ཀ senals, dock-yards, &c.; of the second class, | taken away by the constitution of the United 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 an 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, how ever, 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 50*] 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 commend 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. 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 pro- [*52 visions 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 insurrections, 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 defense. 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 It is almost too plain for argument, that the subordinate to, the regulations of Congress, I power here given to Congress over the militia am certainly not prepared to deny the legiti is of a limited nature, and confined to the ob- macy of such an exercise of authority. It does jects specified in these clauses; and that in all not seem repugnant in its nature to the grant other respects, and for all other purposes, the of a like paramount authority to Congress; and militia are subject to the control and govern- if not, then it is retained by the states. ment of the state authorities. Nor can the re-fifth amendment to the constitution, declaring servation to the states of the appointment that "a well-regulated militia being necessary 51*] of the officers and authority of the to the security of a free state, the right of the training the militia according to the discipline people to keep and bear arms shall not be inprescribed by Congress, be justly considered as fringed," may not, perhaps, be thought to have weakening this conclusion. That reservation any important bearing on this point. If [*53 constitutes an exception merely from the power it have, it confirms and illustrates, rather than given to Congress "to provide for organizing, impugns, the reasoning already suggested. 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 constitution; and what is not 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." 1.-Chirac v. Chirac, 2 Wheat. 259, 269. 2. Martin v. Hunter, 1 Wheat. 304, 337; and see The Federalist, No. 32. The 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 must necessarily clash with it in all cases, is the United States, by which I understand the sole ground upon which the authority of I am not actual employment in service, the constitution Congress can be deemed exclusive. declares that the President shall be the com- prepared to assert that a concurrent power is mander-in-chief. The militia of several states not retained by the states to provide for the may, at the same time, be called out for the calling forth its own militia as auxiliary to the public defense; and to suppose each state could power of Congress in the enumerated cases. have an authority to govern its own militia in The argument of the plaintiff is, that when a such cases, even subordinate to the regulations power is granted to Congress to legislate in of Congress, seems utterly inconsistent with specific cases, for purposes growing out of the that unity of command and action on which Union, the natural conclusion is, that the power the success of all military operations must es- is designed to be exclusive; that the power is sentially depend. There never could be a to be exercised for the good of the whole, by stronger case put from the argument of public the will of the whole, and consistent with the inconvenience, against the adoption of such a interests of the whole; and that these objects doctrine. It is scarcely possible that any in- can nowhere be so clearly seen, or so thoroughterference, however small, of a state under such ly weighed as in Congress, where the whole circumstances in the government of the militia, nation is represented. But the argument would not materially embarrass, and directly, proves too much; and pursued to its full exor indirectly, impugn the authority of the tent, it would establish that all the powers Union. In most cases there would be an utter granted to Congress are *exclusive, un- [*56 54*] repugnancy. *It would seem, therefore, less where concurrent authority is expressly rethat a rational interpretation must construe this served to the states. But assuming the states power as exclusive in its own nature, and be- to possess a concurrent power on this subject, longing solely to Congress. 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. 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 before us, and deserves serious deliberation. The plaintiff contends 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 insurrec tions, 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 55*] 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 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 offense created by such laws must be an offense 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 legisla tion. 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 [*57 the act of the 28th of February, 1795, ch. 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, substan tially the same, in cases of domestic insurrec 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." tions; and in like manner, the second section shall have decided in each of the cases which 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 sen58*] tence 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. 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 [*60 recited;" and those orders are such as he is authorized to give by the first and second sections of the act, viz., 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 offense. So that there can be no reasonable doubt that the legislature of Pennsylvania meant to punish by its own courts-martial an offense against the United States created by their laws, by a substantial re-enactment of those laws in its own militia code. The 2d 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 No doubt has been here breathed of the condefined in the act of Congress of the United stitutionality of the provisions of the act of States, passed on the 28th of February, 1795," 1795, and they are believed to be, in all respects, and then proceeds to enumerate them; and within the legitimate authority of Congress. then declares, “that each and every non-com- In the construction, however, of this act, the missioned officer and private, who shall have parties are at variance. The plaintiff contends, neglected or refused to serve when called into that from the time