By the first section of the act of 29th of July, 1861, chapter 25, the President is authorized to call forth the militia of any or all of the States whenever by reason of unlawful obstructions, combinations, &c., it is impracticable in his judgment to enforce the laws, &c. This and section 2 of the same act are substituted for sections 2 and 3 of the act of February 28, 1795, chapter 36.
The Supreme Court of the United States (12 Wheaton, Martin vs. Mott) held 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." Though not in order of dates, I begin with this interpretation because it is applicable to all the cases that can arise for thwer under the acts authorizing him to call forth the militia. In view of the difficulties existing here there is another question of pre- eminent importance. Has the President authority to address his orders to particular officers of the militia to call out the troops under their command without a requisition upon the Governor of the State? Or to suppose a case for the exercise of the power, can the President order Major-General Sandford to call out his command to resist unlawful obstructions to the execution of the act for enrolling and calling out the national forces? In the case of Houston vs. Moore (5 Wheaton), the Supreme Court of the United States by Justice Washington said, "The President's orders may be given to the Chief Executive Magistrate of the State, or to any militia officer he may think proper." This power is expressly given in the first section of the act in cases of invasion or danger of invasion. The court considered it applicable to the cases of insurrection and obstructions to the execution of the laws. It held that-
The act of the 2nd of May, 1792, which is re-enacted almost verbatim by that of the 28th of February, 1795, authorizes the President of the United States in case of invasion or of imminent danger of invasion, or when it may be necessary for executing the laws of the United States, or to suppress insurrections, to call forth such number of the militia of the States most convenient to the scene of action as he may judge necessary, and to issue his orders for that purpose to such officers of the militia as he shall think proper.
If I find it necessary to declare martial law, I may also find it necessary to ask the President to call General Sandford's division into the service of the United States, and to address the order directly to him. It may be the more important, as intimations have been thrown out by persons officially connected with Governor Seymour, that the militia of the city may be used to protect its citizens against the draft in certain contingencies, and it is quiet possible that such a contingency may arise in the progress of judicial proceedings instituted to release individuals from the operation of the act for enrolling and calling out the militia.
That there is a widespread disaffection in this city, and that opposition to the draft has been greatly increased by Governor Seymour's letters, cannot be doubted; and in view of the disastrous effects at home and abroad of a successful resistance to the authority of the United States, I renew the request contained in my dispatch of this morning to Colonel Fry, that 5,000 more troops may be sent here. With this preparation I feel confident that rioters as well as the more dangerous enemies of the public order, those who sympathize with the seceded States, or are so embittered by party prejudice as to lose sight of their duties to the Government and the Union, will be over-
43 R R-SERIES III, VOL III