Article 1, Section 8, Clause 15

[Volume 3, Page 188]

Document 20

Houston v. Moore

5 Wheat. 1 1820

February 16th, 1820. The judgment of the court was delivered at the present term, by Washington, Justice, 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 these powers, and to provide for all the cases contemplated by the constitution. The act of the 2d 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 [Volume 3, Page 189] 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 courtsmartial, to be composed of militia 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 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 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 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, 2d. 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 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 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 [Volume 3, Page 190] 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 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 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 militiamen, 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. 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 fifteen 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 militiaman 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 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 [Volume 3, Page 191] must have supposed the best calculated to promote the general welfare, and to provide for the national defence. After 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 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. 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 the laws flow from the will 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 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 intrusted 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 by the acts of the national legislature, they would, of course, take cognisance of the causes to which those acts might give birth. I can discover, I confess, [Volume 3, Page 192] 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 cognisable 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 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 cognisable 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 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 cognisance 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 and district courts; no person has ever contended that such offences are cognisable 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 cognisable by a court-martial of the United States; but an exclusive cognisance 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 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 [Volume 3, Page 193] 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 applied 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 cognisance of them, when so authorized, they have an important, and a useful meaning. If the state court-martial proceeds to take cognisance 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.

Upon the whole, I am of opinion, after 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 militiaman 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 shall 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.

Two of the judges are of opinion, that the law in question is unconstitutional, and that the judgment below ought to be reversed. The other judges are of opinion, that the judgment ought to be affirmed; but they do not concur in all respects in the reasons which influence my opinion.

Johnson, Justice.--It is not very easy to form a distinct idea of what the question in this case really is. An individual, having offended against a law of his own state, has been cited before a court constituted under the laws of that state, and there convicted and fined. His complaint is that his offence was an offence against the laws of the United States, that he is liable to be punished under those laws, and cannot, therefore, be constitutionally punished under the laws of his own state.

If any right, secured to him under the state constitution, has been violated, it is not our affair. His complaint before this court must be either that some law, or some constitutional provision, of the United States, has been violated in this instance; or he must seek elsewhere for redress. 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; the act of Pennsylvania was a candid, spontaneous, ancillary effort, in the service of the United States; and all the plaintiff in error has to complain of is, that he has been punished by a state law, when he ought to have been punished under a law of the United States, which he contends he has violated.

I really have not been able to satisfy myself that it is any case at all for the cognisance of this court; but from respect for the opinion of others, I will proceed to make some remarks on the questions which have been raised in the argument.

Why may not the same offence be made punishable both under the laws of the states, and of the United States? Every citizen of a state owes a double allegiance; he enjoys the protection and participates in the government of both the state and the United States. It is obvious, that in those cases in which the United States may exercise the right of exclusive legislation, it will rest with congress to determine whether the general government shall exercise the right of punishing exclusively, or leave the states at liberty to exercise their own discretion. But where the United States cannot assume, or where they have not assumed, this exclusive exercise of power, I cannot imagine a reason why the states may not also, if they feel themselves injured by the same offence, assert their right of inflicting punishment [Volume 3, Page 194] also. In cases affecting life or member, there is an express restraint upon the exercise of the punishing power. But it is a restriction which operates equally upon both governments; and according to a very familiar principle of construction, this exception would seem to establish the existence of the general right. The actual exercise of this concurrent right of punishing, is familiar to every day's practice. The laws of the United States have made many offences punishable in their courts, which were and still continue punishable under the laws of the states. Witness the case of counterfeiting the current coin of the United States, under the act of April 21st, 1806, in which the state right of punishing is expressly recognised and preserved. Witness also the crime of robbing the mail, on the highway, which is unquestionably cognisable as highway-robbery under the state laws, although made punishable under those of the United States.

