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act of the 2d of January, 1795, (chapter 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 rendezvous, 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, chapter 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 18th of April, 1814, (chapter 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 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 re

cognized 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 law, he does not seem bound to perform any military duties.

Besides, the terms, "called 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 defence 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 requiring the service, how can it punish disobedience 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 subtilties.

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Nor is it true, that the act of 1705 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. the contrary, if there be any certainty in language, the fifth section applies exclusively to those of the militia who 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 to the militia, while in actual service, were sufficiently provided for by the

fourth 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 Pennsylvania 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. All the difficulties, as to the repugnancy between the act of congress and of Pennsylvania, would still remain, with the additional difficulty, that 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 offence to which the penalties are annexed, in the fourth section of the act of 1795, is not an offence 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.

That tribunal is a court martial; and the defendant contends, that, as no explanatory terms are added, a state court martial is necessarily intended, because the laws of the union have not effectually created any court martial which, sitting under the authority of the United States, can in all cases try the offence. It will at once be seen, that the act of 1795 has not expressly delegated cognizance of the offence to a state court martial, and the question naturally arises, In what manner, then, can it be claimed? When a military offence is created by an act of congress, to be punished by a court martial, how is such an act to be interpreted? If a similar clause were in a state law, we should be at no loss to give an immediate and definite construction to it, namely, that it pointed to a state court martial; and why? Because the offence being created by state legisla

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tion, 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 sovereignty. Precisely the same reasons 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, the reasonable interpretation is, that it is a court martial to be organized under the authority of the United States, a court martial whom congress may convene and regulate. There is no pretence to say that congress can compel a state court martial to convene and sit in judgment on such offence. Such an authority is nowhere confided to it by the constitution. Its power is limited to the few cases already specified, and these, most assuredly, do not embrace it; for it is not an implied power necessary or proper to carry into effect the given powers. The nation may organize its own 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 sixth 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 the same service; and yet it is as plain, that this provision would be superfluous, if state courts martial 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 ninety-seventh 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 same with the clause now under consideration.

As to the argument itself, upon which the defendant erects his construction of this part of the act, its solidity is not admitted. It does not follow, because congress have neglected to provide adequate means to enforce their laws, that a resulting trust is reposed in the state tribunals to enforce them. If an offence be created of which no court of the United States has a vested cognizance, the state court may not, therefore, assume jurisdiction, and punish it. It cannot be pretended, that the states have retained any power to enforce fines and penalties created by the laws of the United States, in virtue of their general sovereignty, for that sovereignty did not originally attach on such subjects. They sprung from the union, and had no previous existence. It would be a strange 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 "constitue 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 courts martial for the trial of offences created by the act of 1795, it is not conceded, that, therefore, 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.

It is a general principle, too, in the policy, if not the customary law, of nations, that no nation is bound to enforce the penal laws of another within its own dominions. The authority naturally belongs, and is confided, to the tribunals of the nation

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