and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; leaving to the states, respectively, the appointment of the officers, and the authority of training them according to the discipline prescribed by congress. This system may not be formed with as much wisdom as, in the opinion of some, it might have been, or as time and experience may hereafter suggest. But, to my apprehension, the whole ground of congressional legislation is covered by the laws referred to. The manner in which the militia is to be organized, armed, disciplined and governed is fully prescribed; provisions are made for drafting, detaching and calling forth the state quotas, when required by the president. The president's orders may be given to the chief executive magistrate of the state, or to any militia officer he may think proper; neglect or refusal to obey orders is declared to be an offense against the laws of the United States, and subjects the offender to trial, sentence and punishment, to be adjudged by a court-martial, to be summoned in the way pointed out by the articles and rules of war; and the mode of proceeding to be observed by these courts is detailed with all necessary perspicuity. If I am not mistaken in this view of the subject, the way is now open for the examination of the great question in the cause. Is it competent to a court-martial, deriving its jurisdiction under state authority, to try and to punish militia-men, drafted, detached and called forth by the president into the service of the United States, who have refused or neglected to obey the call?

§ 165. The militia; powers of state and federal governments.

In support of the judgment of the court below, I understand the leading arguments to be the two following: 1. That militia-men, when called into the service of the United States by the president's orders, communicated either to the executive magistrate or to any inferior militia officer of a state, are not to be considered as being in the service of the United States until they are mustered at the place of rendezvous. If this be so, then, 2. The state retains a right, concurrent with the government of the United States, to punish his delinquency. It is admitted on the one side, that so long as the militia are acting under the military jurisdiction of the state to which they belong, the powers of legislation over them are concurrent in the general and state governments. Congress has power to provide for organizing, arming and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by congress, it may be exercised to any extent that may be deemed necessary by congress. But as state militia, the power of the state governments to legislate on the same subjects, having existed prior to the formation of the constitution, and not having been prohibited by that instrument, it remains with the states, subordinate, nevertheless, to the paramount law of the general government, operating upon the same subject. On the other side, it is conceded, that after a detachment of the militia have been called forth, and have entered into the service of the United States, the authority of the general government over such detachment is exclusive. This is also obvious. Over the national militia the state governments never had or could have jurisdiction. None such is conferred by the constitution of the United States; consequently, none such can exist. The first question then is, at what time, and under what circumstances, does a portion of militia, drafted, detached and called forth by the president, enter into the service of the United States, and change their character from state to national militia? That congress might, by law, have fixed the

period by confining it to the draft; the order given to the chief magistrate or other militia officer of the state; to the arrival of the men at the place of rendezvous, or to any other circumstance, I can entertain no doubt. This would certainly be included in the more extensive powers of calling forth the militia, organizing, arming, disciplining and governing them. But has congress made any declaration on this subject, and in what manner is the will of that body, as expressed in the beforementioned laws, to be construed? It must be conceded that there is no law of the United States which declares, in express terms, that the organizing, arming and equipping a detachment, on the order of the president to the state militia officers or to the militia-men personally, places them in the service of the United States. It is true that the refusal or neglect of the militia to obey the orders of the president is declared to be an offense against the United States, and subjects the offender to a certain prescribed punishment. But this flows from the power bestowed upon the general government to call them forth; and, consequently, to punish disobedience to a legal order; and by no means proves that the call of the president places the detachment in the service of the United States. But although congress has been less explicit on this subject than they might have been, and it could be wished they had been, I am, nevertheless, of opinion that a fair construction of the different militia laws of the United States will lead to a conclusion that something more than organizing and equipping a detachment, and ordering it into service, was considered as necessary to place the militia in the service of the United States. That preparing a detachment for such service does not place it in the service is clearly to be collected from the various temporary laws which have been passed, authorizing the president to require of the state executives to organize, arm and equip their state quotas of militia for the service of the United States. Because they all provide that the requisition shall be to hold such quotas in readiness to march at a moment's warning; and some, if not all, of them authorize the president to call into actual service any part or the whole of said quotas or detachments; clearly distinguishing between the orders of the president to organize and hold the detachments in readiness for service and their entering into service.