With regard to militia-men ordered into service, there exists a peculiar propriety in leaving them subject to the coercive regulations of both governments. The safety of each is so worked up with that of all the states, and the honor and peculiar safety of a particular state may so often be dependent upon the alacrity with which her citizens repair to the field, that the most serious mortifications and evils might result, from refusing the right of lending the strength of the state authority to quicken their obedience to the calls of the United States.

But it is contended, if the states can at all legislate or adjudicate on the subject, they may affect to aid, when their real object is nothing less than to embarrass, the progress of the general government. I acknowledge myself at a loss to imagine how this could ever be successfully attempted. Opposition, whether disguised or real, is the same thing. It is true, if we could admit, that an acquittal in the state courts could be pleaded in bar to a prosecution in the courts of the United States, the evil might occur. But this is a doctrine which can only be maintained, on the ground, that an offence against the laws of the one government, is an offence against the other government; and can surely never be successfully asserted in any instances but those in which jurisdiction is vested in the state courts by statutory provisions of the United States. In contracts, the law is otherwise. The decision of any court of competent jurisdiction is final, whatever be the government that gives existence to the court. But crimes against a government are only cognisable in its own courts, or in those which derive their right of holding jurisdiction from the offended government.

Yet, were it otherwise, I cannot perceive with what correctness we can, from the possible abuse of a power, reason away the actual possession of it in the states. Such considerations were only proper for the ears of those who established the actual distribution of powers between the states and the United States. The absurdities that might grow out of an affected co-operation in the states, with a real view to produce embarrassment, furnish the best guarantee against the probability of its ever being attempted, and the surest means of detecting and defeating it. We may declare defects in the constitution, without being justly chargeable with creating them; but if they exist, it is not for us to correct them. In the present instance, I believe the danger imaginary, and if it is not, it must pass ad aliud examen.

But whatever be the views entertained on this question, I am perfectly satisfied, that the individual in this case was not amenable to any law of the United States. Both that there was no law of the United States that reached his case, and that there was nothing done or intended to be done by the government of the United States, to bring him within their laws, before he reached the place of rendezvous.

It is obvious, that there are two ways by which the militia may be called into service; the one is under state authority, the other under authority of the United States. The power of congress over the militia is limited but by two reservations in favor of the states, viz., the right of officering and that of training them. When distributed by the states, under their own officers, the general government have the right, if they choose to exercise it, of designating both the officer and private who shall serve, and to call him forth or punish him for not coming. But the possession of this power, or even the passing of laws in the exercise of it, does not preclude the general government from leaning upon the state authority, if they think proper, for the purpose of calling the militia into service. They may command or request; and in the case before us, they obviously confined themselves to the latter mode. Indeed, extensive as their power over the militia is, the United States are obviously intended to be made in some measure dependent upon the states for the aid of this species of force. For, if the states will not officer or train their men, there is no power given to congress to supply the deficiency.

The method of calling forth the militia, by requisition, is, it is believed, the only one hitherto resorted to in any instance. Being partially dependent upon the integrity of the states, the general government has hitherto been satisfied to rest wholly on that integrity, and, except in very few instances, has never been disappointed. The compulsory power has been, in its practice, held in reserve, as only intended for use when the other shall fail. Historically, it is known, that the act of 1795 was passed with a view to a state of things then existing in the interior of Pennsylvania, when it became probable that the president of the United States would have to exert the authority of the general government immediately on detached portions of the officers or militia of the Union, to aid in the execution of the laws of the United States. And instances may still occur, in which the exercise of that power may become necessary for the same purpose. But whenever bodies of militia have been called forth, for the purpose of general defence, it is believed, that in no instance has it been done otherwise than by requisition, the only mode practised towards the states from the commencement of the revolution to the present day. That it was the mode intended to be pursued in this case, is obvious from the perusal of the letter of the secretary of war to the governor of Pennsylvania.1 [Volume 3, Page 195] The words made use of are: "The president has deemed it advisable to invite the executives of certain states to organize," &c.: Words which no military man would construe into a military command.

