The authority to decide whether the exigencies contemplated in
the Constitution of the United States and the Act of Congress of
1795, ch. 101, in which the President has authority to call forth
the militia, "to execute the laws of the union, suppress
insurrections, and repel invasions" have arisen is exclusively
vested in the President, and his decision is conclusive upon all
other persons.
Although a militia man who refused to obey the orders of the
President calling him into the public service under the act of 1795
is not, in the sense of that act, "employed in the service of the
United States" so as to be subject to the rules and articles of
war, yet he is liable to be tried for the offense under the fifth
section of the same act by a court martial called under the
authority of the United States.
Where, in an action of replevin, the defendant, being a deputy
marshal of the United States, avowed and justified the taking the
plaintiff's goods by virtue of a warrant issued to the marshal of
the district to collect a fine imposed on him by the judgment of a
court martial, described as a general court martial composed of
officers of the militia of the State of New York in the service of
the United States (six in number and naming them), duly organized
and convened by general orders issued pursuant to the Act of
Congress of February 28, 1795, ch. 101, for the trial of those of
the militia of the State of New York ordered into the service of
the United States in the Third Military District who had refused to
rendezvous and enter into the service of the United States in
obedience to the orders of the commander in chief of the State of
New York of 4 and 29 August, 1814, issued in compliance with the
requisition of the President made in pursuance of the same act of
Congress and alleging that the plaintiff, being a private in the
militia, neglected and refused to rendezvous, &c., and was
regularly tried by the said general court martial and duly
convicted of the said delinquency,
held that the avowry
was good.
It is not necessary that the court martial for the trial of
delinquents under the act of 1795 should be composed of the precise
number of officers required by the rules and articles of war for
the composition of general courts martial in the army.
A court martial regularly organized under the act of 1795 does
not expire with the termination of a war then existing.
This was an action of replevin, originally brought in the
supreme court of New York by the defendant in error Mott against
the plaintiff in error Martin to which an avowry was filed,
containing substantially the following allegations:
That on 18 June, 1812, and from thence until 25 December, 1814,
there was public and open war between the United States of America
and the United kingdom of Great Britain and Ireland and its
dependencies and the citizens and subjects of the said countries
respectively, and that during the continuance of the said war,
to-wit, on 4 August, 1814, and also on the 29th day of the same
month, in the same year, at the City of New York, to-wit, at
Poughkeepsie, in the County of Dutchess, his Excellency Daniel D.
Tompkins, Esq., was then and there Governor of the State of New
York and Commander-in-Chief of the militia thereof, and being so
governor and commander-in-chief, he, the said Daniel D. Tompkins,
as such governor and Commander in Chief, on the several days last
aforesaid, and in the year aforesaid, and at the place aforesaid,
upon the previous requisitions of the President of the United
States, for that purpose made, and to him directed, as such
governor and commander-in-chief, did issue two several general
orders, bearing date respectively on the said 4 and 29 August in
the year aforesaid, in and by which said two general orders, among
other things, the said Daniel D. Tompkins, as governor and
commander-in-chief as aforesaid, pursuant to such requisitions, and
in compliance therewith, did detail certain parts and portions of
the militia of the state, as he was required to do in and by the
requisitions of the President of the United States, as aforesaid,
and did order the militia so detailed into the service of the
United States of America, at the City of New York, within the Third
Military District of the said United States, as in and by the said
two general orders may more fully appear. That the said Jacob E.
