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[Cite as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). NOTE: This decision concerns delinquent militia men, whether states possessed general authority over their own militia, if this was a new power or one that already existed in the states, and whether the constitution carved out of that a specific power in certain enumerated cases. (P. 54) In a seperate opinion, justice Story argued states retained the power to act in absense of federal action and referred to the Second Amendment, "The fifth [second] amendment to the constitution, declaring that 'a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed,' may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested." (P. 52-53) Thirteen years later Justice Story would write concerning the Second Amendment, "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." (Comm. on the Const. 646 (1833)) This passage would be cited approvingly by the Supreme Court in U.S. v. Miller, 307 U.S. 174, 182 n.3 (1939). Also interesting, Justice Johnson's seperate opinion seems to indicate it was possible the federal Bill of Rights could be enforceable against state infringement: "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 ..." (P. 33)]

[Houston v. Moore continued
Return to pages 1-31 (Majority opinion).
Return to pages 32-46 (Johnson opinion).
Return to pages 47-51 (Story opinion).
Return to pages 52-53 (Story opinion cont.).
Currently at pages 54-76 (Story opinion cont).]

[paragraph continued from previous page] It would seem, therefore, that a rational interpretation must construe this power as exclusive in its own nature, and belonging solely to Congress.

The remaining clause gives Congress power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." Does this clause vest in Congress an exclusive power, or leave to the States a concurrent power to enact laws for the same purposes? This is an important question, bearing directly on the case before us, and deserves serious deliberation. The plaintiff contends, that the power is exclusive in Congress; the defendant, that it is not.

In considering this question, it is always to be kept in view, that the case is not of a new power granted to Congress where no similar power already existed in the States. On the contrary, the States in virtue of their sovereignty, possessed general authority over their own militia; and the constitution carved out of that a specific power in certain enumerated cases. But the grant of such a power is not necessarily exclusive, unless the retaining of a concurrent power by the States be clearly repugnant to the grant. It does not strike me that there is any repugnancy in such concurrent power in the States. Why may not a State call forth its own militia in aid of the United States, to execute the laws of the Union, or suppress insurrections, or repel invasions? It would certainly seem fit that a State might so do, where the insurrection or invasion is within its own territory, and directed against its own existence or authority; and yet these are cases to which the power (p.55)of Congress pointedly applies. And the execution of the laws of the Union within its territory may not be less vital to its rights and authority, than the suppression of a rebellion, or the repulse of an enemy. I do not say that a State may call forth, or claim under its own command, that portion of its militia which the United States 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 that 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 are (p.56)exclusive, unless where concurrent authority is expressly reserved to the States. But assuming the States to possess a concurrent power on this subject, still the principal difficulty remains to be considered. It is conceded on all sides, and is, indeed, beyond all reasonable doubt, that all State laws on this subject are subordinate to those constitutionally enacted by Congress, and that if there be any conflict or repugnancy between them, the State laws to that extent are inoperative and void. And this brings us to a consideration of the actual legislation of Congress, and of Pennsylvania, as to the point in controversy.

In the execution of the power to provide for the calling forth of the militia, it cannot well be denied, that Congress may pass laws to make its call effectual, to punish disobedience to its call, to erect tribunals for the trial of offenders, and to direct the modes of proceeding to enforce the penalties attached to such disobedience. In its very essence too, the offence 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. Such a construction of the constitution is wholly inadmissible.

The authority of Congress being then unquestionable, let us see to what extent, and in what (p.57)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, or be in imminent danger of invasion from any foreign nation, or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper." It then proceeds to make a provision, substantially the same, in cases of domestic insurrections; and in like manner, the second section proceeds to provide for cases where the execution of the laws is opposed or obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings. The fourth section provides, that "the militia employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States." The fifth section (which is very material to our present purpose) provides, "that every officer, non-commissioned officer, or private of the militia, who shall fail to obey any of the orders of the President of the United States, in the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a Court Martial; and such officer shall, moreover, be liable to be cashiered by a sentence of a Court Martial, and be (p.58)incapacitated from holding a commission in the militia for a term not exceeding twelve months, at the discretion of the said Court; and such non-commissioned officers and privates shall be liable to be imprisoned by a like sentence, on failure of payment of the fines adjudged against them, for one calendar month for every five dollars of such fine." The sixth section declares, "that Courts Martial for the trial of militia, shall be composed of militia officers only." The seventh and eighth sections provide for the collection of the fines by the marshal and deputies, and for the payment of them when collected into the treasury of the United States.