It is true, that this letter also refers to the acts of 1795 and 1814, as the authority under which the requisition is made, and the act of 1795 authorises the president to issue his order for that purpose: but this makes no difference in the case; it only leaves him the power of proceeding by order, if he thinks proper, without enjoining that mode, or depriving him of the option to pursue the other mode, so long as the principles upon which the states acted were such as to render it advisable. Or, if the construction be otherwise, the result only will be, that the president has not pursued the mode pointed out by that act, and therefore, has not brought the case within it.

But suppose the letter of the secretary of war was intended by him to operate as an order (although I cannot believe that congress ever intended an order should issue immediately to the governor of a state), how is this individual made punishable under the acts of 1795 and 1814?

The doctrine must be admitted, that congress might, if they thought proper, have authorized the issuing of the president's order, even to the governor. For when the constitution of Pennsylvania makes her governor commander-in-chief of the militia, it must subject him, in that capacity (at least, when in actual service), to the orders of him who is made commander-in-chief of all the militia of the Union. Yet if he is to be addressed in that capacity, and not as the general organ or representative of the state sovereignty, surely he has a right to be apprised of it. But is he, then, to be charged as a delinquent? Where is the law that has provided, or can provide, a court-martial for his trial? And where is the law that would oblige him to consider such a letter as this, a military order? It would then seem somewhat strange, if he, to whom this letter was immediately addressed, received no order from the president, that one to whom his order was transmitted through fifty grades, should yet be adjudged to have disobeyed the president's order.

But the situation of the private in this case, is still more favorable. It must be recollected, we are now construing a penal statute. And the criminality of the person charged, depends altogether on the 5th section of the act of 1795. The 1st section of the act of 1814, makes no difference in this particular, inasmuch as it does no more than create a tribunal for the trial of crimes, and supposes the commission of such crimes to be against the provisions of some existing law. The command of the president, then, I hold to have been indispensable to the creation of an offence, under the 5th section of this act. But how the president could, in the actual state of things, have issued such a command to the private, consistently with the provisions of this act, it is not easy to show. For, by the section immediately preceding the 5th, it is provided, "that no officer, non-commissioned officer or private of the militia, shall be compelled to serve more than three months, after his arrival at the place of rendezvous, in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to which he belongs." Now, what was meant by due rotation? and how was the president's order to reach the individual, without previously establishing this due rotation? I admit, that this rotation may have been established, through the aid of a state law; but it became indispensable, that such law should have been authorized or adopted by some law of congress; and there exists no law, that I know of, either authorizing or requiring the designation or distribution by the states, which this law contemplates. On a call of the whole militia, there would have been no difficulty; but in the case of a partial call, some designation, legally known to the president, became indispensable, before he could issue his orders with that precision which may well be required in a criminal prosecution. And this probably operated as forcibly as considerations of comity, in determining the government to proceed by the ancient mode of requisition, instead of addressing the executive of Pennsylvania in the language of command and authority; if, indeed (what I will not readily admit), the act was ever intended to apply to the case of an immediate order to the executive.

Pursuing the same course of reasoning a little further, we shall also be led to the conclusion, that neither could there be a court constituted by a law of the United States for the trial of this offender. I hold it unquestionable, that whenever, in the statutes of any government, a general reference is made to law, either implicitly or expressly, that it can only relate to the laws of the government making this reference. Now, the only act which it is pretended vests any court with jurisdiction of offences created by the 5th section of the act of 1795, as to persons not yet mustered into service, is the 1st section of the act of 1814. The 4th and 6th sections of the act of 1795, taken together, furnish courts-martial for the trial of offences committed by militia employed by the United States; and the act of 1814, I admit, was intended to act upon the offences of [Volume 3, Page 196] those who were not yet in actual service, but had been called into service. Can it, on any legal principle, be so construed as to answer the end proposed? The words are, "that courts-martial for the trial of militia, drafted, detached and called forth for the service of the United States, shall be appointed," &c. But how drafted, detached and called forth? Under the laws of the United States, or of Russia? For the laws of the states, unless adopted by congress, are no more the laws of the United States than those of any foreign power. There is nothing in this act or any other act, that designates the drafting, and detaching or calling forth, there expressed as the grounds of jurisdiction, as a drafting, &c., under the laws of a state. Nor would it have had such a drafting, &c., in view, if it was intended to provide for punishing offences against the provisions of the act of 1795; for, in that act, it is required to be a calling forth by the president, not by state authority. And this suggests the only reasonable exposition that can be given it, consistent with the principle, that it must be a drafting, detaching and calling forth under laws of the United States. If we can find a sensible and consistent exposition, we are bound to adopt it, as the only one intended.

