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cases. The argument of the plaintiff is, that, when a power is granted to congress to legislate in specific cases, for purposes growing out of the union, the natural conclusion is that the power is designed to be exclusive; that the power is to be exercised for the good of the whole, by the will of the whole, and consistent with the interests of the whole; and that these objects can nowhere be so clearly seen, or so thoroughly weighed, as in congress, where the whole nation is represented. But the argument proves too much; and, pursued to its full extent, it would establish that all the powers granted to congress are exclusive, unless where concurrent authority is expressly reserved to the states. But assuming the states to possess a concurrent power on this subject, still the principal difficulty remains to be considered. It is conceded on all sides, and is, indeed, beyond all reasonable doubt, that all state laws on this subject are subordinate to those constitutionally enacted by congress, and that, if there be any conflict or repugnancy between them, the state laws to that extent are inoperative and void. And this brings us to a consideration of the actual legislation of congress, and of Pennsylvania, as to the point in controversy.

In the execution of the power to provide for the calling forth of the militia, it cannot well be denied, that congress may pass laws to make its call effectual, to punish disobedience to its call, to erect tribunals for the trial of offenders, and to direct the modes of proceeding to enforce the penalties attached to such disobedience. In its very essence, too, the offence created by such laws must be an offence exclusively against the United States, since it grows solely out of the breach of duties due to the United States in virtue of its positive legislation. To deny the authority of congress to legislate to this extent would be to deny that it had authority to make all laws necessary and proper to carry a given power into execution; to require the end, and yet deny the only means adequate to attain that end. Such a construction of the constitution is wholly inadmissible.

The authority of congress being then unquestionable, let us see to what extent and in what manner it has been exercised.

By the act of the 28th of February, 1795, (chapter 101,) congress have provided for the calling forth of the militia in the cases enumerated in the constitution. The first section provides, "that, whenever the United States shall be invaded, or be in imminent danger of invasion, from any foreign nation, or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state or states, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders, for that purpose, to such officer or officers of the militia as he shall think proper." It then proceeds to make a provision substantially the same in cases of domestic insurrections. And in like manner, the second section proceeds to provide for cases where the execution of the laws is opposed or obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings. The fourth section provides that "the militia employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States." The fifth section (which is very material to our present purpose) provides "that every officer, non-commissioned officer, or private, of the militia, who shall fail to obey any of the orders of the president of the United States, in the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officer shall, moreover, be liable to be cashiered by a sentence of a court martial, and be incapacitated from holding a commission in the militia for a term not exceeding twelve months, at the discretion of the said court; and such non-commissioned officers and privates shall be liable to be imprisoned by a like sentence, on failure of payment of the fines adjudged against them, for one calendar month for every five dollars of such fine." The sixth section declares "that courts martial for the trial of militia shall be composed of militia officers only." The seventh and eighth sections provide for the collection of the fines by the marshal and deputies, and for the payment of them, when collected, into the treasury of the United States.

5 Wh. 57.

The second section of the militia act of Pennsylvania, passed the 28th of March, 1814, provides, "that, if any commissioned officer of the militia shall have neglected or refused to serve, when called into actual service in pursuance of any order or requisition of the president of the United States, he shall be liable to the penalties defined in the act of congress of the United States, passed on the 28th of February, 1795,” and then proceeds to enumerate them; and then declares" that each and every non-commissioned officer and private, who shall have neglected or refused to serve when called into actual service in pursuance of an order or requisition of the president of the United States, shall be liable to the penalties defined in the same act," and then proceeds to enumerate them. And to each clause is added, "or shall be liable to any penalty which may have been prescribed since the date of the passage of the said act, or which may hereafter be prescribed by any law of the United States." It then further provides, that, "within one month after the expiration of the time for which any detachment of militia shall have been called into the service of the United States, by or in pursuance of orders from the president of the United States, the proper brigade inspector shall summon a general or a regimental court martial, as the case may be, for the trial of such person or persons belonging to the detachment called out, who shall have refused or neglected to march therewith, or to furnish a sufficient substitute, or who, after having marched therewith, shall have returned without leave from his commanding officer, of which delinquents the proper brigade inspector shall furnish to the said court martial an accurate list. And as soon as the said court martial shall have decided in each of the cases which shall be submitted to their consideration, the president thereof shall furnish to the marshal of the United States, or to his deputy, and also to the comptroller of the treasury of the United States, a list of the delinquents fined, in order that the further proceedings directed to be had thereon by the laws of the United States may be completed."

It is apparent from this summary, that each of the acts in

question has in view the same objects, the punishment of any persons belonging to the militia of the state, who shall be called forth into the service of the United States by the president, and refuse to perform their duty. Both inflict the same penalties for the same acts of disobedience. In the act of 1795 it is the failure to obey the orders of the president in any of the cases before recited;" and those orders are such as he is authorized to give by the first and second sections of the act, namely, to" call forth" the militia to execute the laws, to suppress insurrections, and repel invasions. In the act of Pennsylvania it is the neglect or refusal "to serve when called into actual service in pursuance of any orders of the president," which orders can only be under the act of 1795. And, to demonstrate this construction more fully, the delinquent is made liable to the penalties defined in the same act; and this again is followed by a clause varying the penalties so as to conform to those which from time to time may be inflicted by the laws of the United States for the same offence. So that there can be no reasonable doubt that the legislature of Pennsylvania meant to punish by its own courts martial an offence against the United States created by their laws, by a substantial reënactment of those laws in its own militia code.

No doubt has been here breathed of the constitutionality of the provisions of the act of 1795, and they are believed to be, in all respects, within the legitimate authority of congress. In the construction, however, of this act the parties are at variance. The plaintiff contends, that, from the time of the calling forth of the militia by the president, it is to be considered as, ipso facto, "employed in the service of the United States," within the meaning of the constitution and the act of 1795; and, therefore, to be exclusively governed by congress. On the other hand, the defendant contends that there is no distinction between the "calling forth," and the "employment in service," of the militia, in the act of 1795, both meaning actual mustering in service, or an effectual calling into service; that the states retain complete authority over the militia, notwithstanding

the call of the president, until it is obeyed by going into service; that the exclusive authority of the United States does not commence until the drafted troops are mustered, and in the actual pay and service of the union; and further, that the act of 1795 was never intended, by its language, to apply its penalties, except to militia in the latter predicament, leaving disobedience to the president's call to be punished by the states as an offence against state authority.

Upon the most mature reflection, it is my opinion, that there is a sound distinction between the "calling forth" of the militia, and their being in the "actual service" or "employment" of the United States, contemplated both in the constitution and acts of congress. The constitution, in the clause already adverted to, enables congress to provide for the government of such part of the militia "as may be employed in the service of the United States," and makes the president commander in chief of the militia, "when called into the actual service of the United States." If the former clause included the authority in congress to call forth the militia, as being, in virtue of the call of the president, in actual service, there would certainly be no necessity for a distinct clause, authorizing it to provide for the calling forth of the militia; and the president would be commander in chief, not merely of the militia in actual service, but of the militia ordered into service. The acts of congress, also, aid the construction already asserted. The fourth section of the act of 1795 makes the militia "employed in the service of the United States" subject to the rules and articles of war; and these articles include capital punishments by courts martial. Yet one of the amendments (article fifth) to the constitution prohibits such punishments, " unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces," or in "the militia when in actual service, in time of war, or public danger." To prevent, therefore, a manifest breach of the constitution, we cannot but suppose that congress meant, (what, indeed, its language clearly imports,) in the fourth section, to provide only for cases of actual employment. The

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