網頁圖片
PDF
ePub 版
[graphic]

443. The only direct restriction on the power of Congress, in relation to the subject, is contained in an amendment of the Constitution, which provides that u no soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by Law."

444. The Union of the States under the National Constitution, removes every pretext for a Military establishment which could prove dangerous ; and the distance of this Continent from the powerful Nations of Europe, affords a security that the Government will never be able to persuade or delude the People into the support of large and expensive peace establishments.

445. The Union itself is, moreover, the principal security against danger from abroad, as well as against internal commotion or domestic usurpation; whilst it is the only source of the Maritime strength of the Nation; and the necessity of a Navy, and the proof of its efficacy as an arm of National defence, have removed the scruples which at one period prevented due attention to encouraging it in time of peace.

446. The Power of regulating the Militia, and of commanding its services in times of insurrection or invasion, are incident to the duties of superintending the common defence and internal tranquillity of the Union.

447. The advantages of uniformity in the organization and discipline of the Militia, could only be attained by expressly confiding its regulation to the General Government; and it was essential that Congress should have authority not only " to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions;" but also " to provide for organizing, arming, and disciplining the Militia, and for governing such parts of them as may be employed in the service of the United States."

448. The President being constituted Commander in Chief of the Militia when called into the actual service of the Union, is authorized by Law, in case of invasion, or of imminent danger thereof, to call forth such numbers of them, most convenient to the scene of action, as he may judge necessary.

449. The Militia so called out are subject to the rules of war, and the Law imposes a fine upon every delinquent, to be adjudged by a Court-Martial, composed of Militia Officers only, and held and conducted in the manner prescribed by the Articles of War.

450. The manner in which the Militia are to be organized, armed, disciplined, and governed, is prescribed by Law; and provision is made for drafting, detaching, and calling forth the Slate quotas, when required by the President.

451. The Act of Congress renders the President the sole and exclusive judge of the existence of the exigency in which the Constitution authorizes the Militia to be called forth into the service of the United States; and his decision is conclusive upon all other persons.

452. This construction necessarily results from

and from the manifest object contemplated by the Act of Congress.

the nature of the

[graphic]

by the Constitution,

453. The power itself is to be exersised upon sudden emergencies, and under circumstances which may affect the existence of the Union, and a prompt and unhesitating obedience is indispensable to the complete attainment of the object.

454. As the power of regulating the Militia, and of commanding its services in times of insurrection and invasion, are incident to the duty of superintending the common defence and internal tranquillity of the Union, that power must be so construed, with respect to the modes of its exercise, as not to defeat the end in view.

455. If the Governor of a State, or other superior officer, had a right to contest the orders of the President, upon their own doubts as to the existence of the exigency, it would be equally the right of every inferior officer and soldier; and an act done by any person in furtherance of such orders, would subject the party to a civil suit, in which his defence would rest upon his ability to establish, by competent proof, the facts upon which the exigency was alleged to have arisen.

456. This would be subversive of military discipline, and expose the best intentioned persons to the chances of a ruinous litigation; and in many instances, the evidence upon which the President might decide, would not constitute technical proof; or its disclosure might reveal important secrets of State which the public safety might require to be concealed.

457. The President being constituted the judge of the existence of the exigency, is bound to act according to his belief of the facts; and if he decides to call forth the Militia, and his orders for this purpose are in conformity with the provisions of the Law, it follows as a necessary consequence, that every subordinate officer is bound to obey them.

458. Whenever an Act of Congress gives to the President a discretionary power, 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 it is not considered a valid objection, that such power may be abused; for there is no power which is not susceptible of abuse.

459. The remedy for the abuse of this and all other powers, is afforded by the Constitution itself; and in a free Government such dangers must be remote, since, in addition to the high qualities which the Chief Executive Magistrate must be presumed to possess, the frequency of elections, the watchfulness of the immediate representatives of the People, and the responsibility of the President, are all the securities which can be useful to guard against usurpation or tyranny. .. *

460. Nor is it necessary that it should appear that the particular exigency in fact existed, upon the belief of which the President may have exercised his discretion in the execution of this power; for the same principles are not applicable to the delegation and exercise of the power entrusted to the Supreme Executive of the Nation, for great political purposes, as are applied to subordinate agents, acting under the most narrow and special authority."

461. When the President exercises an authority confided to him by Law, the presumption is that it is exercised in pursuance of the Law; for every public officer is presumed to act in pursuance of his duty, until the contrary be shewn; and this rule applies with greater force to the Chief Magistrate of the Union.

462. If the non-existence of the exigency could be

« 上一頁繼續 »