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Houston v. Moore, 1820


[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.

Part 2: opinion of Justice Bushrod Washington. THIS FILE.

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


[footnotes reordered as endnotes]
The judgement of the court was delivered at the present term by Mr. Justice Washington, who, after stating the facts of the case, proceeded as follows:

There is but one question in this cause, and it is, whether the act of the legislature of Pennsylvania, under the authority of which the plaintiff in error was tried, and sentenced to pay a fine, is repugnant to the constitution of the United States, or not?

But before this question can be clearly understood, it will be necessary to inquire: 1. What are the powers granted to the general government, by the constitution of the United States over the militia? and, 2. To what extent they have been assumed and exercised.

1. The constitution declares that Congress shall have power to provide for calling forth the militia in three specified cases; for organizing, arming, and disciplining them; and for government 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 further provided, that the President of the United States shall be commander of the militia, when called into the actual service of the United States.

2. After the Constitution went into operation, Congress proceeded by many successive acts to [13] exercise these powers, and to provide for all cases contemplated by the constitution.

The act of the 2nd of May, 1792, which is reenacted almost verbatim by that of the 28th of February, 1795, authorizes the President of the United States, in case of invasion, or of imminent danger of it, or when it may be necessary for executing the laws of the United States, or to suppress insurrections, to call forth such number of the militia of the states most convenient to the scene of action, as he may judge necessary, and to issue his orders for that purpose to such officer of the militia as he shall think proper. It prescribes the amount of pay and allowances of the militia so called forth, and employed in the service of the United States, and subjects them to the rules and articles of war applicable to the regular troops. It then proceeds to prescribe the punishment to be inflicted upon delinquents, and the tribunal which is to try them, by declaring that every officer or private who should fail to obey the orders of the President, in any of the cases before recited, should be liable to pay a certain fine, to be determined and adjudged by court-martial, and to be imprisoned, by a like sentence, on failure of payment. The courts-martial for the trial of militia, are to be composed of militia officers only, and the fines to be certified by the presiding officer of the court, to the martial of the district, and to be levied by him, and, also, to the supervisor, to whom the fines are to be paid over.

The act of 18th of April, 1814, provides, that courts-martial, to be composed of militia [14] officers only, for the trial of militia, drafted, detached and called forth for the service of the United States, whether acting in conjunction with the regular forces or otherwise, shall, whenever necessary, be appointed, held, and conducted in the manner prescribed by the rules and articles of war, for appointing, holding, and conducting courts-martial for the trial of delinquents in the army of the United States. Where the punishment prescribed is by stoppage of pay, or imposing a find limited by the amount of pay, the same is to have relations to the monthly pay existing at the time the offense was committed. The residue of the act is employed in prescribing the manner of conducting the trial; the rules of evidence for the government of the court; the time of service, and the other matters not so material to the present inquiry. The only remaining act of Congress which it will be necessary to notice in this general summary of the laws, in that of the 8th of May, 1792, for establishing an uniform militia in the United States. It declares who shall be subject to be enrolled in the militia, and who shall be exempt; what arms and accouterments the officers and privates shall provide themselves with; arranges them into divisions, brigades, regiments, battalions, and companies, in such manner as the state legislatures may direct; declares the rules of discipline by which the militia is to be governed, and makes provision for such as should be disabled whilst in the actual service of the United States. The pay and subsistence of the militia, whilst in service, are provided for by other acts of Congress, and par- [15] ticularly by one passed on the third of January 1795.

The laws which I have referred to, amount to a full execution of the powers conferred upon Congress by the constitution. They provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion. They also provide the organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; leaving to the states respectively the appointment of officers, and authority of training them according to the discipline prescribed by Congress.

This system may not be formed with as much wisdom as, in the opinion of some, it might have been or as time and experience may hereafter suggest. But to my apprehension, the whole ground of Congressional legislation is covered by the laws referred to. The manner in which the militia is to be organized, armed, disciplined, and governed, is fully prescribed; provisions are made for drafting, detaching, and calling forth the state quotas, when required by the President. The President's orders may be given to the chief executive magistrate of the state, or to any militia officer he may think proper; neglect, or refusal to obey orders, is declared to be an offense against the laws of the United States, and subjects the offender to trial, sentence and punishment, to be adjudged by a court-martial, to be summoned in the way pointed out by the articles and rules of war; and the mode of proceeding to be observed by these courts, [16] is detailed with all necessary perspicuity.

If I am not mistaken in this view of the subject, the way is now open for the examination of the great questions of the cause. Is it competent to a court-martial, deriving its jurisdiction under state authority, to try, and punish militia-men, drafted, detached, and called forth by the President into the service of the United States, who have refused, or neglected to obey the call.

In support of the judgement of the court below, I understand the leading arguments to be the two following: 1. That militia-men, when called into the service of the United States by the President's orders, communicated either to the executive magistrate or to be considered as being in the service of the United States until they are mustered at the place of rendezvous. If this be so, then, 2d. The state retains a right, concurrent with the government of the United Sates, to punish his delinquency. It is admitted on the one side, that so long as the militia are acting under the military jurisdiction of the state to which they belong, the powers of legislation over them are concurrent in the general and state government. Congress has power to provide for organizing, arming and disciplining them; and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress. But as state militia, [17] the power of the state governments to legislate on the same subjects, having existed prior to the formation of the constitution, and not having been prohibited by that instrument, it remains with the states, subordinate nevertheless to the paramount law of the general government, operating upon the same subject. On the other side, it is conceded, that after a detachment of the militia have been called forth, and have entered into the service of the United States, the authority of the general government over such detachment is exclusive. This is also obvious. Over the national militia, the state governments never had, or could have, jurisdiction. None such is conferred by the constitution of the United States; consequently, none such can exist.

