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interferes with the organization of the National Militia. That Constitution provides for organizing, arming, and disciplining the militia, and gives Congress full power over the subject, in which particular, be it observed, it is clearly distinguishable from that of fugitive slaves, over whom no such power is given. To be more explicit, I will read the clause. It is found in the long list of enumerated powers of Congress, and is as follows: "The Congress shall have power 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." And then, at the close of the section, it is further declared, that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

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In pursuance of this power, Congress has proceeded, by various laws, "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." The earliest of these laws, still in force, is entitled "An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States." This was followed by several acts in addition. Congress, then, has undertaken to exercise the power of " organizing" the militia under the Constitution.

Here the question arises, to what extent, if any, this power, when already exercised by Congress, is exclusive 1 Act of May 8, 1792, ch. 33.

in character. Among the powers delegated to Congress there may be some not for the time being exercised. For instance, there is the power "to fix the standard of weights and measures." Practically, this has never been exercised by Congress; but it is left to each State within its own jurisdiction. On the other hand, there is a power, belonging to the same group, "to establish uniforin laws on the subject of bankruptcies throughout the United States," which, when exercised by Congress, has been held so far exclusive as to avoid at once all the bankrupt and insolvent laws of the several States.

I might go over all the powers of Congress, and find constant illustration of the subject. For instance, there is the power "to establish an uniform rule of naturalization," on which Chief Justice Marshall once remarked, "That the power of naturalization is exclusively in Congress does not seem to be, and certainly ought not to be, controverted."1 There is the power "to regulate commerce with foreign nations and among the several States," which was early declared by the Supreme Court to be exclusive, so as to prevent the exercise of any part of it by the States.2 There is the power over patents and copyrights, which is also regarded as exclusive. So also is the power "to define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations." So also is that other power, "to establish post-offices and post-roads." All these powers, as in the case of the power over the National Militia, have been exercised by Congress, and even if not absolutely exclusive in original character, have become so by exercise.

1 Chirac v. Chirac, 2 Wheaton, 269.

2 Gibbons v. Ogden, 9 Wheaton, 198.

Now, Sir, upon what ground do gentlemen make any discrimination in the case of the power over the National Militia? I know of none which seems at all tenable. It is natural that the States should desire to exercise this power, since it was so important to them before the Union; but I do not see how any discrimination can be maintained at the present time. Whatever may have been the original importance of the militia to each State, yet, when the National Constitution was formed, and Congress exercised the power delegated to it over this subject, the militia of the several States was absorbed into one uniform body, organized, armed, and disciplined as the National Militia. To the States respectively, according to the express language of the Constitution, was left "the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." To this may be added the implied power of "governing" them when in the service of the State. This is all. The distinct specification of certain powers, as reserved to the States, excludes the States from the exercise of all other powers not specified or clearly implied. In other words, they are excluded from all power over the "organizing, arming, and disciplining the militia," at least after Congress has undertaken to enact laws for this purpose.

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The history of the adoption of the several parts of this clause in the National Convention reflects light upon its true meaning. The first part, in regard to organizing, arming, and disciplining the militia, was passed by a vote of nine States against two; the next, reserving the appointment of officers to the States, after an ineffectual attempt to amend it by confining the appointment to officers under the rank of general officers,

was passed without a division; and the last, reserving to the States the authority to train the militia according to the discipline prescribed by Congress, was passed by a vote of seven States against four. It seems, then, that there was strong opposition in the Convention, even to the secondary reservation of "the authority of training the militia." But this power is not reserved unqualifiedly. The States are to train the militia “according to the discipline prescribed by Congress": not according to any discipline determined by the States, or by the States concurrently with the National Government, but absolutely according to the discipline prescribed by Congress, nor more, nor less: thus distinctly recognizing the essentially exclusive character of the legislation of Congress on this subject.

This interpretation derives confirmation from the manner in which the militia of England was constituted or organized at the time of the adoption of the National Constitution. To the crown was given "the sole right to govern and command them," though they were "officered" by the Lord Lieutenant, the Deputy Lieutenants, and other principal landholders of the county.2 The Commentaries of Sir William Blackstone, from which this description is drawn, were familiar to the members of the Convention; and it is reasonable to suppose, that, in the distribution of powers between the National Government and the States, on this subject, the peculiar arrangement prevailing in the mother country was not disregarded.

If it should be said, that the adoption of this conclusion would affect the character of many laws enacted. by States, and thus far recognized as ancillary to the

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1 Madison's Debates, August 23, 1787.

2 Blackstone, Commentaries, I. 412, 413.

National Militia, it may be replied, that the possibility of these consequences cannot justly influence our conclusions on a question which must be determined by acknowledged principles of Constitutional Law. In obedience to these same principles, the Supreme Court, in the case of Prigg v. Pennsylvania, after asserting a power over fugitive slaves which is controverted, has proceeded to annul a large number of statutes in different States. Mr. Justice Wayne in this case said, “that the legislation by Congress upon the provision, as the supreme law of the land, excludes all State legislation upon the same subject, and that no State can pass any law or regulation, or interpose such as may have been a law or regulation when the Constitution of the United States was ratified, to superadd to, control, qualify, or impede a remedy enacted by Congress for the delivery of fugitive slaves to the parties to whom their service or labor is due."1 Without the sanction of any express words in the Constitution, and chiefly, if not solely, impressed by the importance of consulting "unity of purpose or uniformity of operation"2 in the legislation with regard to fugitive slaves, the Court assumed a power over this subject, and then, as a natural incident to this assumption, excluded the States from all sovereignty in the premises.

If this rule be applicable to the pretended power over fugitive slaves, it is still more applicable to the power over the militia which nobody questions. Besides, I know of no power which so absolutely requires what has been regarded as an important criterion, "unity of purpose or uniformity of operation." No uniform military organization can spring from opposite or inharmoni

1 Prigg v. Pennsylvania, 16 Peters, 636.

2 Ibid., 624.

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