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REPORTS OF THE DECISIONS

of the

Supreme Court of the United States.

February Term, 1820


[1]
[Constitutional Law]

Houston v. Moore


[The immediate issue in this case was federal and state jurisdiction to try noncompliance with militia orders. The context provides much enlightenment on the militia institution. Militia duty was conscript duty. Militiamen were governed by the rules and articles of war. The Militia Acts were the precursors of the selective service acts of the twentieth century. There was NO mention of a "personal right" to be armed outside of lawful authority. Houston v. Moore is provided here for further enlightenment to interested parties as Appendix W to US v. Emerson. It was not included in the appendices provided to the Fifth Circuit.]

Part 1: statement of the case; arguments of plaintiff and defendant. THIS FILE

Part 2: opinion of Justice Bushrod Washington
Part 3: opinion of Justice William Johnson
Part 4 opinion of Justice Joseph Story.


[footnotes reordered as endnotes]
The act of the state of Pensylvania, of the 28th of March, 1814,

[providing, (sec.21).) that the officers or privates of the militia of that state, helecting or refusing to serve, when called into actual service, in pursuance of any order of requisition of the President of the United States, shall be liable to the penalties defined in the act of Congress of 28th February, 1795, c. 277, or to any penalty which may have been prescribed since the date of that act, or which may hereafter be prescribed by any law of the United States, and also providing for the trial of such delinquents by a state court-martial, and that a list of the deliqnents fined by such court should be furnished to the Marshal of the United States, &c., and also to the Comptroller of the Treasury of the United States, in order that the further proceedings directed to be had thereon by the laws of the United States might be completed],

is not repugnant to the constitution and laws of the United States.

This was a writ of error to the Supreme Court of the state of Pennsylvania, in a case where was drawn in question validity of a statute of that state, on the ground of its repugnancy to the constitution and laws of the United States, and the decision was in favor of its [2] validity. The statue which formed the ground of controversy in the state courts was passed on 28th of March, 1814, and enacts among other things (sec. 21), that every non-commissioned officer and private of the militia who shall have neglected or refused to serve when called into actual service, in pursuance of any order or requisition of the President of the United States, passed on the 28th February, 1795; and then proceeds to enumerate them, and to each clause adds, "or shall be liable to any penalty which may have been prescribed since the date of the passing of the said act, or which may hereafter be prescribed by any law of the United States." The statue then further provides, that "within one month after the expiration of the time for which any detachment of militia shall have been called into the service of the United States, by or in pursuance of orders from the President of the United States, the proper brigade inspector shall summon a general or a regimental court-martial, as the case may be, for the trial of such person or persons belonging to the detachment called out, who shall have refused or neglected to march therewith, or to furnish a sufficient substitute; or who, after having marched therewith, shall have returned without leave from his commanding officer, of which delinquents the proper brigade inspector shall furnish to the said court-martial an accurate list. [3] And as soon as the said court-martial shall have decided in each of the cases which shall be submitted to their consideration, the President thereof shall furnish to the Marshal of the United States, a list of the delinquents fined, in order that the further proceedings directed to be had thereon by the laws of the United States may be completed."

Houston, the plaintiff in error, and in the original suit, was a private, enrolled in the Pennsylvania militia, and belonging to the detachment of the militia which was ordered out by the Governor of the state, in pursuance of a requisition from the President of the United States, dated the 4th of July, 1814. Being duly notified and called upon, he neglected to march with the detachment to the appointed place of rendezvous. He was tried for this delinquency before a court-martial summoned under the authority of the executive of that state, in pursuance of the section of the statue above referred to. He appeared before the court-martial, pleaded not guilty, and was in due form sentenced to pay a fine; for levying of which on his property, he brought an action of trespass in the State Court of Common Pleas, against the deputy-marshal by whom it as levied. At the trial in that court, the plaintiff prayed the court to instruct the jury, that the first, second and third paragraphs of the 21st section of the above statute of Pennsylvania, so far as they related to the militia called into the service of the United [4] 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 courts 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. A verdict and judgment was thereupon rendered for the defendant, Moore; which judgment being carried by writ of error before the Supreme Court of Pennsylvania, the highest court of law or equity of that state, was affirmed; and the cause was brought before this court, under the 25th section of the judiciary act of 1789, c. 20.

This cause was argued at the last term, and continued to the present term for advisement.

