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 1820. Houston v. a Letters of Publius, or the Federalist, Nos. 27.32. Debates in the Virginia Convention, 272. 284. 296. 298. b1 Tucker's Bl. Com. 213. Duffield v. Smith, 6 Binney. 306. VOL. V. १० Moore. 1820. Houston v. 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 Moore. 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. 1820. Houston v. Moore. Feb. 16th. 1820. There is, then, a perfect harmony between the two laws. The judgment of the Court was delivered at the present term, by Mr. Justice WASHINGTON, who, after stating the facts of the case, proceeded as follows: There is but one question in this cause, and it is, whether the act of the legislature of Pennsylvania, under the authority of which the plaintiff in error was tried, and sentenced to pay a fine, is repugnant to the Constitution of the United States, or not? But before this question can be clearly understood, it will be necessary to inquire, 1. What are the powers granted to the general government, by the Constitution of the United States, over the militia? and, 2. To what extent they have been assumed and exercised ? 1. The constitution declares, that Congress shall have power to provide for calling forth the militia in three specified cases: for organizing, arming, and disciplining them; 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 further provided, that the President of the United States shall be commander of the militia, when called into the actual service of the United States. 2. After the constitution went into operation, Congress proceeded by many successive acts to ex ட ercise these powers, and to provide for all the cases contemplated by the constitution. The act of the 2d of May, 1792, which is re-enacted almost verbatim by that of the 28th of February, 1795, authorizes the President of the United States, in case of invasion, or of imminent danger of it, or when it may be necessary for executing the laws of the United States, or to suppress insurrections, to call forth such number of the militia of the States most convenient to the scene of action, as he may judge necessary, and to issue his orders for that purpose, to such officer of the militia as he shall think proper. It prescribes the amount of pay and allowances of the militia so called forth, and employed in the service of the United States, and subjects them to the rules and articles of war applicable to the regular troops. It then proceeds to prescribe the punishment to be inflicted upon delinquents, and the tribunal which is to try them, by declaring, that every officer or private who should fail to obey the orders of the President, in any of the cases before recited, should be liable to pay a certain fine, to be determined and adjudged by a Court Martial, and to be imprisoned, by a like sentence, on failure of payment. The Courts Martial for the trial of militia, are to be composed of militia officers only, and the fines to be certified by the presiding officer of the court, to the marshal of the district, and to be levied by him, and, also, to the supervisor, to whom the fines are to be paid over. The act of the 18th of April, 1814, provides, that Courts Martial, to be composed of militia officers 1820. Houston V. Moore. |