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.

arsenals, dock-yards, etc.; of the second class, taken away by the constitution of the United the prohibition of a state to coin money or States, must be considered as retained by the emit bills of credit; of the third class, as this states or the people. The exception, then, ascourt have already held, the power to establish certains only that Congress have not, and that an uniform rule of naturalization, and the the states have, the power to appoint the offidelegation of admiralty and maritime jurisdic- cers of the militia, and to train them according tion In all other cases not falling within the to the discipline prescribed by Congress. Nor classes already mentioned, it seems unquestion- does it seem necessary to contend that the able that the states retain concurrent author-power "to provide for organizing, arming, and ity with Congress, not only upon the letter and disciplining the militia" is exclusively vested spirit of the eleventh amendment of the con- in Congress. It is merely an affirmative stitution, but upon the soundest principles of power, and if not in its own nature incomgeneral reasoning. There is this reserve, how-patible with the existence of a like power in ever, that in cases of concurrent authority, the states, it may well leave a concurrent powwhere the laws of the states and of the Union er in the latter. But when once Congress has are in direct and manifest collision on the same carried this power into effect, its laws for the, subject, those of the Union being "the supreme organization, arming and discipline of the 50*] law of the land," are of *paramount au- militia, are the supreme law of the land; and thority, and the state laws, so far, and so far all interfering state regulations must necesonly, as such incompatibility exists, must nec- sarily be suspended in their operation. It essarily yield. would certainly seem reasonable, that in the absence *of all interfering provisions by [*52 Congress on the subject, the states should have authority to organize, arm, and discipline their own militia. The general authority retained by them over the militia would seem to draw after it these, as necessary incidents. If Congress should not have exercised its own power, how, upon any other construction than that of a concurrent power, could the states sufficiently provide for their own safety against domestic insurrections, or the sudden invasion of a foreign enemy? They are expressly prohibited from keeping troops or ships of war in time of peace; and this, undoubtedly, upon the supposition, that in such cases the militia would be their natural and sufficient defense. Yet what would the militia be without organization, arms, and discipline? It is certainly not compulsory upon Congress to exercise its own authority upon this subject. The time, the mode, and the extent, must rest upon its means and sound discretion. If, therefore, the present case turned upon the question, whether a state might organize, arm, and discipline its own militia in the absence of, or subordinate to, the regulations of Congress, I am certainly not prepared to deny the legitimacy of such an exercise of authority. It does not seem repugnant in its nature to the grant of a like paramount authority to Congress; and if not, then it is retained by the states. The fifth amendment to the constitution, declaring that "a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," may not, perhaps, be thought to have any important bearing on this point. If it [*53 have, it confirms and illustrates, rather than impugns, the reasoning already suggested.

The constitution declares that Congress shall have power "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;" and "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

It is almost too plain for argument, that the power here given to Congress over the militia is of a limited nature, and confined to the objects specified in these clauses; and that in all other respects, and for all other purposes, the militia are subject to the control and government of the state authorities. Nor can the reservation to the states of the appointment 51*] of the officers and authority of the training the militia according to the discipline prescribed by Congress, be justly considered as weakening this conclusion. That reservation constitutes an exception merely from the power given to Congress "to divide for organizing, But Congress have also the power to proarming, and disciplining the militia"; and is a vide "for governing such part of the militia limitation upon the authority, which would as may be employed in the service of the Unitotherwise have devolved upon it as to the ap-ed States." It has not been attempted in arpointment of officers. But the exception from a given power cannot, upon any fair reasoning, be considered as an enumeration of all the powers which belong to the states over the militia. What those powers are must depend upon their own constitution; and what is not

1.-Chirac v. Chirac, 2 Wheat. 259, 269.

2. Martin v. Hunter, 1 Wheat. 304, 337; and see The Federalist, No. 32.

gument to establish that this power is not exclusively in Congress, or that the states have a concurrent power of governing their own militia when in the service of the Union. On the contrary, the reverse has been conceded both here and before the other tribunals, in which this cause has been so ably and learnedly discussed. And there certainly are the strongest reasons for this construction. When

the difficulties as to the repugnancy, between, litia officers only, which plainly shows that it the act of Congress and of Pennsylvania, would supposed that regular troops and officers were still remain, with the additional difficulty, that in the same service; and yet, it is as plain that the court would be driven to say, that the mere this provision would be superfluous, if state act of calling forth put the militia, ipso facto, courts-martial were solely intended, since the into actual service, and so placed them exclu- states do not keep, and ordinarily have no ausively under the government of Congress. thority 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 *almost the same with the clause now [*68 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 offense be created of which no court of the United States has a vested cognizance, the state court may not, therefore, assume jurisdiction, and punish it. It cannot be pretended that the states have retained any power to enforce fines and penalties created by the laws of the United States in virtue of their general sovereignty, for that sovjects. 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 courtsmartial for the trial of offenses created by the act of 1795, it is not conceded that *there-[*69 fore 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.

