NEWS OF 150 YEARS AGO
March and April 1861
From The Missouri Democrat, Tuesday, Tuesday, April 16, 1861.
THE PRESIDENT’S PROCLAMATION.
HAS HE THE POWER TO CALL OUT THE MILITIA?
Editors of the Missouri Democrat:
Having heard the above inquiry made by several persons, it occurs to me that a brief and authentic statement of the power of the President, under the constitution and existing laws of the United States, to call out the militia of the several States, may be satisfactory to your readers. It will be seen, not only that the power does not exist, but that both the Supreme Court of New York and the Supreme Court of the United States, in cases argued before them involving both the constitutionality and the extent of this power, have expressly decided that it does, and that the President himself, in the exercise of his high discretion, is and must be the sole judge of its exercise.
The eighth section of the first article of the constitution of the United States declares what shall be the power of Congress and the 16th clause of the 8th section of Art. 1, gives it power—
“to provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion.”
The first law enacted by Congress under this power, but afterwards repealed, was the Act of May 26, 1792: the second section of which is as follows:
“Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this act, the same being notified to the President of the United States by an associate justice or district judge, it shall be lawful for the President of the United States to call forth the militia of such State to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a State where such combinations may happen, shall refuse or be insufficient to suppress the same, it shall be lawful for the President, if the Legislature of the United States be not in session, to call forth and employ such members of the militia of any other State or States most convenient thereto, as may be necessary, and the use of militia so called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the opening session.”—Vol. I. U. S. Stat. at Large, p. 264.
It will be observed that under the above cited act, it was first necessary for a United States Judge to notify the President; then the militia of the State where the unlawful combinations existed must first be called upon, and if they refused or were insufficient, then he might call out the militia of other States “most convenient thereto.”
Many persons, even lawyers, and if I mistake not, even United States Senators, in discussing this power, seem to think that the above law is still the one under which the President must act. This is a serious error.
The act of Congress now in force, is the act of February 28, 1795, and may be found in full in Vol. I, U. S. Statutes at Large, p. 424, and in Brightly’s Digest of Laws, (ed. 1858,) pp. 521-2.
The first three sections of this Act are literally as follows:
“Sec. 1. Be it enacted, &c., 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 orders for that purpose to such officer or officers of the militia as he shall think proper. And in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States on application of the legislature of such State, or of the Executive (when the legislature cannot be convened) to call forth such number of the militia or any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.
“Sec. 2. And be it, &c. That whenever the laws of the United States shall be opposed, or the execution thereof be obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals in this act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.
“Sec. 3. Provided always and be it further enacted. That whenever it may be necessary in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.”
The fourth section provided that “the militia employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States.” And the tenth and last section of the act of February 28th, 1795, expressly repeals the act of May 2d, 1792, above referred to.
It will be seen at once that under the second section of the act of 1795, in case of opposition to or obstruction of the laws of the United States by “combinations” such as referred to, the Presidents is not required to wait for notice from a United States Judge—and he is empowered to call out the militia of any State for the purpose of suppressing the same. The important question at once arises, Who is to judge of the existence of the facts authorizing him to call out the militia?
This question is impliedly answered by the language of section 3, above quoted, namely:
“Whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth,” &c., &c.
But I desire to cite, as a compelte and authoritative answer to this question, and as to the meaning and force of the law itself, the language of the two Courts above mentioned.
In May, 1814, the case of Vanderheyden vs. Young (11 Johnson’s Rep., p. 150) was argued and decided in the Supreme Court of the State of New York. The plaintiff sued the defendant for damages for an alleged assault and false imprisonment; the ground of the action being the proceedings of a court martial, (on which the defendant sat,) which arrested, tried, and punished plaintiff by fine and imprisonment, for refusing to obey the orders of his superior officers and to perform the duties required of him when lawfully ordered into the military service of the United States conformably to directions and by authority of the President of the United States, under the law of February 28th, 1795.
The defendant admitted the acts complained of but justified under the Act of 28th Feb., 1795, and the orders of the President and the Articles of War. The plaintiff raised the question of law by demurring to the plea, assigning the cause of demurrer:
“That it is not alleged in either of the said pleas that the United States were invaded, or in imminent danger of invasion, from any foreign power or Indian tribe, nor that the laws of the United States were opposed, or the execution thereof obstructed by any State.”
If this demurrer had been held good, the effect would have been to decide that the proclamation or orders of the President were not of themselves sufficient authority for the proceedings of the Court Martial, unless it was also pleaded and proved by the defendant that the invasion, or opposition to United States laws, &c., existed, justifying the President in calling forth the militia.
But Judge Spencer, delivering the opinion of the Court, said:
“It is not necessary (for the defendant) 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 28th February, 1795. That act, after enumerating the casus 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 the number, time, and destination of that species of force. In every case in which the President sets 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 with 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, woudl be put to the necessity, when he was sued for any act of discipline upon the privates, to prove to the 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 unlawful.
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.
It is a general and sound principle that whenever the law vests any person with 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 mandate 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.”
The same question, as to the construction of the act of Feb. 28, 1795, and the power and authority of the President under it, was decided by the Supreme Court of the United States, in 1827 in the case of Martin vs. Mott, reported in 12th Wheaton’s Reports, pp. 19-29. The case was very similar, being a suit by a militia man, who refused to obey the orders of the President calling him into the public service under the act of 1795, for damages against a Deputy United States Marshal, for seizing certain goods and chattels of the plaintiff in order to collect a fine imposed on him by a Court Martial for such refusal and disobedience. The defendant admitted the seizure, and justified under the sentence of the Court Martial and the orders of the President.
The opinion of the Court was unanimous, and was delivered by the late Mr. Justice Story. After briefly stating [illegible] the Act of Feb. 28th, 1795 (above quoted), the Court decided, first, that the Act of 1795 is within the constitutional power of Congress, and say:
“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 corresponding responsibility.” (p. 29)
“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 upon 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 in indispensable to the complete attainment of the object.” (p. 30.)
The Court proceed to argue the question still further, showing the destruction of public safety and private security which any other conclusion would involve. They say again (p. 31):
“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 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 law.” “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.” (p. 32)
The Court also expressly refer to the case of Vanderheyden vs. Young (11 Johnson’s Rep, 150,) above quoted, where, it says,”the reasons in support of this doctrine were most ably expounded by Mr. Justice Spencer.”
It so happened that in both these cases the President’s orders were issued upon the exigency mentioned in the first section of the Act of 1795, upon the apprehension of an invasion of the United States by the troops of Great Britain; but the Court, in each decision declares that the discretionary authority and exclusive judgment of the President and as to its exercise, exists in either of the cases mentioned in the law.
By comparing the language of President LINCOLN’s proclamation with the language of the second and third sections of the Act of February 28, 1795, (quoted above in full) it is evident that his action is based upon those sections. And a careful examination of the foregoing decisions, establishes beyond all question these propositions:
1. That if the President believes that at this time “the laws of the United States are opposed or the execution thereof obstructed, in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the United States Marshals,” then (according to the United States Supreme Court) “he is BOUND to act according to his belief of the facts.”
2. That the President is (according to the same authority) necessarily constituted the sole judge of the existence of the exigency, or either of the exigencies mentioned in either section of the Act of 1795, and that “his decision is conclusive upon all other persons.”
3. That “if the President does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of law,” and that they ought to receive a “a [sic] prompt and unhesitating obedience.”
4. That the President in so acting has the legal right to call out the militia of any State for the purpose in question.
H.