The 2d section of the militia act of Pennsylvania, passed the 28th of March, 1814, provides, "that if any commissioned officer of the militia shall have neglected, or refused to serve, when called into actual service in pursuance of any order or requisition of the President of the United States, he shall be liable to the penalties defined in the act of Congress of the United States, passed on 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, "or shall be liable to any penalty which may have been prescribed since the date of the passage of the said act, or which may hereafter be prescribed by any law (p.59)of the United States." It then further provides, that "within one month after the expiration of the time for which any detachment of militia shall have been called into the service of the United States, by, or in pursuance of orders from the President of the United States, the proper brigade inspector shall summon a general, or a regimental Court Martial, as the case may be, for the trial of such person or persons belonging to the detachment called out, who shall have refused or neglected to march therewith, or to furnish a sufficient substitute, or who, after having marched therewith, shall have returned without leave from his commanding officer, of which delinquents, the proper brigade inspector shall furnish to the said Court Martial an accurate list. And as soon as the said Court Martial shall have decided in each of the cases which shall be submitted to their consideration, the president thereof shall furnish to the marshal of the United States, or to his deputy, and also to the comptroller of the treasury of the United States, a list of the delinquents fined, in order that the further proceedings directed to be had thereon by the laws of the United States may be completed."

It is apparent, from this summary, that each of the acts in question has in view the same objects, the punishment of any persons belonging to the militia of the State, who shall be called forth into the service of the United States by the President, and refuse to perform their duty. Both inflict the same penalties for the same acts of disobedience. In the act of 1795, it is the failure "to obey the orders of the (p.60)President in any of the cases before recited;" and those orders are such as he is authorized to give by the first and second sections of the act, viz. to "call forth" the militia to execute the laws, to suppress insurrections, and repel invasions. In the act of Pennsylvania, it is the neglect or refusal "to serve when called into actual service, in pursuance of any orders of the President," which orders can only be under the act of 1795. And to demonstrate this construction more fully, the delinquent is made liable to the penalties defined in the same act; and this again is followed by a clause varying the penalties, so as to conform to those which from time to time may be inflicted by the laws of the United States, for the same 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 facto "employed in the service of the United States," within the meaning of the constitution, and the act of 1795; and, therefore, to be exclusively governed by Congress. On the other hand, the defendant contends, that there is no distinction between the "calling forth," and the "employment (p.61)in service" of the militia, in the act of 1795, both meaning actual mustering in service, or an effectual calling into service; that the States retain complete authority over the militia, notwithstanding the call of the President, until it is obeyed by going into service; that the exclusive authority of the United States does not commence until the drafted troops are mustered, and in the actual pay and service of the Union: and further, that the act of 1795 was never intended, by its language, to apply its penalties, except to militia in the latter predicament, leaving disobedience to the President's call to be punished by the States as an 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 "actual service" or "employment" of the United States, contemplated both in the constitution and acts of Congress. The constitution, in the clause already adverted to, enables Congress to provide for the government of such part of the militia "as may be employed in the service of the United States," and makes the President commander in chief of the militia, "when called into the actual service of the United States." If the former clause included the authority in Congress to call forth the militia, as being in virtue of the call of the President in actual service, there would certainly be no necessity for a distinct clause, authorizing it to provide for the calling forth of the militia; and the President would be commander in chief, not merely of the militia in actual service, but of the militia ordered into service. (p.62)The acts of Congress, also, aid the construction already asserted. The 4th section of the act of 1795, makes the militia "employed in the service of the United States," subject to the rules and articles of war; and these articles include capital punishments by Courts Martial. Yet one of the amendments (art. 5.) to the constitution, prohibits such punishments, "unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces," or in "the militia when in actual service, in time of war, or public danger." To prevent, therefore, a manifest breach of the constitution, we cannot but suppose that Congress meant, (what, indeed, its language clearly imports,) in the 4th section, to provide only for cases of actual employment. The act of 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, "when joined, or acting in conjunction with the regular forces" of the United States, be governed by these articles, and shall be subject to be tried by Courts Martial, in like manner with the officers and soldiers in the regular forces, save only that such Courts Martial shall be composed entirely of militia officers. And the act of the 18th of (p.63)April, 1814, (ch. 141.) supplementary to that of 1795, provides for like Courts Martial for the trial of militia, drafted, detached, and called forth for the service of the United States, "whether acting in conjunction with the regular forces or otherwise." All these provisions for the government, payment, and trial of the militia, manifestly contemplate that the militia are in actual employment and service, and not merely that they have been "called forth," or ordered forth, and had failed to obey the orders of the President. It would seem almost absurd to say that these men who have performed no actual service, are yet to receive pay; that they are "employed" when they refuse to be employed in the public service; that they are "acting" in conjunction with the regular forces or otherwise, when they are not embodied to act at all; or that they are subject to the rules and articles of war as troops organized and employed in the public service, when they have utterly disclaimed all military organization and obedience. In my judgment, there are the strongest reasons to believe, that by employment "in the service," or, as it is sometimes expressed, "in the actual service" of the United States, something more must be meant than a mere calling forth of the militia. That it includes some acts of organization, mustering, or marching done or 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 inflicted (p.64)by the law, he does not seem bound to perform any military duties.