In the remarks which have already been made, the answer to another proposition stated by the defendant is necessarily included. The offense to which the penalties are annexed in the 4th section of the act of 1795, is not an offense against state authority, but against the United States, created by a law of Congress, in virtue of a constitutional authority, and punishable by a tribunal which it has selected, and which it can change at its pleasure. 66*] *That tribunal is a court-martial; and the defendant contends, that as no explanatory terms are added, a state court-martial is necessarily intended, because the laws of the Union have not effectually created any court-martial, which, sitting under the authority of the United States, can in all cases try the offense. It will at once be seen that the act of 1795 has not expressly delegated cognizance of the of fense to a state court-martial, and the question naturally arises, in what manner, then, can it be claimed? When a military offense is created by an act of Congress to be punished by a court-ereignty did not originally attach on such submartial, how is such an act to be interpreted? If a similar clause were in a state law, we should be at no loss to give an immediate and definite construction to it, viz., that it pointed to a state court-martial-and why? Because the offense being created by state legislation, to be executed for state purposes, must be supposed to contemplate in its execution such tribunals as the state may erect, and control, and confer jurisdiction upon. A state legislature cannot be presumed to legislate as to foreign tribunals; but must be supposed to speak in reference to those which may be reached by its own sov ereignty. Precisely the same reason must apply to the construction of a law of the United States. The object of the law being to provide for the exercise of a power vested in Congress by the constitution, whatever is directed to be done must be supposed to be done, unless the contrary be expressed, under the authority of the Union. When, then, a court-martial is spoken of in general terms in the act of 1795, 67*] the reasonable interpretation *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 pretense to say that Congress can compel a state court-martial to convene and sit in judgment on such offense. Such an authority is nowhere confided to it by the constitution. Its power is limited to the few cases already specified, and these most assuredly do not embrace it; for it is not an implied power necessary or proper to carry into effect the given powers. The nation may organize its own tribunals for this purpose; and it has no necessity to resort to other tribunals to enforce its rights. If it 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 mi

It is a general principle, too, in the policy, if not the customary law of nations, that no nation is bound to enforce the penal laws of another within its own dominions. The authority naturally belongs, and is confided, to the tribunals of the nation creating the offenses. In a government formed like ours, where there is a division of sovereignty, and, of course, where there is a danger of collision from the near approach of powers to a conflict with each other, it would seem a peculiarly safe and salutary rule, that each government should be left to enforce its own penal laws in its own tribunals. It has been expressly held, by this court, that no part of the criminal jurisdiction of the United States can consistently with the constitution be delegated by Congress to state tribunals;' and there is not the slightest inclination

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

to retract that opinion. The judicial power of
the Union clearly extends to all such cases. No
concurrent power is retained by the states, be-
cause 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 constitu-
tional sense.
But even if Congress could dele-
gate it, it would still remain to be shown that
it had so done. We have seen that this cannot
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 courtsmartial to be held under their own authority for the trial of these offenses, at least when there are militia officers acting in service in conjunction with regular troops. The 97th article of war gives an authority for the trial of militia in many cases; and the act of 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 courtsmartial, 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.1

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 *appendages, it presents [*72 this point, that Congress had declared that its own courts-martial shall have exclusive jurisdiction of the offense; and the state of Pennsylvania claims a right to interfere with that exclusive jurisdiction, and to decide in its own courts upon the merits of every case of alleged delinquency. Can a more direct collision with the authority of the United States be imagined? It is an exercise of concurrent authority where the laws of Congress have constitutionally denied it. If an act of Congress be the supreme law of the land, it cannot be made more binding by an affirmative 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 courtmartial be on the merits, and end in a condemnation or acquittal, one of two things must follow, either that the United States courtmartial are thereby devested of their authority to try the same case, in violation of the jurisWhat, then, is the state of the case before diction confided to them by Congress; or that the court? Congress, by a law, declare that the delinquents are liable to be twice tried and the officers and privates of the militia who punished for the same offense, against the shall, when called forth by the President, fail manifest intent of the act of Congress, the to obey his orders, shall be liable to certain principles of the common law, and the genius penalties, to be adjudged by a court-martial of our free government. In the next place, it convened under its own authority. The legis- is not perceived how the right of the President lature of Pennslyvania inflict the same penalties to pardon the offense can be effectually exerted; 71*] for *the same disobedience, and direct for if the state legislature can, as the defendthese penalties to be adjudged by a state court- ant contends, by its own enactment, make it a martial called exclusively under its own au- state offense, the pardoning power of the state thority. The offense is created by a law of the *can alone purge away such an offense. [*73 United States, and is solely against their auThe President has no authority to interfere in such a case. thority, and made punishable in a specific manIn the next place, if the state can ner; the legislature of Pennsylvania, without re-enact the same penalties, it may enact penalties substantially different for the same ofthe assent of the United States, insist upon be- fense, to be adjudged in its own courts. If it ing an auxiliary, nay, as the defendant conpossess a concurrent power of legislation, so as tends, a principal, if not a paramount, sover- to make it a distinct state offense, what puneign, in its execution. This is the real state of ishments it shall impose must depend upon its the case; and it is said, without the slightest own discretion. In the exercise of that discredisrespect for the legislature of Pennsylvania, tion, it is not liable to the control of the Unitwho, in passing this act, were, without ques-ed States. It may enact more severe or more tion, governed by the highest motives of patriotism, public honor, and fidelity to the Union. If it has transcended its legitimate authority, it has committed an unintentional error, which it will be the first to repair, and the last to vindicate. Our duty compels us, however, to compare the legislation, and not the intention, with the standard of the constitution.

