powers, which previously existed in the states, rently in the Union and the states, and to be exand which are not expressly delegated to the ercised by the latter in such a way as not to United States, are reserved. The power of contravene the rule established by the Union.* making laws on the subject of the militia is not But in the present case, the state law is not inprohibited to the states, and has always been consistent with the act of Congress. It comes exercised by them. The necessity of a concur- in aid of it. It supplies its defects, and remerent jurisdiction in certain cases results from dies its imperfections. It co-operates with it the peculiar division of the powers of sovereign- for the promotion of the same end. The ofty in our government; and the principle, that fense which is made punishable by the state all authorities of which the states are not ex- law, is an offense against the state, as well as pressly devested in favor of the Union, or the the Union. It being the duty of the state to furexercise of which, by the states, would be re- nish its quota, it has a right to compel the draftpugnant to those granted to the Union, are re-ed militia to appear and march. Calling the served to the states, is not only a theoretical militia forth, and governing them after they consequence of that division, but is clearly ad- are in actual service. *are two distinct [*11 mitted by the whole tenor of the constitution. things. A state law, acting upon the militia The cotemporaneous construction of the con- before they have entered into the actual service 9*] stitution, *by those who supported its adop- of the Union, is so far from interfering with the tion, supposes the power in question to be con- power of Congress to legislate on the same subcurrent, and not exclusive. The power of the ject that it may have, and, we contend, that it states over the militia is not taken away; it does have, in the present case, a powerful effect existed in them before the establishment of the in aid of the national authority. But it would constitution, and there being no negative clause be almost impossible for the state to enact a law prohibiting its exercise by them, it still resides concerning the militia, after they are in the actin the states, so far as an exercise of it by them ual service of the United States, which would is not absolutely repugnant to the authority of not be irreconcilable with the authority of the the Union. Before the militia are actually em- latter. Even supposing that Congress should ployed in the service of the United States, Con- pass a law inflicting one penalty for disobedigress has only a power concurrent with that of ence to the call, and the state inflict another, the states, to provide for organizing, arming, they would still both co-operate to the same end. and disciplining them. The authority of ap- In practice, the delinquent could not be punishpointing the officers and training the militia, is ed twice for the same offense; but there would expressly reserved to the states, because, in be no theoretical repugnancy between the two these respects, it was intended that they should laws. Congress, in the statutes enacted by them, have an exclusive power. So. also, Congress have not intended to compel citizens enrolled has the exclusive power of governing such part in the militia to enter into the actual service of of the militia as may be actually employed in the United States. It is not a conscription; but the service of the United States; but not until a draft, with the option to the individual to be it is thus actually employed. The power of excused from a specific performance of the governing the militia is the power of subject-duty by the payment of a pecuniary composiing it to the rules and articles of war. But it is tion. The acts of Congress are defective in not a principle manifestly implied in the constitu- providing how, or by whom, courts-martial tion, that the militia cannot be subjected to mar- shall be held, for the trial of delinquents, and tial law, except when in actual service, in time the collection of these pecuniary penalties. The of war, rebellion, or invasion. It necessarily state legislature, acting with a sincere desire to results from the circumstance of the power of promote the objects of the national government, making provision for organizing, arming, and supplied these defects, by adding such details disciplining the militia being concurrent, that as were indispensably necessary to execute the 10*] if *Congress has not legislated upon any acts of Congress. *There is, then, a per- [*12 part of the subject, the states have a right to fect harmony between the two laws. suply the omission. This right has been exercised, in the present case, in aid of, and not in hostility to. the federal authority. The fines which are collected under the law are not appropriated to the use of the state, but are to be paid into the treasury of the Union. The power of making uniform laws of naturalization is different from that now under consideration. The power of naturalization is an authority granted to the Union, to which a similar authority in the states would be absolutely and totally repugnant. A naturalized citizen of one state would be entitled to all the privileges of a citizen in every other state, and the greatest confusion would be produced by a variety of rules on the subject. But even naturalization has been sometimes held to be a power residing concur1.-Livingston et al. v. Van Ingen, S Johns. Rep. 501, 565, 573, et seq.; 1 Tuck. Bl. Com. Appx. 308. 2.-Letters of Publius, or The Federalist, Nos. 27, 32; Debates in the Virginia Convention, 272, 284, 3.-1 Tucker's Bl. Com. 213; Duffield v. Smith, 6

296, 298.

