Martin v. Mott.

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 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 presumption *is, that it is exer

*33] cised in pursuance of law. Every public officer is presumed to act in

obedience to his duty, until the contrary is shown; and, à 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 might 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 hæc 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 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,

Martin v. Mott.

consequently, he was not liable to the rules and articles of war, *or to be tried for the offence 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 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 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 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, § 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 (§ 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, 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 neces sary." Supposing these clauses applicable to the court-martial in 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 [*35 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, re-enacted by

Martin v. Mott.

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 *any other principle, courts-martial would be left without any *36] 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, 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 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 cognisance 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, and that there was not any other officer of *37] 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,

Martin v. Mott.

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 (§ 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 esssential, 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 courtsmartial are, under the 5th section of the act, entitled to take cognisance 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 *the existence of the particular exigency, when it might be thereby unable to take cognisance of, and decide upon a single offence. It is sufficient for us to say, that there is no such limitation in the act itself.

[*38

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 hæc 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

Martin v. Mott.

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,

*39]

*it may be said 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.

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.

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