There are many other acts of congress which permit jurisdiction over the offences 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 in 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 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 reenactment of the acts of congress, as to the description of the offence, 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 offences 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 offences, 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provided; and wherever such provision was made, the claim of exclusive jurisdiction to the particular cases was withdrawn by the United States, and the concurrent jurisdiction of the state courts was eo instanti restored, not by way of grant from the national government, but by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 offences are not included in the act of congress

conferring jurisdiction upon the circuit and district courts; no person has ever contended that such offences are cognizable before the common law courts. The militia laws have, therefore, provided that the offence 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 offences, by the judiciary act. It follows, then, as I conceive, that jurisdiction over this offence 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 offence 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 a 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.

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, 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 offence. 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.

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.

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 twentyfirst 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.

The constitution containing a grant of powers, in many instances similar to those already existing in the state govern