The Act of the State of Pennsylvania, of 28 March 1814,
providing (section twenty one) that the officers and privates of
the militia of that state neglecting or refusing to serve when
called into actual service in pursuance of any order or requisition
of the President of the United States shall be liable to the
penalties defined in the Act of Congress of 28 February, 1795, c.
277, or to any penalty which may have been prescribed since the
date of that act, or which may hereafter be prescribed by any law
of the United States, and also providing for the trial of such
delinquents by a state court martial, and that a list of the
delinquents fined by such court should be furnished to the marshal
of the United States, &c., and also to the Comptroller of the
Treasury of the United States, in order that the further
proceedings directed to be had thereon by the laws of the United
states might be completed, is not repugnant to the Constitution and
laws of the United States.
This was a case where was drawn in question the validity of a
statute of that
Page 18 U. S. 2
state, on the ground of its repugnancy to the Constitution and
laws of the United States, and the decision was in favor of its
validity. The statute which formed the ground of controversy in the
state court was passed on 28 March, 1814, and enacts, among other
things (sec. 21), that every noncommissioned officer and private of
the militia who shall have neglected or refused to serve when
called into actual service, in pursuance of any order or
requisition of the President of the United States, shall be liable
to the penalties defined in the act of the Congress of the United
States, passed on 28 February, 1795, and then proceeds to enumerate
them, and to each clause adds
"or shall be liable to any penalty which may have been
prescribed since the date of the passing of the said act, or which
may hereafter be prescribed by any law of the United States."
The statute then further provides that
"within one month after the expiration of the time for which any
detachment of militia shall have been called into the service of
the United States, by or in pursuance of orders from the President
of the United States, the proper brigade inspector shall summon a
general or a regimental court martial, as the case may be, for the
trial of such person or persons belonging to the detachment called
out, who shall have refused or neglected to march therewith, or to
furnish a sufficient substitute, or who, after having marched
therewith, shall have returned, without leave from his commanding
officer, of which delinquents the proper brigade inspector shall
furnish to the said court
Page 18 U. S. 3
martial an accurate list. And as soon as the said court martial
shall have decided in each of the cases which shall be submitted to
their consideration, the President thereof shall furnish to the
marshal of the United States or to his deputy, and also to the
Comptroller of the Treasury of the United States, a list of the
delinquents fined, in order that the further proceedings directed
to be had thereon by the laws of the United States, may be
completed."
Houston, the plaintiff in error, and in the original suit, was a
private, enrolled in the Pennsylvania militia, and belonging to the
detachment of the militia which was ordered out by the governor of
that state in pursuance of a requisition from the President of the
United States, dated 4 July, 1814. Being duly notified and called
upon, he neglected to march with the detachment to the appointed
place of rendezvous. He was tried for this delinquency before a
court martial summoned under the authority of the executive of that
state, in pursuance of the section of the statute above referred
to. He appeared before the court martial, pleaded not guilty, and
was in due from sentenced to pay a fine; for levying of which on
his property, he brought an action of trespass in the state court
of common pleas, against the deputy marshal by whom it was levied.
At the trial in that court, the plaintiff prayed the court to
instruct the jury, that the first, second, and third paragraphs of
the 21st section of the above statute of Pennsylvania, so far as
they related to the militia called into the
Page 18 U. S. 4
service of the United States, under the laws of Congress, and
who failed to obey the orders of the President of the United
States, are contrary to the Constitution of the United States and
the laws of Congress made in pursuance thereof, and are therefore
null and void. The court instructed the jury that these paragraphs
were not contrary to the Constitution or laws of the United States,
and were therefore not null and void. A verdict and judgment was
thereupon rendered for the defendant Moore, which judgment being
carried by writ of error before the Supreme Court of Pennsylvania,
the highest court of law or equity of that state, was affirmed, and
the cause was then brought before this Court under the 25th section
of the Judiciary Act of 1789, c. 20.
Page 18 U. S. 12
The judgment of the Court was delivered at the present term by
MR. JUSTICE WASHINGTON, who, after stating the facts of the case,
proceeded as follows:
There is but one question in this cause, and it is whether the
act of the Legislature of Pennsylvania under the authority of which
the plaintiff in error was tried, and sentenced to pay a fine is
repugnant to the Constitution of the United States or not.
But before this question can be clearly understood, it will be
necessary to inquire 1. what are the powers granted to the general
government, by the Constitution of the United States, over the
militia. and, 2. to what extent they have been assumed and
exercised.
1. The Constitution declares that Congress shall have power to
provide for calling forth the militia in three specified cases: for
organizing, arming, and disciplining them; 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 authority of training the militia according
to the discipline prescribed by Congress. It is further provided
that the President of the United States shall be commander of the
militia, when called into the actual service of the United
States.
2. After the Constitution went into operation, Congress
proceeded by many successive acts to exercise
Page 18 U. S. 13
these powers, and to provide for all the cases contemplated by
the Constitution.
The Act of 2 May, 1792, which is reenacted almost verbatim by
that of 28 February, 1795, authorizes the President of the United
States, in case of invasion, or of imminent danger of it, or when
it may be necessary for executing the laws of the United States, or
to suppress insurrections, to call forth such number of the militia
of the states most convenient to the scene of action, as he may
judge necessary, and to issue his orders for that purpose, to such
officer of the militia as he shall think proper. It prescribes the
amount of pay and allowance of the militia so called forth, and
employed in the service of the United States, and subjects them to
the rules and articles of war applicable to the regular troops. It
then proceeds to prescribe the punishment to be inflicted upon
delinquents, and the tribunal which is to try them, by declaring,
that every officer or private who should fail to obey the orders of
the President, in any of the cases before recited, should be liable
to pay a certain fine, to be determined and adjudged by a court
martial, and to be imprisoned, by a like sentence, on failure of
payment. The courts martial for the trial of militia, are to be
composed of militia officers only, and the fines to be certified by
the presiding officer of the court, to the marshal of the district,
and to be levied by him, and also to the supervisor, to whom the
fines are to be paid over.
The Act of 18 April, 1814, provides that courts martial, to be
composed of militia officers
Page 18 U. S. 14
only, for the trial of militia, drafted, detached and called
forth for the service of the United States, whether acting in
conjunction with the regular forces or otherwise, shall, whenever
necessary, be appointed, held, and conducted in the manner
prescribed by the rules and articles of war, for appointing,
holding, and conducting courts martial for the trial of delinquents
in the army of the United States. Where the punishment prescribed
is by stoppage of pay or imposing a fine limited by the amount of
pay, the same is to have relation to the monthly pay existing at
the time the offense was committed. The residue of the act is
employed in prescribing the manner of conducting the trial, the
rules of evidence for the government of the court, the time of
service, and other matters not so material to the present inquiry.
The only remaining act of Congress which it will be necessary to
notice in this general summary of the laws, is that of 8 May, 1792,
for establishing an uniform militia in the United States. It
declares who shall be subject to be enrolled in the militia and who
shall be exempt; what arms and accoutrements the officers and
privates shall provide themselves with; arranges them into
divisions, brigades, regiments, battalions, and companies, in such
manner as the state legislatures may direct; declares the rules of
discipline by which the militia is to be governed, and makes
provision for such as should be disabled whilst in the actual
service of the United States. The pay and subsistence of the
militia whilst in service are provided
Page 18 U. S. 15
for by other acts of Congress, and particularly by one passed on
3 January, 1795.
The laws which I have referred to amount to a full execution of
the powers conferred upon Congress by the Constitution. They
provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasion. They also
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; leaving to the states respectively, the
appointment of the officers, and the authority of training them
according to the discipline prescribed by Congress.
This system may not be formed with as much wisdom as in the
opinion of some it might have been or as time and experience may
hereafter suggest. But to my apprehension, the whole ground of
congressional legislation is covered by the laws referred to. The
manner in which the militia is to be organized, armed, disciplined,
and governed, is fully prescribed; provisions are made for
drafting, detaching, and calling forth the state quotas, when
required by the President. The President's orders may be given to
the chief executive magistrate of the state, or to any militia
officer he may think proper; neglect, or refusal to obey orders, is
declared to be an offense against the laws of the United States,
and subjects the offender to trial, sentence and punishment, to be
adjudged by a court martial, to be summoned in the way pointed out
by the articles and rules of war; and the mode of proceeding to
Page 18 U. S. 16
be observed by these courts, is detailed with all necessary
perspicuity.
If I am not mistaken in this view of the subject, the way is now
open for the examination of the great question in the cause. Is it
competent to a court martial, deriving its jurisdiction under state
authority to try and to punish militia men, drafted, detached, and
called forth by the President into the service of the United
States, who have refused, or neglected to obey the call?
In support of the judgment of the court below, I understand the
leading arguments to be the two following: 1. That militia men,
when called into the service of the United States by the
President's orders, communicated either to the executive
magistrate, or to any inferior militia officer of a state, are not
to be considered as being in the service of the United States until
they are mustered at the place of rendezvous. If this be so, then,
2dly, the state retains a right, concurrent with the government of
the United States, to punish his delinquency. It is admitted on the
one side, that so long as the militia are acting under the military
jurisdiction of the state to which they belong, the powers of
legislation over them are concurrent in the general and state
government. Congress has power to provide for organizing, arming,
and disciplining them, and this power being unlimited, except in
the two particulars of officering and training them, according to
the discipline to be prescribed by Congress, it may be exercised to
any extent that may be deemed necessary by Congress. But as state
militia, the power of
Page 18 U. S. 17
the state governments to legislate on the same subjects, having
existed prior to the formation of the Constitution, and not having
been prohibited by that instrument, it remains with the states,
subordinate nevertheless to the paramount law of the general
government, operating upon the same subject. On the other side, it
is conceded, that after a detachment of the militia have been
called forth, and have entered into the service of the United
States, the authority of the general government over such
detachment is exclusive. This is also obvious. Over the national
militia, the state governments never had, or could have,
jurisdiction. None such is conferred by the Constitution of the
United States; consequently, none such can exist.