Binney, 306.

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 em

4.-Collet v. Collet, 2 Dall. 294, 296.

ployed in the service of the United States; re- and companies, in such manner as the state serving to the states, respectively, the appoint- legislatures may direct; declares the rules of ment of the officers, and the authority of discipline by which the militia is to be govtraining 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 13*] exercise *these powers, and to provide for all the cases contemplated by the constitution. The act of the 2d of May, 1792, which is reenacted almost verbatim by that of the 28th of February, 1795, authorizes the President of the United States, in case of invasion, or of imminent danger of it, or when it may be necessary for executing the laws of the United States, or to suppress insurrections, to call forth such number of the militia of the states most convenient to the scene of action, as he may judge necessary, and to issue his orders for that purpose to such officer of the militia as he shall think proper. It prescribes the amount of pay and 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 courtmartial, 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 martial of the district, and to be levied by him, and, also, to the supervisor, to whom the fines are to be paid over.

erned, 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 par- [*15 ticularly 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 of the United States; leaving to the states respectively the appointment of the officers, and the authority of training them according to the discipline prescribed by Congress.

This system may not be formed with as much wisdom as, in the opinion of some, it might have been, or as time and experience may hereafter suggest. But to my apprehension, the whole ground of Congressional legislation is covered by the laws referred to. The manner in which the militia is to be organized, armed, disciplined, and governed, is fully prescribed; provisions are made for drafting, detaching, and calling forth the state quotas, when required by the President. The President's orders may be given to the chief execu tive magistrate of the state, or to any militia. officer he may think proper; neglect, or refusal to obey orders, is declared to be an offense against the laws of the United States, and subjects the offender to trial, sentence and punishment, to be adjudged by a court-martial, to be summoned in the way pointed out by the articles and rules of war; and the mode of proceeding to be observed by these courts, [*16 is detailed with all necessary perspicuity.

tion 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?

The act of the 18th of April, 1814, provides, that courts-martial, to be composed of militia 14*] officers only, for the trial of militia, If I am not mistaken in this view of the subdrafted, detached and called forth for the ser- ject, the way is now open for the examination vice of the United States, whether acting in of the great question in the cause. Is it comconjunction with the regular forces or other-petent to a court-martial, deriving its jurisdicwise, shall, whenever necessary, be appointed, held, and conducted in the manner prescribed by the rules and articles of war, for appointing, holding, and conducting courts-martial for the trial of delinquents in the army of the United States. Where the punishment prescribed is by stoppage of pay, or imposing a fine limited by the amount of pay, the same is to have relation to the monthly pay existing at the time the offense was committed. The residue of the act is employed in prescribing the manner of conducting the trial; the rules of evidence for the government of the court; the time of service, and other matters not so material to the present inquiry. The only remaining act of Congress which it will be necessary to notice in this general summary of the laws, is that of 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,

In support of the judgment of the court below, I understand the leading arguments to be the two following: 1. That militia-men, when called into the service of the United States by the President's orders, communicated either to the executive magistrate or to any inferior militia officer of a state, are not to be considered as being in the service of the United States until they are mustered at the place of rendezvous. If this be so, then, 2d. The state retains a right, concurrent with the government of the United States, to punish his delinquency. It is admitted on the one side, that so long as the militia are acting under the military jurisdiction of the state to which they belong, the powers of legislation over them are concurrent in the general and state government. Congress has power to provide for organizing, arming, and disciplining them; and this power being

hold such quotas in readiness to march at a moment's warning; and some, if not all of them, authorize *the President to call into actual [*19 service any part, or the whole of said quotas, or detachments; clearly distinguishing between the orders of the President to organize and hold the detachments in readiness for service, and their entering into service.

unlimited, except in the two particulars of offi- | they all provide that the requisition shall be to cering and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress. But as state militia, 17] 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 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 militiaman 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 those incurred after their arrival at the rendezvous. *The 3d [*20 section of the act of the 2d of January, 1795, provides, that whenever the militia shall be called into the actual service of the United States, their pay shall be deemed to commence from the day of their appearing at the place of battalion, regimental or brigade rendezvous, allowing a day's pay and ration for every 15 miles from their homes to said rendezvous.