Besides, the terms "call forth" and "employed in service," cannot, in any appropriate sense, be said to be 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 (p.65)who are "called forth" by the President, and fail to obey his orders, or, in other words, who refuse to go into the actual service of the United States. It inflicts no penalty in any other case; and it supposes, and justly, that all the cases of disobedience of the militia, while in actual service, were sufficiently provided for by the 4th section of the act, they being thereby subjected to the rules and articles of War. It inflicts the penalty too, as we have already seen, in the identical cases, and none other, to which the paragraphs of the militia act of Pennsylvania now in question pointedly address themselves; and in the identical case for which the present plaintiff was tried, convicted, and punished, by the State Court Martial. So that if the defendant's construction of the act of 1795 could prevail, it would not help his case. All the difficulties as to the repugnancy between the act of Congress and of Pennsylvania, would still remain, with the additional difficulty, that the Court would be driven to say, that the mere act of calling forth put the militia, ipso facto, into actual service, and so placed them exclusively under the government of Congress.

In the remarks which have already been made, the answer to another proposition stated by the defendant is necessarily included. The 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.(p.66)

That tribunal is a Court Martial; and the defendant contends, that as no explanatory terms are added, a State Court Martial is necessarily intended, because the laws of the Union have not effectually created any Court Martial, which, sitting under the authority of the United States, can in all cases try the 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 terms in the act of 1795, the reasonable interpretation (p.67)is, that it is a Court Martial to be organized under the authority of the United States--a Court Martial whom Congress may convene and regulate. There is no pretence to say, that Congress can compel a State Court Martial to convene and sit in judgment 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 not an implied power necessary or proper to carry into effect the given powers. The nation may organize its own tribunals for this purpose; and it has no necessity to resort to other tribunals to enforce its rights. If it 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 Martial for the trial of militia shall be composed of militia officers only, which plainly shows that it supposed that regular troops and officers were in the same service; and yet, it is as plain that this provision would be superfluous, if State Courts Martial were solely intended, since the States do not keep, and ordinarily have no authority to keep, regular troops, but are bound to confine themselves to militia. It might with as much propriety be contended, that the Courts Martial for the trial of militia under the 97th article of the rules and articles of war, are to be State Courts Martial. The language of that article, so far as respects this point, is (p.68)almost the same with the clause now under consideration.

