1817. MOORE บ. HOUSTON. prove the issue on the part of the defendant. But the bare reversal of the judgment would not answer the expectations, or satisfy the wishes, of the public. Several important questions were discussed, both on the trial below and on the argument in this Court. These questions would occur again, should the cause be sent down for another trial. It is proper, therefore, that the opinion of this Court should be declared now, in order that as little as possible may be left for dispute in future. The great question is, whether the legislature of Pennsylvania had a right to make a law for trial, by court martial, of persons who had disobeyed the orders of the President of the United States for calling out the militia, issued through the medium of the Governor. And if the legislature had such right, several subordinate points will arise, on the construction of our acts of assembly. Before I consider the power of the legislature, it will be proper to take notice of the case of Bolton, decided by this Court, on a habeas corpus, at Pittsburgh, September Term, 1815, and relied on by the counsel for the plaintiff. (a) That (a) The case of The Commonwealth (on the petition of Everard Bolton,) against William B. Irish, deputy marshal of the district of Pennsylvania, was decided by the Supreme Court for the Western District, at September Term, 1815; present, C. J. TILGHMAN and Judge BRACKENRIDGE. The opinion of the Court, delivered by TILGHMAN C. J. was, in substance, as follows: By the return to this habeas corpus, and the evidence produced to the Court, it appears, that Everard Bolton, being a private in captain Clark's company, in the 19th regiment of Pennsylvania militia, was drafted, in pursuance of general orders of the Governor, dated the 5th September, 1812. On the 31st March, 1814, he was found guilty of delinquency, in not marching according to orders, by a court martial held in pursuance of general orders of the Governor, dated the 29th October, 1812, and sentenced to pay a fine of $ 60, or undergo an imprisonment for 12 calender months. The sentence was approved by the Governor, and Bolton was arrested by virtue of a warrant issued by the president of the court, directed to the marshal of Pennsylvania or his deputy, no goods or chattels having been found, on which the fine could be levied. Bolton petitions to be discharged from imprisonment, because the court which convicted him, acting under the authority of the state of Pennsylvania, and not of the United States, had no jurisdiction in his case. By the constitution of the United States, the Congress have power "to provide "for calling forth the militia to execute the laws of the union, suppress insurrections, "and repel invasions." By virtue of this power, Congress may make laws, tɔ enforce the call; they may inflict penalties for disobedience, and erect courts for trial of offenders. And they have exercised those powers. By the act of 28th Februa ry, 1795, (sect. 1.) the President of the United States is authorised, in case of invasion, or imminent danger of invasion, to call forth such number of militia as he may judge necessary; and to issue his orders to such officer or officers of the militia, as he may think proper. By the 4th section of this act, the militia employed in the case was essentially different from the present. That court martial had no act of assembly to rest on, but depended solely on the authority of the Governor, who ordered it to be called service of the United States, are subject to the same rules and articles of war, as the troops of the United States. By the 5th section, every officer, non-commissioned officer, and private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit and pay a sum not exceeding one year's pay, and not less than one month's pay, to be determined and assessed by a court martial, and be liable to be imprisoned, by a like sentence, on failure of payment of the fine, one calendar month for every five dollars of the said fines. And by the 6th section, courts martial for the trial of the militia, shall be composed of militia officers only. By the act of 18th April, 1812, the President was authorised to require of the executives of the several states, to organise and arm 100,000 of the militia, and to call into actual service, any part, or the whole of them, in all the exigencies mentioned in the constitution; and the officers, non-commissioned officers, musicians, and privates, were made subject to the penalties of the beforementioned act of the 28th February, 1795. Whatever orders were given by the Governor, respecting the militia called for by the President, must be considered as given in pursuance of the call of the President; and the breach of these orders was consequently a breach of the orders of the President, and falls within the provisions of the act of 28th February, 1795. The question then is, how is that act to be construed, when it speaks of the sentence of a court martial? The object of the act, being, to provide for the exercise of a power vested in Congress by the constitution, it must be supposed, unless the contrary is expressed, that every thing directed to be done, was to be under the authority of the United States. Where a court martial then is mentioned, in general terms, the most reasonable construction is, that it was to be a court under the authority of the President. The provision in the 6th section, that the court shall be composed of militia officers only, shews, that a court under state authority was not intended; for in such case, the provision would be nugatory, as a State could pretend to no authority to constitute a court martial of any other than militia officers. It appears, therefore, that the courts martial intended by the act of Congress were to be held under the authority of the President. But it has been contended, that the Governor, by his own authority, as commander in chief of the militia, might order a court martial for the trial of persons who have disobeyed his orders. In answer to this, it is to be observed, that the Governor issued his orders for calling out the militia, expressly at the request of the President of the United States; so that it is, in truth, the order of the President communicated through the Governor. It is to be remembered too, that by the constitution of Pennsylvania, the Governor ceases to be the commander in chief of the militia, when they are called into the actual service of the United States. This provision was necessary, because, by the constitution of the United States, (art. 2. scct. 2.) "the President is commander in chief of the army and navy of the United States, "and of the militia of the several states, when called into the actual service of the "United States." Besides, I know of no law of the state of Pennsylvania, which authorised the Governor to hold courts martial for the trial of offences like the present, at the time of his issuing the general orders in question. But it has been contended, that although the Governor might have had no authority to hold courts martial as commander in chief of the militia, yet he was still commander of the militia in the service of the United States, and, as such, might order a court martial under a law of the United States. And in proof of this construction of the constitution, have been cited the cases of the Governors of Pennsylvania and New Jersey, who commanded their militia in person, at the time of the insurrection of 1794, and of the Governors of Kentucky and Ohio, who took the field and retained the command of their militia in the late war. What passed between the President of the United VOL. III.-Z 1817. MOORE υ. HOUSTON, MOORE V. HOUSTON. 