Ex parte Field. In considering the character and extent of that punishment, it becomes necessary to inquire what effect is to be given to the President's proclamation of the 24th of September, 1862, (13 U. S. Stat. at Large, 730,) which is as follows: "By the President of the United States of America. A proclamation. Whereas, it has become necessary to call into service, not only volunteers, but also portions of the militia of the States, by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained, by the ordinary processes of law, from hindering this measure and from giving aid and comfort in various ways to the insurrection: Now, therefore, be it ordered: First-That, during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by Courts Martial or military commissions. Second-that the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter, during the rebellion, shall be, imprisoned in any fort, camp, arsenal, military prison or other place of confinement, by any military authority or by the sentence of any Court Martial or military commission. In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. (L. S.) Done at the City of Washington, this twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh. Abraham Lincoln. By the President: William H. Seward, Secretary of State." Is the power thus assumed by the President conferred upon him by the Constitution or any Act of Congress, or by both combined? This is the most grave and important question that has ever been presented before the judicial tribunals of this country-one upon which eminent jurists have differed and upon which they will undoubtedly continue to differ. I approach Ex parte Field. it with great hesitancy and would be glad to avoid expressing an opinion upon it; but I have no choice. In order to examine it in all its aspects, it is necessary to consider the present condition of the Union. That a gigantic insurrection and rebellion has been, for more than eighteen months, and is still, raging in many of the States, and that the armies of the rebellious States have been, and are, invading loyal States with immense forces, that hundreds of millions of dollars have been expended, and many thousands of lives lost, in endeavors to suppress and put it down, and that hundreds of thousands of men are now in the field, and in hostile array against each other, we know to be true. That there are recruiting stations in nearly every town in the loyal States, and troops in various places in every State being drilled and disciplined, in squads, companies, and regiments, and that a draft has been ordered, we also know. The Constitution of the United States makes the President Commander-in-Chief of the United States army, and of the militia of the several States when called into the actual service of the United States. It also provides, that he shall "take care that the laws be faithfully executed," and that Congress shall have power "to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions." In pursuance of this authority, the Act of the 28th of February, 1795, (1 U. S. Stat. at Large, 424,) was passed, the 2d section of which provides, "that whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this Act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and to cause the laws to be duly executed." The same Act provides for organizing and governing the militia when so called out, and for establishing Courts Martial, &c. The question as to the construction of this Act came before the Supreme Court ⚫ of the United States, in the case of Martin v. Mott, (12 Wheat., Ex parte Field. 19.) It was an action of replevin, for certain goods and chattels, brought in a State Court of the State of New York. The Supreme Court of that State gave judgment against the avowant, and that judgment was affirmed by the Court for Correction of Errors, and from thence was taken by writ of error to the Supreme Court of the United States. The opinion of the Court was delivered by Mr. Justice Story, who says: "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, 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." "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, 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," &c. "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 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 ef fectuate the object." "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 Ex parte Field. 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?" "We are all of opinion, that the authority to decide whether the exigency has arrived, belongs exclusively to the President, and that his decision is conclusive upon all other persons." Again, Mr. Justice Story says: "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, 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." Mr. Justice Story states and disposes of another objection to the avowry, in these words: "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 any Court Martial organized under the authority of the United States. The case of Houston v. Moore, (5 Wheat. Rep., 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 decision of the State Court was reversed, and the case was remanded to it, with directions to cause a judgment to be entered in favor of the avowant. 6 Ex parte Field. This question as to the power of the President to call out the militia and establish martial law, was again before the Supreme Court of the United States, in the case of Luther v. Borden, (7 How. 1.) That was an action of trespass for breaking open the plaintiff's house, in Rhode Island, and arresting him under a military order, growing out of what has been usually called the Dorr Rebellion. The opinion of the court was delivered by that eminent jurist, Chief Justice Taney. After considering the question as to who should determine whether the exigency had arisen which would justify calling out the militia, the Chief Justice says: "After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the Court, while the parties were actually contending in arms for the possession of the Government, call witnesses before it, and inquire which party represented a majority of the people? If it could, then it would become the duty of the Court, (provided it came to the conclusion that the President had decided incorrectly,) to discharge those who were arrested or detained by the troops in the service of the United States, or the Government which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy and not of order. Yet, if this right does not reside in the Courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over." "It is true," adds the Chief Justice, "that in this case the militia were not called out by the President. But, upon the application of the Governor under the charter government, the President recognized him as the Executive power of the State, and took measures to call out the militia to support his authority, if it should be found necessary for the general government to interfere; and it is admitted in argument, that it was the knowledge of this decision that put an end to the armed opposition to the charter government, and prevented any further efforts to establish by force the |