[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.