Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/99

and that his decision is conclusive upon all other persons. The court said, that this construction necessarily resulted from the nature of the power itself, and from the manifest objects contemplated by the act of congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances, which may be vital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a military service, and the command of a military nature; and in such cases, every delay and every obstacle to an efficient and immediate compliance would necessarily tend to jeopard the public interests. While subordinate officers or soldiers are pausing to consider, whether they ought to obey, or are scrupulously weighing the facts, upon which the commander-in-chief exercises the right to demand their services, the hostile enterprize may be accomplished, without the means of resistance. If the power of regulating the militia, and of commanding its services in times of insurrection and invasion, are, as it has been emphatically said, they are,^[1] natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the confederacy, these powers must be so construed, as to the modes of their exercise, as not to defeat the great end in view. If a superior officer has a right to contest the orders of the president, upon his own doubts, as to the exigency having arisen, it must be equally the right of every inferior officer and soldier. And any act done by any person in furtherance of such orders would subject him to responsibility in a civil suit, in which his

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1. The Federalist, No. 29.