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.1 Nor can there be a doubt that the President, who is (as will be presently seen) by the Constitution the commander-inchief 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.2 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, whịch 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? 3 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 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.5 This doctrine, however, was disapproved elsewhere.

1 Martin v. Mott, 12 Wheat. R. 19, 29.

2 Martin v. Mott, 12 Wheat. R. 19, 29; Rawle on Constitution, ch. 13, p. 155, &c. 3 Martin v. Mott, 12 Wheat. R. 19, 29, 30. [See Luther v. Borden, 7 How. 44.] 4 See Houston v. Moore, 5 Wheat. R. 37.

5 1 Kent's Comm. Lect. 12, p. 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,

It was contested by the government of the United States,' and was renounced by other States.2

§ 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.3 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 June 12, 1818, and February 15, 1830. See also Resolutions of Maine legislature, in 1820. [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 governors 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 government had no authority to do. Of these officers 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 formation 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 probably 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.]

1 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.

2 See Vanderheyden v. Young, 11 Johns. R. 150; Rawle on the Constitution, ch. 13, p. 155 to 160; Duffield v. Smith, 3 Sergeant & Rawle, 590.

3 Luther v. Borden, 7 Howard, 1.

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-in-chief 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,1 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 be kept in concealment.2 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 1 The Federalist, No. 29.

2 Martin v. Mott, 12 Wheat. R. 30, 31.

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.1

§ 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.2

§ 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.3 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 insurrections, and in repelling invasions. Such a concurrent exercise of power in no degree interferes with, or obstructs the exercise of, the powers of the Union. Congress may, by suitable laws, provide for the calling forth of the militia, and annex suitable penalties to disobedience of their orders, and direct the manner in which the delinquents may be tried. But the authority to call forth, and the authority exclusively to govern, are quite distinct in their nature. The question, when the authority of Congress over the militia becomes. exclusive, must essentially depend upon the fact, when they are to be deemed in the actual service of the United States. There is a

1 Martin v. Mott, 12 Wheat. R. 19, 31, 32. [Approved in Luther v. Borden, 7 How. 44.]

2 See Houston v. Moore, 5 Wheat. R. 1, 15, 16, and Mr. J. Johnson's Opinion, Id. 36, 37, 40, 46.

3 The Federalist, No. 9, 29; Houston v. Moore, 5 Wheat. R. 1, 17, 53, 54, 55, 56, 61, 62.

4 [Luther v. Borden, 7 Howard, S. C. R. 1.]

clear distinction between calling forth the militia, and their being in actual service. These are not contemporaneous acts, nor necessarily identical in their constitutional bearings. The President is not commander-in-chief of the militia, except when in actual service; and not, when they are merely ordered into service. They are subjected to martial law only, when in actual service, and not merely when called forth, before they have obeyed the call. The act of 1795 and other acts on this subject manifestly contemplate and recognize this distinction. To bring the militia within the meaning of being in actual service, there must be an obedience to the call, and some acts of organization, mustering, rendezvous, or marching, done in obedience to the call, in the public service.1

§ 1214. But whether the power is exclusive in Congress to punish delinquencies in not obeying the call on the militia, by their own courts-martial, has been a question much discussed, and upon which no inconsiderable contrariety of opinion has been expressed. That it may, by law, be made exclusive, is not denied. But if no such law be made, whether a State may not, by its own laws, constitute courts-martial to try and punish the delinquencies, and inflict the penalties prescribed by the act of Congress, has been the point in controversy. It is now settled that, under such circumstances, a State court-martial may constitutionally take cognizance of, and inflict the punishment. But a State cannot add to, or vary the punishments inflicted by the acts of Congress upon the delinquents.2

§ 1215. A question of another sort was also made during the late war with Great Britain; whether the militia, called into the actual service of the United States, were to be governed and commanded by any officer, but of the same militia, except the President of the United States; in other words, whether the President could delegate any other officer of the regular army, of equal or superior rank, to command the militia in his absence. It was held in several of the eastern States, that the militia were exclusively under the command of their own officers, subject to the personal orders of the President; and that he could not authorize 1 Houston v. Moore, 5 Wheat. R. 1, 17, 18, 20, 53, 60, 61, 63, 64; Rawle on Const. ch. 13, p. 159.

2 Houston v. Moore, 5 Wheat. R. 1, 2, 3, 24, 28, 44, 69 to 75; Rawle on Const. ch. 13, p. 158, 159; Houston v. Moore, 3 Serg. & Rawle, 169; Duffield v. Smith, 3 Serg. & R. 590; 1 Kent's Comm. Lect. 12, p. 248, 249, 250; Serg. on Const. ch. 28 [ch. 30]; Meade's case, 5 Hall's Law Journ. 536; Bolton's case, 3 Serg. & Rawle, 176, note.