The first question, then, is, at what time, and under what circumstances, does a portion of militia, drafted, detached, and called forth by the President, enter into the service of the United States, and change their character from State to national militia? That Congress might by law have fixed the period, by confining it to the draft; the order given to the Chief Magistrate, or other militia officer of the state; to the arrival of the men at the place of rendezvous; or to any other circumstance, I can entertain no doubt. This would certainly be included in the more extensive powers of calling forth the militia, organizing, arming, disciplining, and governing them. But has Congress made any declaration on this subject, and in what manner is the will of that body, as expressed in the before-mentioned laws, to be construed? It 18*] must be conceded that there is no law of the United States which declares in express terms that the organizing, arming, and equipping the detachment, on the order of the President to the state militia officers, or to the militiamen personally, places them in the service of the United States. It is true that the refusal or neglect of the militia to obey the orders of From this brief summary of the laws, it the President is declared to be an offense would seem that actual service was considered against the United States, and subjects the by Congress as the criterion of national militia; offender to a certain prescribed punishment. and that the service did not commence until the But this flows from the power bestowed upon arrival of the militia at the place of rendezvous. the general government to call them forth; and, That is, the terminus a quo, the service, the pay. consequently, to punish disobedience to a legal and subjection to the articles of war, are to order, and by no means proves that the call commence and continue. If the service, in of the President places the detachment in the particular, is to continue for a certain length of service of the United States. But although Con- time, from a certain day, it would seem to folgress has been less explicit on this subject than low, almost conclusively, that the service comthey might have been, and it could be wished menced on that, and not on some prior day. they had been, I am, nevertheless, of opinion, And, indeed, it would seem to border somewhat that a fair construction of the different militia upon an absurdity to say that a militia-man laws of the United States will lead to a con- was in the service of the United States at any clusion that something more than organizing time, who, so far from entering into it for a sinand equipping a detachment, and ordering it gle moment, had refused to do so, and who into service, was considered as necessary to never did any act to connect him with such serplace the militia in the service of the United vice. It has already been admitted, that if States. That preparing a detachment for such Congress had pleased so to declare, a militiaservice does not place it in the service, is clearly man, called into the service of the United States, to be collected from the various temporary laws, might have been held and considered as being which have been passed, authorizing the Presi- constructively in that service, though not actdent to require of the state executives to organ-ually so; and might have been treated in like ize, arm, and equip their state quotas of militia manner as if he had appeared at the place of for the service of the United States. Because rendezvous. But Congress has not so declared,

This, it will be seen, is a different question from that which has been just examined. That This question does not so much involve a respects the power of a state legislature to legiscontest for power between the two govern- late upon a subject, on which Congress has dements, as the rights and privileges of the citi-clared its will. This concerns the jurisdiction zen, secured to him by the constitution of the of a state military tribunal *to adjudicate [*25 United States, the benefit of which he may in a case which depends on a law of Congress, lawfully claim. and to enforce it.

clusive jurisdiction of all offenses cognizable under the authority of the United States, unless where the laws of the United States should otherwise direct. The states could not, therefore, exercise a concurrent jurisdiction in those cases, without coming into direct collision with the laws of Congress. But by these savings Congress did provide that the jurisdiction of the federal courts in the specified cases should not be exclusive; and the concurrent jurisdiction of the state courts was instantly restored, so far as, under state authority, it could be ex

that courts-martial for the trial of such delin- | diciary act had vested in the federal courts exquents, to be composed of militia officers only, shall be held and conducted in the manner pointed out by the rules and articles of war. That Congress might have vested the exclusive jurisdiction in courts-martial to be held, and conducted as the laws of the United States have prescribed, will, I presume, hardly be questioned. The offense to be punished grows out of the constitution and laws of the United States, and is, therefore, clearly a case which might have been withdrawn from the concurrent jurisdiction of the state tribunals. But an exclusive jurisdiction is not given to courts-ercised by them. martial, deriving their authority under the national government, by express words. The question then (and I admit the difficulty of it) occurs, is this a case in which the state courtsmartial could exercise jurisdiction?