The first question, then, is, at what time, and under what circumstances, does a portion of militia, drafted, detached, and called forth by the President, enter into the service of the United States, and change their character from State to national militia? That Congress might by law have fixed the period, by confining it to the draft; the order given to the Chief Magistrate, or other militia officer of the state; to the arrival of the men at the place of rendezvous; or to any other circumstance, I can entertain no doubt. This would certainly be included in the more extensive powers of calling forth the militia, organizing, arming, disciplining, and governing them. But has Congress made any declaration on this subject, and in what manner is the will of that body, as expressed in the before-mentioned laws, to be construed? It [18] must be conceded that there is no law of the United States which declares in express terms that the organizing, arming, and equipping the detachment, on the order of the President to the state militia officers, or to the militiamen personally, places them in the service of the United States. It is true that the refusal or neglect of the militia to obey the orders of the President is declared to be an offense against the United States, and subjects the offender to a certain prescribed punishment. But this flows from the power bestowed upon the general government to call them forth; and, consequently, to punish disobedience to a legal order, and by no means proves that the call of the President places the detachment in the service of the United States. But although Congress has been less explicit on this subject than they might have been, and it could be wished they had been, I am, nevertheless, of opinion, that a fair construction of the different militia laws of the United States will lead to a conclusion that something more than organizing and equipping a detachment, and ordering it into service, was considered as necessary to place the militia in the service of the United States. That preparing a detachment for such service does not place it in the service, is clearly to be collected from the various temporary laws, which have been passed, authorizing the President to require of the state executives to organize, arm, and equip their state quotas of militia for the service of the United States. Because they all provide that the requisition shall be to hold such quotas in readiness to march at a moment's warning; and some, if not all of them, authorize the President to call into actual [19] service any part, or the whole of said quotas, or detachments; clearly distinguishing between the orders of the President to organize and hold the detachments in readiness for service, and, their entering into service.

The act of the 28th of February, 1795, declares that the militia employed in the service of the United States shall receive the same pay and allowance as the troops of the United States, and shall be subject to the same rules and articles of war. The provisions made for disabled militia-men, and for their families, in case of their death, are, by other laws, confined to such militia as are, or have been, in actual service. There are other laws which seem very strongly to indicate the time at which they are considered as being in service. Thus, the act of the 28th of February, 1795, declares, that a militiaman called into the service of the United States, shall not be compelled to serve more than three months after his arrival at the place of rendezvous, in any one year. The 8th section of the act of the 18th of April, 1814, declares, that the militia, when called into the service of the United States, if, in the President's opinion, the public interest requires it, may be compelled to serve for a term not exceeding six months, after their arrival at the place of rendezvous, in any one year; and by the 10th section, provision is made for the expenses which may be incurred by marching the militia to their places of rendezvous, in pursuance of a requisition of the President, and they are to be adjusted and paid in like manner as those incurred after their arrival at the rendezvous. The 3d [20] section of the act of the 2d of January, 1795, provides, that whenever the militia shall be called into the actual service of the United States, their pay shall be deemed to commence from the day of their appearing at the place of battalion, regimental or brigade rendezvous, allowing a day's pay and ration for every 15 miles from their homes to said rendezvous.

From this brief summary of the laws, it would seem that actual service was considered by Congress as the criterion of national militia; and that the service did not commence until the arrival of the militia at the place of rendezvous. That is, the terminus a quo, the service, the pay, and subjection to the articles of war, are to commence and continue. If the service, in particular, is to continue for a certain length of time, from a certain day, it would seem to follow, almost conclusively, that the service commenced on that, and not on some prior day. And, indeed, it would seem to border somewhat upon an absurdity to say that a militia-man was in the service of the United States at any time, who, so far from entering into it for a single moment, had refused to do so, and who never did any act to connect him with such service. It has already been admitted, that if Congress had pleased so to declare, a militiaman, 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 as if he had appeared at the place of rendezvous. But Congress has not so declared, [21] 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.

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 be 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 had 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 defense. After [22] 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 offense 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. [23]

If, in a specified case, the people have thought proper to bestow certain powers on Congress as the safest depository 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 certain punishment for a certain offense, 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 offense, 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,[24] co-ordinate 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 [25] 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 offense 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 direction, 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 [26] by the acts of the national legislature, they would, of course, take cognizance of the causes to which those acts might give birth. 1

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 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 offenses 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, ch. 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 offenses made punishable by that act." A similar proviso is to be found in the act of the [21] 21st of April, 1806, ch. 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 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.

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 [28] exercise jurisdiction on 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 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.

But military offenses are not included in the act of Congress, conferring jurisdiction upon the circuit and district courts; no person has [29] 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 [30] 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 [31] 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, 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.

Upon the whole, I am of opinion, after [32] 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 he 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.


Notes

1. Letters of Publius, or the Federalist, No. 8. text@note1


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