The first question then is at what time and under what
circumstances does a portion of militia, drafted, detached, and
called forth by the President, enter into the service of the United
States, and change their character from state to national militia?
That Congress might by law have fixed the period, by confining it
to the draft; the order given to the Chief Magistrate, or other
militia officer of the state; to the arrival of the men at the
place of rendezvous; or to any other circumstance, I can entertain
no doubt. This would certainly be included in the more extensive
powers of calling forth the militia, organizing, arming,
disciplining, and governing them. But has Congress made any
declaration on this subject, and in what manner is the will of that
body, as expressed in the before mentioned laws, to be construed? I
must be conceded that there is
Page 18 U. S. 18
no law of the United States which declares in express terms,
that the organizing, arming, and equipping a detachment, on the
order of the President to the state militia officers, or to the
militia men personally, places them in the service of the United
States. It is true that the refusal or neglect of the militia to
obey the orders of the President is declared to be an offense
against the United States, and subjects the offender to a certain
prescribed punishment. But this flows from the power bestowed upon
the general government to call them forth, and consequently to
punish disobedience to a legal order, and by no means proves that
the call of the President places the detachment in the service of
the United States. But although Congress has been less explicit on
this subject than they might have been, and it could be wished they
had been, I am nevertheless of opinion that a fair construction of
the different militia laws of the United States, will lead to a
conclusion that something more than organizing and equipping a
detachment, and ordering it into service, was considered as
necessary to place the militia in the service of the United States.
That preparing a detachment for such service does not place it in
the service is clearly to be collected from the various temporary
laws which have been passed authorizing the President to require of
the state executives to organize, arm, and equip their state quotas
of militia for the service of the United States. Because they all
provide that the requisition shall be to hold such quotas in
readiness to march at a moment's warning, and some, if not all of
them, authorize
Page 18 U. S. 19
the President to call into actual service any part or the whole
of said quotas or detachments, clearly distinguishing between the
orders of the President to organize and hold the detachments in
readiness for service and their entering into service.
The Act of 28 February, 1795, declares, that the militia
employed in the service of the United States, shall receive the
same pay and allowance as the troops of the United States, and
shall be subject to the same rules and articles of war. The
provisions made for disabled militia men, and for their families,
in case of their death, are, by other laws, confined to such
militia as are, or have been, in actual service. There are other
laws which seem very strongly to indicate the time at which they
are considered as being in service. Thus, the Act of 28 February,
1795, declares that a militia man called into the service of the
United States, shall not be compelled to serve more than three
months after his arrival at the place of rendezvous, in anyone
year. The 8th section of the Act of 18 April, 1814, declares, that
the militia, when called into the service of the United States, if,
in the President's opinion, the public interest requires it, may be
compelled to serve for a term not exceeding six months, after their
arrival at the place of rendezvous, in anyone year; and by the 10th
section, provision is made for the expenses which may be incurred
by marching the militia to their places of rendezvous, in pursuance
of a requisition of the President, and they are to be adjusted and
paid in like manner as those incurred after their arrival at the
rendezvous.
Page 18 U. S. 20
The 3d section of the Act of 2 January, 1795, provides that
whenever the militia shall be called into the actual service of the
United States, their pay shall be deemed to commence from the day
of their appearing at the place of battalion, regimental, or
brigade rendezvous, allowing a day's pay and ration for every 15
miles from their homes to said rendezvous.
From this brief summary of the laws, it would seem that actual
service was considered by Congress as the criterion of national
militia, and that the service did not commence until the arrival of
the militia at the place of rendezvous. That is the
terminus a
quo, the service, the pay, and subjection to the articles of
war, are to commence and continue. If the service, in particular,
is to continue for a certain length of time, from a certain day, it
would seem to follow almost conclusively that the service commenced
on that, and not on some prior day. And, indeed it would seem to
border somewhat upon an absurdity, to say that a militia man was in
the service of the United States at any time, who, so far from
entering into it for a single moment, had refused to do so, and who
never did any act to connect him with such service. It has already
been admitted, that if Congress had pleased so to declare, a
militia man, called into the service of the United States, might
have been held and considered as being constructively in that
service, though not actually so, and might have been treated in
like manner as if he had appeared at the place of rendezvous. But
Congress has not so declared, nor have they made
Page 18 U. S. 21
any provision applicable to such a case; on the contrary, it
would appear that a fine to be paid by the delinquent militia man,
was deemed an equivalent for his services, and an atonement for his
disobedience.
If, then, a militia man, called into the service of the United
States, shall refuse to obey the order and is consequently not to
be considered as in the service of the United States, or removed
from the military jurisdiction of the state to which he belongs, to
next question is is it competent to the state to provide for trying
and punishing him for his disobedience by a court martial deriving
its authority under the state? It may be admitted at once that the
militia belong to the states, respectively, in which they are
enrolled, and that they are subject, both in their civil and
military capacities, to the jurisdiction and laws of such state,
except so far as those laws are controlled by acts of Congress
constitutionally made. Congress has power to provide for
organizing, arming, and disciplining the militia; and it is
presumable, that the framers of the Constitution contemplated a
full exercise of all these powers. Nevertheless, if Congress had
declined to exercise them, it was competent to the state
governments to provide for organizing, arming, and disciplining
their respective militia, in such manner as they might think
proper. But Congress has provided for all these subjects in the way
which that body must have supposed the best calculated to promote
the general welfare and to provide for the national defense. After
this, can the state governments
Page 18 U. S. 22
enter upon the same ground -- provide for the same objects as
they may think proper, and punish in their own way violations of
the laws they have so enacted? The affirmative of this question is
asserted by the defendant's counsel, who, it is understood, contend
that unless such state laws are in direct contradiction to those of
the United States, they are not repugnant to the Constitution of
the United States.
From this doctrine, I must, for one, be permitted to dissent.
The two laws may not be in such absolute opposition to each other
as to render the one incapable of execution without violating the
injunctions of the other, and yet the will of the one legislature
may be in direct collision with that of the other. This will is to
be discovered as well by what the legislature has not declared as
by what they have expressed. Congress, for example, has declared,
that the punishment for disobedience of the act of Congress shall
be a certain fine; if that provided by the state legislature for
the same offense be a similar fine, with the addition of
imprisonment or death, the latter law would not prevent the former
from being carried into execution, and may be said therefore not to
be repugnant to it. But surely the will of Congress is nevertheless
thwarted and opposed.
This question does not so much involve a contest for power
between the two governments as the rights and privileges of the
citizen, secured to him by the Constitution of the United States,
the benefit of which he may lawfully claim.
Page 18 U. S. 23
If in a specified case the people have thought proper to bestow
certain powers on Congress as the safest depositary of them, and
Congress has legislated within the scope of them, the people have
reason to complain that the same powers should be exercised at the
same time by the state legislatures. To subject them to the
operation of two laws upon the same subject, dictated by distinct
wills, particularly in a case inflicting pains and penalties, is,
to my apprehension, something very much like oppression, if not
worse. In short, I am altogether incapable of comprehending how two
distinct wills can at the same time be exercised in relation to the
same subject to be effectual and at the same time compatible with
each other. If they correspond in every respect, then the latter is
idle and inoperative; if they differ, they must, in the nature of
things, oppose each other so far as they do differ. If the one
imposes a certain punishment for a certain offense, the presumption
is that this was deemed sufficient and under all circumstances the
only proper one. If the other legislature impose a different
punishment in kind or degree, I am at a loss to conceive how they
can both consist harmoniously together.
I admit that a legislative body may, by different laws, impose
upon the same person for the same offense different and cumulative
punishments; but then it is the will of the same body to do so, and
the second, equally with the first law, is the will of that body.
There is therefore, and can be, no opposition of wills. But the
case is altogether different where
Page 18 U. S. 24
the laws flow from the wills of distinct coordinate bodies.
This course of reasoning is intended as an answer to what I
consider a novel and unconstitutional doctrine, that in cases where
the state governments have a concurrent power of legislation with
the national government, they may legislate upon any subject on
which Congress has acted, provided the two laws are not in terms,
or in their operation, contradictory and repugnant to each
other.
Upon the subject of the militia, Congress has exercised the
powers conferred on that body by the Constitution as fully as was
thought right, and has thus excluded the power of legislation by
the states on these subjects except so far as it has been permitted
by Congress; although it should be conceded that important
provisions have been omitted, or that others which have been made
might have been more extended or more wisely devised.
There still remains another question to be considered which more
immediately involves the merits of this cause. Admit that the
Legislature of Pennsylvania could not constitutionally legislate in
respect to delinquent militia men and to prescribe the punishment
to which they should be subject, had the state court martial
jurisdiction over the subject so as to enforce the laws of Congress
against these delinquents?
This, it will be seen, is a different question from that which
has been just examined. That respects the power of a state
legislature to legislate upon a subject on which Congress has
declared its will. This concerns the jurisdiction of a state
military tribunal
Page 18 U. S. 25
to adjudicate in a case which depends on a law of Congress, and
to enforce it.
It has been already shown that Congress has prescribed the
punishment to be inflicted on a militia man detached and called
forth, but who has refused to march, and has also provided that
courts martial for the trial of such delinquents, to be composed of
militia officers only, shall be held and conducted in the manner
pointed out by the rules and articles of war.
That Congress might have vested the exclusive jurisdiction in
courts martial to be held and conducted as the laws of the United
States have prescribed will, I presume, hardly be questioned. The
offense to be punished grows out of the Constitution and laws of
the United States, and is therefore clearly a case which might have
been withdrawn from the concurrent jurisdiction of the state
tribunals. But an exclusive jurisdiction is not given to courts
martial deriving their authority under the national government by
express words: the question then, and I admit the difficulty of it,
occurs is this a case in which the state courts martial could
exercise jurisdiction?