Mott, on the several days and in the year aforesaid and until 25
December in the same year, being a white citizen of the said State
of New York, inhabiting and residing within the same, and between
the ages of eighteen
Page 25 U. S. 21
and forty-five years, was liable to do military duty in the
militia of the said state and was a private in the militia of the
said state that was so detailed and ordered into the service of the
United States aforesaid, and as such private in said militia was
bound to do military duty in the militia of the said state so
detailed and ordered into the service of the United States in the
Third Military District of the United States. That on 24 September,
1814, Morgan Lewis, Esq. was a Major General, commanding the army
of the United States, of the Third Military District of the said
United States, in which district the militia of the State of New
York, detailed and ordered into the service of the United States as
aforesaid, had been ordered to do military duty in the service of
the United States. And the said Morgan Lewis, so being a Major
General, and commanding as aforesaid, did, on the day, and in the
year last aforesaid, as such major general and commander, issue
general orders to convene a general court martial for the purpose
in the said orders expressed, composed of so many and such militia
officers in the service of the United States in the said Third
Military District as in the said orders are mentioned, it having
been then and there considered and adjudged by the said Morgan
Lewis that a greater number of officers than those detailed on the
said court martial could not be spared from the service of the
United States without manifest injury to the said service, which
said general orders are in the words and figures following,
to-wit:
"Adjutant General's Office, 3d M.D. New York, 24 September,
1814. General Orders. A General court martial, under the Act of
Congress of 28 February, 1795, for the trial of those of the
militia of the State of New York ordered into the service of the
United States in the Third Military District who have failed to
rendezvous pursuant to orders, will convene on Monday, the 26th
instant at Harmony Hall, and will consist of the following members,
[enumerating them, being six in number], which General court
martial was continued (although varied as to its members) by
various general orders set out in the avowry
Page 25 U. S. 22
until 13 May, 1818."
That the said J. E. Mott, being so liable, &c., did fail,
neglect, and refuse to rendezvous and enter into the service of the
United States in obedience to the orders issued by the governor of
the state on the requisition of the President of the United States
and in compliance therewith. That on 30 May, 1818, the said court
martial convened at Poughkeepsie, within the said Third Military
District, at which time and place, the said Jacob E. Mott was duly
summoned to appear before the said court martial, and did then and
there appear before the said court martial and make his defense to
the charges alleged against him a aforesaid. That the said General
court martial then and there tried the said Jacob E. Mott for
having failed, neglected, and refused to rendezvous and enter into
the service of the United States in obedience to the orders
aforesaid, issued in compliance with the requisition aforesaid, and
after hearing the proofs and allegations as well on the part of the
United States as on the part of the said Jacob E. Mott, then and
there convicted the said Jacob E. Mott of the said delinquency, and
thereupon the said General court martial imposed the sum of $96 as
a fine on the said Jacob E. Mott for having thus failed, neglected,
and refused to rendezvous and enter into the service of the United
States when thereto required as aforesaid. That before the said
last mentioned day, to-wit, on 25 December, 1814, a treaty of peace
was made and concluded between the United States and the United
kingdom of Great Britain and Ireland and its dependencies, and that
the said Morgan Lewis, and Daniel D. Tompkins, the major generals
who issued the orders organizing, convening, and continuing the
said general court martial as aforesaid, were not continued as such
major generals as aforesaid in the service of the United States
aforesaid at the time herein next afterwards mentioned, nor was
there any other officer of equal grade with the said last mentioned
major generals in the service of the United States commanding in
the military district aforesaid at the time the said court imposed
the fine and sentence aforesaid
Page 25 U. S. 23
on the said plaintiff as aforesaid by whom the said sentence
could be approved, but that the said fine, sentence, and
proceedings of the said court martial, so far as they related to
the case of the said Jacob E. Mott, were duly approved by the
President of the United States before the same were certified by
the President of the court martial aforesaid, to the Marshal of the
Southern District of the State of New York, as hereinafter
mentioned, and before 4 June, 1814. That the President of the said
general court martial, afterwards, to-wit, on the day and year, and
at the place last aforesaid, in pursuance to the statute of the
United States in such case made and provided, did make a
certificate in writing whereby he did, under his hand, certify to
the Marshal of the Southern District of New York that the sum of
$96 was imposed as a fine on said Jacob E. Mott for having thus
failed, neglected, and refused to enter the service of the United
States when hereunto required as aforesaid, and that the said Jacob
E. Mott was sentenced by the said General court martial, on failure
of the payment of said fine imposed on him, to twelve months'
imprisonment.
The avowry then proceeded to state the authority of the
plaintiff in error, Martin, as deputy marshal, to execute such
certificate, and that in the execution thereof he took the said
goods, &c.
To this avowry the plaintiff in replevin demurred, and assigned
the following causes of demurrer:
"1. The said defendant, in his said avowry, does not allege that
the President of the United States had adjudged that there was an
invasion or imminent danger of an invasion, or that any of the
exigencies had occurred in which the President is empowered to call
out the militia by the Constitution of the United States."