of the calling forth of the actual service in pursuance of an order or re-militia by the President, it is to be considered quisition of the President of the United States, as ipso facto "employed in the service of the shall be liable to the penalties defined in the United States," within the meaning of the consame act," and then proceeds to enumerate stitution, and the act of 1795; and, therefore, them. And to each clause is added, or shall to be exclusively governed by Congress. On be liable to any penalty which may have been the other hand, the defendant contends, that prescribed since the date of the passage of the there is no distinction between the "calling said act, or which may hereafter be prescribed forth," and the "employment *in service" [*61 59*] by any law of the United States." It of the militia, in the act of 1795, both meaning then further provides, that "within one month actual mustering in service, or an effectual after the expiration of the time for which any calling into service; that the states retain comdetachment of militia shall have been called in-plete authority over the militia, notwithstandto 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 courtmartial, 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 Wheat. 5. U. S., Book 5. ing 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 offense 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, 3 33 subject to the rules and articles of war as troops organized and employed in the public service, when they have utterly disclaimed all military organization and obedience. In my judgment, there are the strongest reasons to believe, that by employment in the service," or, as it is sometimes expressed," in the actual service" of the United States, something more must be meant than a mere calling forth of the militia. That it includes some acts of organization, mustering, or marching done or recognized. in obedience to the call in the public service. The act of 1795 is not in its terms compulsive upon any militia to serve, but contemplates an option in the person drafted, to serve or not to serve; and if he pay the penalty inflicted by the [*64 law, he does not seem bound to perform any military duties. Besides, the terms "call forth" and "employed in service," cannot, in any appropriate sense, be said to be synonymous. To suppose them used to signify the same thing in the constitution, and acts of Congress, would be to defeat the obvious purposes of both. The constitution, in providing for the calling forth of the militia, necessarily supposes some act to be done before the actual employment of the militia; a requisition to perform service, a call to engage in a public duty. From the very nature of things, the call must precede the service; and to confound them is to break down the established meaning of language, and to render nugatory a power without which the militia can never be compelled to serve in defense of the Union. For of what constitutional validity can the act of 1795 be, if the sense be not what I have stated? If Congress cannot provide for a preliminary call, authorizing and 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 62*] into service. *The acts of Congress, also, aid the construction already asserted. The 4th 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 (art. 5) 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 4th section, to provide only for cases of actual employment. The act of the 2d of January, 1795, ch. 74, provides for the pay of the militia "when called into actual service," commencing it on the day of their appearance at the place of ren-requiring the service, how can it punish disodezvous, and allowing a certain pay for every fifteen miles travel from their homes to that place. The 97th article of the rules and articles of war (act of 10th of April, 1806, ch. 20) declares, that the officers and soldiers of any troops, whether militia or others, being mustered, and in the pay of the United States, shall, at all times, and in all places, "when joined, or acting in conjunction with the regular forces" of the United States, be governed by these articles, and shall be subject to be tried by courts-martial, in like manner with the officers and soldiers in the regular forces, save only that such courts-martial shall be composed entirely of militia officers. And the act of the 63*] 18th of April, 1814, ch. 141, supplementary to that of 1795, provides for like courts-martial 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." All these provisions for the government, payment, and trial of the militia, manifestly contemplate that the militia are in actual employment and service, and not merely that they have been "called forth," or ordered forth, and had failed to obey the orders of the President. It would seem almost absurd to say that these men who have performed no actual service are yet to receive pay; that they are “employed" when they refuse to be employed in the public service; that they are acting" in conjunction with the regular forces or otherwise, when they are not embodied to act at all; or that they are bedience to that call? The argument that endeavors to establish such a proposition is utterly without any solid foundation. We do not sit here to fritter away the constitution upon metaphysical subtleties. Nor is it true that the act of 1795 confines its penalties to such of the militia as are in actual service, leaving those who refuse to comply with the orders of the President to the punishment that the state may choose to inflict for disobedience. On the contrary, if there be any certainty in language, the 5th section applies exclusively to those of the militia *who [*65 are " called forth" by the President, and fail to obey his orders, or, in other words, who refuse to go into the actual service of the United States. It inflicts no penalty in any other case; and it supposes, and justly, that all the cases of disobedience of the militia, while in actual service, were sufficiently provided for by the 4th section of the act, they being thereby subjected to the rules and articles of war. It inflicts the penalty, too, as we have already seen, in the identical cases, and none other, to which the paragraphs of the militia act of Pennsyl vania now in question pointedly address themselves; and in the identical case for which the present plaintiff was tried, convicted and punished, by the state court-martial. So that if the defendant's construction of the act of 1795 could prevail, it would not help his case. the