Speaking upon the subject of the federal judiciary, the
Federalist distinctly asserts the doctrine that the United States,
in the course of legislation upon the objects entrusted to their
direction, may commit the decision of causes arising upon a
particular regulation to the federal courts solely, if it should be
deemed expedient; yet that in every case in which the state
tribunals should not be expressly excluded
Page 18 U. S. 26
by the acts of the national legislature, they would, of course,
take cognizance of the causes to which those acts might give
birth.
I can discover, I confess, nothing unreasonable in this
doctrine; nor can I perceive any inconvenience which can grow out
of it, so long as the power of Congress to withdraw the whole, or
any part of those cases, from the jurisdiction of the state courts,
is, as I think it must be, admitted.
The practice of the general government seems strongly to confirm
this doctrine, for at the first session of Congress which commenced
after the adoption of the Constitution, the judicial system was
formed, and the exclusive and concurrent jurisdiction conferred
upon the courts created by that law were clearly distinguished and
marked, showing that in the opinion of that body it was not
sufficient to vest an exclusive jurisdiction where it was deemed
proper merely by a grant of jurisdiction generally. In particular,
this law grants exclusive jurisdiction to the circuit courts of all
crimes and offenses cognizable under the authority of the United
States except where the laws of the United States should otherwise
provide, and this will account for the proviso in the Act of 24
February, 1807, ch. 75, concerning the forgery of the notes of the
Bank of the United States,
"that nothing in that act contained should be construed to
deprive the courts of the individual states of jurisdiction under
the laws of the several states over offenses made punishable by
that act."
A similar proviso is to be found in the Act of 21 April,
Page 18 U. S. 27
1806, ch. 49, concerning the counterfeiters of the current coin
of the United States. It is clear that in the opinion of Congress,
this saving was necessary in order to authorize the exercise of
concurrent jurisdiction by the state courts over those offenses,
and there can be very little doubt but that this opinion was well
founded. The Judiciary Act had vested in the federal courts
exclusive jurisdiction of all offenses cognizable under the
authority of the United States, unless where the laws of the United
States should otherwise direct. The states could not, therefore,
exercise a concurrent jurisdiction in those cases, without coming
into direct collision with the laws of Congress. But by these
savings Congress did provide that the jurisdiction of the federal
courts in the specified cases should not be exclusive, and the
concurrent jurisdiction of the state courts was instantly restored,
so far as, under state authority, it could be exercised by
them.
There are many other acts of Congress which permit jurisdiction
over the offenses therein described to be exercised by state
magistrates and courts -- not, I presume, because such permission
was considered to be necessary under the Constitution in order to
vest a concurrent jurisdiction in those tribunals, but because
without it the jurisdiction was exclusively vested in the national
courts by the Judiciary Act, and consequently could not be
otherwise exercised by the state courts. For I hold it to be
perfectly clear that Congress cannot confer jurisdiction upon any
courts but such as exist under the Constitution and laws of the
United States, although the state courts
Page 18 U. S. 28
may exercise jurisdiction on cases authorized by the laws of the
state, and not prohibited by the exclusive jurisdiction of the
federal courts.
What, then, is the real object of the law of Pennsylvania which
we are considering? I answer to confer authority upon a state court
martial to enforce the laws of the United States against delinquent
militia men, who had disobeyed the call of the President to enter
into the service of the United States, for, except the provisions
for vesting this jurisdiction in such a court, this act is, in
substance, a reenactment of the acts of Congress, as to the
description of the offense, the nature and extent of the
punishment, and the collection and appropriation of the fines
imposed.
Why might not this court martial exercise the authority thus
vested in it by this law? As to crimes and offenses against the
United States, the law of Congress had vested the cognizance of
them exclusively in the federal courts. The state courts therefore
could exercise no jurisdiction whatever over such offenses unless
where, in particular cases, other laws of the United States had
otherwise provided, and wherever such provision was made, the claim
of exclusive jurisdiction to the particular cases was withdrawn by
the United States, and the concurrent jurisdiction of the state
courts was
eo instanti restored, not by way of grant from
the national government, but by the removal of a disability before
imposed upon the state tribunals.
But military offenses are not included in the act of Congress,
conferring jurisdiction upon the circuit
Page 18 U. S. 29
and district courts; no person has ever contended that such
offenses are cognizable before the common law courts. The militia
laws have therefore provided that the offense of disobedience to
the President's call upon the militia shall be cognizable by a
court martial of the United States; but an exclusive cognizance is
not conferred upon that court, as it had been upon the common law
courts as to other offenses, by the Judiciary Act. It follows,
then, as I conceive, that jurisdiction over this offense remains to
be concurrently exercised by the national and state courts martial,
since it is authorized by the laws of the state, and not prohibited
by those of the United States. Where is the repugnance of the one
law to the other? The jurisdiction was clearly concurrent over
militia men not engaged in the service of the United States, and
the acts of Congress have not disturbed this state of things by
asserting an exclusive jurisdiction. They certainly have not done
so in terms, and I do not think that it can be made out by any fair
construction of them. The act of 1795 merely declares that this
offense shall be tried by a court martial. This was clearly not
exclusive, but, on the contrary, it would seem to import that such
court might be held under national or state authority.
The act of 1814 does not render the jurisdiction necessarily
exclusive. It provides that courts martial for the trial of
militia, drafted and called forth, shall, when necessary, be
appointed, held, and conducted in the manner prescribed by the
rules of war.
If the mere assignment of jurisdiction to a particular
Page 18 U. S. 30
court does not necessarily render it exclusive, as I have
already endeavored to prove, then it would follow that this law can
have no such effect, unless indeed there is a difference in this
respect between the same language when applied to military and to
civil courts, and if there be a difference, I have not been able to
perceive it. But the law uses the expression "when necessary?" How
is this to be understood? It may mean, I acknowledge, whenever
there are delinquents to try, but surely if it import no more than
this, it was very unnecessarily used, since it would have been
sufficient to say that courts martial for the trial of militia
called into service should be formed and conducted in the manner
prescribed by the law. The act of 1795 had declared who were liable
to be tried, but had not said with precision before what court the
trial should be had. This act describes the court, and the two
laws, being construed together, would seem to mean that every such
delinquent as is described in the act of 1795 should pay a certain
fine, to be determined and adjudged by a court martial, to be
composed of militia officers to be appointed and conducted in the
manner prescribed by the articles of war. These words, when
necessary, have no definite meaning if they are confined to the
existence of cases for trial before the court. But if they be
construed (as I think they ought to be) to apply to trials rendered
necessary by the omission of the states to provide for state courts
martial to exercise a jurisdiction in the case, or of such courts
to take cognizance of them when so authorized, they have an
important and a useful
Page 18 U. S. 31
meaning. If the state court martial proceeds to take cognizance
of the cases, it may not appear necessary to the proper officer in
the service of the United States to summon a court to try the same
cases; if they do not or for want of authority cannot try them,
then it may be deemed necessary to convene a court martial under
the articles of war to take and to exercise the jurisdiction.
There are two objections which were made by the plaintiff's
counsel to the exercise of jurisdiction in this case by the state
court martial which remain to be noticed.
1. It was contended that if the exercise of this jurisdiction be
admitted, that the sentence of the court would either oust the
jurisdiction of the United States' court martial or might subject
the accused to be twice tried for the same offense. To this I
answer that if the jurisdiction of the two courts be concurrent,
the sentence of either court, either of conviction or acquittal,
might be pleaded in bar of the prosecution before the other, as
much so as the judgment of a state court, in a civil case of
concurrent jurisdiction, may be pleaded in bar of an action for the
same cause instituted in a circuit court of the United States.
Another objection is that if the state court martial had
authority to try these men, the governor of that state, in case of
conviction, might have pardoned them. I am by no means satisfied
that he could have done so, but if he could, this would only
furnish a reason why Congress should vest the jurisdiction in these
cases exclusively in a court martial acting under the authority of
the United States.
Page 18 U. S. 32
Upon the whole I am of opinion, after the most laborious
examination of this delicate question, that the state court martial
had a concurrent jurisdiction with the tribunal pointed out by the
acts of Congress to try a militia man who had disobeyed the call of
the President and to enforce the laws of Congress against such
delinquent, and that this authority will remain to be so exercised
until it shall please Congress to vest it exclusively elsewhere, or
until the State of Pennsylvania shall withdraw from their court
martial the authority to take such jurisdiction. At all events,
this is not one of those clear cases of repugnance to the
Constitution of the United States where I should feel myself at
liberty to declare the law to be unconstitutional, the sentence of
the court
coram non judice, and the judgment of the
Supreme Court of Pennsylvania erroneous on these grounds.
Two of the judges are of opinion, that the law in question is
unconstitutional and that the judgment below ought to be
reversed.
The other judges are of opinion that the judgment ought to be
affirmed; but they do not concur in all respects in the reasons
which influence my opinion.
MR. JUSTICE JOHNSON.
It is not very easy to form a distinct idea of what the question
in this case really is. An individual having offended against a law
of his own state, has been cited before a court constituted under
the laws of that state, and there convicted and fined. His
complaint is that his offense was an
Page 18 U. S. 33
offense against the laws of the United States, that he is liable
to be punished under those laws, and cannot, therefore, be
constitutionally punished under the laws of his own state.
If any right secured to him under the state constitution has
been violated, it is not our affair. His complaint before this
Court must be either that some law or some constitutional provision
of the United States has been violated in this instance, or he must
seek elsewhere for redress. This Court can relieve him only upon
the supposition that the state law under which he has been fined is
inconsistent with some right secured to him or secured to the
United States under the Constitution. Now the United States
complains of nothing; the act of Pennsylvania was a candid,
spontaneous, ancillary effort in the service of the United States,
and all the plaintiff in error has to complain of is that he has
been punished by a state law when he ought to have been punished
under a law of the United States which he contends he has
violated.
I really have not been able to satisfy myself that it is any
case at all for the cognizance of this Court, but from respect for
the opinion of others, I will proceed to make some remarks on the
questions which have been raised in the argument.
