Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/102

 94 actual service. These are not contemporaneous acts, nor necessarily identical in their constitutional bearings. The president is not commander-in-chief of the militia, except when in actual service ; and not, when they are merely ordered into service. They are subjected to martial law only, when in actual service, and not merely when called forth, before they have obeyed the call. The act of 1795, and other acts on this subject, manifestly contemplate and recognise this distinction. To bring the militia within the meaning of being in actual service, there must be an obedience to the call, and some acts of organization, mustering, rendezvous, or marching, done in obedience to the call, in the public service.

§ 1209. But whether the power is exclusive in congress to punish delinquencies in not obeying the call on the militia, by their own courts-martial, has been a question much discussed, and upon which no inconsiderable contrariety of opinion has been expressed. That it may, by law, be made exclusive, is not denied. But if no such law be made, whether a state may not, by its own laws, constitute courts-martial to try and punish the delinquencies, and inflict the penalties prescribed by the act of congress, has been the point of controversy. It is now settled, that, under such circumstances, a state court-martial may constitutionally take cognizance of, and inflict the punishment. But a state cannot add to, or vary the punishments inflicted by the acts of congress upon the delinquents.