SECTION 70.-MILITARY POWER

MARTIN v. MOTT.

(Supreme Court of United States, 1827. 12 Wheat. 19, 6 L. Ed. 537.)

Error to the Court for the Trial of Impeachments and Correc

tion of Errors of the State of New York.

Mr. Justice STORY delivered the opinion of the court.12

This is a writ of error to the judgment of the Court for the Trial of Impeachments and the Correction of Errors of the State of New York, being the highest court of that state, and is brought here in virtue of the twenty-fifth section of the judiciary act of 1789, c. 20. The original action was a replevin for certain goods and chattels, to which the original defendant put in an avowry, and to that avowry there was a demurrer, assigning nineteen distinct and special causes of demurrer. Upon a joinder in demurrer, the Supreme Court of the state gave judgment against the avowant; and that judgment was affirmed by the high court to which the present writ of error is addressed.

The avowry, in substance, asserts a justification of the taking of the goods and chattels to satisfy a fine and forfeiture imposed upon the original plaintiff by a court-martial, for a failure to enter the service of the United States as a militiaman, when thereto required

proper standards been adopted, is a question we are not called upon to consider. The sufficiency of the standards adopted by the Secretary of the Treasury was committed to his judgment, to be honestly exercised, and if that were important there is no assertion here of bad faith or malice on the part of that officer in fixing the standards, or on the part of the defendant in the performance of the duties resting on him." Buttfield v. Stranahan, 192 U. S. 470, 496, 497, 24 Sup. Ct. 349, 355, 48 L. Ed. 525 (1904).

Other cases in this collection illustrating the appeal to the courts against administrative action in the matter of public health and safety or order: Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983 (1904); Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3 (1883); Craig v. Charleston, 180 Ill. 154, 54 N. E. 184 (1899); Chicago v. Chic. City R. Co., 222 Ill. 560, 78 N. E. 899 (1906); Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169 (1904); Meeker v. Van Rensselaer, 15 Wend. (N. Y.) 397 (1836); Waye v. Thompson, L. R. 15 Q. B. D. 342 (1885); Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203 (1876); Metropolitan Board of Health v. Heister, 37 N. Y. 661 (1868); People v. Board of Health of Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522 (1893); Hartman v. Wilmington, 1 Marvel (Del.) 215, 41 Atl. 74 (1894); Health Dept. v. Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579 (1895); Salem v. Eastern R. Co.,

12 Only a portion of the opinion of Story, J., is printed.

by the President of the United States, in pursuance of the act of the 28th of February, 1795, c. 101. It is argued that this avowry is defective, both in substance and form; and it will be our business to discuss the most material of these objections; and as to others, of which no particular notice is taken, it is to be understood that the court are of opinion that they are either unfounded in fact or in law, and do not require any separate examination.

For the more clear and exact consideration of the subject, it may be necessary to refer to the Constitution of the United States, and some of the provisions of the act of 1795. The Constitution declares that Congress shall have power "to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions," and also "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." In pursuance of this authority, the act of 1795 has provided "that whenever the United States shall be invaded, or be in imminent danger of invasion. from any foreign nation or Indian tribe, it 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 his 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. It has not been denied here that the act of 1795 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 inva

98 Mass. 431, 96 Am. Dec. 650 (1868); Reynolds v. Schultz, 27 N. Y. Super. 282 (1867); King v. Davenport, 98 Ill. 305, 38 Am. Rep. 89 (1881); North American Cold Storage Co. v. Chicago, 211 U. S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195 (1908); Wilcox v. Heming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep. 625 (1883); Queen v. Wood, 5 El. & Bl. 49 (1855).

Other cases illustrating the appeal to the courts against administrative action in the matter of refusal or revocation of licenses: Bassett v. Godschall, 3 Wilson, 121 (1770); Downer v. Lent, 6 Cal. 94, 65 Am. Dec. 489 (1856); Dolan's Appeal, 108 Pa. 564 (1885); Thompson v. Koch, 98 Ky. 400, 33 S. W. 96 (1895); Hopson's Appeal, 65 Conn. 140, 31 Atl. 531 (1894); State v. District Court, 19 Mont. 501, 48 Pac. 1104 (1897); Gage v. Censors, 63 N. H. 92, 56 Am. Rep. 492 (1884); Com. v. Kinsley, 133 Mass. 578 (1882); Martin v. State, 23 Neb. 371, 36 N. W. 554 (1888); King v. Venables, 2 Ld. Raym. 1405 (1725); People v. McCoy, 125 Ill. 289, 17 N. E. 786 (1888); People v. Department of Health, 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894 (1907); State v. Lamos, 26 Me. 258 (1846); U. S. v. Douglass, 19 D. C. 99 (1890); Dodd v. Francisco, 68 N. J. Law, 490, 53 Atl. 219 (1902); People v. Board of Commissioners, 59 N. Y. 92 (1874); Lillienfeld v. Commonwealth, 92 Va. 818, 23 S. E. 882 (1896); Baldwin v. Smith, 82 Ill. 162 (1876); State v. Justices, 15 Ga. 408 (1854); People v. State Board Dental Examiners, 110 Ill. 180 (1884); Ill. State Board Dental Exam. v. People. 123 Ill. 227, 13 N. E. 201 (1887); State v. Chittenden, 112 Wis. 569, 88 N. W. 587 (1902); In re Sparrow, 138 Pa. 116, 20 Atl. 711 (1890); Gross' License, 161 Pa. 349, 29 Atl. 25 (1894); Harrison v. People, 222 Ill. 150, 78 N. E. 52 (1906); Devin v. Belt, 70 Md. 352, 17 Atl. 375 (1889).

