This is an action of trespass brought by 1 Edward Duff eld against John Smith, marshal of the United States for the district of Pennsylvania,- Isaac Deaves, a captain of the Pennsylvania militia, aVd Joseph Lloyd, judge advocate of a court martial, for breaking and entering the plaintiff’s house ; and an assault, battery, and imprisonment of his person, on the 1st -June, 1813.
The defendants pleaded a justification of the trespass, to which the plaintiff demurred, and the defendants joined in demurrer. The plea is in substance as follows:
At the time of the alleged trespass, there was war between the United States and Great Britain. Previous to the said *591alleged trespass," viz. on the 15th April, 1812, the President of the United States, made a requisition of the Governor of' Pennsylvania, for 14,000 militia, to be detached, and organised, but not to be considered in the actual service of the United States, till further orders. On the 12th May, 1812, the Governor, in compliance with the said requisition, issued his general orders for the drafting, and organisation of 14.000 men. On the 13th May, 1812, the adjutant general of Pennsylvania, directed the several brigade inspectors to make known the said general orders, to all the commanding officers, and to direct them to use all possible means, for the detaching and organising their several proportions of the said men. On the 3d July, 1812, Daniel Sharp, brigade inspector, issued brigade-orders for detaching and organising the quota of the first brigade ; and the plaintiff, being a free citizen, liable to militia duty, was duly enrolled in the class list of Captain Deaves, one of the defendants, in the 7th company of the" 24th Regiment, as of the first class ; which class, having been duly drafted as a part of the 14,000 men, the plaintiff was notified thereof, on the 15th July, 1812, and required to attend at the time and place appointed, for muster and inspection, as a private, but neglected so to do. On the 20th March, 1813, the river and bay of Delaware, being blockaded by a hostile squadron, and the United States threatened with an invasion, the President made a requisition of the Governor, for a detachment of 1,000 men, part of the said 14,000, to be placed under the orders of General Bloomfield, military commander of the district; in compliance with which requisition, the Governor, on the 5th April, 1813, ordered 1,000 men into the service of the Union. On the 7th April, 1813, the President issued an after order, and on the 14th April, the Governor issued an other order revoking so much of his preceding order, as directed the detachment of 1.000 men, to go into actual service, but ordering them to be organised, and held in readiness for actual service.
In obedience to these orders, Major Vogdes, commanding the 24th regiment, by order dated 10th April, directed Captain Hofiecker, to notify the first class, including minors and exempts, to meet for muster and inspection; in execution of which order, the plaintiff having been enrolled, drafted, and directed to be in readiness, was notified when and where to meet for muster and inspection, but neglected to attend. On *592the 12th April, 1813, the brigade inspector ordered the detachment to assemble on the 19th of that month, to be officer-ed and organised, according to the federal arrangement$ of which orders the plaintiff had notice, but neglected to attend. The detachment, comprising the first class, of which the plaintiff was a member, was afterwards called forth into actual service, under the orders of General Bloomfield, and performed a tour of duty, but the plaintiff did not accompany them; but, without license or permission, remained absent during the tour of duty. On the 29th October, 1813, the Governor ordered the adjutant general to direct the several brigade inspectors, from whose brigades the drafted militia had been ordered into the service of the United States, to institute prosecutions against delinquents who had not marched, or had deserted after marching, and that the presiding officers of the courts martial, should certify the fines assessed to the marshal for collection. On the 4th November, 1813, the adjutant general directed the brigade inspector to institute prosecutions. Accordingly, conformably to the provisions of the several acts of Congress, in such case provided, on the 9.5 th January, 1814, brigade inspector Sharp, required a court martial to be organised and assembled,' and at the same time the said inspector required Captain Hoffecker to summon the delinquents. On the 7th February, 1814, the court martial was organised, and sat till the 10th February, inclusive. The Court being organised, issued a summons to the plaintiff to appear, and answer to a charge filed against him, for disobedience of the orders of the President of the United States, by non-attendance at the place of rendezvous, preparatory to a tour of duty, when- required by brigade orders, in pursuance of the Governor’s orders, under the President’s requisition. The plaintiff did not appear before the court martial to answer to the charge, whereupon an order was issued in the name, and by the authority of the United States, commanding him to be brought before the court martial to answer the charge ; but the plaintiff voluntarily, and without any restraint, appeared on the 15th February, 1814, submitted himself to the jurisdiction of the Court, not denying his disobedience of orders, but acknowledging and confessing the same, upon which he was adjudged to pay a fine of thirty dollars to the United States, or to be imprisoned one month for every five dollars, in case he should not pay; the fine to *593be levied, and the judgment otherwise executed, according to the laws of the United States. This sentence was certified to' the comptroller of the treasury and to the marshal, who, there being no effects, arrested the plaintiff and committed him to jail for a few minutes, until he paid the fine, when he was set at liberty.