As to the argument itself, upon which the defendant erects his construction of this part of the act, its solidity is not admitted. It does not follow, because Congress have neglected to provide adequate means to enforce 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 fines and penalties created by the laws of the United States in virtue of their general sovereignty, for that sovereignty did not originally attach on such subjects. They sprung from the Union, and had no previous existence. It would be a strange anomaly in our national jurisprudence to hold the doctrine, that because a new power created by the constitution of the United States was not exercised to its full extent, therefore the States might exercise it by a sort of process in aid. For instance, because Congress decline "to borrow money on the credit of the United States," or "to constitute tribunals inferior to the Supreme Court," or "to make rules for the government and regulation of the land and naval forces," or exercise either of them defectively, that a State might step in, and by its legislation supply those defects, or assume a general jurisdiction on these subjects. If, therefore, it be conceded, that Congress have not as yet legislated to the extent of organizing Courts Martial for the trial of offences created by the act of 1795, it is not conceded that (p.69)therefore State Courts Martial may, in virtue of State laws, exercise the authority, and punish offenders. Congress may hereafter supply such defects, and cure all inconveniences.

It is a general principle too in the policy, if not the customary law of nations, that no nation is bound to enforce the penal laws of another within its own dominions. The authority naturally belongs, and is confided, to the tribunals of the nation creating the 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 constitution be delegated by Congress to State tribunals;[69.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, for it is not necessary or proper in any constitutional sense. But even if Congress could delegate it, it would still remain to be shown that it had so done. We have seen that this cannot (p.70)be correctly deduced from the act of 1795; and we are, therefore, driven to decide, whether a State can, without such delegation, constitutionally assume and exercise it.

It is not, however, admitted, that the laws of the United States have not enabled Courts Martial to be held under their own authority for the trial of these offences, at least when there are militia officers acting in service in conjunction with regular troops. The 97th article of war gives an authority for the trial of militia in many cases; and the act of 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.[70.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 (p.71)the same disobedience, and direct these penalties to be adjudged by a State Court Martial called exclusively under its own authority. The offence is created by a law of the United States, and is solely against their authority, and made punishable in a specific manner; the legislature of Pennsylvania, without the assent of the United States, insist upon being an auxiliary, nay, as the defendant contends, a principal, if not a paramount, sovereign, in its execution. This is the real state of the case; and it is said, without the slightest disrespect for the legislature of Pennsylvania, who in passing this act were, without question, governed by the highest motives of patriotism, public honour, and fidelity to the Union. If it has transcended its legitimate authority, it has committed an unintentional error, which it will be the first to repair, and the last to vindicate. Our duty compels us, however, to compare the legislation, and not the intention, with the standard of the constitution.

It has not been denied, that Congress may constitutionally delegate to its own Courts exclusive jurisdiction over cases arising under its own laws. It is, too, a general principle in the construction of statutes, that where a penalty is prescribed to be recovered in a special manner, in a special Court, it excludes a recovery in any other mode or Court. The language is deemed expressive of the sense of the legislature, that the jurisdiction shall be exclusive. In such a case, it is a violation of the statute for any other tribunal to assume jurisdiction. If, then, we strip the case before the Court of all unnecessary (p.72)appendages, it presents this point, that Congress had declared that its own Courts Martial shall have exclusive jurisdiction of the offence; and the State of Pennsylvania claims a right to interfere with that exclusive jurisdiction, and to decide in its own Courts upon the merits of every case of alleged delinquency. Can a more direct collision with the authority of the United States be imagined? it is an exercise of concurrent authority where the laws of Congress have constitutionally denied it. If an act of Congress be the supreme law of the land, it cannot be made more binding by an affirmative re-enactment of the same act by a State legislature. The latter must be merely inoperative and void; for it seeks to give sanction to that which already possesses the highest sanction.

