Martin, Plantiff in Error, v. Mott, Defendant in Error
[The issue in this case was federal and state authority and jurisdiction over the militia. As in
Houston v. Moore, the context provides much enlightenment on the militia institution. Militia duty was conscript duty. Militiamen were governed by the rules and articles of war. The Militia Acts were the precursors of the selective service acts of the twentieth century. There was NO mention of a "personal right" to be armed outside of lawful authority. Martin v. Mott and Houston v. Moore are provided for further enlightenment to interested parties as Appendices to US v. Emerson. These were not included in the appendices provided to the Fifth Circuit.]
STORY, J., 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,
1
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 militia-man,
when thereto required by the President of the United
States, in pursuance of the act of the 28th of
February, 1795. 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,
[ * 29]
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 invasion 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
emergency has arisen, or is it to be considered as an
open question, upon which every officer to
[*30 ]
whom the orders of the * President are 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? 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 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 defence, and of watching
over the internal peace of the confederacy,"
2
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 defence 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
[ * 31]
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
disclousure 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, &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,
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 righ&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
[*32]
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.
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
only 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 the Executive of the nation 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 be maintained. When the
President exercises an authority confided to him by
law, the presump-
[*33]
tion is, that it is exercised in pursuance of law.
Every public officer is presumed to act in obedience
to his duty, until the contrary is shown; and a
fortiori, this presumption ought to be favorably
applied to the chief magistrate of the Union. It is
not necessary to aver, that the act which he may
rightfully do, was so done. If the fact of the
existence of the exigency were averred, it would be
traversable, and of course might be passed upon by a
jury; and thus the legality of the orders of the
President would depend, not on his own judgment of
the, facts, but upon the finding of those facts upon
the proofs submitted to a jury. This view of the
objection is precisely the same which was acted upon
by the supreme court of New York, in the case already
referred to, and; in the opinion of this court, with
entire legal correctness.
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 W. 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 others; and
if he were, he is not bound to set them forth in
haec verba.
The next objection is, that it does not sufficiently
appear in the avowry, that the court-martial was a
lawfully constituted courtmartial, having jurisdiction
of the 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,’ or to be tried for the
offence by
[*34]
any court-martial organized under the authority of the
United States. The case of Houston v. Moore, 5 W. 1,
affords a conclusive answer to this suggestion. It was
decided in that case, that although a militia man, who
refused to obey the orders of the President calling
him into the public service, was not, in the sense of
the act of 1795, "employed in time service of the
United States," so as to be subject to the rules and
articles of war; yet that he was liable to be tried
for the offence under the 5th section of the same act,
by a court-martial called under the authority of the
United States. The great doubt in that case was,
whether the delinquent was liable to be tried for the
offence by a court-martial organized under state
authority.
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, c. 20,
3
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
[* 35]
question, it is very clear, ‘that the act is merely
directory to the officer appointing the court, and
that his decision as to the number which can be
convened without manifest injury to the service, being
in a matter submitted to his sound discretion, must be
conclusive. But the present avowry goes further, and
alleges, not only that the court-martial was appointed
by a general officer commanding an army, that it was
composed of militia officers, naming them, but it goes
on to assign the reason why a number short of thirteen
composed the court, in the very terms of the 64th
article; and the truth of this allegation is admitted
by the demurrer. Tried, therefore, by the very test
which’ has been resorted to in support of the
objection, it utterly fails.
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 governed;" and the act of 1795 has only provided,
"that the militia employed in the service of the
United States, (not the militia 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 States;" and this is, in substance, reenacted
by the 97th of the rules and articles of war. It is
not, therefore, admitted, that any express authority
is given, by either statute, that such a court-martial
as is contemplated for the trial of delinquents tinder
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 and articles contemplate for
persons in actual service. If any resort is to be had
to them, it can only be to guide the discretion of 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 any other principle, courts-martial would be
left without
[ *36]
any adequate means to exercise the authority confided
to them; for there could scarcely be framed a positive
code to provide for the infinite variety of incidents
applicable to them.
The act of the 18th of April, 1814,
4
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 like 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 1st 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 service 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 such as 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
objection which has been urged at the bar, namely,
that the sentence has not been approved by the
commanding officer, in the manner pointed out in the
65th of the rules and articles of 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
[* 37 ]
in-chief,* and that there was not any other officer of
equal grade with the major-generals by whom the
court-martial had been organized and continued within
the military district, by whom the same could be
approved. If, therefore, an approval of the sentence
were necessary, that approval has been given by the
highest, and indeed only military authority competent
to give it.
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 levy the
same, without referring to any prior act to be done,
to give validity to the sentences. The natural
inference from such an omission is, that the
legislature did not intend in cases of this
subordinate nature, to require any further sanction of
the sentencee. 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 a time of profound peace. But
the opinion of this court is, that a court-martial,
regularly called under the act of 1795, does not
expire with the end of a war then existing, nor is 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, that act authorizes
the President to call forth the militia to suppress
insurrections, and to enforce the laws of the United
States 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 au-
[*38 ]
thority of the court to the mere time of the
existence of the particular exigency, when it might be
thereby unable to take cognizance of and decide upon a
single offence. It is sufficient for us to say, that
there is no such limitation in the act itself.
The next objection to the avowry is, that the
certificate of the president of the court-martial 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 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 B. Mott was sentenced by the said general
court-martial, on failure of the 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 haec 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 act of
1795 expressly declares that the delinquents "shall be
liable to be imprisoned by a like sentence, on failure
of payment of the fines adjudged against them, for one
calendar month for every five dollars of such fine."
If indeed it had been necessary to set forth the whole
sentence 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;
but 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 pleading, to which no separate answers are
deemed necessary. In *general, it maybe said
[*39]
of them, that the court do not deem them well-founded
objections to the avowry.
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 favor of the avowant.
5M. 295; 7H. 1; 18H. 272.