between the United States and Great Britain, ratified in February, 1815, suspended and abrogated all proceedings under the State law. Mr. C. J. Ingersoll and Mr. Rogers, contra, insisted, that there were many cases in which the laws of the United States are carried into effect by State Courts and State officers; that this was contemplated by the framers of the constitution; that the Governor of Pennsylvania, by whom the Court Martial, in the present case, was summoned, is the commander in chief of the militia of that State, except when called into the actual service of the United States. The militia drafted in pursuance of the requisition of the President were not in actual service, until mustered, and in the pay of the United States; until they reached the place of rendezvous, and were put under the command of the United States' officers. It is not the requisition, but the obedience to the requisition, which makes the persons drafted amenable to martial law, as a part of the military force of the Union. When the constitution speaks of the power of "calling forth" the militia, it means an effectual calling. The plaintiff was called, but not called forth. The power invested in Congress, is to determine in what mode the requisition shall be made; how the quota of each State is to be apportioned; from what States requisitions shall be made in particular cases; and by what process the call is to be enforced. Congress not having directed the mode by which Courts Martial are to be summoned and held for the purpose of enforcing it, the States have a constitutional 1820. Houston V. Moore. 1820. Houston V. Moore. authority to supply the omission. Before this Court proceeds to declare the State law made for this purpose to be void, it must be satisfied, beyond all doubt, of its repugnancy to the constitution." The case must fall within some of the express prohibitory clauses of the constitution, or some of its clearly implied prohibitions. It must not be the exercise of a political discretion with which the legislature is invested, for that can never become the subject of judicial cognizance. It is insisted, that the power of Congress over the militia is a concurrent, and not an exclusive power. All powers, which previously existed in the States, and which are not expressly delegated to the United States, are reserved." The power of making laws on the subject of the militia is not prohibited to the States, and has always been exercised by them. The necessity of a concurrent jurisdiction in certain cases results from the peculiar division of the powers of sovereignty in our government; and the principle, that all authorities of which the States are not expressly devested in favour of the Union, or the exercise of which, by the States, would be repugnant to those granted to the Union, are reserved to the States, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the constitution. The cotemporaneous construction of the constitu a Calder et ux. v. Bull et ux. 3 Dall. 399. Emerick v. Harris, 1 Binney, 416. 423. 6 Cranch, 87. Cooper v. Telfair, 4 Dall. 14. 18. b Livingston et al. v. Van Ingen, 9 Johns. Rep. 501. 565. 573. et seq. 1 Tuck. Bl. Com. Appx. 308. tion, by those who supported its adoption, supposes the power in question to be concurrent, and not exclusive. The power of the States over the militia is not taken away; it existed in them before the establishment of the constitution, and there being no negative clause prohibiting its exercise by them, it still resides in the States, so far as an exercise of it by them is not absolutely repugnant to the authority of the Union. Before the militia are actually employed in the service of the United States, Congress has only a power concurrent with that of the States, to provide for organizing, arming, and disciplining them. The authority of appointing the officers and training the militia, is expressly reserved to the States, because, in these respects, it was intended that they should have an exclusive power. So, also, Congress has the exclusive power of governing such part of the militia as may be actually employed in the service of the United States; but not until it is thus actually employed. The power of governing the militia, is the power of subjecting it to the rules and articles of war. But it is a principle manifestly implied in the constitution, that the militia cannot be subjected to martial law, except when in actual service, in time of war, rebellion, or invasion. It necessarily results from the circumstance of the power of making provision for organizing, arming, and disciplining the militia being concurrent, that if a Letters of Publius, or the Federalist, Nos. 27. 32. Debates in the Virginia Convention, 272. 284. 296. 298. b 1 Tucker's Bl. Com. 213. Duffield v. Smith, 6 Binney, 306. VOL. V. 1820. Houston V. Moore. 1820. Houston V. Moore. Congress has not legislated upon any part of the subject, the States have a right to supply the omission. This right has been exercised, in the present case, in aid of, and not in hostility to, the federal authority. The fines which are collected under the law, are not appropriated to the use of the State, but are to be paid into the treasury of the Union. The power of making uniform laws of naturalization is different from that now under consideration. The power of naturalization is an authority granted to the Union, to which a similar authority in the States would be absolutely and totally repugnant. A naturalized citizen of one State would be entitled to all the privileges of a citizen in every other State, and the greatest confusion would be produced by a variety of rules on the subject. But even naturalization has been sometimes held to be a power residing concurrently in the Union and the States, and to be exercised by the latter in such a way as not to contravene the rule established by the Union." But in the present case, the State law is not inconsistent with the act of Congress. It comes in aid of it. It supplies its defects, and remedies its imperfections. It co-operates with it for the promotion of the same end. The offence which is made punishable by the State law, is an offence against the State, as well as the Union. It being the duty of the State to furnish its quota, it has a right to compel the drafted militia to appear and march. Calling the militia forth, and governing them after they are in actual ser a Collet v. Collet, 2 Dall. 294. 296. vice, are two distinct things. A State law, acting upon the militia before they have entered into the actual service of the Union, is so far from interfering with the power of Congress to legislate on the same subject, that it may have, and, we contend, that it does have, in the present case, a powerful effect in aid of the national authority. But it would be almost impossible for the State to enact a law concerning the militia, after they are in the actual service of the United States, which would not be irreconcilable with the authority of the latter. Even supposing that Congress should pass a law inflicting one penalty for disobedience to the call, and the State inflict another, they would still both co-operate to the same end. In practice, the delinquent could not be punished twice for the same offence; but there would be no theoretical repugnancy between the two laws. Congress, in the statutes enacted by them, have not intended to compel citizens enrolled in the militia to enter into the actual service of the United States. It is not a conscription; but a draft, with the option to the individual to be excused from a specific performance of the duty by the payment of a pecuniary composition. The acts of Congress are defective in not providing how, or by whom, Courts Martial shall be held, for the trial of delinquents, and the collection of these pecuniary penalties. The State legislature, acting with a sincere desire to promote the objects of the national government, supplied these defects, by adding such details as were indispensably necessary to execute the acts of Congress. 1820. Houston V. Moore. |