The act of the 28th of February, 1795, declares that the militia employed in the service of the United States shall receive the same pay and allowance as the troops of the United States, and shall be subject to the same rules and articles of war. The provisions made for disabled militia-men, and for their families in case of their death, are by other laws confined to such militia as are, or have been, in actual service. There are other laws which seem very strongly to indicate the time at which they are considered as being in service. Thus, the act of the 28th of February, 1795, declares that a militia-man called into the service of the United States shall not be compelled to serve more than three months after his arrival at the place of rendezvous, in any one year. The eighth section of the act of the 18th of April, 1814, declares that the militia, when called into the service of the United States, if, in the president's opinion, the public interest requires it, may be compelled to serve for a term not exceeding six months after their arrival at the place of rendezvous, in any one year; and by the tenth section, provision is made for the expenses which may be incurred by marching the militia to their places of rendezvous, in pursuance of a requisition of the president, and they are to be adjusted and paid in like manner as those incurred after their arrival at the rendezvous. The third

section of the act of the 2d of January, 1795, provides that whenever the militia shall be called into the actual service of the United States, their pay shall be deemed to commence from the day of their appearing at the place of battalion, regimental or brigade rendezvous, allowing a day's pay and ration for every fifteen miles from their homes to said rendezvous. $166. Actual service the criterion of national militia.

From this brief summary of the laws, it would seem that actual service was considered by congress as the criterion of national militia; and that the service did not commence until the arrival of the militia at the place of rendezvous. That is, the terminus a quo, the service, the pay, and subjection to the articles of war, are to commence and continue. If the service, in particular, is to continue for a certain length of time from a certain day, it would seem to follow, almost conclusively, that the service commenced on that, and not on some prior, day. And, indeed, it would seem to border somewhat upon an absurdity, to say that a militia-man was in the service of the United States at any time, who, so far from entering into it for a single moment, had refused to do so, and who never did any act to connect him with such service. It has already been admitted, that if congress had pleased so to declare, a militia-man, called into the service of the United States, might have been held and considered as being constructively in that service, though not actually so; and might have been treated in like manner as if he had appeared at the place of rendezvous. But congress has not so declared, nor have they made any provision applicable to such a case; on the contrary, it would appear that a fine to be paid by the delinquent militia-man was deemed an equivalent for his services, and an atonement for his disobedience.

§ 167. Militia are subject to the laws of the state in which they are enrolled, except where those laws are controlled by acts of congress.

If, then, a militia-man called into the service of the United States shall refuse to obey the order, and is, consequently, not to be considered as in the service of the United States, or removed from the military jurisdiction of the state to which he belongs, the next question is, is it competent to the state to provide for trying and punishing him for his disobedience, by a court-martial, Zeriving its authority under the state? It may be admitted at once that the militia belong to the states, respectively, in which they are enrolled, and that they are subject, both in their civil and military capacities, to the jurisdiction and laws of such state, except so far as those laws are controlled by acts of congress constitutionally made.

§ 168. Where the states and the United States have concurrent powers of legislation, the states can only legislate upon subjects upon which congress has not acted.

Congress has power to provide for organizing, arming and disciplining the militia; and it is presumable that the framers of the constitution contemplated a full exercise of all these powers. Nevertheless, if congress had declined to exercise them, it was competent to the state governments to provide for organizing, arming and disciplining their respective militia in such manner as they might think proper. But congress has provided for all these subjects in the way which that body must have supposed the best calculated to promote the general welfare, and to provide for the national defense. After this, can the state governments enter upon the same ground provide for the same objects as they may think proper, and punish in their own way violations of the laws

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they have so enacted? The affirmative of this question is asserted by the defendant's counsel, who, it is understood, contend that, unless such state laws. are in direct contradiction to those of the United States, they are not repugnant to the constitution of the United States. From this doctrine I must, for one, be permitted to dissent. The two laws may not be in such absolute opposition to each other as to render the one incapable of execution without violating the injunctions of the other, and yet the will of the one legislature may be in direct collision with that of the other. This will is to be discovered as well by what the legislature has not declared as by what they have expressed. Congress, for example, has declared that the punishment for disobedience of the act of congress shall be a certain fine; if that provided by the state legislature for the same offense be a similar fine with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But surely the will of congress is, nevertheless, thwarted and opposed.