Why may not the same offense be made punishable both under the
laws of the states and of the United States? Every citizen of a
state owes a double allegiance; he enjoys the protection and
participates in the government of both the state and the United
States. It is obvious that in those cases in
Page 18 U. S. 34
which the United States may exercise the right of exclusive
legislation, it will rest with Congress to determine whether the
general government shall exercise the right of punishing
exclusively or leave the states at liberty to exercise their own
discretion. But where the United States cannot assume or where it
has not assumed this exclusive exercise of power, I cannot imagine
a reason why the states may not also, if they feel themselves
injured by the same offense, assert their right of inflicting
punishment also. In cases affecting life or member, there is an
express restraint upon the exercise of the punishing power. But it
is a restriction which operates equally upon both governments, and
according to a very familiar principle of construction, this
exception would seem to establish the existence of the general
right. The actual exercise of this concurrent right of punishing is
familiar to every day's practice. The laws of the United States
have made many offenses punishable in their courts which were and
still continue punishable under the laws of the states. Witness the
case of counterfeiting the current coin of the United States under
the Act of April 21, 1806, in which the state right of punishing is
expressly recognized and preserved. Witness also the crime of
robbing the mail on the highway, which is unquestionably cognizable
as highway robbery under the state laws, although made punishable
under those of the United States.
With regard to militia men ordered into service, there exists a
peculiar propriety in leaving them subject to the coercive
regulations of both governments.
Page 18 U. S. 35
The safety of each is so worked up with that of all the states,
and the honor and peculiar safety of a particular state may so
often be dependant upon the alacrity with which her citizens repair
to the field that the most serious mortifications and evils might
result from refusing the right of lending the strength of the state
authority to quicken their obedience to the calls of the United
States.
But, it is contended, if the states can at all legislate or
adjudicate on the subject, they may affect to aid, when their real
object is nothing less than to embarrass, the progress of the
general government.
I acknowledge myself at a loss to imagine how this could ever be
successfully attempted. Opposition, whether disguised or real, is
the same thing. It is true, if we could admit that an acquittal in
the state courts could be pleaded in bar to a prosecution in the
courts of the United States, the evil might occur. But this is a
doctrine which can only be maintained on the ground that an offense
against the laws of the one government is an offense against the
other government, and can surely never be successfully asserted in
any instances but those in which jurisdiction is vested in the
state courts by statutory provisions of the United States. In
contracts, the law is otherwise. The decision of any court of
competent jurisdiction is final, whatever be the government that
gives existence to the court. But crimes against a government are
only cognizable in its own courts or in those which derive their
right of holding jurisdiction from the offended government.
Page 18 U. S. 36
Yet were it otherwise, I cannot perceive with what correctness
we can, from the possible abuse of a power, reason away the actual
possession of it in the states. Such considerations were only
proper for the ears of those who established the actual
distribution of powers between the states and the United States.
The absurdities that might grow out of an affected cooperation in
the states, with a real view to produce embarrassment, furnish the
best guarantee against the probability of its ever being attempted,
and the surest means of detecting and defeating it. We may declare
defects in the Constitution without being justly chargeable with
creating them; but if they exist, it is not for us to correct them.
In the present instance, I believe the danger imaginary, and if it
is not, it must pass
ad aliud examen.
But whatever be the views entertained on this question, I am
perfectly satisfied that the individual in this case was not
amenable to any law of the United States. Both that there was no
law of the United States that reached his case and that there was
nothing done or intended to be done by the government of the United
States to bring him within their laws before he reached the place
of rendezvous.
It is obvious that there are two ways by which the militia may
be called into service; the one is under state authority, the other
under authority of the United States. The power of Congress over
the militia is limited but by two reservations in favor of the
states,
viz., the right of officering and that of training
them. When distributed by the states under their own officers, the
general government has
Page 18 U. S. 37
the right, if it chooses to exercise it, of designating both the
officer and private who shall serve, and to call him forth or
punish him for not coming. But the possession of this power, or
even the passing of laws in the exercise of it, does not preclude
the general government from leaning upon the state authority, if
they think proper, for the purpose of calling the militia into
service. It may command or request; and in the case before us, it
obviously confined itself to the latter mode. Indeed, extensive as
its power over the militia is, the United States is obviously
intended to be made in some measure dependant upon the states for
the aid of this species of force. For if the states will not
officer or train their men, there is no power given to Congress to
supply the deficiency.
The method of calling forth the militia by requisition is, it is
believed, the only one hitherto resorted to in any instance. Being
partially dependant upon the integrity of the states, the general
government has hitherto been satisfied to rest wholly on that
integrity, and, except in very few instances, has never been
disappointed. The compulsory power has been in its practice held in
reserve as only intended for use when the other shall fail.
Historically it is known that the act of 1795 was passed with a
view to a state of things then existing in the interior of
Pennsylvania, when it became probable that the President of the
United States would have to exert the authority of the general
government immediately on detached portions of the officers or
militia of the Union, to aid in the execution of the laws of
Page 18 U. S. 38
the United States. And instances may still occur in which the
exercise of that power may become necessary for the same purpose.
But whenever bodies of militia have been called forth for the
purposes of general defense, it is believed that in no instance has
it been done otherwise than by requisition, the only mode practiced
toward the states from the commencement of the revolution to the
present day. That it was the mode intended to be pursued in this
case is obvious from the perusal of the letter of the Secretary of
War to the Governor of Pennsylvania. The words made use of are:
"The President
Page 18 U. S. 39
has deemed it advisable to invite the Executives of certain
states to organize," &c. Words which no military man would
construe into a military command.
It is true that this letter also refers to the acts of 1795 and
1814, as the authority under which the requisition is made, and the
act of 1795 authorizes the President to issue his order for that
purpose; but this makes no difference in the case; it only leaves
him the power of proceeding by order if he thinks proper, without
enjoining that mode or depriving him of the option to pursue the
other mode as long as the principles upon which the states acted
were such as to render it advisable. Or, if the construction be
otherwise, the result only will be that the President has not
pursued the mode pointed out by that act, and therefore has not
brought the case within it.
But suppose the letter of the Secretary of War was intended by
him to operate as an order (although I cannot believe that Congress
ever intended an order should issue immediately to the governor of
a
Page 18 U. S. 40
state), how is this individual made punishable under the acts of
1795 and 1814?
The doctrine must be admitted that Congress might, if it thought
proper, have authorized the issuing of the President's order even
to the governor. For when the Constitution of Pennsylvania makes
her governor commander in chief of the militia, it must subject him
in that capacity (at least when in actual service) to the orders of
him who is made commander in chief of all the militia of the Union.
Yet if he is to be addressed in that capacity, and not as the
general organ or representative of the state sovereignty, surely he
has a right to be apprised of it. But is he then to be charged as a
delinquent? Where is the law that has provided or can provide a
court martial for his trial? And where is the law that would oblige
him to consider such a letter as this a military order? It would
then seem somewhat strange if he, to whom this letter was
immediately addressed, received no order from the President, that
one to whom his order was transmitted through fifty grades should
yet be adjudged to have disobeyed the President's order.
But the situation of the private in this case is still more
favorable. It must be recollected we are now construing a penal
statute. And the criminality of the person charged depends
altogether on the 5th section of the act of 1795. The 1st section
of the act of 1814 makes no difference in this particular, inasmuch
as it does no more than create a tribunal for the trial of crimes,
and supposes the commission of such crimes to be against the
provisions of some existing law. The command of the President,
then,
Page 18 U. S. 41
I hold to have been indispensable to the creation of an offense
under the 5th section of this act. But how the President could, in
the actual state of things, have issued such a command to the
private, consistently with the provisions of this act, it is not
easy to show. For by the section immediately preceding the 5th it
is provided
"That no officer, noncommissioned officer, or private of the
militia shall be compelled to serve more than three months after
his arrival at the place of rendezvous in any one year, nor more
than in due rotation with every other able bodied man of the same
rank in the battalion to which he belongs."
Now what was meant by "due rotation?" and how was the
President's order to reach the individual without previously
establishing this due rotation? I admit that this rotation may have
been established through the aid of a state law, but it became
indispensable that such law should have been authorized or adopted
by some law of Congress, and there exists no law that I know of
either authorizing or requiring the designation or distribution by
the states, which this law contemplates. On a call of the whole
militia, there would have been no difficulty, but in the case of a
partial call, some designation legally known to the President
became indispensable before he could issue his orders with that
precision which may well be required in a criminal prosecution. And
this probably operated as forcibly as considerations of comity in
determining the government to proceed by the ancient mode of
requisition, instead of addressing the executive of Pennsylvania in
the language of command and authority,
Page 18 U. S. 42
if, indeed (what I will not readily admit), the act was ever
intended to apply to the case of an immediate order to the
executive.
Pursuing the same course of reasoning a little further, we shall
also be led to the conclusion that neither could there be a court
constituted by a law of the United States for the trial of this
offender. I hold it unquestionable, that whenever, in the statutes
of any government, a general reference is made to law, either
implicitly or expressly, that it can only relate to the laws of the
government making this reference. Now the only act which it is
pretended vests any court with jurisdiction of offenses created by
the 5th section of the act of 1795, as to persons not yet mustered
into service, is the 1st section of the act of 1814. The 4th and
6th sections of the act of 1795, taken together, furnish courts
martial for the trial of offenses committed by militia employed by
the United States, and the act of 1814, I admit, was intended to
act upon the offenses of those who were not yet in actual service,
but had been called into service. Can it on any legal principle be
so construed as to answer the end proposed? The words are, "That
courts martial for the trial of militia, drafted, detached and
called forth for the service of the United States, shall be
appointed," &c. But how drafted, detached, and called forth?
Under the laws of the United States, or of Russia? For the laws of
the states, unless adopted by Congress, are no more the laws of the
United States than those of any foreign power. There is nothing in
this act or any other act that designates the drafting and
detaching or
Page 18 U. S. 43
calling forth these expressed as the grounds of jurisdiction, as
a drafting, &c., under the laws of a state. Nor would it have
had such a drafting, &c., in view if it was intended to provide
for punishing offenses against the provisions of the act of 1795,
for in that act it is required to be a calling forth by the
President, not by state authority. And this suggests the only
reasonable exposition that can be given it consistent with the
principle that it must be a drafting, detaching, and calling forth
under laws of the United States. If we can find a sensible and
consistent exposition, we are bound to adopt it as the only one
intended.
