Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/97

 CH. XXII.] been questioned, although it provides for calling forth the militia, not only in cases of invasion, but of imminent danger of invasion; for the power to repel invasions must include the power to provide against any attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is, to provide the requisite force for action, before the invader has reached the territory of the nation. Nor can there be a doubt, that the president, who is (as will be presently seen) by the constitution the commander-in-chief of the army and navy of the United States, and of the militia, when called into the actual service of the United States, is the proper functionary, to whom this high and delicate trust ought to be confided. A free people will naturally be jealous of the exercise of military power; and that of calling forth the militia is certainly one of no ordinary magnitude. It is, however, a power limited in its nature to certain exigencies; and by whomsoever it is to be executed, it carries with it a corresponding responsibility. Who is so fit to exercise the power, and to incur the responsibility, as the president?

§ 1205. But a most material question arises: By whom is the exigency (the casus fœderis, if one may so say) to be decided? Is the president the sole and exclusive judge, whether the exigency has arisen, or is it to be considered, as an open question, which every officer, to whom the orders of the president are 12