The judgment of the Court was delivered at the present, term, by
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 ex
The act of the 2d of May, 1792, which is re-enacted almost verbatim by that of the 28th of February, 1795, authorizes the President of the United States, in case of invasion, or of imminent clanger 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 allowances of the militia so called forth, and employed in the service of the United States, and subjects them to thе 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 the 18th of April, 1814, provides, that Courts Martial, to be composed of militia officers
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 qf 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 offence 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
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: I. 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 aright, 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, arid 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 imay be deemed necessary by Congress. But as State militia,:the power of
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 servic. 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.?., It must be conceded, that there is
The act of the 28th of 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 the 28th of 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 any one year. The 8th section of the act of the 18th of 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 any one 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 trióse incurred after théir. arrival at the 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 tp 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 fora 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 declaj sd, nor have they made
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, the 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 f It may be admitted at once, that the militia belong to the States, respectively, in which they are enrolle1, 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 defence. After this, can the State govern
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 offence 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.
I admit that a legislative body may, by different laws, impose upon the same person, for the same offence, 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
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 inore extended, .or, more wisely devised.
There still remains another question to be consir dered, 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.powtír’of a State legislature to legislate upon a subject, oirwhich Congress has' declared its will. This concerns the. jurisdiction 'tifa State military tri-.
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 prescribedj will, I presume, hardly be questioned. Thé offence 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 nationál government, by express words: — the question then (and I admit the difficulty of it) occurs, is this a casé in which the State Courts Martial could exercise jurisdiction ?
Speaking upon the subject of the federal judiciary, the
Federalist
distinctly asserts the doctrine, that tile 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 ex-
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 to1 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 suffi-. cient 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 offences 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 the 24th of February, 1807, ch. 75., concerning the forgery of the notes of the Bank of the United States,
“
that uothing in that act contained should be r construed to deprive the' courts of the individual States of jurisdiction under the laws of the several States over offences made punishable by that act.” Asimilar proviso is to be. found in the act of the 21st of April,
There are many other acts of Congress which permit jurisdiction over the. offences 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 theUnited States, although the State 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 .Slates 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 re-enactment of the' acts of Congress, as to the description of the offence, the nature and extent of the puhishment, and the collection and) apрropriation of the fines imposed.
Why might notthis. Court Martial exercise the authority ' thus' vested in it by this law ? As to crimes and offences 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 po jurisdiction whatever over such offences, 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 instaftti, restored, not by way of. grant from the national government, but by the removal of a disability before imposed üpon the State tribunals.
But military offences .are not included in the act of Congress, conferringjurisdiction upon the Circuit
- 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 particu
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 of-fence. To this I answer, that, if the jurisdiction of the t.wo 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,
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.
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. Jiis complaint is, that his offene was an
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 complain of nothing; the act of Pennsylvania was a candid, spontaneous, ancillary effórt 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 procéed to make some remarks on the questions which have been raised in the argument.
Why may not the same offence be made punishable both, under the laws of the States, and of thе United States ? Every citizen of a State owes a double allegiance; he enjoys the protection and participates in the goverament of both the State and the United States. It is obvious, that in those cases in
With regard to militia men ordered into service, there exists a peculiar propriety in leaving them subject to the coercive regulations of both governments.
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. Opposir tion, 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 offence against the laws of the one government, is an offence against the other government; and can surely never be successfully asserted in any instances but those in whiph 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.
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 favour 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 have
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 prоbable that the President of the United States w ould 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 la\ys of
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 authorises 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
The doctrine must be admitted, that Congress might, if they thought proper, have authorized the issuing of the President’s order evento 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 lеast,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 favourable.. 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 aet 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,
Pursuing the same course of reasoning a little further, w*e shall also be led to the conclusion, that neither could there be a Court constituted by a law of the United Statés 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 offences created by the 6th section of the act of 1796, 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 offences committed by militia
employed
by the United States ; and the act of 1814, I admit, was intended to act upon the offences 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, arе 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
1 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, every thing 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
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 offences against the laws of the United States, or ingraft those laws into, its own code, and make offences against the United States punishable in its Courts; that if the individual has any cause of com
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 instanсes of this opposition occur, it will be time enough to meet them. The present was an instance of the most honourable and zealous co-operation with the general government. The legislature of Pennsylvania, influenced, no douct, by views1 similar to those in which I have presented the subject, saw the defectpin 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 were defective, or not brought into operation. And to vindicate her disinterestedness, she even gratui
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 ? — wdiat 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,
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.
