ply that a judgment in one state, founded on an attachment in rem, would not be conclusive evidence of the debt in other states, if the defendant *had not personal notice of the suit, so as to have enabled him to defend it.

*262

Kinney, 4 Conn. Rep. 380. Bissell v. Briggs, 9 Mass. Rep. 462. Fisher v. Lane, 3 Wils. Rep. 197. Buchanan v. Rucker, 9 East's Rep. 192. Douglas v. Forrest, 4 Bing. Rep. 686. 702. Becquet v. M'Carthy, 2 Barnw. & Adolph. 951. Bruce v. Wait, 1 Manning & Granger, 1. Pawling v. Bird, 13 Johns. Rep. 192. Earthman v. Jones, 2 Yerger's Tenn. Rep. 484. Miller v. Miller, 1 Bailey's S. C. Rep. 242, Benton v. Burgot, 10 Serg. & Rawle, 240. Rogers v. Coleman, Hardin's Rep. 413. Borden v. Fitch, 15 Johns. Rep. 121. Hall v. Williams, 6 Pick. Rep. 232. Bates v. Delavan, 5 Paige, 305. Bradshaw v. Heath, 13 Wendell, 407. See, also, infra, vol. ii. 120. The doctrine in Mills v. Duryee is to be taken with the qualification, that in all instances the jurisdiction of the court rendering the judgment may be inquired into, and the plea of nil debet will allow the defendant to show that the court had no jurisdiction over his person. It is only when the jurisdiction of the court in another state is not impeached, either as to the subject matter or the person, that the record of the judgment is entitled to full faith and credit. The court must have had jurisdiction, not only of the cause, but of the parties, and in that case the judgment is final and conclusive. If the suit in another state was commenced by the attachment of property, the defendant may plead in bar that, no process was served on him, and that he never appeared, either in person or by attorney. Starbuck v. Murray, 5 Wendell's Rep. 148. Shumway v. Stillman, 6 Wendell's Rep. 447. Wilson v. Niles, 2 Hall's N. Y. Rep. 358. Gleason v. Dodd, 4 Metcalf, 333. Story's Comm. on the Conflict of Laws, 509. Rangely v. Webster, 11 N. H. Rep. 299. But an important distinction is here to be observed, that a proceeding by foreign attachment, and against garnishees to judgment and execution, if binding in the state, is conclusive everywhere as a proceeding in rem against moveable property and debts attached or garnished; but the judgment is of no force against the person of the debtor who had not been served with process, or appeared in the foreign attachment, nor against his property in another jurisdiction. Cochran v. Fitch, 1 Sandford's Ch. R. 142. (1) The process by attachment of property of, and of debts due to non-residents, or of persons absent from the jurisdiction, will subject the property attached to execution upon the judgment or decree founded on the process; but it is considered as a mere proceeding in rem, and not personally binding, or having any extra territorial force or obligation. Story's Comm. on the Conflict of Laws, 458-463. Ibid. 508. Chew v. Randolph, Walker's Miss. R. 1. Overstreet v. Shannon, 1 Missouri Rep. 529. A special plea in bar of a suit on a judgment in another state, to be valid, must deny, by positive averments, every fact which would go to show that the court in another state had jurisdiction of the person, or of the subject matter. Harrod v. Barretto, 1 Hall's N. Y. Rep. 155.

(1) Whitney v. Walsh, 1 Cush. (Mass.) R. 29. See the case of The Globe, N. Dist. N. Y. Law Rep. February, 1851, p. 488, where the court was of opinion that a judgment in rem, rendered in pursuance of an act of Ohio, would be a nullity in other states, unless the owner of the vessel proceeded against appeared in the suit, or had due notice and opportunity to make a defence. See, also, The Velocity, N. Dist. of N. Y., reported in Law Rep. June, 1850, p. 61.

congress

litia.

Power of (6.) Congress have authority to provide for calling forth the over the mi- militia, to execute the laws of the Union, suppress insurrections, and repel invasions; and 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.a The President of the United States is to be the commander of the militia, when called into actual service. The act of 28th of February, 1795, authorized the President, in case of invasion, or of imminent danger of it, to call forth such number of militia most convenient to the scene of action as he might judge necessary. The militia so called out are made subject to the rules of war; and the law imposes a fine upon every delinquent, to be adjudged by a court-martial composed of militia officers only. These militia court-martials are to be held and conducted in the manner prescribed by the articles of war; and the act of 18th of April, 1814, prescribes the manner of holding them.

During the war of 1812, the authority of the President of the United States over the militia became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared, and founded upon the existence of one of the specified exigencies; that, when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully

detach a portion of the privates from the body of the *263 company to which they belonged, and which *was or

ganized with proper officers. This would, in the opinion of the government of Connecticut, impair, and eventually destroy the state militia. When the militia are duly called into the service of the United States, they must be called as militia, furnished with proper officers by the state.

a Const. art. 1. sec. 8.