Speaking upon the subject of the federal judiciary The Federalist distinctly asserts the doctrine that the United States, in the course of legislation upon the objects entrusted to their direction, may commit the decision of causes arising upon a particular regulation to the federal courts solely, if it should be deemed expedient; yet that in every case in which the state tribunals should not be expressly excluded 26*]*by the acts of the national legislature, they would, of course, take cognizance of the causes to which those acts might give birth.'

I can discover, I confess, nothing unreasonable in this doctrine; nor can I perceive any inconvenience which can grow out of it, so long as the power of Congress to withdraw the whole, or any part of those cases, from the jurisdiction of the state courts, is, as I think it must be, admitted.

There are many other acts of Congress which permit jurisdiction over the offenses therein described, to be exercised by state magistrates and courts; not, I presume, because such permission was considered to be necessary under the constitution, in order to vest a concurrent jurisdiction in those tribunals; but because, without it, the jurisdiction was exclusively vested in the national courts by the judiciary act, and consequently could not be otherwise exercised by the state courts. For I hold it to be perfectly clear that Congress cannot confer jurisdiction upon any courts but such as exist under the constitution and laws of the United States, although the state courts *may [*28 exercise jurisdiction on cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the federal courts.

What, then, is the real object of the law of Pennsylvania which we are considering? I answer, to confer authority upon a state courtmartial to enforce the laws of the United States against delinquent militia-men, who had disobeyed the call of the President to enter into The practice of the general government the service of the United States; for, except seems strongly to confirm this doctrine; for at the provisions for vesting this jurisdiction in the first session of Congress which commenced such a court, this act is, in substance, a re-enafter the adoption of the constitution, the judi- actment of the acts of Congress, as to the decial system was formed; and the exclusive and scription of the offense, the nature and extent concurrent jurisdiction conferred upon the of the punishment, and the collection and apcourts created by that law were clearly dis-propriation of the fines imposed. tinguished and marked; showing that, in the opinion of that body, it was not sufficient to vest an exclusive jurisdiction, where it was deemed proper, merely by a grant of jurisdiction generally. In particular, this law grants exclusive jurisdiction to the circuit courts of all crimes and offenses cognizable under the authority of the United States, except where the laws of the United States should otherwise provide; and this will account for the proviso in the act of the 24th of February, 1807, ch. 75, concerning the forgery of the notes of the Bank of the United States, "that nothing in that act contained should be construed to deprive the courts of the individual States of jurisdiction under the laws of the several states over offenses made punishable by that act." A similar proviso is to be found in the act of the 27*] 21st of April, *1806, ch. 49, concerning the counterfeiters of the current coin of the United States. It is clear that, in the opinion of Congress, this saving was necessary in or der to authorize the exercise of concurrent jurisdiction by the state courts over those of fenses; and there can be very little doubt but that this opinion was well founded. The ju

1.-Letters of Publius, or The Federalist, No. 8

Why might not this court-martial exercise the authority thus vested in it by this law? As to crimes and offenses against the United States, the law of Congress had vested the cognizance of them exclusively in the federal courts. The state courts, therefore, could exercise no jurisdiction whatever over such offenses, unless where, in particular cases, other laws of the United States had otherwise provided; and wherever such provision was made, the claim of exclusive jurisdiction to the particular cases was withdrawn by the United States, and the concurrent jurisdiction of the state courts was eo instanti restored, not by way of grant from the national government, but by the removal of a disability before imposed upon the state tribunals.

But military offenses are not included in the act of Congress, conferring jurisdiction upon the circuit *and district courts; no person has [*29 ever contended that such offenses are cognizable before the common law courts. The militia laws have, therefore, provided, that the offense of disobedience to the President's call upon the militia shall be cognizable by a court-martial of the United States; but an exclusive cognizance is not conferred upon that court, as it had been upon the common law courts as to other