It has not been denied that Congress may constitutionally delegate to its own courts exclusive jurisdiction over cases arising under its own laws. It is, too, a general principle in the

mild punishments than those declared by Congress. And thus an offense 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 offense cannot be made a distinct state offense, but is exclusively created by the laws of the United States, and 1.- Ex-parte Bolson, 5 Hall's Amer. Law Jour-directed, and not in any other manner or to is to be tried and punished as Congress has

nal, 476.

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 74*] manifest, since it would seek to punish an offense created by Congress, differently from the declared will of Congress. And the repugnancy is not, in my judgment, less manifest where the state law undertakes to punish an offense by a state court-martial, which the law of the United States confines to the jurisdiction of a national court-martial.

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 *act of Pennsylvania now [*76 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.

[Constitutional Law.]

The present case has been illustrated in the argument of the defendant's counsel, by a reference to cases in which state courts under state laws exercise a concurrent jurisdiction over offenses created and punished by the laws of the United States. The only case of this description which has been cited at the bar, is the forgery of notes of the Bank of the United THE UNITED STATES v. WILTBERGER. States, which by an act of Congress was punished by fine and imprisonment, and which under state laws has also been punished in some state courts, and particularly in Pennsylvania. In respect to this case, it is to be recollected that there is an express proviso in the act of Congress, that nothing in that act should be construed to deprive the state courts of their jurisdiction under the state laws over the offenses declared punishable by that act. There is no such proviso in the act of 1795, and, therefore, there it no complete analogy to support

the illustration.

That there are cases in which an offense particularly aimed against the laws or authority of the United States may, at the same time, be directed against state authority also, and thus 75] be within the *legitimate reach of state legislation, in the absence of national legislation on the same subject, I pretend not to affirm, or to deny. It will be sufficient to meet such a case when it shall arise. But that an

offense against the constitutional authority of the United States can, after the national legislature has provided for its trial and punishment, be cognizable in a state court, in virtue of a state law creating a like offense, and defining its punishment, without the consent of Congress, I am very far from being ready to admit. It seems to me that such an exercise of state authority is completely open to the great objections which are presented in the case before us. Take the case of a capital offense, as, for instance, treason against the United States: Can a state legislature vest its own courts with jurisdiction over such an offense, and punish it either capitally or otherwise? Can the national courts be ousted of their jurisdiction by a trial of the offender in a state court? Would an acquittal in a state court be a good bar upon an indictment for the offense in the national courts? Can the offender, against the letter of the constitution of the United States "be subject for the same offense, to be twice put in jeopardy of life or limb?" These are questions which, it seems to me, are exceedingly difficult

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

The courts of the United States have no jurisdiction, under the act of April 30th, 1790, c. 36, of the crime of manslaughter, committed by the master upon one of the seamen on board a merchant

vessel of the United States, lying in the River Tigris, in the empire of China, 35 miles above its mouth, of Wampoa, about 100 yards from the shore, in four and a half fathoms water, and below low watermark.

Though penal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal, as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the legislature. In the act of April 30th, 1790, c. 36, the description of places contained in the 8th section, within which the offenses therein enumerated must be committed, in order to give the courts of the Union jurisdiction over them, cannot be transferred to the 12th section, so as to give those courts jurisdiction over a manslaughter committed in the river of a foreign country, and not on the high seas.

The manslaughter charged in the indictment was committed by the defendant on board of the American ship the Benjamin Rush, on a seaman belonging to the said ship, whereof the defendant was master, in the River Tigris, in the empire of China, off Wampoa, and about 100 yards from the shore, in four and a half fathoms water, and below the low water-mark, thirty-five miles above the mouth of the river. The water at the said place where the offense was committed is fresh, except in very dry seasons, and the tide ebbs and flows at, and

NOTE. See notes to U. S. v. Bevans, 3 Wheat.

336; U. S. v. Palmer, 3 Wheat. 610; and Rev. Stat.

of U. S. s. 730, and cases cited.

Under the United States statute of 30th April, 1790, c. 9, s. 8, the "high seas" mean any waters on the sea coast which are without the boundaries of low-water mark. U. S. v. Ross, 1 Gallis. 624; U. S. v. Hamilton, 1 Mason, 152. A vessel lying outside of the bar of a harbor of the United States, within three miles of shore, is on the high seas. U. S. v. Smith, 1 Mason, 147. So, a I foreign open roadstead is upon the "high seas,"