been questioned,1 although it provides for calling forth the militia, not only in cases of invasion, but of imminent danger of invasion; for the power to repel invasions must include the 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. Nor can there be a doubt, that the president, who is (as will be presently seen) by the constitution the commander-in-chief 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.3 Who is so fit to exercise the power, and to incur the responsibility, as the president?

§ 1205. 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, which every officer, to whom the orders of the president are

1 Houston v. Moore, 5 Wheat. R. 1, 60; Martin v. Mott, 12 Wheat. R. 19; Houston v. Moore, 3 Sergeant & Rawle, 169; Duffield v. Smith, 3 Sergeant & Rawle, 590; Vanderheyden v. Young, 11 Johns. R. 150. 2 Martin v. Mott, 12 Wheat. R. 19, 29.

3 Martin v. Mott, 12 Wheat. R. 19, 29; Rawle on Constitution, ch. 13, p. 155, &c.

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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? 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.3 This doctrine, however, was disapproved elsewhere. It was contested by the government of the United States; and was renounced by other states.5

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§ 1206. 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;

1 Martin v. Mott, 12 Wheat. R. 19, 29, 30.

2 See Houston v. Moore, 5 Wheat. R. 37.

3 1 Kent's Comm. Lect. 12, p. 244 to 250; 8 Mass. R. Suppt. 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, June 12, 1818, and February 15, 1830. See also Resolutions of Maine Legislature in 1820.

4 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.

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

and that his decision is conclusive upon all other persons. 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 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 subordiate 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 enterprize 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,' 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

1 The Federalist, No. 29.

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.1 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. P. 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.