I have no doubt that under the powers given the President by the
act of 1795, and under the restriction contained in the 4th section
of that act, it was in the power of the President to have issued
orders to the Adjutant General of Pennsylvania, to bring into the
field this quota of militia, and to have prescribed the manner in
which they should be drafted and detached, and had this been done,
everything would have been sensible and consistent, and the
exigencies of both these laws would have been satisfied. It is
obvious that the act of 1814 recognizes the construction which
makes the drafting and detaching as necessary to precede the
calling forth, and if the power to call forth existed in the
President alone, it would seem that the other subordinate but
necessary ancillary powers to which this act has relation must have
existed in him also, and could be exercised by him, or under his
authority only. Under this view of the subject, I am of
Page 18 U. S. 44
opinion that a court martial constituted under this Act of April
18, 1814, could not legally have tried this individual, because he
was not drafted and detached under the meaning of that act, taken
in connection with the act of 1795. Neither, in my opinion, was the
calling forth such as was in the contemplation of that act. In
addition to the reasons already given for this opinion, exists this
obvious consideration. The calling forth authorized by that act is
to be expressed by an order from the President. It is disobedience
to such an order alone that is made punishable by that act. Now
though it be unquestionable that this order may be communicated
through any proper organ, yet it must be communicated to the
individual as an order from the President, or he is not brought
within the enactment of the law nor put on his guard against
incurring the penalty. But from first to last, the whole case makes
out an offense against the orders of the Governor of Pennsylvania.
It does not appear that the order communicated to the individual
was made to assume the form of an order from the President, and how
in that case he could have been held guilty of having violated an
order from the President it is not easy to conceive.
For these reasons I am very clearly of opinion that neither the
United States nor the plaintiff in error can complain of the
infraction of any constitutional right if the state did constitute
a court for trying offenses against the laws of the United States,
or engraft those laws into its own code, and make offenses against
the United States punishable in its courts; that if the individual
has any cause of complaint,
Page 18 U. S. 45
it is between him and his own state government. And that even
were it otherwise, the plaintiff in error does not make out such a
case here, inasmuch as the general government could not have had it
in contemplation to bring into operation the penal provisions of
the act of 1795, and if they had, that they did not pursue the
steps indispensable for that purpose; therefore that the court
martial by which the plaintiff in error was tried was really acting
wholly under the authority of state laws, punishing state
offenses.
But it is contended that if the states do possess this power
over the militia, they may abuse it. This is a branch of the
exploded doctrine that within the scope in which Congress may
legislate, the states shall not legislate. That they cannot, when
legislating within that ceded region of power, run counter to the
laws of Congress is denied by no one, but, as I before observed, to
reason against the exercise of this power from the possible abuse
of it is not for a court of justice. When instances of this
opposition occur, it will be time enough to meet them. The present
was an instance of the most honorable and zealous cooperation with
the general government. The Legislature of Pennsylvania, influenced
no doubt by views similar to those in which I have presented the
subject, saw the defects in the means of coercing her citizens into
the service, and, unwilling to bear the imputation of lukewarmness
in the common cause, legislated on the occasion just as far as the
laws of the United States was defective, or not brought into
operation. And to vindicate her disinterestedness, she even
gratuitously
Page 18 U. S. 46
surrenders to the United States the fines to be inflicted. To
have paused on legal subtleties with the enemy at her door, or to
have shrunk from duty under shelter of pretexts which she could
remove, would have been equally inconsistent with her character for
wisdom and for candor.
I will make one further observation in order to prevent myself
from being misunderstood. I have observed that the governors of
states, as military commanders, must be considered as subordinate
to the President. I do not mean to intimate, nor have I the least
idea, that the act of 1795 gives authority to the President to
issue an order to a governor in that capacity. I hold the opinion
to be absurd, for he comes not within the idea of a militia officer
in the language of that act. If he is so, what is his grade? He
will not be included under any title of rank known to the laws of
the United States, from the highest to the lowest. And how is he to
be tried? What is his pay -- what his punishment? An act which
authorizes an order for militia obviously authorizes a requisition.
And if the purposes of the general government could as well be
subserved by depending on the state authority for calling out the
militia, there was no reason against resorting to that authority
for the purpose. But the power of ordering out the militia is an
alternative given to the President when the other is too circuitous
or likely to fail. In that case, the President may address himself
to the Executive, and having obtained through him the necessary
information relative to the distribution and organization of the
militia, may proceed,
Page 18 U. S. 47
under his own immediate orders, to draft and detach the numbers
wanted. And thus everything in the act becomes sensible,
consistent, and adequate to the purposes in view, with the sole
defect intended to have been remedied by the 1st section of the act
of 1814.
In this case, it will be observed, that there is no point
whatever decided except that the fine was constitutionally imposed
upon the plaintiff in error. The course of reasoning by which the
judges have reached this conclusion are various, coinciding in but
one thing,
viz., that there is no error in the judgment of
the state court of Pennsylvania.
MR. JUSTICE STORY.
The only question which is cognizable by this Court upon this
voluminous record arises from a very short paragraph in the close
of the bill of exceptions. It there appears that the plaintiff
prayed the state court of common pleas to instruct the jury that
the first, second, and third paragraphs of the 21st section of the
statute of Pennsylvania of 28 March, 1814,
"so far as they related to the militia called into the service
of the United States, under the laws of Congress, and who failed to
obey the orders of the President of the United States, are contrary
to the Constitution of the United States and the laws of Congress
made in pursuance thereof, and are therefore null and void."
The court instructed the jury that these paragraphs were not
contrary to the Constitution or laws of the United States, and
were, therefore, not null and void. This opinion has been
Page 18 U. S. 48
affirmed by the highest state tribunal of Pennsylvania, and
judgment has been there pronounced in pursuance of it in favor of
the defendant. The cause stands before us upon a writ of error from
this last judgment, and the naked question for us to decide is
whether the paragraphs alluded to are repugnant to the Constitution
or laws of the United States; if so, the judgment must be reversed;
if otherwise, it ought to be affirmed.
Questions of this nature are always of great importance and
delicacy. They involve interests of so much magnitude and of such
deep and permanent public concern that they cannot but be
approached with uncommon anxiety. The sovereignty of a state in the
exercise of its legislation is not to be impaired unless it be
clear that it has transcended its legitimate authority, nor ought
any power to be sought, much less to be adjudged, in favor of the
United States unless it be clearly within the reach of its
constitutional charter. Sitting here, we are not at liberty to add
one jot of power to the national government beyond what the people
have granted by the Constitution, and on the other hand, we are
bound to support that Constitution as it stands, and to give a fair
and rational scope to all the powers which it clearly contains.
The Constitution containing a grant of powers in many instances
similar to those already existing in the state governments, and
some of these being of vital importance also to state authority and
state legislation, it is not to be admitted that a mere grant of
such powers in affirmative terms to Congress, does,
Page 18 U. S. 49
per se, transfer an exclusive sovereignty on such
subjects to the latter. On the contrary, a reasonable
interpretation of that instrument necessarily leads to the
conclusion that the powers so granted are never exclusive of
similar powers existing in the states unless where the Constitution
has expressly in terms given an exclusive power to Congress, or the
exercise of a like power is prohibited to the states or there is a
direct repugnancy or incompatibility in the exercise of it by the
states. The example of the first class is to be found in the
exclusive legislation delegated to Congress over places purchased
by the consent of the legislature of the state in which the same
shall be for forts, arsenals, dockyards, &c.; of the second
class, the prohibition of a state to coin money or emit bills of
credit; of the third class, as this Court has already held, the
power to establish an uniform rule of naturalization, and the
delegation of admiralty and maritime jurisdiction. In all other
cases not falling within the classes already mentioned, it seems
unquestionable that the states retain concurrent authority with
Congress not only upon the letter and spirit of the Eleventh
Amendment of the Constitution, but upon the soundest principles of
general reasoning. There is this reserve, however, that in cases of
concurrent authority, where the laws of the states and of the Union
are in direct and manifest collision on the same subject, those of
the Union being "the supreme law of the land," are of
Page 18 U. S. 50
paramount authority, and the state laws so far, and so far only,
as such incompatibility exists must necessarily yield.
Such are the general principles by which my judgment is guided
in every investigation on constitutional points. I do not know that
they have ever been seriously doubted. They commend themselves by
their intrinsic equity, and have been amply justified by the
opinions of the great men under whose guidance the Constitution was
framed, as well as by the practice of the government of the Union.
To desert them would be to deliver ourselves over to endless doubts
and difficulties, and probably to hazard the existence of the
Constitution itself. With these principles in view, let the
question now before the Court be examined.
The Constitution declares that Congress shall have power "to
provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, 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
respectively the appointment of the officers, and the authority of
training the militia according to the discipline prescribed by
Congress."
It is almost too plain for argument that the power here given to
Congress over the militia is of a limited nature and confined to
the objects specified in these clauses, and that in all other
respects and for all other purposes, the militia is subject to the
control and government of the state authorities. Nor can the
reservation to the states of the appointment
Page 18 U. S. 51
of the officers and authority of the training the militia
according to the discipline prescribed by Congress, be justly
considered as weakening this conclusion. That reservation
constitutes an exception merely from the power given to Congress
"to provide for organizing, arming, and disciplining the militia,"
and is a limitation upon the authority, which would otherwise
depend upon its own the appointment of officers. But 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. The exception then ascertains only that Congress has
not, and that the states have, the power to appoint the officers of
the militia and to train them according to the discipline
prescribed by Congress. Nor does it seem necessary to contend that
the power "to provide for organizing, arming, and disciplining the
militia" is exclusively vested in Congress. It is merely an
affirmative power, and if not in its own nature incompatible with
the existence of a like power in the states, it may well leave a
concurrent power in the latter. But when once Congress has carried
this power into effect, its laws for the organization, arming, and
discipline of the militia are the supreme law of the land, and all
interfering state regulations must necessarily be suspended in
their operation. It would certainly seem reasonable that in the
absence
Page 18 U. S. 52
of all interfering provisions by Congress on the subject, the
states should have authority to organize, arm, and discipline their
own militia. The general authority retained by them over the
militia would seem to draw after it these as necessary incidents.
