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tained in it may now be considered as the settled law of the land. It is not, however, to be understood, that nul tiel record is, in all cases, the necessary plea; but any special plea may be pleaded which would be good to avoid the judgment in the state where it was pronounced. And in Mayhew v.

Thatcher, the court would seem to imply, 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

a Shumway v. Stillman, 4 Cowen, 292.

b 6 Wheaton, 129.-In Thurber v. Blackbourne, 1 N. H. Rep. 242. it was held that nil debet was a good plea to debt on a judgment of another state, when it did not appear by the record that the defendant had notice of the suit. And in Cunningham v. Buckingham, 1 Hammond's Ohio Rep. 264. and Hoxie v. Wright. 2 Vermont R. 263. the judgment of another state, regularly obtained, when the desendant had been served with process, or had otherwise appeared, was held to be conclusive evidence of the debt. But the defendant must have had due notice to appear, or must have actually appeared to the suit, or the judgment of another state will not be deemed of any validity. This is a plain principle of justice, which pervades the jurisprudence of this and of all other countries. Killburn v. Woodworth, 5 Johnson's Rep. 37. Aldrich v. Kinney. 4 Conn. Rep. 380. Bissell v.

Briggs, 9 Mass. Rep. 462. Fisher v. Lane, 3 Wils. 197. Buchanan v. Rucker, 9 East, 192. Benton v. Burgot, 10 Serg. & R. 240. Rogers v. Coleman, Hardin, 413. Borden v. Fitch, 15 John. son, 121. Hall v. Williams, 6 Pick. 232. 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 iuto, and the plea ofnil debel 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; and 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, 148. A special plea in bar of a suit on a judgment in another state, to be valid, must deny, by positive documents, 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.

Power of


defendant had not personal notice of the suit, so as to have enabled him to defend it.

(6.) Congress have authority to provide for calling forth over the the militia to execute the laws of the Union, suppress insur

rections, 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, resepectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress. 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 the 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 company to which they belonged, and which

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 daly 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 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. 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, who were consulted, 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 under the command of the President. It was observed, that the constitution of the United States did not give that right, by any express terms, to the President or Congress, and that the power to determine when the exigency existed, was not probibited 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 exigences existed, and if to that be superadded the power of determining when the casus fæderis occurred, the militia would in fact be under the President's control.

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.

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 Stats. 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, but in concert as allied forces, or whether the officer present wlio 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 government over the militia were novel and unfortunate,

a 8 Mass. Rep. 554.

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 quthority 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,* 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 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 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 Presi

6 5 Wheaton, 1.

a 12 Whealon, 19. VOL. I.


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