It is not alleged in this plea, that the proceedings of the court martial were founded on any act of the Legislature of Pennsylvania; and the truth is, that at the time of holding that Court, there was no act of assembly in existence authorising aprosecution for disobedience of the President’s orders. We are free then from all question of clashing jurisdiction. The state having made no law on the subject, if the proceedings can be justified, it must be under the authority of the United States. And indeed it is under their authority solely that the defendants have rested their jurisdiction. The Congress of the United States passed an act on the 28th February, 1795, for calling forth the militia in certain cases, and upon the construction of that act, will the case before us principally depend. It has been contended, indeed, by the counsel for the plaintiff, that Congress had no power to inflict a penalty on the plaintiff, because he was not in the actual service of the United States. I agree that he was not in their actual service, because he never obeyed the call of the President, and the act of Congress gave him the alternative, of going into service, or refusing, and beihg subject to a penalty. But I differ widely from the plaintiff’s counsel, in the inference, drawn from the fact of not being in actual service, viz. that Congress had no right to punish him. By the Constitution of the United States, art. 1. sect. 8. the Congress have power “to provide for calling forth the militia to repel invasion.” The defendant’s plea sets forth,, that there was a war between the United States and Great Britain, that the Delaware was blockaded by a hostile squadron, and the United States were threatened with invasion. The case had occurred, therefore, in which Congress might make such provision, and how could it be made but by laws, inflicting a penalty on those who disobeyed the call ? In the nature of the case, the calling forth of the militia must precede their entering into actual service, and those who disobeyed the call could never be in actual service. According to the plaintiff’s argument, then, they may refuse to enter into the *594service, and yet be exempt from punishment, because they-have refused. This would render the constitution a dead letter, and cannot therefore be sound doctrine. In the power to provide for calling forth the militia, is necessarily included, the power of inflicting a penalty on delinquents by the judgment of some Court of the United States, and of carrying the judgment into effect by an execution. It has not, in this state, nor as far as I know, in any state in the Union, been considered as an infringement of the rights of its citizens, to proceed to the trial of delinquent militia men, by courts martial. There can be no objection, therefore, to the act of Congress, for directing trials for the breach of their laws, to be in the same way. Let us now consider what provision has been made, for calling forth the militia, by the act of 28th February, 1795. By the first section the President is authorised to call forth such numbers of the militia as he may judge necessary, and may issue his orders to such officer or officers of the militia as he may think proper. By the fifth section, every officer, non-commissioned officer or private, who shall fail to obey the order of the President, shall forfeit a sum not exceeding one year’s pay, and not less than one month’s pay, to be determined and assessed by a court martial; and they shall be liable to be imprisoned, by the like sentence, on failure of payment of the fine, for one calendar month, for every 5 dollars of such fine. By the 6th section courts martial, for trial of the militia, shall be composed of militia officers only. The defendants do not allege, that the President ever gave orders for holding this court martial. On the contrary, it is evident, that the Governor supposed himself authorised, as commander in chief of the militia of Pennsylvania, to give orders for proceeding under the act of Congress^ The language of the orders shews, that the source from: which they flowed, was the authority of the chief executive officer of the state of Pennsylvania. The question then is simply this, did the act of February, 1795, contemplate courts martial held under any other authority than that of the President ? The words of the act are, that the fine is to be determined and assessed by a court martial, and in the present instanc-e, the fine was determined and assessed by a court-martial, so that the case falls within the words of the law. If the United States had no courts martial of their own, the Words would necessarily refer to the courts martial of the *595several states. But having courts of their own, it appears to me, that the natural and obvious reference is, to those “ courts only. Can.any instance be shewn, in which a law of the United States has created an offence and inflicted a punishment, and a state court has proceeded on that act without express authority ? None such has been produced. When I say express authority, I mean that the state court must be expressly mentioned in the act of Congress. The general scope and intent of this act is, to vest certain powers in the President independent of state authority ; and there is great reason why it should be so. It might happen, and it has happened, that the Governor of a state might not agree with the Government of the United States, as to the policy, or expediency of a war. In the late war, indeed, both the Governor and Legislature of Pennsylvania, agreed heartily with the General Government, and co-operated with all their might. But it was not so in every part of the Union. Now if a Governor, who differed from the President, might assume the office of carrying the act of February, 1795, into effect, very inconvenient consequences might follow. If the Governor had the direction of the courts martial, he might find it easy to thwart the views of the President. When the sentence is given, to whom is it to be submitted for approbation ? I do not find, that in this case, it was submitted to, or approved by, any body, but the brigade inspector. The system of the United States would undoubtedly be more uniform, more vigorous, more consistent, and more complete, by construing those general