"2. The said defendant in the said avowry does not aver that any
such previous requisition upon the governor was in fact made by the
President of the United States; no such requisition is set forth,
nor is the date or substance thereof,
Page 25 U. S. 24
or the number of militia thereby required, stated in the said
avowry."
"3. The said avowry does not state that the said militia were
ordered into actual service in compliance with such requisition,
nor does it appear that the militia were required by said
requisition to rendezvous or act within the Territory of the United
States."
"4. The said avowry does not sufficiently show or set forth
either the particulars or substance of the said orders of the
Governor of the State of New York in the said avowry mentioned in
such manner that it can appear whether the said orders, or either
of them, directed all those of the militia called out thereby to
rendezvous or enter the service of the United States upon the
requisition of the said President solely, or whether the said
orders also called out a part of the same militia by, under, and
pursuant to the authority and laws of the State of New York,
without the requisition of the said President, and without
designating which were ordered to rendezvous and enter the service
by the said respective authorities."
"5. The said avowry does not show that the two said several
orders of the governor were cumulative, explanatory of, auxiliary
to, or in any way connected with each other, nor whether both of
the said orders embraced the same or different persons and required
the same or different duties, nor with such certainty that it can
appear whether a disobedience of the other or both of the said
orders would be the same, a different, or an additional offense,
subject to the same or different jurisdiction, nor does it state
the number of the militia called out by the said orders, so that it
can appear whether in that respect the said orders were in
compliance with the requisitions of the President, nor by which of
the said orders the said plaintiff was called forth into the
service of the United States, in all which the said avowry is
uncertain and insufficient."
"6. The said avowry is double and uncertain inasmuch as therein
the said plaintiff is charged with having committed two several
offenses in the disobedience of the two said several
Page 25 U. S. 25
orders of the governor, without showing that both offenses were
necessary for the trial and conviction of the said plaintiff, or
any reason why the said orders should be so blended together, and
because the said orders are so blended together without showing any
dependence upon each other or any connection between them."
"7. The general orders in the said avowry set forth, under and
by virtue of which the said court martial was convened, and tried,
convicted, and fined the said plaintiff, are deficient, uncertain,
vague, inoperative, void, and of no effect, and conferred upon the
said court martial, or the members thereof, no jurisdiction over
the said plaintiff, or the offense with which he is charged in the
said avowry, inasmuch as the said last mentioned general orders
convened said court martial for the of those of the militia of the
State of New York, ordered into the service of the United States,
in the Third Military District, who had failed to rendezvous
pursuant to orders, without specifying in any manner when, by whom,
to whom, or by what authority or in what manner such orders should
have been issued in regard to the said militia, or when such
militia had failed to rendezvous, or whether the orders pursuant to
which said militia should have failed to rendezvous were the same
orders calling said militia into service in said Third Military
District or required them to rendezvous elsewhere or
otherwise."
"8. The said defendant in his said avowry states that the said
court martial was duly convened in pursuance of the said several
general orders, in the said avowry set forth on 24 October, 1814, a
day long before the last of the said general orders, by which the
said court is stated to have been duly convened, was issued, as
appears by the said avowry, all which is repugnant and
contradictory."
"9. The orders for convening the said court martial, as in the
said avowry set forth, are further uncertain because by the said
orders, the said court martial is stated to have been convened
under the Act of Congress of 28 February, 1795, without showing
which of the acts of Congress of that date is intended. "
Page 25 U. S. 26
"10. The trial of the said plaintiff by the said court martial,
as appears by the said avowry, was in a time of profound
peace."
"11. The said court martial had no power or authority under the
said general orders by which they were convened, to try, convict,
and fine the said plaintiff, for having failed, neglected, and
refused to rendezvous and enter the service of the United States,
in obedience to the orders aforesaid, issued in compliance with the
requisitions aforesaid."
"12. The said court martial, consisting of less than thirteen
members, had no power nor authority to try, convict, and fine the
said plaintiff, at the time said trial was had, it being a time of
peace, without showing that thirteen militia officers could not at
that time be spared without manifest injury to the service."
