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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,

Texas, 551; Coit v. Haven, 30 Conn. 190, 198; (Christmas v. Russell, 5 Wall. 290, 305; but see Cheever v. Wilson, 9 Wall. 108, 123;) Rape v. Heaton, 9 Wis. 328. In Hendrick v. Whittemore, 105 Mass. 23, 28, Carleton v. Bickford is cited, and it is there said that the reason domestic judgments cannot be thus impeached collaterally by the parties thereto, is because the remedy by review or writ of error is held to be more appropriate. x2

Other cases to the point that judgments obtained after an attachment of a nonresident defendant's property, but without personal service or appearance by him, are not binding in personam in other states, are Easterly v. Goodwin, 35 Conn. 273; McVicker v. Beedy, 31 Me. 314. See Wrightv. Boynton, 37 N. H. 9; Cooper v. Reynolds, 10 Wall. 308, 318. x3 The statement in these cases, and supra, 261, n. (b), that the attachment operates as a proceeding in rem, must be taken with great caution. Bold Buccleugh, 7 Moore, P. C. 267, 282; Megee v. Beirne, 39 Penn. St. 50.

But in a suit on a judgment obtained in another state, although the jurisdiction and notice to the defendant may be inquired into, it cannot be set up that the

r2 The rule may now be considered settled that the facts which give the court jurisdiction may be disproved though stated in the record. Thompson v. Whitman, 18 Wall. 457; Bowler v. Huston, 30 Grat. 266; Lowe v. Lowe, 40 Iowa, 220; Napton v. Leaton, 71 Mo. 358; Guthrie v. Lowry, 84 Pa. St. 533.

Eastman v. Wadleigh, 65 Me. 251. In Windsor v. McVeigh, 93 U. S. 274, it was held that the jurisdiction gained by a simple seizure of property for condemna

judgment was obtained by fraud. Christmas v. Russell, supra. In this case, also, a state law which in substance provided that judgments recovered in other states against citizens of that state should not be enforced in the courts of the latter, if the cause of action which was the foundation of the judgment would have been barred in her courts by her statutes of limitations, was held unconstitutional for like reasons. But states may prescribe reasonable periods of limitation to actions on judgments obtained in other states. Ib. 300; Bank of Alabama v. Dalton, 9 How. 522; post, 419, n. 1.

It results from the general doctrine that a judgment recovered in another state is a bar to an action for the same cause and between the same parties. McGilvray v. Avery, 30 Vt. 538; Child v. Eureka Powder Works, 45 N. H. 547; North Bank v. Brown, 50 Me. 214. x4 Although an appeal is pending. Bank of North America v. Wheeler, 28 Conn. 433. The constitutional provision applies to a decree of divorce which is valid and effectual by the laws of the state where it was obtained. Cheever v. Wilson, 9 Wall. 108; post, ii. 117, n. 1. As to foreign judgments, see ii. 120, n. 1.

tion is only sufficient to hold the same until the owner is notified and allowed to appear and defend, and that a final judgment without such notification and allowance is void.

Harryman v. Roberts, 52 Md. 64. As to the effect given to state judgments by the United States courts, see St. Clair v. Cox, 106 U. S. 350; Pennoyer v. Neff, 95 U. S. 714; Mohr v. Manierre, 101 U. S. 417.

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 courts-martial 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 company to which they belonged, and which *263 * was organized 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.

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

(a) Const. art. 1, sec. 8.

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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 militia, 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 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

(a) See Official Documents of the State of Connecticut, August, 1812. The 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.

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 gov

ernment 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, (a) 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. Moore (b) settled some important 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 courtmartial, 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 Presi*266 dent into the service of the United States, and who (b) 5 Wheaton, 1.

(a) 8 Mass. 548.

(a) 12 Wheaton, 19.

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 considered by Congress as the criterion of national militia, and the place of rendezvous was the terminus a quo the service, the pay, and subjection to the articles of war were to commence. And 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 States, and neglected or refused to serve; and they were to be punished by the infliction of the penalties prescribed by the act of Congress, and such an act was held not to be repugnant to the Constitution and laws of the United States. It was the lawful exercise of concurrent power, and could be concurrently exercised by the national and state courts-martial, as it was authorized by the laws of the state, and not prohibited by those of the United States. It would remain to be so exercised, until Congress should vest the power exclusively elsewhere, or until the states should devest their courts-martial of such a jurisdiction. This was the decision, in the first instance, of the Supreme Court of Pennsylvania; (a) and it was * 267 affirmed, on appeal, by the majority of the Supreme Court of the United States.

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7. Power of Congress as to Internal Improvements. - The authority of Congress to appropriate public moneys for internal improvements has been much discussed on public occasions, and between the legislative and executive branches of the govern(a) Moore v. Houston, 3 Serg. & Rawle, 169.

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