delivered the opinion of the Court.
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 25th section of the Judiciary Act of 1789, ch. 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 militia-man, when thereto required 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 he 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 in
The power thus confided by Congress to the President, is, doubtless, of a very high and delicate nature. A free people are naturally iealous 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 corres- , • . . pondent 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
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, &c. it shall be lawful for the President, &c. to call forth such number of the militia, &c. 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, whep 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 á necessary consequence, that every act done by a subordinate officer, in obedience to such orders, is equally justifiablé. 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 con
This doctrine has not been seriously contested upon the present occasion. It was indeed maintained and approved by the Supreme Court of New-York, in the case of Vanderheyden v. Young, (11 Johns. Rep. 150.) where the. reasons in support of it were most ably expounded by Mr. Justice Spencer, in delivering the opinion of the Court.
But it is now contended, as it was contended in that case, that notwithstanding the judgment of the President is conclusive as to the existence of the exigency, and may be given in evidence as conclusive proof thereof, yet that the avowry is fatally defective, because it omits to aver that the fact did exist. The argument is, that the power confided to the President is a limited power, and can be exercised ónly in the cases pointed out in the statute, and therefore ■ it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought to be applied to- the delegation and exercise of this power-intrusted to (he Executive of the narion for great political purposes, as might be applied to the humblest officer in the government, acting upon the most narrow' and special authority. It is the opinion of the Court, that this objection cannot he maintained. When the President exercises an authority confided to him by law. the presump
Another objection is, that the orders of the President are not set forth ; nor is it averred that he issued any orders, but only that the Governor of New-York called out the militia upon the requisition of the President. The. objection, so far as it proceeds upon a supposed difference between a requisition and an order, is untenable; for a requisition calling forth the militia is, in legal intendment, an order, and must be so interpreted in this avowry. The majority of the Court understood and acted upon this sense, which is one of the acknowledged senses of the word, in Houston v. Moore, (5 Wheat. Rep. 1.) It was unnecessary to set forth the orders of the President-at large; it was quite sufficient to state that the call was in obedience to them. No private citizen is presumed to be conversant of the particulars of those orders ;. and if he were, he is not bound to set them forth in hmc verba:
The next objection is, that it does not sufficiently appear in the avowry that the Court Martial was a lawfully constituted Court Martial, having jurisdiction of tlie offence at the time of passing its sentence against the original plaintiff.
Various grounds have been assigned in support of this objection, in the first place, it is said, that the original plaintiff was never
employed
in the service of the United States, but refused to enter that service, and that, consequently, he was not liable to the rules and articles of war.
In the next place, it is said, the Court Martial was not composed of the proper number of officers required by law. In order to understand the force of this objection, it is necessary to advert to the terms of the act of 1795, and the rules and articles of war. The act of 1795 (s. 5.) provides, “ that every officer, non-commissioned officer, or private of the militia, who shall fail to obey the orders of the President of the United States.” &c. shall forfeit a sum not exceeding one year’s pay, and not less than one month’s pay, to be determined and adjudged by a Court Martial.” And it further provides, (s. 6.) “ that Courts Martial for the trial of militia shall be composed of militia officers only.” These are the only provisions in the act on this subject. ' It is not stated by whom the Courts Martial shall be called, nor in what manner, nor of what number they shall be composed. But the Court is referred to the 64th and 65th of the rules and articles of war, enacted by the act of 10th of April, 1806; ch. 20., which provide, “that General Courts Martial may consist of any number of commissioned officers from five to thirteen inclusively; but they shall not consist of less than thirteen, where that number can be convened without manifest injury to the service:” and that “ any general officer commanding an army, or colonel commanding a separate department, may appoint General Courts Martial when necessary.” Supposing these clauses applicable to the Court Martial in question, it is very clear,
But, in strictness of law, the propriety of this resort may admit of question. The rules .and articles of war, by the very terms of the statute of 1806, are those “ by which the
armies
of the United States shall be governedand the act of 1795 has only provided, “that the militia
cm* ployed
in the service of the United States (not the militia
* ** s ordered
into the service of the United States) shall be subject to the same rules and articles of war as the troops of the United Statesand'this is, in substance, re-enacted ...» by the 97 th of the rules and articles of war. It is not, therefore, admitted, that any express authority is by either statute, that such a Court Martial as is contemplated for the trial of delinquents under the 5th section of the act of 1795, is to be composed of the same number of officers, organized in the same manner as these rules arid articles contemplate for persons in actual service. If any resort is to be had to them, it carl only be to guide the discretion x>f the officer ordering the Court, as matter of usage, and not as matter of positive institution. If, then, there be no mode pointed out for the formation of the Court Martial in these cases, it may be asked, in what manner is such Court to be appointed ? The answer is, according to the general usage of the military service, or .what may not unfitly be called the customary military law. It is by the same law that Courts' Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. Upon
The act of the 18th of April, 1814, ch. 14!. which expired at the end of the late war, was, in a great measure, intended to obviate difficulties arising from the imperfection of the provisions of the act of 1795, and especially to aid Courts Martial in exercising jurisdiction over cases ¡ike the present! But whatever may have been the legislative intention, its terms do not extend to the .declaration of the number of which such Courts Martial shall be composed. The first section provides, “ that Courts Martial to be composed of militia officers alone, for the trial of militia drafted, detached, and called forth, (not or called forth,) for the ser» vice of the United, States, whether acting in conjunction with the regular forces or otherwise, shall, when necessary, be appointed, held, and conducted, in the manner prescribed by the rules and articles of ,war, for appointing, holding, and conducting, Courts Martial for the trial of delinquents in, the army of the United States.” This language is obviously confined to the militia in the actual, service of the United States, and does not extend to suchas are drafted and refuse to obey the call. • So that the Court are driven, .back to the act of 1795 as the legitimate source for .the ascertainment of the organization and jurisdiction of the Court Martial in the present case. And we are of opinion, that nothing appears on the face of the avowry to lead to any doubt that it was a legal Court Martial, organized according to military usage, and entitled to take cognizance of the delinquencies stated in the avowry.