expressions Courts Martial, as restricted to courts held by order of the President. But, besides considerations of general policy, there are not Wanting, passages in the act, which indicate an intention, that the courts should be held by officers not subject to the orders of a state Governor. For instance, the provision, that courts for the trial of militia, should be held by militia officers only, applies to a situation, in which, the militia and the army of the United States are acting in conjunction, and in such a situation, it could not have been intended, to authorise a court martial under state authority. Again, the President had a right to issue his orders for calling out the militia, not through the medium of the Governor, but directly to any officer he thought proper. If he had pursued that course, I doubt whether any one-would have contended, that the'go*596vernor might order a court martial. And yet, I do not see how that circumstance can have any effect in the construction of the law. It has indeed been contended, on the part of the defendant, that when the President made a requisition of the Governor, to order out the militia, he thereby virtually authorised him to hold courts martial for the trial of those who disobeyed. But I cannot perceive the force of that argument. It was a requisition, not a command, that the Governor would organise, arm, and equip a certain number of militia, and hold them in readiness to march at a moment’s warning.' If he declined to comply with the requisition, the President might issue his command to any officer of the militia. But if he complied, it would be straining the requisition to an unnatural length, to construe it as if the President intended to impart to the Governor, an authority, not in the contemplation of the act of Congress. Indeed, it is not easy to conceive how such authority could be imparted. Because, the Governor was not in the service of the United States, and he stood upon too high ground, to be ordered Into the service, even by the President. The Governor then, being commander in chief of the militia of Pennsylvania, but not being in the service of the United States, by what authority could the President impart to him the power, in his capacity of commander in chief, to hold courts martial, under the act of February, 1795 ? It certainly does not appear, that the Governor, when he issued his orders, supposed, that he was acting under the authority of the President. On the contrary, the whole style of,the orders, plainly shews, that they emanated from the commander in chief of Pennsylvania. But, even if the President had authority to Impart to the commander in chief of Pennsylvania, the power of holding courts martial under the act of Congress, it would be of no avail to the defendants in these pleadings. So material a circumstance cannot be inferred, by the Court, from any facts which are stated in the pleadings. It should have been distinctly averred, that the plaintiff might have denied it, and taken issue upon it, if he thought proper.
These are the sentiments which I have always held, with regard to the construction of this act of Congress, and I believe they are not opposed by any decision, either of this Court or of any Court of the United States. The subject was brought first before Ch. J. Marshall, on a habeas *597corpus, in Meade’s case. The Chief Justice held the sentence of the court martial to be void, because Meade had' been proceeded against, without notice ; a fatal defect, under whatever authority the court might have been held. But in the course of his argument, he took a view of the act of Congress, and although he gave no positive opinion, yet the inclination of his mind, appears plainly to have been, that the courts martial intended by the act, were to be instituted under the authority of the United States. Next came before this Court, at Pittsburg, also on a habeas corpus, the case of Bolton. When the court martial was held in that case, no law had been made by the Legislature of Pennsylvania, authorising a court martial for the trial of militia men, who had disobeyed the call of the President. But there, as here, the Governor had issued orders of his own authority. The Court decided, that the proceedings of the court martial, could not be supported. I perceive not, in whát the case of Bolton is distinguishable from that now before us, so that I consider it as an authority directly in point. But subsequent to the time of holding the Court which passed sentence on Bolton, the state legislature passed an act, 28th March, 1814, making provision for courts martial, under the authority of the state, for the trial of persons, who having been called into service, by order of the President, neglected, or refused, to obey the call. That act was well considered by this Court, after full argument, in the case of Houston v. Moore and others, at Lancaster. Houston brought an action of trespass against Moore, the deputy marshal of Pennsylvania, and a number of others, members, and judge advocate of a court martial, which had been convened and passed sentence on him under the act of assembly ; and the great question .was, whether the act was consistent with the constitution and laws of the United States. The Court decided, that it was consistent, and therefore the act was valid. But it is evident at first glance, that the decisions in that case and Bolton’s, are in perfect harmony. In Bolton’s case, the proceedings of the court martial were held to be void, because they were not in conformity with the act of Congress, and there was no act of assembly to support them. In Houston v. Moore, &c. the proceedings were held to be good, because there was an act of assembly to support them. In making this act of assembly, the legislature seem to have entertained the same *598opinion, which governed the court in Bolton’s case, that is to say, that the Governor had no authority to order a court martial, for if he had, the act would have been unnecessary. Finding no reason, therefore, either from my own reflections, or from the aguments of others, to doubt of the soundness of the decision in Bolton’s case, I am of opinion, that the proceedings of the court martial under consideration, were void, being unsupported by any law of the United States, or of this state.