1817. before the making of the act on which the proceedings in ' this case are founded. No allusion to the act of assembly was made by the counsel on either side, in the argument of Bolton's case; nor was it in the mind of the Court, when the cause was decided; because, although then in being, it had no bearing on the law. The single question was, whether the Governor had power to call a court martial, by virtue of the act of congress of the 28th February, 1795. It appeared to the Court that he had not. On this point I have found no cause for changing my opinion; nor shall I be inclined to change it, until the Supreme Court of the United States shall decide to the contrary. The opinion of Ch. J. MARSHALL, in Meade's case, has likewise been cited. Nothing falls without weight from such high authority. But there, as in Bolton's case, it is evident that there was no decision upon the validity of an act of assembly. One word upon the power of Courts of Justice to declare an act of assembly or an act of Congress void. This is a matter which has been so much discussed, that every man must have made up his mind upon it. I have no doubt of the power; nor, at the same time, have I any doubt of the impropriety of exercising it in any but a very clear case. These are principles which I consider as well established by the great mass of opinion, at the bar, on the bench, and in the legislative assemblies of the United States. The power of the several states to govern their own militia is not derived from the constitution of the United States. They had it before the adoption of that constitution, and possess it still, except where it has been restricted, or yielded to the United States. But it does not always follow, that the States and those Governors, or by what authority they exercised their commands, or what rank they held in the army of the United States, I am not informed, nor is it necessary to make a question of it on the present occasion, as the Governor of Pennsylvania did not take the field, but remained in the exercise of his authority at home, while the militia marched under the command of inferior officers. Now it will not be pretended, that the President of the United States ordered the Governor, or had power to order him into actual service. The sovereignty of the State puts him above such an order. He remains commander in chief of all the militia not in the actual service of the United States, and has civil duties of so important a nature, as may render his presence at the seat of government indispensible. Consequently the Governor, not being in the service of the United States, could not issue any order as an officer of the United States. On no ground then, which has been taken, or can be taken, are the proceedings of this court martial to be supported. It is, therefore, the opinion of the Court, that Everard Bolton was unlawfully imprisoned, and should be discharged. States have relinquished their own powers, because they have granted similar powers to the United States. When they gave Congress the power of levying taxes, they did not divest themselves of the same power. They retain their powers, unless they are expressly deprived of them, or they have vested such powers in Congress as are, in their own nature, incompatible with the exercise of the same power by themselves. The prohibition to emit bills of credit is an instance of the former-and the latter is exemplified in the power given to Congress to establish uniform laws, on the subject of bankruptcy, throughout the United States. But there is this difference in the two cases: when the prohibition is express, all power of the States ceased immediately on the adoption of the constitution; but where the authority of the States is taken away by implication, they may continue to act until the United States exercise their power; because, until such exercise, there can be no incompatibility. The subject of a State bankrupt law came very lately before this Court, in the case of The Farmers' and Mechanics' Bank v. Smith; and it was decided that the law of Pennsylvania was valid, because the United States had no existing law on the subject. It is true that, on this point, there is a diversity of opinion among persons of great authority. Judge WASHINGTON holds the law contrary to our decision; but we are supported by the recent judgment of Judge LIVINGSTON, in the case of Adams v. Story, in the Circuit Court of New York. The question is of great importance, and will ultimately be decided by the Supreme Court of the United States. In the mean time, we must preserve consistency by adhering to our own decisions. But the case before us is somewhat different from any that I have mentioned. Congress has a right "to provide for "calling forth the militia," and they have exercised it by the acts of 28th February, 1795, and 18th April, 1814. They have also the power of providing for the "governing such "part of the militia 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 Con"gress." But we must distinguish between these two powers. Calling the militia forth, is one thing-governing them, when they are in actual service, is another. It would be dif 1817. MOORE v. HOUSTON. 1817. MOORE V. HOUSTON. ficult for a State to pass a law, affecting the militia, while in the actual service of the United States, without interfering with the authority of the United States; and if there be any collision, the State must give way. But when a State law is to operate on the militia, before they are in actual service, it may not only not interfere with the law of Congress, but have a powerful effect in aid of it. For instance, the object being to carry the militia to the field, Congress may inflict a penalty on all those who disobey the call of the President; and if the State also inflicts a penalty, and provides for the recovery of it in her own Courts, this may have a tendency to produce the same effect at which Congress are aiming. To inflict two penalties for the same offence is certainly a very delicate business, and, if the penalty extended to life or limb, would be contrary to the 7th article of the amendments of the constitution of the United States, as well as to the 10th section of the 9th article of the constitution of Pennsylvania. But it is a question of power that we are considering, and not of expediency. The power is all that this Court can judge of: of the expediency (supposing the power to exist) we have no right to judge. The legislative body exercises its powers at its own discretion, and is responsible only to the people, to whom it owes its existence. Whether Congress might, by express provision, have excluded the State from passing any law on the subject of calling forth the militia, it is unnecessary to consider, because they have not done so. It is not to be inferred that all State authority ceases on a subject over which Congress might assume exclusive power, when they have exercised the power only partially. The judicial power of the United States may be extended to all controversies between citizens of different States; but it has not been so far extended: and the consequence is, that the State courts have concurrent jurisdiction in such cases. And, to come nearer to the point, although Congress have authority to arm and discipline the militia, yet they have not exercised it to its full extent. Most of the States have passed laws on the subject; and not only have those laws not been complained of, but the United States have derived great benefit from them. Counterfeiting the notes of the late Bank of the United States was punishable by the laws both of the State of Pennsylvania and of the United States. The State law bears date 22d April, 1794, and inflicts a punishment of |