HOUSTON

v.

MOORE

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 these powers, and to provide for all the cases contemplated by the constitution.

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 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 the 18th of April, 1814, provides, that Courts Martial, to be composed of militia officers only, for the trial of militia, drafted, detached and catted 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 afine limited by the amount of pay, the same is to have relation to the monthly pay existing at the time the offence toas 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 the 8th of 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 for by other acts of Congress, and particularly by one passed on the third of 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 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 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: 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 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 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 no jaw 0f the United States which declares in express terms, that the organizing, arming, and equippmg 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, thit is'riot to be admitted, that a mere grant of, such powers in affirmative terms, to Congress, does, 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 oyer places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dock-yards, &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 have already held, the power to establish an uniform rule of naturalization,a and the delegation of admiralty and maritime jurisdiction.b 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 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 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 have, already , called forth, and hold 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 thát these objects can no where 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 aré exclusive, unless where concurrent authority is expressly reserved tq 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 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 manner it has been exercised. By the act of the 28th of February, 1795, ch. 101., Congress have 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, orbe 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 pf action, as he may judge necessary to repel such invasipn, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper.” If 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,i{ that every officer, non-commissioned officer, oV 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 incapacitated from holding a commission in! the militia for a term not exceeding twelve months, at the discretion of the said Court; and such non-commissioned officers and privates shall be liable to be imprisoned by a like sentence, on failure of payment of the finés adjudged against them, for one calendar mtinth 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 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 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, 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 of the United States.” It then further provides,.that “ within one month after the expiration of the time fdr 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 genera], 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, áftef 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 Maitiahshall 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 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 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 coifed 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 fob lowed 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 offence. So that there can be no reasonable doubt that the legislature of Pennsylvania meant to punish by its own Courts Martial, an offence against the United States created by their laws, by a substantial re-enactment 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 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 “ employment in service” of the militia, in the act of 1795, both méáning 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 offence 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 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. The acts of Congress, also, aid the construction already asserted. The 4th section of the act of 1795, makes the militia “ employéd 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 na-1 val 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 the 2d of 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 10th of 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; -u when joined, or acting in conjunction with the regular forces1' , oí the United States, be governed by these articles, and shall be subject to be. fried.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 the 18th of April, 1814, (ch. 141..J 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 beén ^ 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 sérvice, 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 of recognised, 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 ia flicted 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 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 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, tliat all the cases of disobedience of the militia, while in actual service, were sufficiently provided fdr 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 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. That tribunal is a Court Martial; and the defend ant 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 offence. It will at once be seen that the act of 1795 has not expressly delegated cognizance of the offence to a State Court Martial, and the question naturally arises, in what manner; then can it be claimed ? When a military offence 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 offence 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 contratrary be expressed, under the authority of the Union. When, then, a Court Martial is spoken of in general terras in. the act of 1795. the reasonable interpre* tation is, that it is a Court Martial to-be organized under the authority of the Uuited States — a Court Martial whom Congress may convene and regulate. There is no pretence to say, that Congress can compel a Státe Court Martial to convene and sit in judgmént on such offence. Such an authority is no where 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 riot 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 do 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 Mar-, tial 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 Stat.es 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, h Asto 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 their laws, that a resulting trust is reposed in the State tribunals to enforce them. If an offence 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 Jnes 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 neio 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 have not as yet legislated to the extenCof organizing Courts Martial for the trial of offences created by the act of 1795, it is not conceded that almost the same with the clause now under consideration 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 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 an<^ are utterly void; and that, there' fore, the judgment of the State Court ought to be reversed. In this opinion I have the concurrence of one of my brethren.

Judgment affirmed.

a

Letters of Publius, or the Federalist. No . 82,

a

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.” a

Chirac v. Chirac, 2 Wheat, 259.

b

Martin v. Hunter, 1 Wheat. 304. 337. And see The Federalist, No. 32.

a

Martin v Hunter, 1 Wheat. Rep. 304. 337. S. P. United States v. Lathrop, 17 Johns. Rep. 4.

a

Ex parte Boleon, 5 Hall’s timer. Law Journal, 476.

a

See White v. Commonwealth, 4 Binn. Rep. 418. Livingston v. Van Ingen, 9 Johns. Rep. 507. 567.