Mr. Hopkins, for the plaintiff in error, argued, that the constitutional power of congress over the militia is exclusive of state authority, except as to officering and training them according to the discipline prescribed by Congress. By the constitution of the United States (art. 1, s. 8), Congress is invested with power "to provide for calling forth the militia, to execute the laws of the Union, suppress insurrection, and repel invasion." And also, "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 [5] the appointment of the officer, and the authority of training the militia according to the discipline prescribed by Congress." The terms "to provide for calling forth" import an authority to place the militia under the power of the United States; in certain cases, implying a command, which militia are bound to obey. Congress has exercised this authority by authorizing the President to call for the militia in the cases mentioned in the constitution, and inflicting penalties on those who disobey the call. 1 Whenever a draft is made, the persons drafted are immediately, and to all intents and purposes, in the service of the United States, and from the moment all state authority over them ceases. The power to govern the militia thus called forth, and employed in the service of the United States, is exclusively in the national government. A national militia grew out of the federal constitution, and did not previously exist. It is in its very nature one individual object, and of the utmost importance to the support of the federal authority and government. 2 But even surpassing this power not to be exclusively vested in Congress, and admitting it to be concurrent between the United States government, and the respective state government; as Congress having legislated on the subject-matter, to the extent of the authority given, state legislation, which is subordinate, is necessarily excluded. Even where the grant of a certain power to the government of the Union is not, [6] in express terms, exclusive, yet if the exercise of it by that government be practically inconsistent with the exercise of the same power by the states, their laws must yield to the supremacy of the laws of the United States. 3 Meade's case is an example of the application of the same principle to the very question now before the court. 4 Is it possible that Congress meant to give power to state courts, without naming the court, or granting the power express terms? The exercise of this jurisdiction by a state court-martial would either oust the United States courts of their jurisdiction or might subject the alleged delinquents to be twice tried and punished for the same offense. If the state court could try them, the Governor of the state could pardon them for an offense committed against the laws of the United States. There is, in various particulars, a manifest repugnancy between the two laws. They are in direct collision; and, consequently, the state law is void. Again, if the state of Pennsylvania had power to pass the act of the 28th of March, 1814, or the 21st section of that act, it was superseded by the act of Congress of the 18th of April, 1814, c. 670, occupying the same ground, and making the more complete provision on the same subject. These two laws are still more manifestly repugnant and inconsistent with each other. Again if the state law was constitutional, and not superseded by the act of Congress of the 18th of April, 1814, c. 670, still the treaty of peace between the [7] United States and Great Britain, ratified in February, 1815, suspended and abrogated all proceedings under the state law.

