Year: 1876

ooU, ool.l Inc eXlsting law, as declared IN sec
ton 1642, Revised Statutes, is as follows:
'iWheuever the United States are invaded, or
in imminent danger Of invasion from any for
eign nation or Indian tribe, or of rebellion
against the authority of the Government Of
the United States, Il 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 sce91epf action as
he may deem necessary to repcI such invasion
or to suppress such rebellion, and to issue his
orders Tor that purpose to such officers of the
militia as he may think properp -
= Tie cunstitutionality of the act of 1885 and
BY Consequence that Of the later act comforting
the same rightly was put beyond question half
century ago-by-s decision of the Supreme
Court of the United States in the case of Mar
tin vs. Mott, reported in 12 Wheaton, 49, This
decision, rendered at the January term, 1921,
by Chief Justice Story, sets forth SO clearly
the authority of the President that we repeat
the most essential portions here. And as our
correspondent is a-member of the New York
militia, it may be well to state that the case
leading to tidstdesision had It's origin In a suit
of New York nilitiaman; that the case was
decided against him by the highest court Of
New York and carried to the Supreme Court
on writ of error. The Supreme Court says:


''The Constitution declares that Congress-
shall have power TO provide for calling forth
the militia, to execute the laws Of the Union,
6uDpTeS6I lIfeuETectOuc anu Icpcls luNtolDuo,


and also 'to provide for organizing, arming and
discipliniDg the militia, and for governing such
part of them as may be employed In the serv-
ice of the United States In pursuance of
this authority, the act of 1795 has provided,
that whenever the United States shall be in-


vsded, or be in imminent danger of invasion


from sny foreign nation or Indian tribe, 1t shall
be lawful for the President of the United
States 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 bis order for that purpose to such officer
or officers of the militia as he shall think


proper And like provisions are made for the
other cases stated in the Constitution. That


is to say In the case Of insurrect.on or resist


aDce to the execution of the laws, see pars-
graph of Constitution quoted aboYe.-Ei.


JonRdl.] II has not been denied here that


the act of 1875 is within the constitutional


authority of Congress, or that Congress may


not lawfully provide for cases of imminent
danger Of invasion, as well as for cases where


an invasion has actually taken place. In our
opinion there is DO ground for doubt on this


point, even If 1t had been relied on, for the
power to provide for repelling invasion, in
cludes The power to provide against the at
tempt and danger of invasion, as the necessary


and proper means to e6eetuate the object.


One Of the best means to repel invasions is to


provide the requisite force for action before
the invader has himself reached the soil.


"The power thus confded by Congress to


the President is doubtless of a very high and
delicate nature. a free people are naturally


Jealous of the exercise of the military power,
and the power to call the militia into actual
service Is certainly felt to be one ofno ordinary


magnitude. Bat 1t Is not q power which can


be executed without correspondent respon ST.
bility. 1t Is In its terms limited power, con-


n. - . - II -r. Il
danger of Invasion. IL il be limited power,
the question arises, by whom is the e1igency
to be judged and decided Is the President
the sole and exclusive judge whether the
exigeney has arisen, or Is it to be considered
as an open question, upon which every officer
to whom the orders of the President are ad-
dressed, may decide for himself, and equally
open to be contested BY every militia man who
shall refuse to obey the orders of the Presi-
dent! We are all of opinion that the author
ity to decide whether the exigeney has arisen
belongs exclusively to the President, and that
his decision Is conclusive upon all other per-
sons. We think that this construction neces-
sarfly results from the nature of the power
itself, and from the manifest object contem.
plated by the act of Congress. The power
itself is to be exercised upon sudden emergeu-
cies. upon great occasions of State, and under
circumstances which may be vital to the ex-
istenee of the Union. A prompt and unhesi-
tating obedience to orders Is indispensable to
the complete attainment ofthe object. The ser
vice is military service, and the command of
amilitary nature, and in such cases every delay,
and every obstacle, to an efficient and immediate
compliance, necessarily tend to leopard 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 upon which the Com
mander-in:Chief exercises the right to demand
their services, the hostile enterprise 'Ilsy be
accomplished without the means of resistance.
If the power of regulating the militia and of
commanding its services in times of insurrec-
tion ard invasion are Gas has been emphati-
cally said they are) natural incidents to the
duties of experimenting the common defense,
and of watching over the internal peace of the
Confederacy, (The Federalist, No. 29,) these
powers must be so construed as to the modes
Of the exercise as not to defeat the great ends
in view." "The law does not pro-
vide for an appeal from the Judgment of the
President, or for any right In subordinate Off
GERS to review bis decision, and In effect defeat
1t. Whenever q statute gives discretionary
power to any person, to be exercised by him
upon his own opinion Of certain facts, 1t is a
sound rule of construction that the statute
constitutes lin the sole and exclusive Judge of the
existence of those facts. And In the present
case we are all of the opinion that such is the 1
true construction of the act of 1795."


Tie court say further: r... rt


'The opinion of this court is that court
martial regularly called under the act OF 1795
does not expire with the end of a war then ex-
isting, nor Is its jurisdiction to try offenses In
any shape dependent uT on the fact of war or
peace. The act of 1795 is not confined in its
operations to cases of refusal TO obey the orders
of the President in times of public war. On
the contrary, that act authorizes the President
to call forth the militia to suppress insurrec-
TORS, and to enforce the laws of the U.lited
States in times of peace. And courts-msrtial
are, under the fifth section of the act, entitled
to take cognizance OF and to punish delin-
queAcies In such cases, as well as In cases
where the object is to repel invasion in time of
war;" '0...H .at


There is no escape from this authority of the
President, so far as we can see, short of re-
bellion, and for that there are no healthy pre-
cedents In our recent history. Indeed, the
authorityis so clear and unmistakabie that we
are saved from dangers resulting from the ex-
ercise Of doubtful or disputed authority.
We still retain our immemorisl right to criti-
cise or abuse the President, to dispute his con-
usion that the occasion calls for the exercise
of his reserved authority, to question the
purity and patriotism of his motives; but to
disobey him, as our correspondent proposes to
do, is to trample upon the Constitution, the
laws AMI the decisions of the Supreme Court.
ano-Nnat is perhaps more 70 tine purpose
to subject ourselves to trial by court-martial,
which will not be disturbed by these fine-spun
theories, which would make government an
impossibility. While we dwell upon this SUBJ
ject, we do not, it should be understood, an
ticipate an occasion for the exercise of the
Presidents authority over the militia. II our
correspondent does not understand the law of
the case, 1t is evident from his letter that his
superior officers do, and Governor Tilden is
too sound lawyer, too able man and too
patriotic citizen to assume any Illegal posi-
tion. Let our correspondent rest his soul IN
patience; neither he nor General Shaler will
find himself forced to choose between the con-
flictiDg orders of President and Governor. .