If Congress should not have exercised its own power, how, upon any
other construction than that of a concurrent power, could the
states sufficiently provide for their own safety against domestic
insurrections or the sudden invasion of a foreign enemy? They are
expressly prohibited from keeping troops or ships of war in time of
peace, and this undoubtedly upon the supposition that in such cases
the militia would be their natural and sufficient defense. Yet what
would the militia be without organization, arms, and discipline? It
is certainly not compulsory upon Congress to exercise its own
authority upon this subject. The time, the mode, and the extent
must rest upon its means and sound discretion. If, therefore, the
present case turned upon the question whether a state might
organize, arm, and discipline its own militia in the absence of or
subordinate to the regulations of Congress, I am certainly not
prepared to deny the legitimacy of such an exercise of authority.
It does not seem repugnant in its nature to the grant of a like
paramount authority to Congress, and if not, then it is retained by
the states. The Fifth Amendment to the Constitution, declaring that
"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," may not, perhaps, be thought to have any important
bearing
Page 18 U. S. 53
on this point. If it have, it confirms and illustrates rather
than impugns the reasoning already suggested.
But Congress has also the power to provide "for governing such
part of the militia as may be employed in the service of the United
States." It has not been attempted in argument to establish that
this power is not exclusively in Congress, or that the states have
a concurrent power of governing their own militia when in the
service of the Union. On the contrary, the reverse has been
conceded both here and before the other tribunals in which this
cause has been so ably and learnedly discussed. And there certainly
are the strongest reasons for this construction. When the militia
is called into the actual service of the United States, by which I
understand actual employment in service, the Constitution declares
that the President shall be the commander in chief. The militia of
several states may at the same time be called out for the public
defense, and to suppose each state could have an authority to
govern its own militia in such cases, even subordinate to the
regulations of Congress, seems utterly inconsistent with that unity
of command and action on which the success of all military
operations must essentially depend. There never could be a stronger
case put from the argument of public inconvenience against the
adoption of such a doctrine. It is scarcely possible that any
interference, however small, of a state under such circumstances in
the government of the militia would not materially embarrass, and
directly or indirectly impugn the authority of the Union. In most
cases, there would be an utter repugnancy.
Page 18 U. S. 54
It would seem, therefore, that a rational interpretation must
construe this power as exclusive in its own nature, and belonging
solely to Congress.
The remaining clause gives Congress power "to provide for
calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions." Does this clause vest
in Congress an exclusive power, or leave to the states a concurrent
power to enact laws for the same purposes? This is an important
question, bearing directly on the case before us, and deserves
serious deliberation. The plaintiff contends that the power is
exclusive in Congress; the defendant that it is not.
In considering this question, it is always to be kept in view
that the case is not of a new power granted to Congress where no
similar power already existed in the states. On the contrary, the
states, in virtue of their sovereignty, possessed general authority
over their own militia, and the Constitution carved out of that a
specific power in certain enumerated cases. But the grant of such a
power is not necessarily exclusive unless the retaining of a
concurrent power by the states be clearly repugnant to the grant.
It does not strike me that there is any repugnancy in such
concurrent power in the states. Why may not a state call forth its
own militia in aid of the United States, to execute the laws of the
Union or suppress insurrections or repel invasions? It would
certainly seem fit that a state might so do where the insurrection
or invasion is within its own territory and directed against its
own existence or authority, and yet these are cases to which the
power
Page 18 U. S. 55
of Congress pointedly applies. And the execution of the laws of
the Union within its territory may not be less vital to its rights
and authority than the suppression of a rebellion or the repulse of
an enemy. I do not say that a state may call forth, or claim under
its own command, that portion of its militia which the United
States has already called forth and holds employed in actual
service. There would be a repugnancy in the exercise of such an
authority under such circumstances. But why may it not call forth,
and employ the rest of its militia in aid of the United States, for
the constitutional purposes? It could not clash with the exercise
of the authority confided to Congress, and yet that it must
necessarily clash with it in all cases is the sole ground upon
which the authority of Congress can be deemed exclusive. I am not
prepared to assert that a concurrent power is not retained by the
states to provide for the calling forth its own militia as
auxiliary to the power of Congress in the enumerated cases. The
argument of the plaintiff is that when a power is granted to
Congress to legislate in specific cases for purposes growing out of
the Union, the natural conclusion is that the power is designed to
be exclusive. That the power is to be exercised for the good of the
whole, by the will of the whole, and consistent with the interests
of the whole, and that these objects can nowhere be so clearly seen
or so thoroughly weighed as in Congress, where the whole nation is
represented. But the argument proves too much, and pursued to its
full extent, it would establish that all the powers granted to
Congress are
Page 18 U. S. 56
exclusive unless where concurrent authority is expressly
reserved to the states.
But assuming the states to possess a concurrent power on this
subject, still the principal difficulty remains to be considered.
It is conceded on all sides, and is indeed beyond all reasonable
doubt, that all state laws on this subject are subordinate to those
constitutionally enacted by Congress, and that if there be any
conflict or repugnancy between them, the state laws to that extent
are inoperative and void. And this brings us to a consideration of
the actual legislation of Congress and of Pennsylvania as to the
point in controversy.
In the execution of the power to provide for the calling forth
of the militia, it cannot well be denied that Congress may pass
laws to make its call effectual, to punish disobedience to its
call, to erect tribunals for the trial of offenders, and to direct
the modes of proceeding to enforce the penalties attached to such
disobedience. In its very essence, too, the offense created by such
laws must be an offense exclusively against the United States,
since it grows solely out of the breach of duties due to the United
States in virtue of its positive legislation. To deny the authority
of Congress to legislate to this extent would be to deny that it
had authority to make all laws necessary and proper to carry a
given power into execution, to require the end and yet deny the
only means adequate to attain that end. Such a construction of the
Constitution is wholly inadmissible.
The authority of Congress being then unquestionable, let us see
to what extent and in what
Page 18 U. S. 57
manner it has been exercised. By the Act of 28 February, 1795,
ch. 101, Congress has provided for the calling forth of the militia
in the cases enumerated in the Constitution. The first section
provides
"That whenever the United States shall be invaded or be in
imminent danger of invasion from any foreign nation or Indian
tribe, it shall be lawful for the President of the United States to
call forth such number of the militia of the state or states, most
convenient to the place of danger or scene of action, as he may
judge necessary to repel such invasion, and to issue his orders for
that purpose to such officer or officers of the militia as he shall
think proper."
It then proceeds to make a provision, substantially the same, in
cases of domestic insurrections, and in like manner the second
section proceeds to provide for cases where the execution of the
laws is opposed or obstructed by combinations too powerful to be
suppressed by the ordinary course of judicial proceedings. The
fourth section provides that "the militia employed in the service
of the United States shall be subject to the same rules and
articles of war as the troops of the United States." The fifth
section (which is very material to our present purpose)
provides
"That every officer, noncommissioned officer, or private of the
militia who shall fail to obey any of the orders of the President
of the United States in the cases before recited shall forfeit a
sum not exceeding one year's pay and not less than one month's pay,
to be determined and adjudged by a court martial, and such officer
shall moreover be liable to be cashiered by a sentence of a court
martial, and be
Page 18 U. S. 58
incapacitated from holding a commission in the militia for a
term not exceeding twelve months, at the discretion of the said
court, and such noncommissioned officers and privates shall be
liable to be imprisoned by a like sentence on failure of payment of
the fines adjudged against them for one calendar month for every
five dollars of such fine."
The sixth section declares, "that courts martial for the trial
of militia shall be composed of militia officers only." The seventh
and eighth sections provide for the collection of the fines by the
marshal and deputies, and for the payment of them when collected
into the Treasury of the United States.
The 2d section of the Militia Act of Pennsylvania, passed 28
March, 1814, provides
"That if any commissioned officer of the militia shall have
neglected or refused to serve when called into actual service in
pursuance of any order or requisition of the President of the
United States, he shall be liable to the penalties defined in the
Act of Congress of the United States, passed on 28 February,
1795,"
and then proceeds to enumerate them, and then declares
"that each and every noncommissioned officer and private who
shall have neglected or refused to serve when called into actual
service in pursuance of an order or requisition of the President of
the United States shall be liable to the penalties defined in the
same act,"
and then proceeds to enumerate them. And to each clause is
added
"or shall be liable to any penalty which may have been
prescribed since the date of the passage of the said act or which
may hereafter be prescribed by any law
Page 18 U. S. 59
of the United States."
It then further provides that
"within one month after the expiration of the time for which any
detachment of militia shall have been called into the service of
the United States by or in pursuance of orders from the President
of the United States, the proper brigade inspector shall summon a
general or a regimental court martial, as the case may be, for the
trial of such person or persons belonging to the detachment called
out, who shall have refused or neglected to march therewith, or to
furnish a sufficient substitute, or who, after having marched
therewith, shall have returned without leave from his commanding
officer, of which delinquents the proper brigade inspector shall
furnish to the said court martial an accurate list. And as soon as
the said court martial shall have decided in each of the cases
which shall be submitted to their consideration, the president
thereof shall furnish to the marshal of the United States or to his
deputy and also to the Comptroller of the Treasury of the United
States a list of the delinquents fined in order that the further
proceedings directed to be had thereon by the laws of the United
States may be completed."
