delivered the opinion of the court. The first ,nd second objections to the pleas are wholly untenable. It is tot necessary to allege that a case had occurred which gave uthority to the President of the United States to call forth the lilitia,under the act ofthe 28th of February, 1195. That act, after numerating the cases, on the occurrence of which the militia lay be called into the public service of the United States, vests i the president a high discretionary power: he, and he alone, ; made the judge, as well of the happening of the events, on diich the militia may be called forth, as of the number, time, nd destination of that species of force. In every case in •liich the president acts under that law, he acts upon his responbiiity under the constitution.
If it was necessary to the validity of these pleas to state, tiier that the United States were invaded, or in imminent dan» cr of invasion, or that the laws of the United States were op*158posed, 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 Avould subject him to damages for an act otherwise lawful.
To countenance such a construction of the act, Avould be monstrous. Every trial would either subject all the archives o: state to an examination before the court and jury, or the de fendant Avould 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 áutho rity, or misjudged, in relation to the occurrence of the fact Avhich authorized him to call forth the militia.
It is a general and sound principle, that whenever the laAi vests any person Avith a poAver to do an act, and constitutes him a judge of the evidence on which the act may be done, and, a! the same time, contemplates that the act is to be carried inte effect, through the instrumentality of agents, the person thu clothed with power is invested Avith discretion, and is, quoai hoc, a judge. His mandates to his legal agents, on his declaring the event to have happened, avíII be a protection to those agents and it is not their duty or business to investigate the facts thu referred to their superior, and to rejudge his determination. Ii a military point of view, the contrary doctrine Avould be sub versive of all discipline; and as it regards the safety and securit; of the United States and its citizens, the consequences would b deplorable and fatal. It was not necessary, therefore, to se forth the occurrence of these events in the pleas, as a j ustifica tion of the defendant’s conduct, because they were not, am could not, be matter of trial.
The objection that the governor’s order does not mentioi which president gave the order to him, nor what number o militia Avas called out, is too refined and idle to require exami nation.
The third objection is also untenable. Court martials for th( trial of militia officers or privates, are to be composed of mili fia officers. . (97th article of rules and articles of war.) It ii *159not a sugeradded qualification that such officers shall have been in the service of the United States.
The objections that the pleas do not allege that General Dear-born, 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, liter conviction, of keeping the person of thp 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 md articles of war, because they were enacted in 1806, and posterior to the act authorizing the president to call out the nilitia.
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 ;he troops of the United States. The act of the 10th of April, 1806, establishing the rules and articles of war, ordains, that rom and after the passing that act, the rules and articles therein ¡hall be the rules and articles by which the army of the United States shall be governed. It follows, necessarily, then, that hese rules and articles attached to the militia which were called nto the service of the United States thereafter, without refermce to the time when the power to call them out was confer-ed; and this independently of the 97th article, which actually ;xtends the rules to the militia. The act of 1795 is clearly irospective.
The only remaining objection is, that the pleas do not state hat the plaintiff’s term of service was unexpired when he was ried and sentenced, and put under guard.
Without examining the question whether the plaintiff was liade to be tried, after the period for which he was called out ¡ad elapsed, we are clearly of opinion that the defendant is not iable to this action.
*160The court martial was constituted to try all the delinquen) militia men in three counties, and the defendant was personally and regularly before the court, and charged with the offence oi desertion. The defendant, and the other members of the court, were sitting as judges. It was competent to the plaintiff tc have raised the objection under consideration, or any other but he waived every objection by pleading guilty, and throw ing himself on the mercy of the court. (Comp. 172.). Aftei this can he be permitted to turn round upon the court, and pre tend that he was not liable to their jurisdiction 7 Had he urgec the objection, it might have availed him; but his plea admit: their jurisdiction, and his own guilt. Besides, the court martia had not power to carry any sentence into execution. Theii 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 Drervy v. Coulton, (1 East, 56. in the notes,) is a very sound one. “ In ver] few instances,” he says, “ is an officer answerable for what he does to the best of his judgment, in cases where he is compel lable to act; but the action lies where the officer has an optioi whether he will act or not.” If the court martial had jurisdic tion over the person of the plaintiff, and over the subject mat ter, (his offence) then, most clearly, the members of that cour are not answerable. (1 Ed. Raym. 467.) The plaintiff admit ted both facts, by submitting to the jurisdiction of the court and pleading guilty. I will only add, that it would be most mis chievous and pernicious, to subject men acting in a judicia capacity, to actions, where their conduct is fair and impartial when they are uninfluenced by any corrupt or improper mo fives, for a mere mistake of judgment. (a) 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 require* them even to deliberate on any of these points or objections.
Van Ness, J. dissented.
Platt, J. not having heard the argument, gave no opinion.
Judgment for the defendant.
See ante, p. 114. Jenkins and others v. Waldron.