sion has actually taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the 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 himself has reached the soil.

The power thus confided by Congress to the President is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the President? We are all of opinion that the authority to decide whether the exigency has arisen belongs. exclusively to the President, and that his decision is conclusive up-t on all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object 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, necessarily tend to jeopard 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 commander in chief 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, are (as it has been emphatically said they are) natural incidents to the duties of superintending the common defense, 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 defense must finally rest upon his ability to establish the facts by competent proofs. Such a course would be subversive of all discipline, and expose the best-disposed officers to the chances of ruinous litigation. Besides, in many instances, the evidence upon which the President might decide that there is imminent danger of invasion might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment.

If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself is strongly fortified. The words are, "whenever the United States shall be invaded, or be in imminent danger of invasion, etc., it shall be lawful for the' President, etc., to call forth such number of the militia, etc., as he may judge necessary to repel such invasion." The power itself is confided to the Executive of the Union, to him who is, by the Constitution, "the commander in chief of the militia, when called into 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 constituted the judge of the existence. of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of, 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 therefore be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the President, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, 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, in the present case, we are all of opinion that such is the true construction of the act of 1795. It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself. In a free government the danger must be remote, since, in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests, the

frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.

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13 "The first and second objections to the pleas are wholly untenable. It is not necessary to allege that a case had occurred which gave authority to the President of the United States to call forth the militia, under the act of the 28th of February, 1795. That act, after enumerating the cases, on the occurrence of which the militia may be called into the public service of the United States, vests in the President a high discretionary power. He, and he alone, is made the judge, as well of the happening of the events on which the militia may be called forth, as of the number, time and destination of that species of force. In every case in which the President acts under that law, he acts upon his responsibility under the Constitution. If it was necessary to the validity of these pleas to state, either that the United States were invaded, or in imminent danger of invasion, or that the laws of the United States were opposed, or the execution thereof obstructed, the matter thus stated would be issuable, and the plaintiff might, in his replication, take issue on them, and oblige the defendant to prove the occurrence of a case specified in the act; and thus every subordinate officer. who should be called into service, would be put to the necessity, when he was sued for any act of discipline upon the privates, to prove to a jury that the President had acted correctly in making his requisitions, and if he failed in this proof it would subject him to damages for an act otherwise lawful. To countenance such a construction of the act would be monstrous. Every trial would either subject all the archives of state to an examination before the court and jury, or the defendant would inevitably be found guilty. No man would dare to obey the orders, either of the President, or of his superior officer, lest, peradventure, the President had either abused his authority, or misjudged in relation to the occurrence of the fact which authorized him to call forth the militia. It is a general and sound principle that whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done, and, at the same time, contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quoad hoc, a judge. His mandates to his legal agents, on his declaring the event to have happened, will be a protection to those agents; and it is not their duty or business to investigate the facts thus referred to their superior, and to rejudge his determination. In a military point of view, the contrary doctrine would be subversive of all discipline; and, as it regards the safety and security of the United States and its citizens, the consequences would be deplorable and fatal. It was not necessary, therefore, to set forth the occurrence of these events in the pleas as a justification of the defendant's conduct, because they were not, and could not, be matter of trial." Vanderheyden v. Young, 11 Johns. (N. Y.) 150, 157 (1814).

Compare Wise v. Withers, 3 Cranch, 331, 2 L. Ed. 457 (1805)-distress for nonpayment of militia fine; action of trespass against the collector-Marshall, C. J.: "The court must * * declare that a justice of the peace, with

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in the District of Columbia, is exempt from the performance of militia duty. It follows, from this opinión, that a court-martial has no jurisdiction over a justice of the peace, as a militiaman; he could never be legally enrolled; and it is a principle that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers." Also Little v. Barreme, 2 Cranch, 170, 2 L. Ed. 243 (1804), ante, p. 332.