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 the 28th of March, 1814,.
li 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
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 favour of the United States., unless it be clearly within the reach of its constitutional charter. Sitting here, we aré 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'riot to be admitted, that a mere grant of, such powers in affirmative terms, to Congress, does,
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 invasionsand ££ 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 are subject to the control and government of the State authorities. Nor can the reservation to the. States of the appointment
Bdt Congress have, 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 defence ; 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 whiсh'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 smáll, 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 re
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 pow'er 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 earved 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 powet in the States. Why may nót 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 ow'n existence or authority; and yet these аre cases to which the pow
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 of-fence created by such laws must'be an offence 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. Sucha construction of the constitution is wholly , inadmissible. .
The authority of Congress being then unquestionable, let us see to what extent, and in what
. The 2d section of the militia act of Pennsylvania, passed the 28th of March, 1814, provides, “ that if any commissioned officer óf 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 the 28th of February, 1795,” and then proceeds to enumerate them ; and then declares, “that each and every non-commissioned officer and private, who shall have neglected or refused tо 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,
li.
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 latv
It is apparent, from this summitry, 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 setr vice 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-1:795, it is the failure
u
to obey the orders of the
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 facta
“ 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 “ employ
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
a
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,
u
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.
Besides, the terms “ call forth” and “ employed in service,” cannot, in any appropriate sense, be said to be synonimous. 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 defence 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 endeavours 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
In the remarks which have already been made, the answer to another proposition stated by the defendant is necessarily included. , The offence to which the penalties are annexed in the 4th section of the act of 1795, is not an offence 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.
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 it's own dominions. The authority naturally belongs; and-.is confided, to the tribunals of the nation creating the offences. 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 contsitution be delegated by Congress to State tribunals
a
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, f<?r 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
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 offences, atleast 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 the 18th of 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. a
What, then, is the state of the case before the Court ? Congress, by a'law, declare 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 inflict the same penalties for
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
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 devested of their authority to try the same case, in violation of the jurisdiction confided to them by Congressor that the delinquents are liable to be twice tried and punished for the same offence, 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 offence can be effectually exerted; for if the State legislature can, as the defendant contends, by its own enactment, make it a State offence,, the pardoning power pf the State.
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 offences created and punished by the laws of the United States. The only сase of this description which has been cited at the bar, is the forgery of notes of the Bank of the Uhited 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. a 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 offences 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 offence particularly aimed against the laws of authority of the United States may, at the same time, be directed against State authority also, and thus be within the
Upon the whole, with whatever reluctance, I feel myself bound to declare, that the clauses of the mi
Judgment affirmed.
Notes
Letters of Publius, or the Federalist. No . 82,
Letter from the Secretary of War, to the Governor of Pennsylvania.
“ War Department, July 4, 1814".
“ Sir,
“ The late pacification in Europe offers to the enemy a large disposable force, both naval and military, and with it the means of giving to the war here, a character of new and increased activity* and extent.
“ Without knowing, with certainty, that such will be its application, and still less, that- any particular point or points will become objects of attack ; the President has deemed it advisable, as a measure of precaution, to strengthen ourselves on the line of the Atlantic ; and (as the principal mean's of doing this will be found in the militia) to invite the executives of certain States to organize and hold in readiness for immediate service a corps of ninety-three thousand five hundred men, under the laws of the 28th of February, 1795, and the 18th of April, 1814.
“ The enclosed detail will show your Excellency what, under this requisition, will be the quota of Pennsylvania. As far as volunteer uniform companies can be found, they will be preferred. The expediency of regarding (as well in the designations of the militia, as of their places of rendezvous,) the points, the importance or exposure of which will be most likely to attract the views of the enemy, need but be suggested.
“ A report of the organization of your quota, when completed, and of its place, or places of rendezvous, will be acceptable.
“I have the honour tobe, &c.
(Signed) “ JOHN ARMSTRONG.
“ P- S. The points tobe defended, by the quota from Pennsylvania, will be the shores of the Delaware, Baltimore, and this city.”
Chirac v. Chirac, 2 Wheat, 259.
Martin v. Hunter, 1 Wheat. 304. 337. And see The Fede ralist, No. 32.
Martin v Hunter, 1 Wheat. Rep. 304. 337. S. P. United States v. Lathrop, 17 Johns. Rep. 4.
Ex parte Boleon, 5 Hall’s timer. Law Journal, 476.
See White v. Commonwealth, 4 Binn. Rep. 418. Livingston v. Van Ingen, 9 Johns. Rep. 507. 567.