2.
The Constitution of the United States provides on this subject as
follows: Art. 1, s. 8, 14. Congress shall have power to provide for
calling forth the militia to execute the laws of the Union, suppress
insurrections, and repel invasions.
3.
- 15. to provide for organizing, arming, and disciplining the militia,
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.
4. Under the clauses of the constitution, the following points have been decided.
1.
If congress had chosen, they might by law, have considered a militia
man, called into the service ot the United States, as being, from the
time of such call, constructively in that service, though not actually
so, although he should not appear at the place of rendezvous. But they
have not so considered him, in the acts of congress, till after his
appearance at the place of rendezvous: previous to that, a fine was to
be paid for the delinquency in not obeying the call, which fine was
deemed an equivalent for his services, and an atonement for
disobedience.
5.
- 2. The militia belong to the states respectively, and are subject,
both in their civil and military capacities, to the jurisdiction and
laws of the state, except so far as these laws are controlled by acts of
congress, constitutionally made.
6.
- 3. It is presumable the framers of the constitution contemplated a
full exercise of all the powers of organizing, arming, and disciplining
the militia; nevertheless, if congress had declined to exercise them, it
was competent to the state governments respectively to do it. But
congress has ex- ecuted these powers as fully as was thought right, and
covered the whole ground of their legislation by different laws,
notwithstanding important provisions may have been omitted, or those
enacted might be beneficially altered or enlarged.
7.
- 4. After this, the states cannot enact or enforce laws on the same
subject. For although their laws may not be directly repugnant to those
of congress, yet congress, having exercised their will upon the subject,
the states cannot legislate upon it. If the law of the latter be the
same, it is inoperative: if they differ, they must, in the nature of
things, oppose each other, so far as they differ.
8.
- 5. Thus if an act of congress imposes a fine, and a state law fine
and imprisonment for the same offence, though the latter is not
repugnant, inasmuch as it agrees with the act of the congress, so far as
the latter goes, and add another punishment, yet the wills of the two
legislating powers in relation to the subject are different, and cannot
subsist harmoniously together.
9. - 6. The same legislating power may impose cumulative punishments; but not different legislating powers.
10.
- 7. Therefore, where the state governments have, by the constitution, a
concurrent power with the national government, the former cannot
legislate on any subject on which congress has acted, although the two
laws are not in terms contradictory and repugnant to each other.
11.
- 8. Where congress prescribed the punishment to be inflicted on a
militia man, detached and called forth, but refusing to march, and also
provided that courts martial for the trial of such delinquent's, to be
composed of militia officers only, should be held and conducted in the
manner pointed out by the rules and articles of war, and a state had
passed a law enacting the penalties on such delinquents which the act of
congress prescribed, and directing lists of the delinquents to be
furnished to the comptroller of the United States and marshal, that
further proceeding might take place according to the act of congress,
and providing for their trial by state courts martial, such state courts
martial have jurisdiction. Congress might have vested exclusive
jurisdiction in courts martial to be held according to their laws, but
not having done so expressly, their jurisdiction is not exclusive.
12.
- 9. Although congress have exercised the whole power of calling out
the militia, yet they are not national militia, till employed in actual
service; and they are not employed in actual service, till they arrive
at the place of rendezvous. 5 Wheat. 1; Vide 1 Kent's Com. 262; 3 Story,
Const. 1194 to 1210.
13.
The acts of the national legislature which regulate the militia are the
following, namely: Act of May 8, 1792, 1 Story, L. U. S. 252; Act of
February 28, 1795, 1 Story, L. U. S. 390; Act of March 2, 1803, 2 Story,
L. U. S. 888; Act of April 10, 1806, Story, L. U. S. 1005; Act of April
20, 1816, 3 Story, L. U. S. 1573; Act of May 12, 1820, 3 Story, L. U.
S. 1786 Act of March 2, 1821, 3 Story; L. U. S. 1811.
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