This view of the case affords an answer to another objec^'on which has been urged at the bar, viz. that the sentence has not been approved by the commanding officer, in the manner pointed out in the 65th of the rules and ar^c^es °f war. That article cannot, for the reasons already stated, be drawn in aid of the argument; and the avowry itself shows that the sentence has been approved by the President of the United States, who is the commander in
But it is by no means clear that the act of 1795 meant to require any approval of the sentences imposing fines for 'delinquencies of this nature. The act does not require it either expressly or by necessary implication, it directs (s. 7.) that the fines assessed shall be certified by the presiding officer of the Court Martial to the marshal, for him to lew the same, without referring to any prior act to he done, to give validity to the sentences. The natural inference from such an omission is, that the Legislature did no$> intend, in cases of this subordinate nature, to require any farther sanction of the sentences. And if such an approval is to be deemed essential, it must be upon the general military usage, and not from positive institution. Either way, we think that all has been done, which the act required.
Another objection to the proceedings
of
the Court Martial is, that they took place, and the sentence was given, three years and more after the war was concluded, and in
J
7 time of profound peace* But the opinion of this Court is, that a Court Martial, regularly called under the act of Í 795, does not expire with the end of a war then existing, nor its jurisdiction to try these offences in any shape dependent upon the fact of war or peace. The act of 1795 is not confined in its operation to cases of refusal to obey the orders of the President in times of public war. On the contrary, lhat act authorizes the President to call forth the militia to suppress insurrections, and to enforce the laws the United Stales, in times of peace. And Courts Martial are, under the 5th section of the act, entitled to take cognizance of, and °to punish delinquencies in such cases, as well as in cases where the object is to repel invasion in times of war. It would be a strained construction of the act, to limit the authority of the Court to the mere time
The next objection to the avowry is, that the certificate of the President of the Court' Mfirtial is materially variant from the sentence itself, as set forth in a prior "allegation. The sentence as there set forth is, “ and thereupon the said General Court Martial imposed the sum of 96 dollars as a fine on the said Jacob, for having.thus failed, neglected, and refused to rendezvous and enter in the service of the United States of America, when thereto required as aforesaid.” The certificate adds, “ and that the said Jacob E. Mott was sentenced by the said General Court Martial, on failure of 4he payment of said fine imposed on him, to twelve months imprisonment.” It is material to state that the averment does not purport to set forth the .sentence in htzc verba ; nor was it necessary in this avowry to allege any thing more than that part of the sentence which imposed the fine, since that was the sole ground of the justification of taking the goods and chattels in controversy. But there is nothing repugnant in this averment to that which relates to the certificate. The latter properly adds the fact which respects ■the imprisonment, because the certificate constitutes the warrant to the marshal for his proceedings. The actof 1795 expressly declares, that the delinquents “shall be liable to be imprisoned by a like sentence, on failure of paymént of the fines adjudged against them, for one calendar month for every five dollar? of such fine,’.’ If indeed it had been necessary to set forth the whole sentejnce at large, the first omission would be helped by the certainty of the subsequent averment. There is, then, no variance' or repugnance in these allegations; fiut they, may well stand together.
Of the remaining causes of special demurrer, some are. properly matters of defence before the Court Martial, and its sentence being upon a subject within its jurisdiction, is conclusive; and others turn upon niceties of plfeading, to which-no separate answers are deemed necessary. In ge
Upon the whole, it is the opinion of the Court, that the judgment of the Court for the Trial of Impeachments and the Correction of Errors ought to be reversed, and that the cause be remanded to the same Court, with directions to cause a judgment to be entered upon the pleadings in favour of the avowant.
. Judgment. This cause came on, &c. On consideration, whereof, it is considered and adjudged, that there is error in the judgment of the said Court for the Trial of Impeachments and the Correction of Errors, in this, that upon the pleadings in the cause, judgment ought to have been rendered in favour of the avowant, whereas it was rendered in favour of the original plaintiff; and it is, therefore, further considered and adjudged, that the same judgment be, and the same hereby is, reversed and annulled ; and also, that the judgment of the Supreme Court of Judicature of the State of New-York, which was affirmed by the said Court for the Trial of Impeachments and the Correction of Errors, be reversed and'annulled ; and that judgment be rendered, that the said avowry is good and sufficient in law to bar the plaintiff’s action, and that the plaintiff take no-, thing by his writ; and that the cause be remanded to the ■said Court for the Trial of Impeachments and the Correction of Errors, if the record be now in thé said Court, and if not, then to the ^Supreme Court of Judicature of the State aforesaid, to which the same has been remitted, with directions to cause judgment to be entered upon the pleadings in favour of the avowant.
Notes
The Federalist, No. 2