martial, to be composed of militia officers only, for the trial of militia drafted, detached, and called forth for the service of the United States, whether acting in conjunction with the regular forces or otherwise, shall, whenever necessary, be appointed, held, and conducted, in the manner prescribed by the rules and articles of war, for appointing, holding, and conducting courts martial for the trial of delinquents in the army of the United States. Where the punishment prescribed is by stoppage of pay, or imposing a fine limited by the amount of pay, the same is to have relation to the monthly pay existing at the time the offence was committed. The residue of the act is employed in prescribing the manner of conducting the trial; the rules of evidence for the government of the court; the time of service, and other matters not so material to the present inquiry. The only remaining act of congress, which it will be necessary to notice in this general summary of the laws, is that of the 8th of May, 1792, for establishing a uniform militia in the United States. It declares who shall be subject to be enrolled in the militia, and who shall be exempt; what arms and accoutrements the officers and privates shall provide themselves with; arranges them into divisions, brigades, regiments, battalions, and companies, in such manner as the state legislatures may direct; declares the rules of discipline by which the militia is to be governed, and makes provision for such as should be disabled whilst in the actual service of the United States. The pay and subsistence of the militia, whilst in service, are provided for by other acts of congress, and particularly by one passed on the third of January, 1795.

The laws which I have referred to amount to a full execution of the powers conferred upon congress by the constitution. They provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions. They also 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; leaving to the states respectively the appointment of the officers, and the authority of

training them according to the discipline prescribed by congress.

This system may not be formed with as much wisdom as, in the opinion of some, it might have been, or as time and experience may hereafter suggest. But to my apprehension, the whole ground of congressional legislation is covered by the laws referred to. The manner, in which the militia is to be organized, armed, disciplined, and governed, is fully prescribed. Provisions are made for drafting, detaching, and calling forth the state quotas, when required by the president. The president's orders may be given to the chief executive magistrate of the state, or to any militia officer he may think proper. Neglect or refusal to obey orders is declared to be an offence against the laws of the United States, and subjects the offender to trial, sentence, and punishment to be adjudged by a court martial, to be summoned in the way pointed out by the articles and rules of war; and the mode of proceeding to be observed by these courts is detailed with all necessary perspicuity.

If I am not mistaken in this view of the subject, the way is now open for the examination of the great question in the cause. Is it competent to a court martial, deriving its jurisdiction under state authority, to try and to punish militia-men, drafted, detached, and called forth by the president into the service of the United States, who have refused or neglected to obey the call?

In support of the judgment of the court below, I understand the leading arguments to be the two following. 1. That militiamen, when called into the service of the United States by the president's orders, communicated either to the executive magistrate, or to any inferior militia officer of a state, are not to be considered as being in the service of the United States until they are mustered at the place of rendezvous. If this be so, then, 2dly. The state retains a right, concurrent with the government of the United States, to punish his delinquency. It is admitted on the one side, that, so long as the militia are acting under the military jurisdiction of the state to which they belong,

the powers of legislation over them are concurrent in the general and state government. Congress has power to provide for organizing, arming, and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by congress, it may be exercised to any extent that may be deemed necessary by congress. But as state militia, the power of the state governments to legislate on the same subjects having existed prior to the formation of the constitution, and not having been prohibited by that instrument, it remains with the states, subordinate, nevertheless, to the paramount law of the general government, operating upon the same subject. On the other side, it is conceded, that, after a detachment of the militia have been called forth, and have entered into the service of the United States, the authority of the general government over such detachment is exclusive. This is also obvious. Over the national militia the state governments never had, or could have, jurisdiction. None such is conferred by the constitution of the United States; consequently, none such can exist.

The first question, then, is, at what time, and under what circumstances, does a portion of militia, drafted, detached, and called forth by the president, enter into the service of the United States, and change their character from state to national militia? That congress might by law have fixed the period, by confining it to the draft; to the order given to the chief magistrate, or other militia officer of the state; to the arrival of the men at the place of rendezvous; or to any other circumstance, I can entertain no doubt. This would certainly be included in the more extensive powers of calling forth the militia, organizing, arming, disciplining, and governing them. But has congress made any declaration on this subject? and in what manner is the will of that body, as expressed in the before mentioned laws, to be construed? It must be conceded, that there is no law of the United States which declares, in express terms, that the organizing, arming, and equipping a detachment, on the order of the president to the state militia officers, or to the

militia-men personally, places them in the service of the United States. It is true, that the refusal or neglect of the militia to obey the orders of the president is declared to be an offence against the United States, and subjects the offender to a certain prescribed punishment. But this flows from the power bestowed upon the general government to call them forth, and, consequently, to punish disobedience to a legal order; and by no means proves that the call of the president places the detachment in the service of the United States. But although congress has been less explicit on this subject than they might have been, and it could be wished they had been, I am, nevertheless, of opinion, that a fair construction of the different militia laws of the United States will lead to a conclusion, that something more than organizing and equipping a detachment and ordering it into service was considered as necessary to place the militia in the service of the United States. That preparing a detachment for such service does not place it in the service is clearly to be collected from the various temporary laws which have been passed, authorizing the president to require of the state executives to organize, arm, and equip their state quotas of militia for the service of the United States; because they all provide that the requisition shall be to hold such quotas in readiness to march at a moment's warning; and some, if not all of them, authorize the president to call into actual service any part, or the whole, of said quotas, or detachments; clearly distinguishing between the orders of the president to organize and hold the detachments in readiness for service, and their entering into service.

The act of the 28th of February, 1795, declares that the militia employed in the service of the United States shall receive the same pay and allowance as the troops of the United States, and shall be subject to the same rules and articles of war. The provisions made for disabled militia-men, and for their families, in case of their death, are, by other laws, confined to such militia as are, or have been, in actual service. There are other laws which seem very strongly to indicate the

time at which they are considered as being in service. Thus, the act of the 28th of February, 1795, declares that a militiaman called into the service of the United States shall not be compelled to serve more than three months, after his arrival at the place of rendezvous, in any one year. The 8th section of the act of the 18th of April, 1814, declares that the militia, when called into the service of the United States, if, in the president's opinion, the public interest requires it, may be compelled to serve for a term not exceeding six months, after their arrival at the place of rendezvous, in any one year; and by the 10th section provision is made for the expenses which may be incurred by marching the militia to their places of rendezvous, in pursuance of a requisition of the president, and they are to be adjusted and paid in like manner as those incurred after their arrival at the rendezvous. The 3d section of the act of the 2d of January, 1795, provides, that, whenever the militia shall be called into the actual service of the United States, their pay shall be deemed to commence from the day of their appearing at the place of battalion, regimental, or brigade rendezvous, allowing a day's pay and ration for every fifteen miles from their homes to said rendezvous.

From this brief summary of the laws it would seem, that actual service was considered by congress as the criterion of national militia; and that the service did not commence until the arrival of the militia at the place of rendezvous. That is the terminus a quo the service, the pay, and subjection to the articles of war, are to commence and continue. If the service, in particular, is to continue for a certain length of time, from a certain day, it would seem to follow, almost conclusively, that the service commenced on that, and not on some prior day. And, indeed, it would seem to border somewhat upon an absurdity, to say that a militia-man was in the service of the United States at any time, who, so far from entering into it for a single moment, had refused to do so, and who never did any act to connect him with such service. It has already been admitted, that, if congress had pleased so to declare, a militia