[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.