HOUSTON v. MOORE.

FEBRUARY TERM, 1820.

[5 Wheaton's Reports, 1-76.]

Congress, under the authority over the militia given it by the constitution passed certain laws fining delinquents, and providing that they should be tried by a court martial. Pennsylvania also passed laws providing for the trial of delinquents by a state court martial. Houston, when the militia of Pennsylvania was called out by the president, did not go; he was then tried under the state law and fined; when this fine was collected he sued the marshal, on the ground that the state laws clashed with those of congress, and were, therefore, unconstitutional. The judge of the state court where the suit was brought decided against Houston, however; which decision was confirmed by the supreme court of Pennsylvania, from which a writ of error was taken to the supreme court of the United States.

In the following opinions the laws in question are sufficiently rehearsed to make the points intelligible. The opinion of the court was delivered by Judge Washington 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 have they 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 governing 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 exercise these powers, and to provide for all the cases contemplated by the constitution.

The act of the 2d of May, 1792, which is re-enacted 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 a 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 marshal 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 the 18th of April, 1814, provides that courts martial, to be composed of militia officers only, for the trial of militia

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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 ccnducted, 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 fine limited by the amount of pay, the same is to have relation to the monthly pay existing at the time the offence 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 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, is that of the 8th of May, 1792, for establishing a 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 accoutrements the officers and privates shall provide themselves with; arranges them into division, 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 particularly 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 invasions. They also 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; leaving to the states respectively the appointment of the officers, and the 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 offence 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 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 question in the cause. Is it competent to a court martial, deriving its jurisdiction under state authority, to try and to 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 judgment of the court below, I understand the leading arguments to be the two following. 1. That militiamen, when called into the service of the United States by the president's orders, communicated either to the executive magistrate, or to any inferior militia officer of a state, are not 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, 2dly, The state retains a right, concurrent with the government of the United States, 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 gen; eral 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 train

ing 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, 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; to 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 must be conceded that there is no law of the United States which declares, in express terms, that the organizing, arming, and equipping a detachment, on the order of the president to the state militia officers, or to the militia-men 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 offence against the United States, and subjects the offender to a certain prescribed punish.