Similar difficulties arose between the government of the United States and the state of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on an exposition of the constitution, which they deemed sound and just.

In Connecticut, the claim of the governor, to judge whether the exigency existed, authorizing a call of the militia of that state, or any portion of it, into the service of the Union, and the claim on the part of that state to retain the command of the militia, when duly ordered out, as against any subordinate officer of the army of the United States, were submitted to, and received the strong and decided sanction, not only of the governor and council of that state, but of the legislature itself.a In Massachusetts, the governor consulted the judges of the supreme judicial court, as to the true construction of the constitution on these very interesting points. The judges of the Supreme Court, were of opinion, that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the Constitution of the United States existed, so as to require them to place the mili

tia, or any part of it, in the service of the Union, and *264 under the command of the President. It was observed, that the Constitution of the United States did not give that right, by any express term, to the President or Congress, and that the power to determine when the exigency existed, was not prohibited to the states, and that it was therefore, as of course, reserved to the states. A different construction would place all the militia in effect at the will of congress, and produce a military consolidation of these states. The act of 28th of February, 1795, vested in the President the power of calling forth the militia when any one of the exigencies existed, and if to that be superadded the power of determining

The

a See Official Documents of the State of Connecticut, August, 1812. jealousy of the exercise of any power (other than that of the local governments) over the militia, was very strongly manifested by the legislature and people of Connecticut, as early as 1693, when they fearlessly and successfully resisted the claim of Governor Fletcher, of New-York, resting on a commission for that purpose from the king, to the exclusive command of the militia of Connecticut. 1 Trumbull's Hist. 410-414.

when the casus fœderis occurred, the militia would in fact be under the President's control.

As to the question how the militia were to be commanded, when duly called out, the judges were of opinion that the President alone, of all the officers acting under the United States, was authorized to command them, and that he must command them, as they were organized under officers appointed by the states. The militia could not be placed under the command of any officer not of the militia, except that officer be the President of the United States. But the judges did not determine how the militia were to be commanded, in case of the absence of the President, and of a union of militia with troops of the United States; and whether they were to act under their separate officers, and in concert as allied forces, or whether the officer present who was highest in rank, be he of the militia or of the federal troops, was to command the whole, was a difficult and perplexing question, which the judges did not undertake to decide.a

The President of the United States declared, that these constructions of the constitutional powers of the general go

vernment over the militia were novel and unfortunate, *265 *and he was evidently and decidedly of a different opinion. He observed, in his message to congress on the 4th November, 1812, that if the authority of the United States, to call into service and to command the militia, could be thus frustrated, we were not one nation, for the purpose most of all requiring it. These embarrassing questions, and the high authority by which each side of the argument was supported, remained unsettled by the proper and final decision of the tribunal that is competent to put them to rest, until the case of Martin v. Mott,b in 1827. In that case it was decided and settled by the Supreme Court of the United States, that it belonged exclusively to the President to judge when the exigency arises, in which he had authority under the constitution to call forth the militia, and that his decision was conclusive upon all other persons.

The case of Houston v. Moores settled some important

8 Mass. Rep. 554.

b 12 Wheaton, 19.

c5 Wheaton, 1.

questions arising upon the national authority over the militia. The acts of congress already referred to, and the act of 8th March, 1792, for establishing a uniform militia, were considered as covering the whole ground of congressional legislation over the subject. The manner in which the militia were to be organized, armed, disciplined and governed, was fully prescribed; provision was made for drafting, detaching and calling forth the state quotas, when requested by the President. His orders were to be given to the chief executive magistrate, or to any militia officer he might think proper. Neglect or refusal to obey his orders was declared to be a public offence, and subjected the offender to trial and punishment, to be adjudged by a court-martial, and the mode of proceeding was perspicuously detailed.

The question before the Supreme Court of the United States was, whether it was competent for a court-martial, deriving its jurisdiction under state authority, to try and punish militia men, drafted, detached and called forth by the President *into the service of the United States, and who *266 had refused or neglected to obey the call. The court decided, that the militia, when called into the service of the United States, were not to be considered as being in that service, or in the character of national militia, until they were mustered at the place of rendezvous, and that until then, the state retained a right, concurrent with the government of the United States, to punish their delinquency. But after the militia had been called forth, and had entered into the service of the United States, their character changed from state to national militia, and the authority of the general government over such detachments was exclusive. Actual service was

mence.

considered by congress as the criterion of national militia, and the place of rendezvous was the terminus à quo the service, the pay and subjection to the articles of war were to comAnd if the militia, when called into the service of the United States, refuse to obey the order, they remain within the military jurisdiction of the state, and it is competent for the state to provide for trying and punishing them by a state court-martial, to the extent and in the manner prescribed by the act of congress. The act of Pennsylvania, of 1814, provided for punishing, by a state court-martial, delinquent militia men, who were called into the service of the United