Two other points of minor importance remain to be considered.
1. It is said by the defendants, that this action is prohibited by the 3d sect, of the supplement to the act of assembly for the regulation of the militia, passed March 19th, 1816. It is thereby enacted, “ that the proceedings of the courts of appeal and courts martial shall in no case whatever be set aside or declared void, by any Judge or Court of law, on the ground of informality in such proceedings, provided such courts of appeal or courts martial shall be constituted under the authority of the United States or of this state ; and no action of trespass shall be sustained in any court of record zuithin this Commonwealth, in consequence of any proceedings had by any courts martial or courts of appeal.” I am inclined to think, that the provision respecting actions of trespass is subject to the proviso, that the courts shall be constituted under the authority of the United States, or of this state. If so, the act will not help the defendants, because the gist of the plaintiif’s case is, that this court martial was not constituted either under the authority of the United States or of this state. But without giving an opinion on that point, there is another circumstance which is decisive in excepting this case from' the operations of the act of assembly; and that is, that the action was brought long before the passing of the act. The legislature must never be supposed to have intended to destroy a vested right, by an ex post facto law, unless they have clearly expressed such intention. In this act they have not expressed such an intent, by any means, clearly. On the contrary, the words “ no action of trespass shall be sus- “ tained,” &c. may very properly be restricted to future ac~ tions. The opinion delivered by me, in the case of The Commonwealth v. Duane, 1 Binn. 401, is very applicable to this subject. Duane had been indicted, and found guilty, of *599a libel on Governor McKean, in a matter respecting the Governor’s official conduct. After verdict and before judgment," a law was passed, by which it was enacted, “ that from and after the passing of that act, no person should be subject to prosecution by indictment, for the publication of papers investigating the official conduct of officers, or men in a public capacity.” It was decided, that the act embraced the case of Duane, but a distinction was taken between civil and criminal actions. My expressions were these : — “ Had it been a civil action, I should have thought myself warranted in giving a different construction; because then, it would have operated in a retrospective manner, so as to take awayfrom a citizen'a vested right. There is a wide difference between a civil and criminal action. In the'latter, the Commonwealth only relinquishes its own right of inflicting punishment.’* Conformably to these sentiments, I am of opinion that the supplement to the militia act extends only to actions of trespass commenced after its passage.
2. The remaining point is, that the plaintiff, having appeared before the court martial, and confessed his guilt, is estopped from now controverting its jurisdiction. A court martial is a court of special and bounded jurisdiction. In order to make their proceedings valid they must act within their jurisdiction. Nor can the plea of the person accused confer a jurisdiction where it appears on the whole face of the proceedings that none existed. I consider this principle as sufficiently established by the following authorities, to which I shall barely refer, without entering more minutely into the subject. 1 Saund. 73. 4 Dall. 11. 2 Wils. 385. 1 Freem. 322. 2 Mod. 29. Bull. N. P. 83. 10 Co. 51. The Marshalsea case.
Upon the whole, I am of opinion that the matter alleged in the plea of the defendants, is no justification of the trespass, and therefore the demurrer is good, and judgment should be entered for the plaintiffs.
Gibson J.I have no doubt but that the court martial contemplated by the act of congress of 1793, must be held by virtue of the authority of the United States. However, were it not for the decision in Bolton’s case, I would be disposed to think that a court-martial, ordered by the Go*600vernor of a state on which a requisition had been made, might be considered as held mediately by the order of the President. And this I would do on account of the utter impracticability of bringing the physical force of the country into the field if every order or act of an officer were to be scanned with the eye of a special pleader. Besides, if the United States should receive the forfeiture in pursuance of the sentence of a state court, they would be estopped from, again proceeding against the delinquent, by a Court ordered immediately by the President, or any other officer of the United States; and the sanction given to the proceedings of the state court, by executing its sentence, would be conclusive evidence of the existence of a previous federal authority in the Governor to order it. It requires no great astutia to presume a delegation of power to the Governor to enforce, by courts martial, the demand of the President, particularly if it be considered not as an order of the President, given through the Governor, as an organ, but as a requisition for a state contingent, (and in this light s am inclined to view it;) for, in the latter case, the order to march is more peculiarly that of the Governor than of the President. I state these reasons as being of such weight as would probably have induced me to dissent in Bolton’s case. But, at all events, the proceedings of such court should be pleaded as those of a court organized by federal authority, which has not been done here, and I agree that the want of an express allegation to that effect cannot be supplied by intendment. The demurrer must be sustained.
Duncan J. gave no opinion, not having heard the argument.Judgment for the plaintiff.