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 21st of April, 1806, ch. 49 (id., 404), 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 order to authorize the exercise of concurrent jurisdiction by the state courts over those offenses; and there can be very little doubt but that this opinion was well founded. The judiciary act had vested in the federal courts exclusive 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 exercised by them.

§ 171.

congress cannot confer jurisdiction upon state courts.

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 exercise jurisdiction on cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the federal courts.

$172. states may pass laws conferring upon their courts authority to enforce the laws of the United States.

What, then, is the real object of the law of Pennsylvania which we are considering? I answer, to confer authority upon a state court-martial to enforce the laws of the United States against delinquent militia-men, who had disobeyed the call of the president to enter into the service of the United States; for, except the provisions for vesting this jurisdiction in such a court, this act is, in substance, a re-enactment of the acts of congress, as to the description of the offense, the nature and extent of the punishment, and the collection and appropriation of the fines imposed. 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.

§ 173. Circuit and district courts no jurisdiction over military offenses. But military offenses are not included in the act of congress conferring jurisdiction upon the circuit and district courts; no person has 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 offenses, by the judiciary act. It follows, then, as I conceive, that jurisdiction over this offense remains to be concurrently exercised by the national and state courts-martial, since it is authorized by the laws of the state, and not prohibited by those of the United States. Where is the repugnance of the one law to the other? The jurisdiction was clearly concurrent over militia-men not engaged in the service of the United States; and the acts of congress have not disturbed this state of things, by asserting an exclusive jurisdiction. They certainly have not done so in terms; and I do not think that it can be made out by any fair construction of them. The act of 1795 merely declares that this offense shall be tried by a court-martial. This was clearly not exclusive; but, on the contrary, it would seem to import that such court might be held under national or state authority. The act of 1814 does not render the jurisdiction necessarily exclusive. It provides that courts-martial for the trial of militia, drafted and called forth, shall, when necessary, be appointed, held and conducted in the manner prescribed by the rules of war. If the mere assignment of jurisdiction to a particular court does not necessarily render it exclusive, as I have already endeavored to prove, then it would follow that this law can have no such effect; unless, indeed, there is a difference in this respect between the same language, when applied to military and to civil courts; and if there be a difference, I have not been able to perceive it. But the law uses the expression "when necessary." How is this to be understood? It may mean, I acknowledge, whenever there are delinquents to try; but, surely, if it import no more than this, it was very unnecessarily used, since it would have been sufficient to say that courts-martial for the trial of militia called into service should be formed and conducted in the manner prescribed by the law. The act of 1795 had declared who were liable to be tried, but had not said with precision before what court the trial should be had. This act describes the court; and the two laws being construed together, would seem to mean that every such delinquent as is described in the act of 1795 should pay a certain fine, to be determined and adjudged by a court-martial, to be composed of militia officers, to be appointed and conducted in the manner prescribed by the articles of war. These words, when necessary, have no definite meaning, if they are confined to the existence of cases for trial before the court. But if they be construed (as I think they ought to be) to apply to trials rendered necessary by the omission of the states to provide for state courts-martial to exercise a jurisdiction in the case, or of such courts to take cognizance of them, when so authorized, they have an important and useful meaning. If the state court-martial proceeds to take cognizance of the cases, it may not appear necessary to the proper officer in the service of the United States to summon a court to try the same cases; if they do not, or for want of authority cannot try them, then it may be deemed necessary to convene a court-martial under the articles of war, to take and to exercise the jurisdiction.

§ 174. Where two courts have concurrent jurisdiction, the sentence of either may be pleaded in bar in the other.

There are two objections which were made by the plaintiff's counsel to the exercise of jurisdiction in this case, by the state court-martial, which remain to be noticed. 1. It was contended that if the exercise of this jurisdiction be

admitted, that the sentence of the court would either oust the jurisdiction of the United States' court-martial, or might subject the accused to be twice tried for the same offense. To this I answer, that if the jurisdiction of the two courts be concurrent, the sentence of either court, either of conviction or acquittal, might be pleaded in bar of the prosecution before the other, as much so as the judgment of a state court, in a civil case of concurrent jurisdiction, may be pleaded in bar of an action for the same cause, instituted in a circuit court of the United States. Another objection is, that if the state court-martial had authority to try these men, the governor of that state, in case of conviction, might have pardoned them. I am by no means satisfied that he could have done so; but if he could, this would only furnish a reason why congress should vest the jurisdiction in these cases exclusively in a court-martial acting under the authority of the United States.