This question does not so much involve a contest for power between the two governments as the rights and privileges of the citizen, secured to him by the constitution of the United States, the benefit of which he may lawfully claim. If, in a specified case, the people have thought proper to bestow certain powers on congress as the safest depositary of them, and congress has legislated within the scope of them, the people have reason to complain that the same powers should be exercised at the same time by the state legislatures. To subject them to the operation of two laws upon the same subject, dictated by distinct wills, particularly in a case inflicting pains and penalties, is, to my apprehension, something very much like oppression, if not worse. In short, I am altogether incapable of comprehending how two distinct wills can at the same time be exercised in relation to the same subject, to be effectual, and at the same time compatible with each other. If they correspond in every respect, then the latter is idle and inoperative; if they differ, they must, in the nature of things, oppose each other so far as they do differ. If the one imposes a certain punishment for a certain offense, the presumption is that this was deemed sufficient, and, under all circumstances, the only proper one. If the other legislature impose a different punishment, in kind or degree, I am at a loss to conceive how they can both consist harmoniously together.

I admit that a legislative body may, by different laws, impose upon the same person, for the same offense, different and cumulative punishments; but then it is the will of the same body to do so, and the second, equally with the first law, is the will of that body. There is, therefore, and can be, no opposition of wills. But the case is altogether different where the laws flow from the wills of distinct co-ordinate bodies. This course of reasoning is intended as an answer to what I consider a novel and unconstitutional doctrine, that in cases where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject on which congress has acted, provided the two laws are not in terms or in their operation contradictory and repugnant to each other. Upon the subject of the militia, congress has exercised the powers conferred on that body by the constitution as fully as was thought right, and has thus excluded the power of legislation by the states on these subjects, except so far as it has been permitted by congress; although it should be conceded that important provisions have been omitted, or that others which have been made might have been more extended or more wisely devised.

§ 169. Whether a state court-martial has jurisdiction to enforce the laws of the United States.

There still remains another question to be considered which more immediately involves the merits of this cause. Admit that the legislature of Pennsylvania could not constitutionally legislate in respect to delinquent militia-men and to prescribe the punishment to which they should be subject, had the state court-martial jurisdiction over the subject so as to enforce the laws of congress against these delinquents? This, it will be seen, is a different question from that which has been just examined. That respects the power of a state legislature to legislate upon a subject on which congress has declared its will. This concerns the jurisdiction of a state military tribunal to adjudicate in a case which depends on a law of congress, and to enforce it. It has been already shown that congress has prescribed the punishment to be inflicted on a militia-man detached and called forth, but who has refused to march; and has also provided that courts-martial for the trial of such delinquents, to be composed of militia officers only, shall be held and conducted in the manner pointed out by the rules and articles of war. That congress might have vested the exclusive jurisdiction in courts-martial to be held and conducted as the laws of the United States have prescribed, will, I presume, hardly be questioned. The offense to be punished grows out of the constitution and laws of the United States, and is, therefore, clearly a case which might have been withdrawn from the concurrent jurisdiction of the state tribunals. But an exclusive jurisdiction is not given to courts-martial, deriving their authority under the national government, by express words. The question then (and I admit the difficulty of it) occurs, is this a case in which the state courts-martial could exercise jurisdiction? $ 170. expressly made so. Speaking upon the subject of the federal judiciary, the Federalist distinctly asserts the doctrine that the United States, in the course of legislation upon the objects intrusted to their direction, may commit the decision of causes arising upon a particular regulation to the federal courts solely, if it should be deemed expedient; yet that, in every case in which the state tribunals should not be expressly excluded by the acts of the national legislature, they would, of course, take cognizance of the causes to which those acts might give birth. Letters of Publius, or the Federalist, No. 82. I can discover, I confess, nothing unreasonable in this doctrine, nor can I perceive any inconvenience which can grow out of it, so long as the power of congress to withdraw the whole, or any part, of those cases from the jurisdiction of the state courts, is, as I think it must be, admitted. The practice of the general government seems strongly to confirm this doctrine; for at the first session of congress which commenced after the adoption of the constitution, the judicial system was formed; and the exclusive and concurrent jurisdiction conferred upon the courts created by that law, were clearly distinguished and marked; showing that, in the opinion of that body, it was not sufficient to vest an exclusive jurisdiction, where it was deemed proper, merely by a grant of jurisdiction generally. In particular, this law grants exclusive jurisdiction to the circuit courts of all crimes and offenses cognizable under the authority of the United States, except where the laws of the United States should otherwise provide; and this will account for the proviso in the act of the 24th of February, 1807, ch. 75 (2 Stats. at Large, 423), concerning the forgery of the notes of the Bank of the United States, "that

the jurisdiction of federal courts is not exclusive except where