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a like paramount authority to congress; and if not, then it is retained by the states. The fifth amendment to the constitution, declaring that “a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns, the reasoning already suggested.
$ 179. Power of congress to provide for governing militia in the service of the United States, exclusive.
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 the United States, by which I understand actual employment in service, the constitution declares that the president shall be the commander-in-chief. The militia of several states may, at the same time, be called out for the public defense; and to suppose each state could have an authority to govern its own militia in such cases, even subordinate to the regulations of congress, seems utterly inconsistent with that unity of command and action on which the success of all military operations must essentially depend. There never could be a stronger case put from the argument of public inconvenience, against the adoption of such a doctrine. It is scarcely possible that any interference, however small, of a state, under such circumstances, in the government of the militia, would not materially embarrass, and directly, or indirectly, impugn the authority of the Union. In most cases there would be an utter repugnancy. It would seem, therefore, that a rational interpretation must construe this power as exclusive in its own nature, and belonging solely to congress.
$ 180. Power of congress to provide for calling forth militia, not exclusive.
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 insurrections, 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 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 tban 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 must necessarily clash with it in all cases, is the sole ground upon which the authority of congress can be deemed exclusive. I am not prepared to assert that a concurrent power is not retained by the states to provide for the calling forth their own militia as auxiliary to the power of congress in the enumerated cases. The argument of the plaintiff is, that when a power is granted to congress to legislate in specific cases, for purposes growing out of the Union, the natural conclusion is, that the power is designed to be exclusive; that the power is to be exercised for the good of the whole, by the will of the whole, and consistent with the interests of the whole; and that these objects can nowhere be so clearly seen or so thoroughly weighed as in congress, where the whole nation is represented. But the argument proves too much; and pursued to its full extent, it would establish that all the powers granted to congress are exclusive, unless where concurrent authority is expressly reserved to the states. But assuming the states to possess a concurrent power on this subject, 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.
$ 181. Laws which congress may pass in the execution of its power to provide for calling forth the militia.
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 grow's solely out of the breach of duties due to the United States, in virtue of its positive legislation. 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 the act of the 28th of February, 1795, c. 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, substantially the same, in cases of domestic insurrections; and, in like manner, the second section 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 sentence 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-inartial 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.
§ 182. Act of Pennsylvania of March 28, 1814, providing a punishment for disobeying president's call.
The second 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 defined in the act of congress of the United States, passed on the 28th of February, 1795," and then proceeds to enumerate them; and then declares “that each and every non-commissioned officer and private, who shall have neglected or refused to serve when called into actual service, in pursuance of an order or requisition of the president of the United States, shall be liable to the penalties defined in the same act,” and then proceeds to enumerate them. And to each clause is added, “or shall be liable to any penalty which may have been prescribed since the date of the passage of the said act, or which may hereafter be prescribed by any law of the United States.” It then further provides that “within one month after the expiration of the time for which any detachment of militia shall have been called into 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 court-martial, 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 shall have decided in each of the cases which 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.”
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 recited ;” and those orders are such as he is authorized to give by the first and second sections of the act, namely, 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.
$ 183. The act of calling forth the militia does not place them in the federal service.
No doubt has been here breathed of the constitutionality of the provisions of the act of 1795, and they are believed to be, in all respects, within the legitimate authority of congress. In the construction, however, of this act, the parties are at variance. The plaintiff contends that, from the time of the calling forth of the militia by the president, it is to be considered as ipso facto “employed in the service of the United States," within the meaning of the constitution and the act of 1795, and, therefore, to be exclusively governed by congress. On the other hand, the defendant contends that there is no distinction between the “calling forth," and the “employment in service," of the militia in the act of 1795, both meaning actual mustering in service, or an effectual calling into service; that the states retain complete authority over the militia, notwithstanding 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 stato authority.
Upon the most mature reflection, it is my opinion that there is a sound distinction between the “ calling forth”. of the militia, 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 into service. The acts of congress, also, aid the construction already asserted. The fourth 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 courtsmartial. 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 fourth section, to provide only for cases of actual employment. The act of the 2d of January, 1795, c. 74, provides for the pay of the militia “ when calleu 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 ninety-seventh article of the rules and articles of war (Act of 10th of April, 1806, c. 20) (2 Stats. at Large, 359) 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 (c. 141), supplementary to that of 1793, 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 ihan 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 law, he does not seem bound to perforin 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