It is apparent from this summary that each of the acts in
question has in view the same objects, the punishment of any
persons belonging to the militia of the state who shall be called
forth into the service of the United States by the President and
refuse to perform their duty. Both inflict the same penalties for
the same acts of disobedience. In the act of 1795 it is the failure
"to obey the orders of the
Page 18 U. S. 60
President in any of the cases before recited," and those orders
are such as he is authorized to give by the first and second
sections of the act,
viz., to "call forth" the militia to
execute the laws, to suppress insurrections and repel invasions. In
the act of Pennsylvania, it is the neglect or refusal "to serve
when called into actual service, in pursuance of any orders of the
President," which orders can only be under the act of 1795. And to
demonstrate this construction more fully, the delinquent is made
liable to the penalties defined in the same act, and this again is
followed by a clause varying the penalties, so as to conform to
those which from time to time may be inflicted by the laws of the
United States for the same offense. So that there can be no
reasonable doubt that the Legislature of Pennsylvania meant to
punish by its own courts martial an offense against the United
States created by their laws by a substantial reenactment of those
laws in its own militia code.
No doubt has been here breathed of the constitutionality of the
provisions of the act of 1795, and they are believed to be in all
respects within the legitimate authority of Congress. In the
construction, however, of this act, the parties are at variance.
The plaintiff contends that from the time of the calling forth of
the militia by the President, it is to be considered as
ipso
facto "employed in the service of the United States" within
the meaning of the Constitution, and the act of 1795; and,
therefore, to be exclusively governed by Congress. On the other
hand, the defendant contends that there is no distinction between
the "calling forth" and the "employment
Page 18 U. S. 61
in service" of the militia in the act of 1795, both meaning
actual mustering in service, or an effectual calling into service;
that the states retain complete authority over the militia,
notwithstanding the call of the President, until it is obeyed by
going into service; that the exclusive authority of the United
States does not commence until the drafted troops are mustered, and
in the actual pay and service of the Union. and further that the
act of 1795 was never intended by its language to apply its
penalties except to militia in the latter predicament, leaving
disobedience to the President's call to be punished by the states
as an offense against state authority.
Upon the most mature reflection it is my opinion that there is a
sound distinction between the "calling forth" of the militia and
their being in the "actual service" or "employment" of the United
States, contemplated both in the Constitution and acts of Congress.
The Constitution, in the clause already adverted to, enables
Congress to provide for the government of such part of the militia
"as may be employed in the service of the United States," and makes
the President commander in chief of the militia, "when called into
the actual service of the United States." If the former clause
included the authority in Congress to call forth the militia as
being in virtue of the call of the President in actual service,
there would certainly be no necessity for a distinct clause,
authorizing it to provide for the calling forth of the militia, and
the President would be commander in chief not merely of the militia
in actual service, but of the militia ordered into service.
Page 18 U. S. 62
The acts of Congress also aid the construction already asserted.
The 4th section of the act of 1795 makes the militia "employed in
the service of the United States," subject to the rules and
articles of war, and these articles include capital punishments by
courts martial. Yet one of the amendments (Art. 5) to the
Constitution prohibits such punishments, "unless on a presentment
or indictment of a grand jury, except in cases arising in the land
or naval forces," or in "the militia when in actual service, in
time of war, or public danger." To prevent, therefore, a manifest
breach of the Constitution, we cannot but suppose that Congress
meant (what indeed its language clearly imports) in the 4th section
to provide only for cases of actual employment. The Act of 2
January, 1795, ch. 74. provides for the pay of the militia "when
called into actual service," commencing it on the day of their
appearance at the place of rendezvous and allowing a certain pay
for every fifteen miles travel from their homes to that place. The
97th article of the rules and articles of war (Act of 10 April,
1806, ch. 20) declares that the officers and soldiers of any
troops, whether militia or others, being mustered and in the pay of
the United States shall at all times and in all places, "when
joined, or acting in conjunction with the regular forces" of the
United States, be governed by these articles, and shall be subject
to be tried by courts martial in like manner with the officers and
soldiers in the regular forces, save only that such courts martial
shall be composed entirely of militia officers. And the Act of
18
Page 18 U. S. 63
April, 1814, ch. 141, supplementary to that of 1795, provides
for like courts martial for the trial of militia, drafted,
detached, and called forth for the service of the United States,
"whether acting in conjunction with the regular forces or
otherwise." All these provisions for the government, payment, and
trial of the militia manifestly contemplate that the militia are in
actual employment and service, and not merely that they have been
"called forth" or ordered forth and had failed to obey the orders
of the President. It would seem almost absurd to say that these men
who have performed no actual service, are yet to receive pay; that
they are "employed" when they refuse to be employed in the public
service; that they are "acting" in conjunction with the regular
forces or otherwise when they are not embodied to act at all; or
that they are subject to the rules and articles of war as troops
organized and employed in the public service, when they have
utterly disclaimed all military organization and obedience. In my
judgment, there are the strongest reasons to believe that by
employment "in the service," or, as it is sometimes expressed, "in
the actual service," of the United States, something more must be
meant than a mere calling forth of the militia. That it includes
some acts of organization, mustering, or marching done or
recognized in obedience to the call in the public service. The act
of 1795 is not in its terms compulsive upon any militia to serve,
but contemplates an option in the person drafted to serve or not to
serve, and if he pay the penalty inflicted
Page 18 U. S. 64
by the law, he does not seem bound to perform any military
duties.
Besides, the terms "call forth" and "employed in service" cannot
in any appropriate sense be said to be synonymous. To suppose them
used to signify the same thing in the Constitution and acts of
Congress would be to defeat the obvious purposes of both. The
Constitution, in providing for the calling forth of the militia,
necessarily supposes some act to be done before the actual
employment of the militia; a requisition to perform service, a call
to engage in a public duty. From the very nature of things, the
call must precede the service, and to confound them is to break
down the established meaning of language and to render nugatory a
power without which the militia can never be compelled to serve in
defense of the Union. For of what constitutional validity can the
act of 1795 be if the sense be not what I have stated? If Congress
cannot provide for a preliminary call, authorizing and requiring
the service, how can it punish disobedience to that call? The
argument that endeavors to establish such a proposition is utterly
without any solid foundation. We do not sit here to fritter away
the Constitution upon metaphysical subtleties.
Nor is it true that the act of 1795 confines its penalties to
such of the militia as are in actual service, leaving those who
refuse to comply with the orders of the President to the punishment
that the state may choose to inflict for disobedience. On the
contrary, if there be any certainty in language, the 5th section
applies exclusively to those of the militia
Page 18 U. S. 65
who are "called forth" by the President and fail to obey his
orders, or in other words, who refuse to go into the actual service
of the United States. It inflicts no penalty in any other case, and
it supposes, and justly, that all the cases of disobedience of the
militia while in actual service were sufficiently provided for by
the 4th section of the act, they being thereby subjected to the
rules and articles of war. It inflicts the penalty too, as we have
already seen, in the identical cases, and none other, to which the
paragraphs of the militia act of Pennsylvania now in question
pointedly address themselves, and in the identical case for which
the present plaintiff was tried, convicted, and punished by the
state court martial. So that if the defendant's construction of the
act of 1795 could prevail, it would not help his case. All the
difficulties as to the repugnancy between the act of Congress and
of Pennsylvania would still remain, with the additional difficulty
that the court would be driven to say that the mere act of calling
forth put the militia,
ipso facto, into actual service,
and so placed them exclusively under the government of
Congress.
In the remarks which have already been made, the answer to
another proposition stated by the defendant is necessarily
included. The offense to which the penalties are annexed in the 4th
section of the act of 1795 is not an offense against state
authority, but against the United States, created by a law of
Congress in virtue of a constitutional authority and punishable by
a tribunal which it has selected and which it can change at its
pleasure.
Page 18 U. S. 66
That tribunal is a court martial, and the defendant contends
that as no explanatory terms are added, a state court martial is
necessarily intended, because the laws of the Union have not
effectually created any court martial, which, sitting under the
authority of the United States, can in all cases try the offense.
It will at once be seen that the act of 1795 has not expressly
delegated cognizance of the offense to a state court martial, and
the question naturally arises in what manner then can it be
claimed? When a military offense is created by an act of Congress
to be punished by a court martial, how is such an act to be
interpreted? If a similar clause were in a state law, we should be
at no loss to give an immediate and definite construction to it,
viz., that it pointed to a state court martial. And why?
Because the offense being created by state legislation, to be
executed for state purposes, must be supposed to contemplate in its
execution such tribunals as the state may erect and control and
confer jurisdiction upon. A state legislature cannot be presumed to
legislate as to foreign tribunals, but must be supposed to speak in
reference to those which may be reached by its own sovereignty.
Precisely the same reasons must apply to the construction of a law
of the United States. The object of the law being to provide for
the exercise of a power vested in Congress by the Constitution,
whatever is directed to be done must be supposed to be done, unless
the contrary be expressed, under the authority of the Union. When,
then, a court martial is spoken of in general terms in the act of
1795, the reasonable interpretation
Page 18 U. S. 67
is that it is a court martial to be organized under the
authority of the United States -- a court martial which Congress
may convene and regulate. There is no pretense to say that Congress
can compel a state court martial to convene and sit in judgment on
such offense. Such an authority is nowhere confided to it by the
Constitution. Its power is limited to the few cases already
specified, and these most assuredly do not embrace it, for it is
not an implied power necessary or proper to carry into effect the
given powers. The nation may organize its own tribunals for this
purpose; and it has no necessity to resort to other tribunals to
enforce its rights. If it does not choose to organize such
tribunals, it is its own fault; but it is not, therefore,
imperative upon a state tribunal to volunteer in its service. The
6th section of the same act comes in aid of this most reasonable
construction. It declares that courts martial for the trial of
militia shall be composed of militia officers only, which plainly
shows that it supposed that regular troops and officers were in the
same service; and yet it is as plain that this provision would be
superfluous if state courts martial were solely intended, since the
states do not keep, and ordinarily have no authority to keep,
regular troops, but are bound to confine themselves to militia. It
might with as much propriety be contended that the courts martial
for the trial of militia under the 97th article of the rules and
articles of war are to be state courts martial. The language of
that article, so far as respects this point, is
Page 18 U. S. 68
almost the same with the clause now under consideration.