"13. By the said avowry it doth not appear whether all or how
many of the persons detailed by the said general orders as members
of the said court martial, continued to remain in the service of
the United States at the time when the said plaintiff was tried, or
that the places of such as had resigned were supplied by others
appointed in their stead, or in what manner the said court was duly
convened, or of how many members it was then composed, and whether
all the persons who acted as members of the said court martial, at
the time when the said plaintiff was tried, were then commissioned
officers of the militia of competent rank and in the service of the
United States."
"14. The said avowry does not allege that the orders by which
the said court martial was continued in service until further
orders remained still unrevoked at the time when the said plaintiff
was tried."
"15. The said avowry does not show in what manner, when, or by
whom the said plaintiff was duly summoned to appear before the said
court martial."
"16. The said avowry does not show at what time the said Morgan
Lewis and Daniel D. Tompkins were discontinued, nor but that they
were such major generals commanding as aforesaid, on the said 13
May, 1818, nor
Page 25 U. S. 27
but that at the time of the said trial there was a major general
of equal rank with the said Morgan Lewis and Daniel D. Tompkins
commanding an army in the service of the United States or some
other officer of competent authority in some military division of
territory comprising the said Third Military District by whom the
sentence of said court martial could have been approved."
"17. By the said sentence of the said court martial as the same
is in the said avowry set forth, the said Gerard Steddiford,
president of the said court, had no power or authority to issue
such a certificate as is in the said avowry mentioned, inasmuch as
the said certificate is variant from the said sentence."
"18. The said defendant does not in his said avowry allege that
the said plaintiff ever was in the service of the United States
before, at the time when, or after the said orders of the governor
of 4 and 29 August, 1814, were issued or at the time when the said
orders for detailing the said court martial were issued, when said
court martial convened, or when the said trial took place and the
said fine was imposed."
"19. The said certificate of the said Gerard Steddiford, as in
the said avowry set forth, does not show with sufficient certainty
by what court, or by whom, or by what authority the said fine was
imposed, nor does it appear that the said Gerard Steddiford made
the said certificate, as such president of the said court martial,
or signed the same in his official capacity."
"And also that the said avowry is in other respects uncertain,
informal, and insufficient, &c."
The defendant in replevin (now plaintiff in error) joined in
demurrer, and judgment was rendered in behalf of the plaintiff in
replevin, in the supreme court, which was affirmed by the Court for
the Trial of Impeachments and Correction of Errors.
The cause was then brought before this Court, by writ of error
under the 25th section of the Judiciary Act of 1789, c. 20.
Page 25 U. S. 28
MR. JUSTICE STORY 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 militiaman, when
thereto required by the President of the United States in pursuance
of the Act of 28 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 is 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,"
Page 25 U. S. 29
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 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 exigency has
arisen, or is it to be considered as an open question, upon which
every officer to whom the orders of the
Page 25 U. S. 30
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
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 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
Page 25 U. S. 31
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, &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 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
Page 25 U. S. 32
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. 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 entrusted 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 presumption
Page 25 U. S. 33
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 Wheat. 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 haec
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 the offense 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
Page 25 U. S. 34
or to be tried for the offense by any court martial organized
under the authority of the United States. The case of
Houston v.
Moore, 5 Wheat. 1, affords a conclusive answer to
this suggestion. It was decided in that case that although a
militiaman 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 the 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 offense 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 offense 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, noncommissioned officer, or private of the
militia who shall fail to obey the orders of the President of the
United States . . . 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 10 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
Page 25 U. S. 35
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 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 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
Page 25 U. S. 36
any other principle, courts martial would be left without 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 18 April, 1814, ch. 141. 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 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 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 is 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,
viz., 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-in-chief,
Page 25 U. S. 37
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 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 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 offenses 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 authority of the court to the
mere time of
Page 25 U. S. 38
the existence of the particular exigency, when it might be
thereby unable to take cognizance of, and decide upon a single
offense. 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 E. 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 anything 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 defense 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
Page 25 U. S. 39
it may be said of them that the Court does 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.
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 favor of the avowant, whereas it was
rendered in favor 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 nothing 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 the 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 favor of the avowant.
* The Federalist, No. 29.
