Weekly national intelligencer., 1845-09-06
CALLING OUT THE MILITIA.

The acts of the Administration and the discre-
ton Of its official organ go admirably, we must
confess hand in hand for no sooner has the for
mer committed an error than the latter hastens to
dyes it of all plausible excuse. The Union real
ly reminds us of one of those lawyers who, when
highest feed and most jealous, become most dam
gerous to their client, and almost sure to con-
vct him, if it is in the power of defence to do So
The Cabinet is happy in possessing champion
who, by his DEVOTION renders even their most IN
nocent acts ridiculous, and by his fatal apologies
continually betrays their conduct wherever il needs
extenuation.
Almost every day of difficulty bringing its ex-
ample of these stumblings, the last is in the last
Union which we have seen-that issuing on Satnr-
day morning. 1t is in continuation OF its at
tempts to explain what has been done in the States
next TO Texas, to the calling out of the militia
as to which matter it has the following paragraph
"The sNew Orleans Bulletin of the 22d instant quotes
an article from the Vcksburg Whig' of the 18th, which
states that gentleman who has just arrived from Jackson
informs that the Secretary Of War; under the direction Of
the President has required Gov Brown to make draugh
OF men, and have them ready for further orders Our nfo
mant did not know what number the Governor was required
to call out This is mistake. No such requisiton had
been made Gen. TAYLOR is authorized if necessary to
call for from Mississippi well from louisiana &c.
But it is certain that such call made the time spec
fed in any form whatsoever"
The law of Congress in execution Of the const-
tutional power " to provide for calling out the mill
tia in of invasion,' &c. is in the following
terms " Whenever the United States shall be in
vaded, or be in imminent danger of invasion, from
any foreign nation or Indian tribe, it shall be law
ful for the President to call forth such number Of
the militia of the State or States most convenient
to the place Of danger scene of action as he
may Judge necessary 10 repel such invasion, and
to issue his order for that purpose to such officer
or officers of the militia as he shall think proper"
In practice, this law has always been interpreted
to mean that the Presidents call shall be directly
addressed to Governors of States-they being the
commanders-in-chief Of State militia. Now, when
it appeared that Gen. GAINES, whom the President
could not authorize TO call out the militia, had ex-
ercised that power, the government paper was in
no hurry to disavow, on the Presidents part, that
illegal act but no sooner does bare rumor come
that the Executive had made call, where he legt-
mstey might on the Governor of State, than the
Union hurries to vindicae him from the suspicion |!
1t has tardily though not very distinctly appeared,
from the Unions confessions, that Gen. GAINEs's act
had not even so much legality delegation to him of
what could not be delegated the Presidents discre-
tionary power of Judging when contingency has
arisen that makes call of the militia necessary,
and of accordingly making that calD can give but
still no intimaton of disapproval, AND still less any
intimation of holding the officer responsible for
what he has done, has escaped even the indscreton
of the government organ. II could not make even
its slow explanation of the fact that Gen. GAINES
had acted without authority, except to rush inte the
entirely needless disclosure that Gen. TAYLOR, who
has moi exercised a like power, has been by the
President illegally entrusted with it. For there
cannot be any serious question that the Presidential
power created by the law which we have cited is
incapable of being delegated to any body else. The
law is specific and clear the practice under IT ma
ural and uniform For delegatng such high dis
sretion, there is no precedent, and we see no mo-
tive. The power over the militia thus vested In
the Presideni-and naturally SO vested, as he is er
o6fcio commander-in-chief of the army and navy
is, as to the occasion of calling out the militia emil
nenty a discretionary one. We need hardly ex-
plain to any body that has any tolerable notion Of
what legal principles are, that the great legal rule
as to discretionary power is that it is personal
trust, having for its motive known and special
confidence in the judgment of the individual to
whom it is confded, together with, in most cases,
the hold of particular responsibility upon him.
II is, therefore, settled axiom that real discre-
onary power is, from its very nature, incapable of
delegation Much more safely might the Execu-
tive delegate his pardonng power, or that of send
ing his annual message to Congress- or that of no.
mnating to the Senate executive officers-which
latter power, indeed certain party associations have
already strven to take out Of his hands.
Mark, then, the case before us, and see how this
thing is proceeding. Texas is, by an Executive
fiction, assumed to be legally part Of the United
States; then, the country beyond the Nueces and
to the Rio Bravo to be legally part of Texas |;
then, that to be invaded which neither Texas nor
we have ever had in possession then the Presi-
dent TO have the right to pass by the militia OF Texas
and call out that of other States though il has all
along been vaunted that Texas alone was more than
able TO defend herself from Mexico then the Ex-
ecutive assumes to delegate the power of making
the call; then he vests this power in response
BILE only to military law, and whom the sanctions
under which he himself acts Impeachment, popu-
lar responsibility, &C.. cannot reach then he places
State Governors and troops, not yet in the United
States service under the orders Of a JTnited States