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Article 1, Section 8, Clause 16



Document 14

Vanderheyden v. Young

11 Johns. R. 150 N.Y. 1814

Spencer, J., delivered the opinion of the court. The first and second objections to the pleas are wholly untenable. It is not necessary 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 the 28th of February, 1795. That act, after enumerating the cases, 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 of the number, time and destination of that species of force. In every case in which the president acts 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 on 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, would be put to the necessity, when he was sued for any act of discipline upon the privates, to prove to a 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 lawful.

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. No man would dare to obey the orders, either of the president, or of his superior officer, lest, peradventure, the president had either abused his authority, or misjudged, in relation to the occurrence of the fact, which authorized him to call forth the militia.

It is a general and sound principle, that whenever the law vests any person with a 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 mandates 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. It was not necessary, therefore, to set forth the occurrence of these events in the pleas, as a justification of the defendant's conduct, because they were not, and could not, be matter of trial.

The objection that the governor's order does not mention which president gave the order to him, nor what number of militia was called out, is too refined and idle to require examination.

The third objection is also untenable. Courts-martial for the trial of militia officers or privates are to be composed of militia officers. (97th article of rules and articles of war.) It is not a superadded qualification that such officers shall have been in the service of the United States.

The objections that the pleas do not allege that General Dearborn, when he ordered the court-martial, commanded the army of the United States, or that he ordered the sentence to be executed, are not well taken. The plea states that General Dearborn, when he issued the order, was a major general of the army of the United States; and this imports that he then commanded the army; but, under the act of 1795, it is not required that courts-martial should be ordered by a general commanding an army. The 65th article gives to the officer ordering the court the power of confirming and executing the sentence; but it does not prescribe the manner of doing either; and from analogy to all other courts of criminal jurisdiction, it necessarily follows, that the court before whom the trial is had, has the power, after conviction, of keeping the person of the delinquent, until the will and pleasure of the superior officer be known.

It is also objected that the plaintiff was not subject to the rules and articles of war, because they were enacted in 1806, and posterior to the act authorizing the president to call out the militia.

The 4th section of the act of the 28th of February, 1795, provides 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. The act of the 10th of April, 1806, establishing the rules and articles of war, ordains, that from and after the passing that act, the rules and articles therein shall be the rules and articles by which the army of the United States shall be governed. It follows, necessarily, then, that these rules and articles attached to the militia which were called into the service of the United States thereafter, without reference to the time when the power to call them out was conferred; and this independently of the 97th article, which actually extends the rules to the militia. The act of 1795 is clearly prospective.

The only remaining objection is, that the pleas do not state that the plaintiff's term of service was unexpired when he was tried, and sentenced, and put under guard.

Without examining the question whether the plaintiff was liable to be tried, after the period for which he was called out had elapsed, we are clearly of opinion, that the defendant is not liable to this action.

The court-martial was constituted to try all the delinquent militia men in three counties, and the plaintiff was personally and regularly before the court, and charged with the offence of desertion. The defendant, and the other members of the court, were sitting as judges. It was competent to the plaintiff to have raised the objection under consideration, or any other; but he waived every objection by pleading guilty, and throwing himself on the mercy of the court. (Cowp. 172.) After this, can he be permitted to turn round upon the court, and pretend that he was not liable to their jurisdiction? Had he urged the objection, it might have availed him; but his plea admits their jurisdiction, and his own guilt. Besides, the court-martial had not power to carry any sentence into execution. Their proceedings were liable to the review of General Dearborn, and there he should have resorted with his exculpatory proof. (5 Term Rep. 182. 6 Term Rep. 248.)

The distinction taken by Justice Wilson, in Drewy v. Coulton, (1 East, 56. in the notes,) is a very sound one. "In very few instances," he says, "is an officer answerable for what he does to the best of his judgment, in cases where [he] is compellable to act; but the action lies where the officer has an option whether he will act or not." If the court-martial had jurisdiction over the person of the plaintiff, and over the subject matter, (his offence,) then, most clearly, the members of that court are not answerable. (1 Ld. Raym. 467.) The plaintiff admitted both facts, by submitting to the jurisdiction of the court, and pleading guilty. I will only add, that it would be most mischievous and pernicious, to subject men acting in a judicial capacity, to actions, where their conduct is fair and impartial, when they are uninfluenced by any corrupt or improper motives, for a mere mistake of judgment. In the present case, they are called in question by a person who, by acknowledging the jurisdiction of the court and his own guilt, never required them even to deliberate on any of these points or objections.

Platt, J., not having heard the argument, gave no opinion


The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 16, Document 14
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