795) the power to decide for the purposes of that act whether a government in a State was the duly constituted government of that State. (2) That after he had decided which was such government, the courts of the United States were bound to follow his decision. (3) That the government of a State has the power to protect itself from destruction by armed rebellion, by declaring martial law; and that the State legislature is the sole judge of the existence of the exigency rendering such action necessary. (4) The state of things existing was that martial law had been declared by those having authority to declare it; and the act complained of was justified by such authority.

During the war of 1812, to which several of the States were much opposed, the States claimed that their officers were in command of and subject only to the personal orders of the President, not to the officers under him. But this doctrine was long since given up. No claim of that kind was made but regular officers were in many instances placed over the troops raised in the States.


The Congress shall have power, *

"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 accord. ing to the discipline prescribed by Congress."



The Congress shall have power, *

"To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislature of the State in

« AnteriorContinuar »