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man, called into the service of the United States, might have been held and considered as being constructively in that service, though not actually so; and might have been treated in like manner was if he had appeared at the place of rendezvous. But congress has not so declared, nor have they made any provision applicable to such a case; on the contrary, it would appear, that .a fine to be paid by the delinquent militia-man was deemed an equivalent for his services, and an atonement for his
disobedience. L If, then, a militia-man, called into the service of the United
States, shall refuse to obey the order, and is, consequently, not to be considered as in the service of the United States, or removed from the military jurisdiction of the state to which he belongs, the next question is, Is it competent to the state to provide for trying and punishing him for his disobedience by a court martial deriving its authority under the state ? It may be admitted at once, that the militia belong to the states, respectively, in which they are enrolled, and that they are subject, both in their civil and military capacities, to the jurisdiction and laws of such state, except so far as those laws are controlled by acts of congress constitutionally made. Congress has power to provide for organizing, arming, and disciplining the militia ; and it is presumable, that the framers of the constitution contemplated a full exercise of all these powers. Nevertheless, if congress has declined to exercise them, it was competent to the state governments to provide for organizing, arming, and disciplining their respective militia in such manner as they might think proper. But congress has provided for all these subjects, in the way which that body must have supposed the best calculated to promote the general welfare, and to provide for the national defence. After this, can the state governments enter upon the same ground, — provide for the same objects as they may think proper, and punish in their own way violations of the laws they have so enacted ? The affirmative of this question is asserted by the defendant's counsel, who, it is understood, contend, that, unless such state laws are in direct
contradiction to those of the United States, they are not repugnant to the constitution of the United States. .
From this doctrine I must, for one, be permitted to dissent. The two laws may not be in such absolute opposition to each other as to render the one incapable of execution without violating the injunctions of the other; and yet, the will of the one legislature may be in direct collision with that of the other. This will is to be discovered as well by what the legislature has not declared as by what they have expressed. Congress, for example, has declared that the punishment for disobedience of the act of congress shall be a certain fine ; if that provided by the state legislature for the same offence be a similar fine, with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But, surely, the will of congress is, nevertheless, thwarted and opposed.
This question does not so much involve a contest for power between the two governments as the rights and privileges of the citizen, secured to him by the constitution of the United States, the benefit of which he may lawfully claim.
If, in a specified case, the people have thought proper to bestow certain powers on congress as the safest depositary of them, and congress has legislated within the scope of them, the people have reason to complain that the same powers should be exercised at the same time by the state legislatures. To subject them to the operation of two laws upon the same subject, dictated by distinct wills, particularly in a case inflicting pains and penalties, is, to my apprehension, something very much like oppression, if not worse. In short, I am altogether incapable of comprehending how two distinct wills can, at the same time, be exercised in relation to the same subject, to be effectual, and at the same time compatible with each other. If they correspond in every respect, then the latter is idle and inoperative; if they differ, they must, in the nature of things, oppose each other, so far as they do differ. If the one imposes a cer
tain punishment for a certain offence, the presumption is, that this was deemed sufficient, and, under all circumstances, the only proper one. If the other legislature impose a different punishment, in kind or degree, I am at a loss to conceive how they can both consist harmoniously together.
I admit that a legislative body may, by different laws, impose upon the same person, for the same offence, different and cumulative punishments; but then it is the will of the same body to do so, and the second, equally with the first law, is the will of that body. There is, therefore, and can be, no opposition of wills. But the case is altogether different where the laws flow from the wills of distinct, coördinate bodies.
This course of reasoning is intended as an answer to what I consider a novel and unconstitutional doctrine, that, in cases where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject on which congress has acted, provided the two laws are not in terms, or in their operation, contradictory and repugnant to each other.
Upon the subject of the militia congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the states on these subjects, except so far as it has been permitted by congress ; although, it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised.
There still remains another question to be considered, which more immediately involves the merits of this cause. Admit that the legislature of Pennsylvania could not constitutionally legislate in respect to delinquent militia-men, and to prescribe the punishment to which they should be subject; had the state court martial jurisdiction over the subject, so as to enforce the laws of congress against these delinquents ?
This, it will be seen, is a different question from that which has been just examined. That respects the power of a state
legislature to legislate upon a subject on which congress has declared its will. This concerns the jurisdiction of a state military tribunal to adjudicate in a case which depends on a law of congress, and to enforce it. .
It has been already shown, that congress has prescribed the punishment to be inflicted on a militia-man detached and called forth, but who has refused to march ; and has also provided that courts martial for the trial of such delinquents, 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 offence 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 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 courts martial 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 discretion, 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 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
* Letters of Publius, or The Federalist ; No. 82.
whole or any part of those cases from the jurisdiction of the state courts is, as I think it must be, admitted.
The practice of the general government seems strongly to confirm this doctrine ; for at the first session of congress which commenced after the adoption of the constitution the judicial system was formed; and the exclusive and concurrent jurisdiction conferred upon the courts created by that law were clearly distinguished 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 offences 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, (chapter 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 offences made punishable by that act.” A similar proviso is to be found in the act of the 21st of April, 1806, (chapter 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 order to authorize the exercise of concurrent jurisdiction by the state courts over those offences; 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 offences 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.