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[Cite as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). NOTE: This decision concerns delinquent militia men, whether states possessed general authority over their own militia, if this was a new power or one that already existed in the states, and whether the constitution carved out of that a specific power in certain enumerated cases. (P. 54) In a seperate opinion, justice Story argued states retained the power to act in absense of federal action and referred to the Second Amendment, "The fifth [second] amendment to the constitution, declaring that 'a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed,' may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested." (P. 52-53) Thirteen years later Justice Story would write concerning the Second Amendment, "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." (Comm. on the Const. 646 (1833)) This passage would be cited approvingly by the Supreme Court in U.S. v. Miller, 307 U.S. 174, 182 n.3 (1939). Also interesting, Justice Johnson's seperate opinion seems to indicate it was possible the federal Bill of Rights could be enforceable against state infringement: "This Court can relieve him only upon the supposition that the State law under which he has been fined is inconsistent with some right secured to him, or secured to the United States, under the constitution. Now, the United States complain of nothing ..." (P. 33)]

(Constitutional Law.)

Houston v. Moore.

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 (p.2)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 (p.3)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 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 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 (p.4)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.

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 (p.5)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.[5.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.[5.b] But even supposing this power not to be exclusively vested in Congress, and admitting it to be concurrent 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, (p.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.[6.a] Meade's case is an example of the application of the same principle to the very question now before the Court.[6.b] 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 (p.7)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 (p.8)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.[8.a] 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.[8.b] 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 devested in favour 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 consequence of that division, but is clearly admitted by the whole tenor of the constitution. The cotemporaneous construction of the constitution, (p.9)by those who supported its adoption, supposes the power in question to be concurrent, and not exclusive.[9.a] 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.[9.b] It necessarily results from the circumstance of the power of making provision for organizing, arming, and disciplining the militia being Concurrent, that if (p.10)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 that 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 be 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.[10.a] 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-operates with it for the promotion of the same end. The offence which is made punishable by the State law, is an offence 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, (p.11)are two distinct 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 inflict another, they would still both co-operate to the same end. In practice, the delinquent could not be punished twice for the same offence; but there would be no theoretical repugnancy between the two laws. Congress, in the statutes 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 excused from a specific performance of the duty by the payment of a 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 perfect harmony between the two laws.

The judgment 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 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 (p.13)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 (p.14)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 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 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 accoutrements 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 (p.15)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 invasion. 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 (p.16)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 militia men, 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 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, the power of (p.17)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 must be conceded, that there is (p.18)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 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 (p.19)the President to call into actual 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 militia man 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. (p.20)The 3d 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 militia man, 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, nor have they made (p.21)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 he 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 defence. After this, can the State governments (p.22)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 offence 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.(p.23)

If, in a specified case, the people have thought proper to bestow certain powers on Congress as the safest depositary 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 offence, 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 offence, 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 (p.24)the laws flow from the wills of distinct, 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 (p.25)to adjudicate 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 offence 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 (p.26)by the acts of the national legislature, they would, of course, take cognizance of the causes to which those acts might give birth.[26.a]

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 offences 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 offences made punishable by that act." A similar proviso is to be found in the act of the 21st of April, (p.27)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 offences; 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 offences 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 offences 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 (p.28)may 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 offence, 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 offences 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 offences, 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 offences are not included in the act of Congress, conferring jurisdiction upon the Circuit (p.29)and District Courts; no person has ever contended that such offences are cognizable before the common law Courts. The militia laws have, therefore, provided, that the offence 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 offences, by the judiciary act. It follows, then, as I conceive, that jurisdiction over this offence 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 offence 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 particular (p.30)court, does not necessarily render it exclusive, as I have already endeavoured 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, and a useful (p.31)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 offence. 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.

[Currently at pages 1-31 (Majority opinion).
Proceed to pages 32-46 (Johnson opinion).
Proceed to pages 47-51 (Story opinion).
Proceed to pages 52-53 (Story opinion cont.).
Proceed to pages 54-76 (Story opinion cont).]