difficulties as to the repugnancy between the act of Congress and of Pennsylvania, would still remain, with the additional difficulty, that All the court would be driven to say, that the mere act of calling forth put the militia, ipso facto, into actual service, and so placed them exclusively under the government of Congress. In the remarks which have already been made, the answer to another proposition stated by the defendant is necessarily included. The offense to which the penalties are annexed in the 4th section of the act of 1795, is not an offense against state authority, but against the United States, created by a law of Congress, in virtue of a constitutional authority, and punishable by a tribunal which it has selected, and which it can change at its pleasure. the same service; and yet, it is as plain that this provision would be superfluous, if state courtsmartial were solely intended, since the states do not keep, and ordinarily have no authority to keep, regular troops, but are bound to confine themselves to militia. It might with as much propriety be contended that the courts-martial for the trial of militia under the 97th article of the rules and articles of war, are to be state courts-martial. The language of that article, so far as respects this point, is *almost the [*68 same with the clause now under consideration. As to the argument itself, upon which the defendant erects his construction of this part of 66*] *That tribunal is a court-martial; and the act, its solidity is not admitted. It does not the defendant contends, that as no explanatory follow, because Congress have neglected to terms are added, a state court-martial is neces- provide adequate means to enforce their laws, sarily intended, because the laws of the Union that a resulting trust is reposed in the state have not effectually created any court-martial, tribunals to enforce them. If an offense be which, sitting under the authority of the Unit- created of which no court of the United States. ed States, can in all cases try the offense. It has a vested cognizance, the state court may will at once be seen that the act of 1795 has not, therefore, assume jurisdiction, and punish not expressly delegated cognizance of the of it. It cannot be pretended that the states have fense to a state court-martial, and the question retained any power to enforce fines and penalnaturally arises, in what manner, then, can it be ties created by the laws of the United States in claimed? When a military offense is created virtue of their general sovereignty, for that sovby an act of Congress to be punished by a court-ereignty did not originally attach on such submartial, how is such an act to be interpreted? If jects. They sprung from the Union, and had a similar clause were in a state law, we should no previous existence. It would be a strange be at no loss to give an immediate and definite construction to it, viz., that it pointed to a state court-martial—and why? Because the offense being created by state legislation, to be executed for state purposes, must be supposed to contemplate in its execution such tribunals as the state may erect, and control, and confer jurisdiction upon. A state legislature cannot be presumed to legislate as to foreign tribunals; but must be supposed to speak in reference to those which may be reached by its own sov ereignty. Precisely the same reason must apply to the construction of a law of the United States. The object of the law being to provide for the exercise of a power vested in Congress by the constitution, whatever is directed to be done must be supposed to be done, unless the contrary be expressed, under the authority of the Union. When, then, a court-martial is spoken of in general terms in the act of 1795, 67*] the reasonable interpretation *is, that it is a court-martial to be organized under the authority of the United States-a court-martial It is a general principle, too, in the policy, if whom Congress may convene and regulate. not the customary law of nations, that no naThere is no pretense to say that Congress can tion is bound to enforce the penal laws of ancompel a state court martial to convene and sit other within its own dominions. The authority in judgment on such offense. Such an author- naturally belongs, and is confided, to the triity is nowhere confided to it by the constitu- bunals of the nation creating the offenses. In tion. Its power is limited to the few cases al- a government formed like ours, where there is ready specified, and these most assuredly do a division of sovereignty, and, of course, where not embrace it; for it is not an implied power there is a danger of collision from the near apnecessary or proper to carry into effect the giv-proach of powers to a conflict with each other, en powers. The nation may organize its own it would seem a peculiarly safe and salutary tribunals for this purpose; and it has no necessity to resort to other tribunals to enforce its rights. If it do not choose to organize such tribunals, it is its own fault; but it is not, therefore, imperative upon a state tribunal to volunteer in its service. The 6th section of the same act comes in aid of this most reasonable construction. It declares that courts-martial for the trial of militia shall be composed of militia officers only, which plainly shows that it supposed that regular troops and officers were in anomaly in our national jurisprudence to hold the doctrine, that because a new power created by the constitution of the United States was not exercised to its full extent, therefore the states might exercise it by a sort of process in aid. For instance, because Congress decline "to borrow money on the credit of the United States," or "to constitute tribunals inferior to the Supreme Court," or "to make rules for the government and regulation of the land and naval forces, "or exercise either of them defectively, that a state might step in, and by its legislation supply those defects, or assume a general jurisdiction on these subjects. If, therefore, it be conceded, that Congress have not as yet legislated to the extent of organizing courtsmartial for the trial of offenses created by the act of 1795, it is not conceded that *there- [*69 fore state courts-martial may, in virtue of state laws, exercise the authority, and punish offenders. Congress may hereafter supply such defects, and cure all inconveniences. rule, that each government should be left to en- 1.-Martin v. Hunter, 1 Wheat, Rep. 304, 337; S. P. United States v. Lathrop, 17 Johns. Rep. 4. |