respectively, or to the people.' The power of state governments to legislate concerning the militia existed, and was exercised, before the adoption of the Constitution of the United States, and, as its exercise was not prohibited by that instrument, it is understood to remain with the States, subject only to the paramount authority of acts of Congress, enacted in pursuance of the Constitution of the United States. The section of the Constitution cited does not confer on Congress unlimited power over the militia of the States; it is restricted to specific objects enumerated, and for all other purposes the militia remain, as before the formation of the Constitution, subject to state authorities. Nor is there any warrant for the proposition that the authority a State may exercise over its own militia is derived from the Constitution of the United States. The States always assumed to control their militia, and, except so far as they have conferred upon the national government exclusive or concurrent authority, the States retain the residue of authority over the militia they previously had and exercised, and no reason exists why a State may not control its own militia within constitutional limitations. Its exercise by the States is simply a means of self-protection.

"The States are forbidden to keep 'troops' in time of peace, and of what avail is the militia to maintain order and to enforce the laws in the States unless it is organized? A well-regulated militia' is declared to be necessary to the security of a free State.' The militia is the dormant force upon which both the national and state governments rely to execute the laws, . . . . suppress insurrections and repel invasions.' It would seem to be indispensable there should be concurrent control over the militia

....

in both governments, within the limitations imposed by the Constitution. Accordingly, it is laid down by textwriters and courts, that the power given to Congress to provide for organizing, arming, and disciplining the militia is not exclusive. It is defined to be merely an affirmative power, and not incompatible with the existence of a like power in the States; and hence the conclusion is, the power of concurrent legislation over the militia exists in the several States with the national government.

....

"Nor do we think the reservation of the power to the States respectively, the appointment of the officers, and the authority to train the militia according to the discipline prescribed by Congress,' as suggested by counsel, puts any restriction upon the States in respect to concurrent legislation concerning the militia. Mr. Justice Story, in speaking of that clause of the Constitution, says, 'that reservation constitutes an exception merely from the power given to Congress to provide for organizing,

arming, and discipling the militia,' and is a limitation upon the authority which would otherwise have devolved upon it as to the appointment of officers.' Obviously, that is all that clause of the Constitution does mean, and we adopt as our own view what that able jurist added: "The exception from a given power cannot, upon any fair reasoning, be considered as an enumeration of all the powers which belong to the States over the militia.'

"But the principal argument is made on the other branch of the case - viz., that the act of the general assembly to provide for the organization of the state militia' is repugnant to the laws of Congress on the same subject, constitutionally enacted, and is for that reason null and void. Wherein the 'spirit, intent, and effect

of the Illinois statutes is in conflict with the provisions of the act of Congress,' as insisted on in the argument, is not apparent. Neither in the title of the act, nor in any part of its provisions, does it appear the object of the state law is in conflict with the national law. The first section declares that all able-bodied male citizens of the State, between the ages of eighteen and forty-five years, except such as are expressly exempted by the laws of the United States, or are state or county officers, or on account of their profession or employment are exempted by the commanderin-chief, shall be subject to military duty, and designated as the "Illinois State Militia."' That is in exact conformity with the Act of Congress of 1792, and what more could the legislature do? The concession of counsel is, that an act of the state legislature to organize the state militia, if in conformity with the act of Congress on that subject, 'is inoperative and amounts to nothing,' and if it differs from the act of Congress, it is 'equally inoperative and void.' As suming that to be a correct proposition, and if it is confined to the organization and arming of the militia called to enter the actual service of the United States, it is the law, then the act of the legislature is as comprehensive as it could constitutionally be made, so far as it purports to 360

declare who shall constitute the whole body of the militia under the act of Congress.

"The second section is a declaration of legislative intention on the part of the State to cooperate with the general government in the matter of enrolling and organizing the entire militia of the State when it shall become necessary to execute the laws, suppress insurrection, or repel invasion, or quell riots, or when a requisition shall be made by the President of the United States for troops,' and should be read in the light of facts historically known to all. .... As the laws now are, it is improbable the entire militia of the States will ever be enrolled or summoned for discipline under the act of Congress, unless some great impending danger shall make it necessary. When such an exigency does occur, this statute makes it the duty of the governor, as commander-in-chief, by proclamation, to require the enrolment of the entire militia of the State, or such portion thereof as shall be necessary, in the opinion of the President, and to appoint enrolling officers, and to make all orders necessary to aid in the organization of the militia. Such a law is not in contravention of the Act of 1792, or with any other act of Congress in relation to the organization of the militia, but is rather in aid of all such laws."