What are the consequences, if the State legislation in the present case be constitutional? In the first place, if the trial in the State Court Martial be on the merits, and end in a condemnation or acquittal, one of two things must follow, either that the United States' Courts Martial are thereby devested of their authority to try the same case, in violation of the jurisdiction confided to them by Congress; or that the delinquents are liable to be twice tried and punished for the same 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 of the State (p.73)can alone purge away such an offence. The President has no authority to interfere in such a case. In the next place, if the State can re-enact the same penalties, it may enact penalties substantially different for the same offence, to be adjudged in its own Courts. If it possess a concurrent power of legislation, so as to make it a distinct State offence, what punishments it shall impose must depend upon its own discretion. In the exercise of that discretion, it is not liable to the control of the United States. It may enact more severe or more mild punishments than those declared by Congress. And thus an offence originally created by the laws of the United States, and growing out of their authority, may be visited with penalties utterly incompatible with the intent of the national legislature. It may be said that State legislation cannot be thus exercised, because its concurrent power must be in subordination to that of the United States. If this be true, (and it is believed to be so,) then it must be upon the ground that the offence cannot be made a distinct State offence, but is exclusively created by the laws of the United States, and is to be tried and punished as Congress has directed, and not in any other manner or to any other extent. Yet the argument of the defendant's counsel might be here urged, that the State law was merely auxiliary to that of the United States; and that it sought only to enforce a public duty more effectually by other penalties, in aid of those prescribed by Congress. The repugnancy of such a State law to the national authority would, nevertheless, be manifest, since it would seek (p.74)to punish an offence created by Congress, differently from the declared will of Congress. And the repugnancy is not in my judgment less manifest, where the State law undertakes to punish an offence by a State Court Martial, which the law of the United States confines to the jurisdiction of a national Court Martial.

The present case has been illustrated in the argument of the defendant's counsel, by a reference to cases in which State Courts under State laws exercise a concurrent jurisdiction over offences created and punished by the laws of the United States. The only case of this description which has been cited at the bar, is the forgery of notes of the Bank of the United States, which by an act of Congress was punished by fine and imprisonment, and which under State laws has also been punished in some State Courts, and particularly in Pennsylvania.[74.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 or authority of the United States may, at the same time, be directed against State authority also, and thus be within the (p.75)legitimate reach of State legislation, in the absence of national legislation on the same subject, I pretend not to affirm, or to deny. It will be sufficient to meet such a case when it shall arise. But that an offence against the constitutional authority of the United States can, after the national legislature has provided for its trial and punishment, be cognizable in a State Court, in virtue of a State law creating a like offence, and defining its punishment, without the consent of Congress, I am very far from being ready to admit. It seems to me, that such an exercise of State authority is completely open to the great objections which are presented in the case before us. Take the case of a capital offence, as for instance, treason against the United States: can a State legislature vest its own Courts with jurisdiction over such an offence, and punish it either capitally or otherwise? Can the national Courts be ousted of their jurisdiction by a trial of the offender in a State Court? Would an acquittal in a State Court be a good bar upon an indictment for the offence in the national Courts? Can the offender, against the letter of the constitution of the United States, "be subject for the same offence, to be twice put in jeopardy of life or limb?" These are questions which, it seems to me, are exceedingly difficult to answer in the affirmative. The case, then, put by the defendant's counsel, clears away none of the embarrassments which surround their construction of the case at the bar of the Court.

Upon the whole, with whatever reluctance, I feel myself bound to declare, that the clauses of the militia (p.76)act of Pennsylvania now in question, are repugnant to the constitutional laws of Congress on the same subject, and are utterly void; and that, therefore, the judgment of the State Court ought to be reversed. In this opinion I have the concurrence of one of my brethren.

Judgment affirmed.

[Return to pages 1-31 (Majority opinion).
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Return to pages 47-51 (Story opinion).
Return to pages 52-53 (Story opinion cont.).
Currently at pages 54-76 (Story opinion cont).]

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

[70.a] Ex parte Bolson, 5 Hall's Amer. Law Journal, 476.

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