As to the argument itself upon which the defendant erects his
construction of this part of the act, its solidity is not admitted.
It does not follow, because Congress have neglected to provide
adequate means to enforce its laws, that a resulting trust is
reposed in the state tribunals to enforce them. If an offense be
created of which no court of the United States has a vested
cognizance, the state court may not therefore assume jurisdiction
and punish it. It cannot be pretended that the states have retained
any power to enforce fines and penalties created by the laws of the
United States in virtue of their general sovereignty, for that
sovereignty did not originally attach on such subjects. They sprung
from the Union, and had no previous existence. It would be a
strange anomaly in our national jurisprudence to hold the doctrine
that because a new power created by the Constitution of the United
States was not exercised to its full extent, therefore the states
might exercise it by a sort of process in aid. For instance,
because Congress decline "to borrow money on the credit of the
United States," or "to constitute tribunals inferior to the supreme
court," or "to make rules for the government and regulation of the
land and naval forces," or exercise either of them defectively,
that a state might step in, and by its legislation supply those
defects or assume a general jurisdiction on these subjects. If,
therefore, it be conceded that Congress has not as yet legislated
to the extent of organizing courts martial for the trial of
offenses created by the act of 1795, it is not conceded that
Page 18 U. S. 69
therefore state courts martial may, in virtue of state laws,
exercise the authority, and punish offenders. Congress may
hereafter supply such defects and cure all inconveniences.
It is a general principle, too, in the policy, if not the
customary law of nations, that no nation is bound to enforce the
penal laws of another within its own dominions. The authority
naturally belongs and is confided to the tribunals of the nation
creating the offenses. In a government formed like ours, where
there is a division of sovereignty, and of course where there is a
danger of collision from the near approach of powers to a conflict
with each other, it would seem a peculiarly safe and salutary rule
that each government should be left to enforce its own penal laws
in its own tribunals. It has been expressly held by this Court that
no part of the criminal jurisdiction of the United States can
consistently with the Constitution be delegated by Congress to
state tribunals, and there is not the slightest inclination to
retract that opinion. The judicial power of the Union clearly
extends to all such cases. No concurrent power is retained by the
states, because the subject matter derives its existence from the
Constitution, and the authority of Congress to delegate it cannot
be implied, for it is not necessary or proper in any constitutional
sense. But even if Congress could delegate it, it would still
remain to be shown that it had so done. We have seen that this
cannot
Page 18 U. S. 70
be correctly deduced from the act of 1795, and we are therefore
driven to decide whether a state can, without such delegation,
constitutionally assume and exercise it.
It is not, however, admitted that the laws of the United States
have not enabled courts martial to be held under their own
authority for the trial of these offenses, at least when there are
militia officers acting in service in conjunction with regular
troops. The 97th article of war gives an authority for the trial of
militia in many cases, and the Act of 18 April, 1814, ch. 141
(which has now expired), provided, as we have already seen, for
cases where the militia was acting alone. To what extent these laws
applied is not now necessary to be determined. The subject is
introduced solely to prevent any conclusion that they are deemed to
be wholly inapplicable. Upon the whole, I am of opinion that the
courts martial intended by the act of 1795 are not state courts
martial, but those of the United States, and this is the same
construction which has been already put upon the same act by the
Supreme Court of Pennsylvania.
What, then, is the state of the case before the Court? Congress,
by a law, declared that the officers and privates of the militia
who shall, when called forth by the President, fail to obey his
orders shall be liable to certain penalties, to be adjudged by a
court martial convened under its own authority. The Legislature of
Pennsylvania inflicted the same penalties for
Page 18 U. S. 71
the same disobedience, and directed these penalties to be
adjudged by a state court martial called exclusively under its own
authority. The offense was created by a law of the United States,
and was solely against its authority and made punishable in a
specific manner; the Legislature of Pennsylvania, without the
assent of the United States, insisted upon being an auxiliary --
nay, as the defendant contends, a principal, if not a paramount,
sovereign in its execution. This is the real state of the case, and
it is said, without the slightest disrespect for the Legislature of
Pennsylvania, who in passing this act was without question governed
by the highest motives of patriotism, public honor, and fidelity to
the Union. If it has transcended its legitimate authority, it has
committed an unintentional error which it will be the first to
repair and the last to vindicate. Our duty compels us, however, to
compare the legislation, and not the intention, with the standard
of the Constitution.
It has not been denied that Congress may constitutionally
delegate to its own courts exclusive jurisdiction over cases
arising under its own laws. It is, too, a general principle in the
construction of statutes that where a penalty is prescribed to be
recovered in a special manner in a special court, it excludes a
recovery in any other mode or court. The language is deemed
expressive of the sense of the legislature that the jurisdiction
shall be exclusive. In such a case, it is a violation of the
statute for any other tribunal to assume jurisdiction. If, then, we
strip the case before the court of all unnecessary
Page 18 U. S. 72
appendages, it presents this point -- that Congress had declared
that its own courts martial shall have exclusive jurisdiction of
the offense, and the State of Pennsylvania claims a right to
interfere with that exclusive jurisdiction and to decide in its own
courts upon the merits of every case of alleged delinquency. Can a
more direct collision with the authority of the United States be
imagined? It is an exercise of concurrent authority where the laws
of Congress have constitutionally denied it. If an act of Congress
be the supreme law of the land, it cannot be made more binding by
an affirmative reenactment of the same act by a state legislature.
The latter must be merely inoperative and void, for it seeks to
give sanction to that which already possesses the highest
sanction.
What are the consequences if the state legislation in the
present case be constitutional? In the first place, if the trial in
the state court martial be on the merits and end in a condemnation
or acquittal, one of two things must follow -- either that the
United States' courts martial are thereby divested of their
authority to try the same case, in violation of the jurisdiction
confided to them by Congress or that the delinquents are liable to
be twice tried and punished for the same offense, against the
manifest intent of the act of Congress, the principles of the
common law, and the genius of our free government. In the next
place, it is not perceived how the right of the President to pardon
the offense can be effectually exerted, for if the state
legislature can, as the defendant contends, by its own enactment
make it a state offense, the pardoning power of the state
Page 18 U. S. 73
can alone purge away such an offense. The President has no
authority to interfere in such a case. In the next place, if the
state can reenact the same penalties, it may enact penalties
substantially different for the same offense, to be adjudged in its
own courts. It if possess a concurrent power of legislation, so as
to make it a distinct state offense, what punishments it shall
impose must depend upon its own discretion. In the exercise of that
discretion, it is not liable to the control of the United States.
It may enact more severe or more mild punishments than those
declared by Congress. And thus an offense originally created by the
laws of the United States and growing out of its authority may be
visited with penalties utterly incompatible with the intent of the
national legislature. It may be said that state legislation cannot
be thus exercised, because its concurrent power must be in
subordination to that of the United States. If this be true (and it
is believed to be so), then it must be upon the ground that the
offense cannot be made a distinct state offense, but is exclusively
created by the laws of the United States, and is to be tried and
punished as Congress has directed, and not in any other manner or
to any other extent. Yet the argument of the defendant's counsel
might be here urged that the state law was merely auxiliary to that
of the United States, and that it sought only to enforce a public
duty more effectually by other penalties, in aid of those
prescribed by Congress. The repugnancy of such a state law to the
national authority would nevertheless be manifest, since it would
seek
Page 18 U. S. 74
to punish an offense created by Congress differently from the
declared will of Congress. And the repugnancy is not in my judgment
less manifest where the state law undertakes to punish an offense
by a state court martial which the law of the United States
confines to the jurisdiction of a national court martial.
The present case has been illustrated in the argument of the
defendant's counsel by a reference to cases in which state courts
under state laws exercise a concurrent jurisdiction over offenses
created and punished by the laws of the United States. The only
case of this description which has been cited at the bar is the
forgery of notes of the Bank of the United States, which by an act
of Congress was punished by fine and imprisonment and which under
state laws has also been punished in some state courts, and
particularly in Pennsylvania. In respect to this case, it is to be
recollected that there is an express proviso in the act of Congress
that nothing in that act should be construed to deprive the state
courts of their jurisdiction under the state laws over the offenses
declared punishable by that act. There is no such proviso in the
act of 1795, and therefore there is no complete analogy to support
the illustration.
That there are cases in which an offense particularly aimed
against the laws or authority of the United States may at the same
time be directed against state authority also, and thus be within
the
Page 18 U. S. 75
legitimate reach of state legislation in the absence of national
legislation on the same subject I pretend not to affirm or to deny.
It will be sufficient to meet such a case when it shall arise. But
that an offense against the constitutional authority of the United
States can, after the national legislature has provided for its
trial and punishment, be cognizable in a state court in virtue of a
state law creating a like offense and defining its punishment,
without the consent of Congress, I am very far from being ready to
admit. It seems to me that such an exercise of state authority is
completely open to the great objections which are presented in the
case before us. Take the case of a capital offense -- as for
instance treason against the United States -- can a state
legislature vest its own courts with jurisdiction over such an
offense and punish it either capitally or otherwise? Can the
national courts be ousted of their jurisdiction by a trial of the
offender in a state court? Would an acquittal in a state court be a
good bar upon an indictment for the offense in the national courts?
Can the offender, against the letter of the Constitution of the
United States, "be subject for the same offense, to be twice put in
jeopardy of life or limb?" These are questions which, it seems to
me, are exceedingly difficult to answer in the affirmative. The
case, then, put by the defendant's counsel clears away none of the
embarrassments which surround their construction of the case at the
bar of the court.
Upon the whole, with whatever reluctance, I feel myself bound to
declare that the clauses of the militia
Page 18 U. S. 76
act of Pennsylvania now in question are repugnant to the
constitutional laws of Congress on the same subject and are utterly
void, and that therefore the judgment of the state court ought to
be reversed. In this opinion I have the concurrence of one of my
brethren.
Judgment affirmed.