1

were "novel and unfortunate." In a message to Congress, to which they gave occasion, he observed that, “ if the authority of the United States to call into service, and to command the militia, could thus be prostrated, we were not one people for the purpose most of all requiring that we should be united." Since that period, many and deeply interesting questions arising on the powers of the Union have been investigated and decided in the Federal Courts; and the progress of public opinion, as well as the tenour of those decisions, have been favourable to a much more liberal and enlarged construction of the Constitution than that which was adopted by the states in question; so that the doctrines of the General Government, as now understood, fully support the claim of Mr. Madison, as President of the United States, to judge, exclusively of state authority, of the existence of the exigency upon which the militia may be called into the service of the Union. The acts of Congress already referred to, as well as the act for establishing a uniform militia throughout the Union, were considered by the Supreme Court of the United States, in the first case* that came before them on the subject, as covering the whole ground of Federal legislation in regard to it. The manner in which the militia are to be organized, armed, disciplined, and governed, is fully prescribed; provision is made for draughting, detaching, and calling forth the state quotas when required by the President; his orders are to be given to the chief magistrate of the state, or to any inferior militia officer he may think proper; neglect or refusal to obey his orders is declared to be a public offence, and subjects the offender to trial and punishment by a court-martial; and the mode of pro

* 5 Wheat. R., 1.

ceeding is perspicuously detailed. The question before the court was whether it was competent for a court-martial, deriving its jurisdiction under state authority, to try and punish militiamen draughted, detached, and called forth by the President into the service of the United States, and who had refused and neglected to obey the call. The court decided that the militia, when called into the service of the United States, were not to be considered as being in that service until they were mustered at the place of rendezvous; and that, until then, the state retained a right concurrent with the United States to punish their delinquencies. But after the militia had thus actually entered into the service of the Union, their character changed from state to national militia; and the authority of the General Government over such detachments became exclusive.

In a subsequent case,* which came up on a writ of error on a judgment of the highest court in the State of New-York, where the decision had been against this power of the President over the militia, his claim was unanimously sustained by the Supreme Court. The power confided to the President was, indeed, considered of a very high and delicate nature, but one which could not be executed without corresponding responsibility. It is, nevertheless, limited in its terms, and confined to cases of actual invasion or imminent danger; and upon the question whether the President was the sole and exclusive judge of the existence of the exigency, or whether it was one which every officer to whom his order was addressed might decide for himself, the court was of opinion that the authority to decide belonged exclusively to the President, and that his decision was conclu

* 12 Wheaton, 19.

sive upon all other persons. This construction was held necessarily to result from the nature of the power given by the Constitution, and from the manifest object contemplated by the act of Congress. The power itself is to be exercised on sudden emergencies, and under circumstances which may vitally affect the existence of the Union, and a prompt and unhesitating obedience is indispensable to the attainment of the object. The service is a military service, and the command of a military nature; and in such cases, every delay and obstacle to an efficient and immediate compliance, necessarily tends to put in jeopardy the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts on 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, be, as has been alleged, natural incidents to the duty of superintending the common defence, and watching over the internal peace of the Union, then must this power be so construed, with respect to its exercise, as not to defeat the important ends in view. If the governor of a state, or other superior officer, has a right to contest the orders of the President, upon his own doubts as to the existence of the exigency, it must be equally the right of every inferior officer, and of every private sentinel; and every act of any person in furtherance of such orders would render him liable in a civil suit, in which his defence must finally rest upon his ability to establish, by competent proof, the facts upon which the exigency was said to have arisen. Such a course would obviously be subver

sive of all discipline, and expose the best-intentioned officers to the chances of a ruinous litigation; and in many instances, the evidence on which the President may have decided might not constitute technical proof, or its disclosure might reveal important secrets of state, which the public interests, and even safety, might require to remain concealed.

This power, therefore," to provide for calling forth the militia to execute the laws, suppress insurrections, and repel invasions," confided to Congress by the Constitution, is carried into effect by the law which provides that, when any such exigency exists, the militia of the states may be "called forth" by the chief magistrate of the Union, who, by the Constitution, is commander-in-chief of the militia when in the actual service of the United States, whose duty it is "to take care that the laws be faithfully executed," and whose responsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily to judge, in the first instance, and is bound to act according to his belief of the facts. If he decide to call forth the militia, and his requisitions, which are orders, for this purpose, are in conformity with the provisions of the law, it would seem to follow, as a necessary consequence, that every subordinate officer is bound to obey them. Whenever the law gives to the President a discretionary power, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts, and it is not a valid objection that such power may be abused; for there is no power that is not susceptible of abuse. The remedy for this, and all other official misconduct, is to be found in the Constitution itself. In a free government the danger must be re

mote, since, in addition to the high qualifications which the chief magistrate must be presumed to possess, the frequency of elections, and the watchfulness of the national representatives, carry with them all the checks that can be useful to guard against usurpation or tyranny.

It has, however, been objected, that even admitting the judgment of the President to be conclusive as to the existence of the exigency, still it is necessary that it should appear that the particular exigency in fact existed; and the same principles were alleged to be applicable to the delegation and exercise of this power intrusted to the President for great political purposes, as are applied to the humblest agent of the government, acting under the most narrow and special authority. But when the President exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance of the law. Every public officer, indeed, is presumed to act in obedience to his duty, until the contrary be shown; and à fortiori, that presumption ought to be favourably applied to the chief magistrate. Nor can the non-existence of the exigency be averred and shown by the delinquent party; for if it could be aver-. red, it would be traversable, and, of course, might be passed upon by a jury; and thus the legality of the order would depend, not on the judgment of the President, but upon the finding of those facts upon the proof submitted to the jury. It must therefore be sufficient if the President determine the exigency to exist, and all other persons must be bound by his decision.

IV. The power of raising money by taxation and loans being the main sinew of that which is to be exerted in the national defence, is therefore properly arranged in the same class, especially as this object is specified in the Constitution as one of the purposes