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. 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 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 descretionary 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.2

§1207. 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

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

2 Martin v. Mott, 12 Wheat. R. 19, 31, 32.

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.1

§ 1208. 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. 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 clear distinction between calling forth the militia, and their being in

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

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

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 recognise 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

§ 1209. 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 of 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.'

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.

§ 1210. 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 any officer of the army of the United States to command then in his absence, nor place them under the command of any such officer.1 This doctrine was deemed inadmissible by the functionaries of the United States. It has never yet been settled by any definitive judgment of any tribunal competent to decide it. If, howevever, the doctrine can be maintained, it is obvious, that the public service must be continually liable to very great embarrassments in all cases, where the militia are called into the public service in connexion with the regular troops.

18 Mass. Rep. Supp. 549, 550; 5 Hall's Amer. Law Journ. 495; 1 Kent's Comm. Lect. 12, p. 244 to 247.

21 Kent's Comm. Lect. 12, p. 244 to 247.

CHAPTER XXIII.

POWER OVER SEAT OF GOVERNMENT AND OTHER CEDED PLACES.

is,"

§1211. THE next power of congress is, " 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 con

gress, 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 which the same shall be, for the erection "of FORTS, MAGAZINES, ARSENALS, and other needful "BUILDINGS."

§ 1212. This clause was not in the original draft of the constitution; but was referred to a committee, who reported in its favour; and it was adopted into the constitution with a slight amendment without any apparent objection.1

§1213. The indispensable necessity of complete and exclusive power, on the part of the congress, at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, and one might say of the World, by virtue of its general supremacy. Without it not only the public authorities might be insulted, and their proceedings be interrupted with impunity; but the public archives might be in danger of violation, and destruction, and a dependence of the members of the national government on the state authorities for protection in the discharge of their functions be created, which would bring on the national councils the imputation of being subjected

1 Journ. of Convent. 222, 260. 328, 329, 358.