« ForrigeFortsett »
which the United States may exercise the right of exclusive legislation, it will rest with Congress to determine whether the general government shall exercise the right of punishing exclusively, or leave the States at liberty to exercise their own discretion. But where the United States cannot assume, or where they have not assumed, this exclusive exercise of power, I cannot imagine a reason why the States may not also, if they feel them.selves injured by the same offence, assert their right of inflicting punishment also. In cases affecting life or member, there is an express restraint upon the exercise of the
punishing power. But it is a restriction which
operates equally upon both governments; and according to a very familiar principle of construction, this exception would seem to establish the existence of the general right. The actual exercise of this concurrent right of punishing is familiar to every day's practice. The laws of the United States have made many offences punishable in their Courts, which were and still continue punishable under the laws of the States. Witness the case of counterfeiting the current coin of the United States, under the act of April 21, 1806, in which the State right of punishing is expressly recognized and preserved. Witness also the crime of robbing the mail on the highway, which is unquestionably cognizable as highway-robbery under the State laws, although made punishable under those of the United States.
With regard to militia men ordered into service, there exists a peculiar propriety in leaving them subject to the coercive regulations of both governments.
The safety of each is so worked up with that of all the States, and the honour and peculiar safety of a particular State may so often be dependant upon the alacrity with which her citizens repair to the field, that the most serious mortifications and evils might result from refusing the right of lending the strength of the State authority to quicken their obedience to the calls of the United States.
But, it is contended, if the States can at all legislate or adjudicate on the subject, they may affect to aid, when their real object is nothing less than to embarrass, the progress of the general government.
I acknowledge myself at a loss to imagine how this could ever be successfully attempted. Opposition, whether disguised or real, is the same thing. It is true, if we could admit that an acquittal in the State Courts could be pleaded in bar to a prosecution in the Courts of the United States, the evil might occur. But this is a doctrine which can only be maintained on the ground that an offence against the laws of the one government, is an offence against the other government; and can surely never be successfully asserted in any instances but those in which jurisdiction is vested in the State Courts by statutory provisions of the United States. In contracts, the law is otherwise. The decision of any Court of competent jurisdiction is final, whatever be the government that gives existence to the Court. But crimes against a government are only cognizable in its own Courts, or in those which derive their right of holding jurisdiction from the offended government.
Yet, were it otherwise, I cannot perceive with what correctness we can, from the possible abuse of a power, reason away the actual possession of it in the States. Such considerations were only proper for the ears of those who established the actual distribution of powers between the States and the United States. The absurdities that might grow out of an affected co-operation in the States, with a real view to produce embarrassment, furnish the best guaranty against the probability of its ever being attempted, and the surest means of detecting and defeating it. We may declare defects in the constitution, without being justly chargeable with creating them; but if they exist, it is not for us to correct them. In the present instance, I believe the danger imaginary, and if it is not, it must pass ad aliud examen.
But whatever be the views entertained on this question, I am perfectly satisfied that the individual in this case was not amenable to any law of the United States. Both that there was no law of the United States that reached his case, and that there was gothing done or intended to be done by the government of the United States, to bring him within their laws, before he reached the place of rendezvous.
It is obvious that there are two ways by which the militia
be called into service; the one is under State authority, the other under authority of the United States. The power of Congress over the militia is limited but by two reservations in favour of the States, viz. the right of officering and that of training them. When distributed by the States under their own officers the general government have
the right, if they choose to exercise it, of designating both the officer and private who shall serve, and to call him forth or punish him for not coming. But the possession of this power, or even the passing of laws in the exercise of it, does not preclude the general government from leaning upon the State au. thority, if they think proper, for the purpose of calling the militia into service. They may command or request; and in the case before us, they obviously confined themselves to the latter mode. Indeed, extensive as their power over the militia is, the United States are obviously intended to be made in some measure dependant upon the States for the aid of this species of force. For, if the States will not officer or train their men, there is no power given to Congress to supply the deficiency.
The method of calling forth the militia by requisition, is, it is believed, the only one hitherto resorted to in any instance. Being partially dependant upon the integrity of the States, the general government has hitherto been satisfied to rest wholly on that integrity, and, except in very few instances, has never been disappointed. The compulsory power has been in its practice held in reserve, as only intended for use when the other shall fail. Historically it is known that the act of 1795 was passed with a view to a state of things then existing in the interior of Pennsylvania, when it became probable that the President of the United States would have to exert the authority of the general government immediately on detached portions of the officers or militia of the Union, to aid in the execution of the laws of
the United States. And instances may still occur in which the exercise of that power may become necessary for the same purpose. But, whenever bodies of militia have been called forth for the purposes of general defence, it is believed, that in no instance has it been done otherwise than by requisition, the only mode practised toward the States from the commencement of the revolution to the present day. That it was the mode intended to be pursued in this case, is obvious from the perusal of the letter of the Secretary of War to the Governor of Pennsylvania. The words made use of are: “ The President
« Letter from the Secretary of War, to the Governor of Penn
“ War Department, July 4, 1814.
“ The late pacification in Europe offers to the enemy a large disposable force, both naval and military, and with it the means of giving to the war here, a character of new and increased activity and extent.
“ Without knowing, with certainty, that such will be its application, and still less, that any particular point or points will become objects of attack; the President has deemed it advisable, as a measure of precaution, to strengthen ourselves on the line of the Atlantic ; and (as the principal means of doing this will be found in the militia) to invite the executives of certain States to organize and hold in readiness for immediate service a corps of ninety-three thousand five hundred men, under the laws of the 28th of February, 1795, and the 18th of April, 1814.
“ The enclosed detail will show your Excellency what, under this requisition, will be the quota of Pennsylvania. As far as volunteer uniform companies can be found, they will be preferred. The expediency of regarding (as well in the designa