$ 175. The Pennsylvania courts-martial and the federal courts-martial have concurrent jurisdiction to try militia-men for disobeying the president's call.

Upon the whole, I am of opinion, after the most laborious examination of this delicate question, that the state court-martial had a concurrent jurisdiction with the tribunal pointed out by the acts of congress to try a militia-man who had disobeyed the call of the president, and to enforce the laws of congress against such delinquent; and that this authority will remain to be so exercised until it shall please congress to vest it exclusively elsewhere, or until the state of Pennsylvania shall withdraw from their court-martial the authority to take such jurisdiction. At all events, this is not one of those clear cases of repugnance to the constitution of the United States where I should feel myself at liberty to declare the law to be unconstitutional; the sentence of the court coram non judice; and the judgment of the supreme court of Pennsylvania erroneous on these grounds.

Two of the judges are of opinion that the law in question is unconstitutional, and that the judgment below ought to be reversed. The other judges are of opinion that the judgment ought to be affirmed; but they do not concur, in all respects, in the reasons which influence my opinion.

Dissenting opinion by MR. JUSTICE STORY.

The only question which is cognizable by this court, upon this voluminous record, arises from a very short paragraph in the close of the bill of exceptions. It there appears that the plaintiff prayed the state court of common pleas to instruct the jury that the first, second and third paragraphs of the twenty-first section of the statute of Pennsylvania of the 28th of March, 1814, "so far as they related to the militia called into the service of the United States under the laws of congress, and who failed to obey the orders of the president of the United States, are contrary to the constitution of the United States, and the laws of congress made in pursuance thereof, and are, therefore, null and void." The court instructed the jury that these paragraphs were not contrary to the constitution or laws of the United States, and were, therefore, not null and void. This opinion has been affirmed by the highest state tribunal of Pennsylvania, and judgment has been there pronounced, in pursuance of it, in favor of the defendant. The cause stands before us upon a writ of error from this last judgment; and the naked question for us to decide is, whether the paragraphs alluded to are repugnant to the constitution or laws of the United States; if so, the judgment must be reversed; if otherwise, it ought to be affirmed. Questions of this nature are always of great importance and delicacy. They

involve interests of so much magnitude, and of such deep and permanent public concern, that they cannot but be approached with uncommon anxiety. The sovereignty of a state in the exercise of its legislation is not to be impaired, unless it be clear that it has transcended its legitimate authority; nor ought any power to be sought, much less to be adjudged, in favor of the United States, unless it be clearly within the reach of its constitutional charter. Sitting here, we are not at liberty to add one jot of power to the national government beyond what the people have granted by the constitution; and, on the other hand, we are bound to support that constitution as it stands, and to give a fair and rational scope to all the powers which it clearly contains.

§ 176. When powers granted to congress are exclusive of similar powers in state governments.

The constitution containing a grant of powers in many instances similar to those already existing in the state governments, and some of these being of vital importance also to state authority and state legislation, it is not 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 power 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 over places purchased by the consent of the legislature of the state in which the same shall be, for forts, arsenals, dock-yards, etc.; 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 (Chirac v. Chirac, 2 Wheat., 259, 269); and the delegation of admiralty and maritime jurisdiction. Martin v. Hunter, 1 Wheat., 304, 337; and see The Federalist, No. 32. 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.

§ 177. In cases of concurrent authority, state laws must yield if they conflict with federal laws.

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.

§ 178. Powers of congress over militia limited to objects specified in the constitution. State laws control in other respects.

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 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 provide for organizing, arming and disciplining the militia;" and is a limitation upon the authority, which would otherwise have devolved upon it, as to the appointment 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 constitutions; and what is not taken away by the constitution of the United States must be considered as retained by the states or the people. The exception, then, ascertains only that congress have not, and that the states have, the power to appoint the officers of the militia, and to train them according to the discipline prescribed by congress. Nor does it seem necessary to contend that the power "to provide for organizing, arming and disciplining the militia," is exclusively vested in congress. It is merely an affirmative power, and if not in its own nature incompatible with the existence of a like power in the states, it may well leave a concurrent power in the latter. But when once congress has carried this power into effect, its laws for the organization, arming and discipline of the militia are the supreme law of the land; and all interfering state regulations must necessarily be suspended in their operation. It would certainly seem reasonable that, in the absence of all interfering provisions by 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