MILITARY. That which belongs or relates to the army.

MILITIA¹. The military force of the nation, consisting of citizens called forth² to execute the laws of the Union, suppress insurrection and repel³ invasion.

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 decided⁴.

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, constructively⁵ in that service, though not actually so, although he should not appear at the place of rendezvous⁶. 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 jurisdiction⁷ 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 contemplated⁸ 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 fully⁹ as was thought right, and covered the whole ground of their legislation by different laws, notwithstanding important provisions may have been omitted, or those enacted¹⁰ might be beneficially altered or enlarged.

7. - 4. After this, the states cannot enact¹¹ 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 legislate¹² 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 imprisonment¹³ 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 legislating¹⁴ powers in relation to the subject are different, and cannot subsist¹⁵ harmoniously¹⁶ together.

9. - 6. The same legislating power may impose cumulative¹⁷ punishments; but not different legislating powers.

10. - 7. Therefore, where the state governments have, by the constitution, a concurrent¹⁸ 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 contradictory¹⁹ and repugnant to each other.

11. - 8. Where congress prescribed the punishment to be inflicted²⁰ on a militia man, detached and called forth, but refusing to march, and also provided that courts martial²¹ for the trial of such delinquent's, to be composed of militia officers only, should be held and conducted in the manner pointed²² out by the rules and articles of war, and a state had passed a law enacting²³ the penalties on such delinquents²⁴ 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 proceeding²⁵ 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.