18 U.S. 1 (1820), Houston v. Moore

Citation:18 U.S. 1, 5 L.Ed. 19
Party Name:HOUSTON v. MOORE.
Case Date:February 16, 1820
Court:United States Supreme Court

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18 U.S. 1 (1820)

5 L.Ed. 19




United States Supreme Court.

February 16, 1820



THIS was a writ of error to the Supreme Court of the State of Pennsylvania, in a case where was drawn in question the validity of a statute of that

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State, on the ground of its repugnancy to the constitution and laws of the United States, and the decision was in favour of its validity. The statute which formed the ground of controversy in the State court, was passed on the 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, shall be liable to the penalties defined in the act of the Congress of the United States, passed on the 28th of 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 statute 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

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Martial an accurate list. 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, or to his deputy, and also to the Comptroller of the Treasury 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 that 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 statute above referred to. He appeared before the Court Martial, pleaded not guilty, and was in due from 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 was 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

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service of the United 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 Court 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 then 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.

March 15th, 1819.

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 insurrections, and repel invasions.' 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

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the appointment of the officers, 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 the militia are bound to obey. Congress has exercised this authority by authorizing the President to call forth the militia in the cases mentioned in the constitution, and inflicting penalties on those who disobey the call. [a]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 that 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 indivisible object, and of the utmost importance to the support of the federal authority and government. [b]But even supposing this power not to be exclusively vested in Congress, and admitting it to beconcurrent between the United States' government, and the respective State governments; as Congress have 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,

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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. [c]Meade's case is an example of the application of the same principle to the very question now before the Court. [d]Is it possible that Congress meant to give power to a State Court, without naming the Court, or granting the power in 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 offence. If the State Court could try them, the Governor of the State could pardon them for an offence 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 a 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

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between the 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 case, was summoned, is the commander in chief of the militia of that 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 the obedience to the requisition, which makes the persons 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; how the quota of each State is to be apportioned; from what States requisitions 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

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authority to supply the omission. 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. [e]The case must fall within some of the express prohibitory clauses of the constitution, or some of its...

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