Mr. C. J. Ingersoll and Mr. Rogers, contra, insisted, that there were many cases in which the laws of the United States are carried into effect by state courts and state officers; that this was contemplated by the framers of the constitution; that the Governor of Pennsylvania, by whom the court-martial, in the present cases, was summoned, is the commander-in-chief of the militia of the state, except when called into the actual service of the United States. The militia drafted in pursuance of the requisition of the President were not in actual service, until mustered, and in the pay of the United States, until they reached the place of rendezvous, and were put under the command of the United States officers. It is not the requisition but obedience to the requisition, which makes the person drafted amenable to martial law, as a part of the military force of the Union. When the constitution speaks of the power of "calling forth" the militia, it means an effectual calling. The plaintiff was called, but not called forth. The power invested in Congress is to determine in what mode the requisition shall be made in particular cases, and by what process the call is to be enforced. Congress not having directed the mode by which courts-martial are to be summoned and held for the purpose of enforcing it, the states have a constitutional authority to supply the omis- [8] sion. Before this court proceeds to declare the state law made for this purpose to be void, it must be satisfied, beyond all doubt, of its repugnancy to the constitution. 5 The case must fall within some of the express prohibitory clauses of the constitution, or some of its clearly implied prohibitions. It must not be the exercise of a political discretion with which the legislature is invested, for that can never become the subject of judicial cognizance. It is insisted that the power of Congress over the militia is a concurrent, and not an exclusive power. All powers, which previously existed in the states, and which are not expressly delegated to the United States, are reserved. 6 The power of making laws on the subject of the militia is not prohibited to the states, and has always been exercised by them. The necessity of a concurrent jurisdiction in certain cases results from the peculiar division of the powers of sovereignty in our government; and the principle, that all authorities of which the states are not expressly divested in favor of the Union, or the exercise of which, by the states, would be repugnant to those granted to the Union, are reserved to the states, is not only a theoretical consequences of the division, by is clearly admitted by the whole tenor of the constitution. The contemporaneous construction of the con- [9] stitution, by those who supported its adoption, supposed the power in question to be concurrent, and not exclusive. 7 The power of the states over the militia is not taken away; it existed in them before the establishment of the constitution, and there being no negative clause prohibiting its exercise by them, it still resides in the states, so far as an exercise of it by them is not absolutely repugnant to the authority of the Union. Before the militia are actually employed in the service of the United States, Congress has only a power concurrent with that of the states, to provide for organizing, arming, and disciplining them. The authority of appointing the officers and training the militia, is expressly reserved to the states, because, in these respects, it was intended that they should have an exclusive power, so, also, Congress has the exclusive power of governing such part of the militia as may be actually employed in the service of the United States; but not until it is thus actually employed. The power of governing the militia is the power of subjecting it to the rules and articles of war. But it is a principle manifestly implied in the constitution, that the militia cannot be subjected to martial law, except when in actual service, in time of war, rebellion, or invasion. 8 It necessarily results from the circumstance of the power of making provision for organizing, arming, and disciplining the militia being concurrent, that [10] if Congress has not legislated upon any part of the subject, the states have a right to supply the omission. This right has been exercised, in the present case, in aid of, and not in hostility to, the federal authority. The fines which are collected under the law are not appropriated to the use of the state, but are to be paid into the treasury of the Union. The power of making uniform laws of naturalization is different from the power now under consideration. The power of naturalization is an authority granted to the Union, to which a similar authority in the states would be absolutely and totally repugnant. A naturalized citizen of one state would be entitled to all the privileges of a citizen in every other state, and the greatest confusion would be produced by a variety of rules on the subject. But even naturalization has been sometimes held to a power residing concurrently in the Union and the states, and to be exercised by the latter in such a way as not to contravene the rule established by the Union 9. But in the present case, the state law is not inconsistent with the act of Congress. It comes in aid of it. It supplies its defects and remedies its imperfections. It co-operated with it for the promotion of the same end. The offense which is made punishable by the state law, is an offense against the state, as well as the Union. It being the duty of the state to furnish its quota, it has a right to compel the drafted militia to appear and march. Calling the militia forth, and governing them after they are in actual service, are two distinct [11] things. A state law, acting upon the militia before they have entered into the actual service of the Union, is so far from interfering with the power of Congress to legislate on the same subject that it may have, and, we contend, that it does have, in the present case, a powerful effect in aid of the national authority. But it would be almost impossible for the state to enact a law concerning the militia, after they are in the actual service of the United States, which would not be irreconcilable with the authority of the latter. Even supposing that Congress should pass a law inflicting one penalty for disobedience to the call, and the state inflicted another, they would still both co-operate to the same end. In practice, the delinquent could not be punished twice for the same offense; but there would be no theoretical repugnancy between the two laws. Congress, in the statues enacted by them, have not intended to compel citizens enrolled in the militia to enter into the actual service of the United States. It is not a conscription; but a draft, with the option to the individual to be executed from a specific permanence of the duty by the payment of pecuniary composition. The acts of Congress are defective in not providing how, or by whom, courts-martial shall be held, for the trial of delinquents, and the collection of these pecuniary penalties; the state legislature, acting with a sincere desire to promote the objects of the national government, supplied these defects, by adding such details as were indispensably necessary to execute the acts of Congress. There is, then, a per- [12] fect harmony between the two laws.


Notes

1. Act of 28th February, 1795, c. 277, (CI) text@note1

2. Livingston v. Van Ingen, 9 Johns. Rep. 507, 565, 575. text@note2

3. Livingston v. Van Ingen, 9 Johns. Rep. 507, 565, 575. text@note3

4. 5 Hall's Law Journ. 536. text@note4

5. Calder et ux. v. Bull et ux., 3 Dall. 399; Emerick v. Harris, 1 Binney, 416, 423; 6 Cranch, 87; Cooper v. Telfair, 4 Dall. 14, 18. text@note5

6. Livingston v. Van Ingen, 9 Johns. Rep. 507, 565, 575. et seq.; 1 Tuck. Bl. Com. Appx. 308. text@note6

7. letter of Publius, or the Federalists, Nos. 27, 32; Debates in the Virginia Convention, 272, 284, 296, 298. text@note7

8. 1 Tucker's Bl. Com. 213; Fuffield v. Smith, 6 Binney, 306. text@note8

9. Collet v. Collet, 2 Dall. 294, 296. text@note9


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