116 U.S. 252 (1886), Presser v. People of State of Ill.

Citation:116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615
Case Date:January 04, 1886
Court:United States Supreme Court

Page 252

116 U.S. 252 (1886)

6 S.Ct. 580, 29 L.Ed. 615




United States Supreme Court.

January 4, 1886

Error to the Supreme Court of the State of Illinois.


[6 S.Ct. 580] Allan C. Story and Lyman Trumbull, for plaintiff in error.

George Hunt. Atty. Gen. of Illinois, for defendant in error.



Page 253

Herman Presser, the plaintiff in error, was indicted on September 24, 1879, in the criminal court of Cook county, Illinois, for a violation of the following sections of article 11 of the Military Code of that state, (Act May 28, 1879; Laws 1876, 192:) 'Sec. 5. It shall not be lawful for any body of men whatever, other than the regular organized volunteer militia of this state, and the troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state, without the license of the governor thereof, which license may at any time be revoked: and provided, further, that students in [6 S.Ct. 581] educational institutions, where military science is a part of the course of instruction, may, with the consent of the governor, drill and parade with arms in public, under the superintendence of their instructors, and may take part in any regimental or brigade encampment, under command of their military instructor; and while so encamped shall be governed by the provisions of this act. They shall be entitled only to transportation

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and subsistence, and shall report and be subject to the commandant of such encampment: Provided, that nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords. Sec. 6. Whoever offends against the provisions of the preceding section, or belongs to, or parades with, any such unauthorized body of men with arms, shall be punished by a fine not exceeding the sum of ten dollars, ($10,) or by imprisonment in the common jail for a term not exceeding six months, or both.' The indictment charged in substance that Presser, on September 24, 1897, in the county of Cook, in the state of Illinois, 'did unlawfully belong to, and did parade and drill in the city of Chicago with, an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the state of Illinois, or the troops of the United States.' A motion to quash the indictment was overruled. Presser then pleaded not guilty, and, both parties having waived a jury, the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10. The bill of exceptions taken upon the trial set out all the evidence, from which it appeared that Presser was 31 years old, a citizen of the United States and of the state of Illinois, and a voter; that he belonged to a society called the 'Lehr und Wehr Verein,' a corporation organized April 16, 1875, in due form, under chapter 32, Rev. St. Ill., called the 'General Incorporation Laws of Illinois,' 'for the purpose,' as expressed by its certificate of association, 'of improving the mental and bodily condition of its members so as to qualify them for the duties of citizens of a republic. Its members shall, therefore, obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in military and gymnastic exercises;' that Presser, in December, 1879, marched at the head of said company, about 400 in number, in the streets of the city

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of Chicago, he riding on horseback and in command; that the company was armed with rifles, and Presser with a cavalry sword; that the company had no license from the governor of Illinois to drill or parade as a part of the militia of the state, and was not a part of the regular organized militia of the state, nor a part of troops of the United States, and had no organization under the militia law of the United States. The evidence showed no other facts. Exceptions were reserved to the ruling of the court upon the motion to quash the indictment, to the finding of guilty, and to the judgment thereon. The case was taken to the supreme court of Illinois, where the judgment was affirmed. Thereupon Presser brought the present writ of error for a review of the judgment of affirmance.

Page 260

The position of the plaintiff in error in this court was that the entire statute under which he was convicted was invalid and void because its enactment was the exercise of a power by the legislature of Illinois forbidden to the states by the constitution of the United States. The clauses of the constitution of the United States referred to in the assignments of error were as follows:

'Article 1, § 8. The congress shall have power * * * to raise and support armies; * * * to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; 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 [6 S.Ct. 582] authority of training the militia, according to the discipline prescribed by congress; * * * to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers,' etc.

'Article 1, § 10. No state shall, without the consent of congress, keep troops * * * in time of peace.'

'Art. 2 of Amendments. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'

The plaintiff in error also contended that the enactment of the fifth and sixth sections of article 11 of the Military Code


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