creating the offences. 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 to retract that opinion. The judicial power of the union clearly extends to all such cases. No concurrent power is retained by the states, because the subjectmatter 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 constitutional sense. But even if congress could delegate it, it would still remain to be shown that it had so done. We have seen that this cannot 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 courts martial to be held under their own authority for the trial of these offences, at least when there are militia officers acting in service in conjunction with regular troops. The ninety-seventh article of war gives an authority for the trial of militia in many cases; and the act of the 18th of April, 1814, (chapter 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 courts martial,

* Martin v. Hunter, 1 Wheaton's Reports, 304, 337, S. P. United States v. Lathrop, 17 Johnson's Reports, 4.

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.*

What, then, is the state of the case before the court? Congress, by a law, declare that the officers and privates of the militia, who shall, when called forth by the president, fail to obey his orders, shall be liable to certain penalties, to be adjudged by a court martial convened under its own authority. The legislature of Pennsylvania inflict the same penalties for the same disobedience, and direct these penalties to be adjudged by a state court martial called exclusively under its own authority. The offence is created by a law of the United States, and is solely against their authority, and made punishable in a specific manner; the legislature of Pennsylvania, without the assent of the United States, insist upon being an auxiliary, nay, as the defendant contends, a principal, if not a paramount sovereign, in its execution. This is the real state of the case; and it is said without the slightest disrespect for the legislature of Pennsylvania, who, in passing this act, were, without question, 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 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,

* Ex parte Bolson, 5 Hall's American Law Journal, 476.

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then, we strip the case before the court of all unnecessary appendages, it presents this point, that congress had declared that its own courts martial shall have exclusive jurisdiction of the offence; 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 reënactment 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 court martial be on the merits, and end in a condemnation or acquittal, one of two things must follow, either that the United States courts martial are thereby devested of their authority to try the same case, in violation of the jurisdiction confided to them by congress; or that the delinquents are liable to be twice tried and punished for the same offence, against the manifest intent of the act of congress, the principles of the common law, and the genius of our free government. In the next place, it is not perceived how the right of the president to pardon the offence can be effectually exerted ; for if the state legislature can, as the defendant contends, by its own enactment, make it a state offence, the pardoning power of the state can alone purge away such an offence. The president has no authority to interfere in such a case. In the next place, if the state can reënact the same penalties, it may enact penalties substantially different for the same offence, to be adjudged in its own courts. If it possesses a concurrent power of legislation, so as to make it a distinct state offence, what punishments it shall impose must depend upon its own discretion. In the exercise of that discretion it is not liable to the control

of the United States. It may enact more severe or more mild punishments than those declared by congress. And thus an offence 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 offence cannot be made a distinct state offence, but is exclusively created by the laws of the United States, and is to be tried and punished as congress has directed, and not in any other manner or to 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 manifest, since it would seek to punish an offence 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 offence by a state court martial, which the law of the United States confines to the jurisdiction of a national court martial.

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 offences 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 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

* See White v. Commonwealth, 4 Binney's Reports, 418. Livingston v. Van Ingen, 9 Johnstone's Reports, 507, 567.

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 offences declared punishable by that act. There is no such proviso in the act of 1795, and, therefore, there is no complete analogy to support the illustration.

That there are cases in which an offence particularly aimed against the laws or authority of the United States may, at the same time, be directed against state authority also, and thus 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 offence 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 offence, 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 offence, as, for instance, treason against the United States; can a state legislature vest its own courts with jurisdiction over such an offence, 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 offence in the national courts? Can the offender, against the letter of the constitution of the United States, "be subject, for the same offence, to be twice put in jeopardy of life or limb"? These are questions which, it seems to me, are exceedingly difficult 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