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ments, and some of these being of vital importance also to state authority and state legislation, it is not to be admitted, that a mere grant of such powers in affirmative terms to congress does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the states, unless where the constitution has expressly in terms given an exclusive power to congress, or the exercise of a like power is prohibited to the states, or there is a direct repugnancy or incompatibility in the exercise of it by the states. The example of the first class is to be found in the exclusive legislation delegated to congress over places purchased, by the consent of the legislature of the state in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a state to coin money or emit bills of credit; of the third class, as this court have already held, the power to establish a uniform rule of naturalization,* and the delegation of admiralty and maritime jurisdiction. In all other cases, not falling within the classes already mentioned, it seems unquestionable, that the states retain concurrent authority with congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that, in cases of concurrent authority, where the laws of the states and of the union are in direct and manifest collision on the same subject, those of the union being “the supreme law of the land” are of paramount authority, and the state laws, so far, and so far only, as such incompatibility exists, must necessarily yield.

Such are the general principles by which my judgment is guided in every investigation on constitutional points. I do not know that they have ever been seriously doubted. They com

* Chirac v. Chirac, 2 Wheaton's Reports, 259, 269.

Martin v. Hunter, 1 Wheaton's Reports, 304, 337. And see The Federalist, No. 32.


mend themselves by their intrinsic equity, and have been amply justified by the opinions of the great men under whose guidance the constitution was framed, as well as by the practice of the government of the union. To desert them would be to deliver ourselves over to endless doubts and difficulties; and, probably, to hazard the existence of the constitution itself. With these principles in view, let the question now before the court be examined.

The constitution declares that congress shall have power “ to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions ;” and “ to 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, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress."

It is almost too plain for argument, that the power here given to congress over the militia is of a limited nature, and confined to the objects specified in these clauses; and that, in all other respects, and for all other purposes, the militia are subject to the control and government of the state authorities. Nor can the reservation to the states of the appointment of the officers, and of the authority of training the militia according to the discipline prescribed by congress, be justly considered as weakening this conclusion. That reservation constitutes an exception merely from the power given to congress “to provide for organizing, arming, and disciplining the militia ;” and is a limitation upon the authority which would otherwise have devolved upon it as to the appointment of officers. But the exception from a given power cannot, upon any fair reasoning, be considered as an enumeration of all the powers which belong to the states over the militia. What those powers are must depend upon their own constitutions; and what is not taken away by the constitution of the United States must be considered as retained by the states or the people. The exception, then, ascertains only that congress have not, and that the states have, the power to appoint the officers of the militia, and to train them according to the discipline prescribed by congress. Nor does it seem necessary to contend that the power “to provide for organizing, arming, and disciplining the militia” is exclusively vested in congress. It is merely an affirmative power, and if not in its own nature incompatible with the existence of a like power in the states, it may well leave a concurrent power in the latter. But when once congress has carried this power into effect, its laws for the organization, arming, and discipline of the militia are the supreme law of the land; and all interfering state regulations must necessarily be suspended in their operation. It would certainly seem reasonable, that, in the absence of all interfering provisions by congress on the subject, the states should have authority to organize, arm, and discipline their own militia. The general authority retained by them over the militia would seem to draw after it these, as necessary incidents. If congress should not have exercised its own power, how, upon any other construction than that of a concurrent power, could the states sufficiently provide for their own safety against domestic insurrection, or the sudden invasion of a foreign enemy? They are expressly prohibited from keeping troops or ships of war in time of peace; and this, undoubtedly, upon the supposition, that, in such cases, the militia would be their natural and sufficient defence. Yet what would the militia be without organization, arms, and discipline? It is certainly not compulsory upon congress to exercise its own authority upon this subject. The time, the mode, and the extent, must rest upon its means and sound discretion. If, therefore, the present case turned upon the question, whether a state might organize, arm, and discipline its own militia, in the absence of, or subordinate to, the regulations of congress, I am certainly not prepared to deny the legitimacy of such an exercise of authority. It does not seem repugnant in its nature to the grant of a like, paramount authority to congress; and if not, then it is retained by the states. The fifth amendment to the constitution, declaring, that, "a well regulated militia being necessary to the security of a

free state, the right of the people to keep and bear arms shall

not be infringed,” may not, perhaps, be thought to have any . important bearing on this point. If it have, it confirms and illustrates, rather than impugns, the reasoning already suggested.

But congress have, also, the power to provide “ for governing such part of the militia as may be employed in the service of the United States.” It has not been attempted in argument, to establish that this power is not exclusively in congress; or that the states have a concurrent power of governing their own militia when in the service of the union. On the contrary, the reverse has been conceded both here and before the other tribunals in which this cause has been so ably and learnedly discussed. And there certainly are the strongest reasons for this construction. When the militia is called into the actual service of the United States, by which I understand actual employment in service, the constitution declares that the president shall be the commander in chief. The militia of several states may, at the same time, be called out for the public defence; and to suppose each state could have an authority to govern its own militia in such cases, even subordinate to the regulations of congress, seems utterly inconsistent with that unity of command and action on which the success of all military operations must essentially depend. There never could be a stronger case put, from the argument of public inconvenience, against the adoption of such a doctrine. It is scarcely possible, that any interference, however small, of a state, under such circumstances, in the government of the militia, would not materially embarrass, and directly, or indirectly, impugn the authority of the union. In most cases there would be an utter repugnancy. It would seem, therefore, that a rational interpretation must construe this power as exclusive in its own nature, and belonging solely to congress. The remaining clause gives congress power “ to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions.” Does this clause vest in congress an exclusive power, or leave to the states a concurrent power to enact laws for the same purposes ?

This is an important question, bearing directly on the case be· fore us, and deserves serious deliberation. The plaintiff con

tends that the power is exclusive in congress; the defendant, that it is not.

In considering this question it is always to be kept in view, that the case is not of a new power granted to congress where no similar power already existed in the states. On the contrary, the states, in virtue of their sovereignty, possessed general authority over their own militia ; and the constitution carved out of that a specific power in certain enumerated cases. But the grant of such a power is not necessarily exclusive, unless the retaining of a concurrent power by the states be clearly repugnant to the grant. It does not strike me, that there is any repugnancy in such concurrent power in the states. Why may not a state call forth its own militia in aid of the United States, to execute the laws of the union, or suppress insurrections, or repel invasions? It would certainly seem fit that a state might so do, where the insurrection or invasion is within its own territory, and directed against its own existence or authority; and yet these are cases to which the power of congress pointedly applies. And the execution of the laws of the union within its territory may not be less vital to its rights and authority than the suppression of a rebellion, or the repulse of an enemy. I do not say that a state may call forth, or claim under its own command, that portion of its militia which the United States have already called forth, and hold employed in actual service. There would be a repugnancy in the exercise of such an authority under such circumstances. But why may it not call forth and employ the rest of its militia in aid of the United States, for the constitutional purposes? It could not clash with the exercise of the authority confided to congress; and yet that it must necessarily clash with it in all cases is the sole ground upon which the authority of congress can be deemed exclusive. I am not prepared to assert that a concurrent power is not retained by the states to provide for the calling forth of its own militia, as auxiliary to the power of congress, in the enumerated

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