Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1815-10-18

ment of the fine, one calender month for every
hive dollars or such fine-aud by the 9th section
courts martial for the trial ofmiltia shall be com
posed ofmilitia officers only. BY the act ofthe
10th April, 1872, the President is authorised to
require of the Executive of the several states
to organize and arm 100000 ofthe militia, and to
call into actual service, any part or the whole of
them, N all the exigences provided by the con-
sht7tion, and the officers, non-conmissoncdo off,
GERS, musicians and fprvatcs are made subject to
thepenalties ofthe before mentioned act of Feb.
2eth, 17o5. Whatever orders were given by the
governor, respecting the militia calleti for by the
President, must be considered as given in pursu-
ance OF the call OF the President, and the breach
OF those orders was consequently breach of the
orders Of the President, and falls within the pro-
vision ofthe act Of the 2Sth of February, 1895.
The question then is, how is that act to be
understood when it speaks of the sentence of
court martial? The object of the act being
10 provide for the exercise of power vested in
congress by the constitution, it must be supposed,
unless the contrary is expressed, thateeery thing
directed to be done, was to be under the authors
ty OF the United States.-When court martial
then is mentioned, in general terms, the most rea-
sonable construction is, that il was to be a court
under the authority of the President The pro-
vision in the 9th section, that the court shall be
composed of n,iGiia efccrs only, shews clearly
that there was no idea of court under state an
nugatory, as state could pretend to no authority
to constitute court of any other than militia off,
GERS. There are other reasons for surprising that
1t was the intention of congress to keep the whole
authority over the militia called into actual SER
vice, IN their own hands. 1t is Of great impor-
lance to prevent the collision of clashing iuris-
dictons on this vital subject. The act Of 1875
authorises the President to issue his orders inn
mediately to any officer of militia, without pass
ing through the medium of the governor and
believe it to be fact well known, that this pre-
caution was introduced, in consequence ofdiffi-
cultles which had occurred in calling out the mi
iitia to suppress an iusurrecton in the western
parts OF Pennsylvania, in the year 1894 We
have farther evidence of the sense the U. States
on this subject, by the act of 18th April. 1914.
oy the first section of which it is enacted. that
courts martial, to be composed of militia officers
alone, Tor 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, shall, whenever me-
cessMy, be appointed, held and conducted in
" the manner prescribed by the rules and articles
" OF war, 70. appointing, holding and conducting
courts martial for the trial of delinouen in the
" army of the United States" 1t appears then
that whether We consider the words or the sub
Ject and spirit OF the constitution and laws of the
United States, court martial for the trial of Often
ders charged with disobedience of the orders of
the PRESIDENT, can derive no authority from no
other scarce than the United States But II has
Deen commended that the governor by his o@n au-
thority, as commander in chief OF the militia NAV
order court martial for the trial of persons who
nave dlsobeyed 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. 60
that it is in truth the order of the President com
municated through the governor 1t is to be re-
collected too, that by the constitution of Penn
syiyania, Art 2, Sect z, the governor ceases tn
be commander in chief of the militia. when thew
sre called into the actual service of the u States.
lhis provision was necessary, because by the
constitution OFT the United States. Art. 9. Sect Q
the President is commander in chiefofthe ar,
my and navy of the United Iates, and the militia
OF the several states, when called into the actual
service OF the United States" Besides know
of 10 law of Pennsylvania which authorizes the
holding OF court martial for the trial of Offend
ers against the United States. and ii would he
extremely hard ftncre was for it is certain that
no punishment inflicted under a state law could
prevent the U. States from prosecuting for the
same otence on their own authority, nor would
an acquittal by state court be anv bar to p,o.
seeittion before a court of the United States.
but granting that the governor was not com
inander IN CHIEF ct the state militia, and there
fore could not hold court martial bv his own
authority, it has been argued, that fbonph NOT
commander,in chief lac was still commander of
the militia in the service of the United States &
as such might order court martial under the
laws ofthe U. Stated ; and III proof of Els con.
struction Of the constitution, have been cited
the cases OF the governors of Pennsylyania
and New Jersey, VINO commanded their militia in
person, IN the instruction of 1894, and of the
governors OF Ohio and Kentuckcy, who took the
field and retained the command OF their militia in
the late war What passed between the presi.
dent ct the United States and those governors
or by what authority they exercised their com
mands, or what rank they held in the army ofthe
U. States, an not informed, nor is il necessary
70 make question of il on the present occasion,
because the governor of Pennsylvania did 1of
take the field, butremained in the exercise o{i;s
authority at home, while the militia marched un.
der the command Of inferior officers Now II
will not be pretended that the president Of the u
States, ordered the governor, or had power TO or
der him, INTO actual service. The SOVEREIGNTY
OF the state protects him from such an order~-he
still remains commander in chief of all the militia
not in the actual service Of The United States and
he has civil duties Of so imperious nature. as
may render his presence at the seat ofeoyernnent
indispensable, for no law can be enacted without
him.
On n0ground, then, which has been taken. nor
on any other ground which can perceive. can
Tie proceedings of this court martial be support
Ell. The offence was against the United States,
ana should have been prosecuted under their ati.
thory. But twas prosecuted under the autho.
rity ofPeunsylvania. The sentence therefore was
voi@ and we must direct that the prisoner be dis.
shaged