I have no doubt, that under the powers given the president by the act of 1795, and under the restriction contained in the 4th section of that act, it was in the power of the president, to have issued orders to the adjutant-general of Pennsylvania, to bring into the field this quota of militia, and to have prescribed the manner in which they should be drafted and detached; and had this been done, everything would have been sensible and consistent, and the exigencies of both these laws would have been satisfied. It is obvious, that the act of 1814 recognises the construction, which makes the drafting and detaching, as necessary to precede the calling forth; and if the power to call forth existed in the president alone, it would seem, that the other subordinate, but necessary ancillary powers to which this act has relation, must have existed in him also, and could be exercised by him, or under his authority only. Under this view of the subject, I am of opinion, that a court-martial constituted under this act of April 18th, 1814, could not legally have tried this individual, because he was not drafted and detached, under the meaning of that act, taken in connection with the act of 1795. Neither, in my opinion, was the calling forth such as was in the contemplation of that act. In addition to the reasons already given for this opinion, exists this obvious consideration. The calling forth authorized by that act is to be expressed by an order from the president. It is disobedience to such an order alone, that is made punishable by that act. Now, though it be unquestionable, that this order may be communicated through any proper organ, yet it must be communicated to the individual, as an order from the president, or he is not brought within the enactment of the law, nor put on his guard against incurring the penalty. But, from first to last, the whole case makes out an offence against the orders of the governor of Pennsylvania. It does not appear, that the order communicated to the individual was made to assume the form of an order from the president; and how, in that case, he could have been held guilty of having violated an order from the president, it is not easy to conceive.

For these reasons, I am very clearly of opinion, that neither the United States, nor the plaintiff in error, can complain of the infraction of any constitutional right, if the state did constitute a court for trying offences against the laws of the United States, or ingraft those laws into its own code, and make offences against the United States punishable in its courts; that if the individual has any cause of complaint, it is between him and his own state government: and that even were it otherwise, the plaintiff in error does not make out such a case here; inasmuch as the general government could not have had it in contemplation, to bring into operation the penal provisions of the act of 1795, and if they had, that they did not pursue the steps indispensable for that purpose; therefore, that the court-martial by which the plaintiff in error was tried, was really acting wholly under the authority of state laws, punishing state offences.

But it is contended, that if the states do possess this power over the militia, they may abuse it. This is a branch of the exploded doctrine, that within the scope in which congress may legislate, the states shall not legislate. That they cannot, when legislating within that ceded region of power, run counter to the laws of congress, is denied by no one; but, as I before observed, to reason against the exercise of this power, from the possible abuse of it, is not for a court of justice. When instances of this opposition occur, it will be time enough to meet them. The present was an instance of the most honorable and zealous co-operation with the general government. The legislature of Pennsylvania, influenced, no doubt, by views similar to those in which I have presented the subject, saw the defects in the means of coercing her citizens into the service; and unwilling to bear the imputation of lukewarmness in the common cause, legislated on the occasion, just so far as the laws of the United States were defective, or not brought into operation. And to vindicate her disinterestedness, she even gratuitously surrenders to the United States the fines to be inflicted. To have paused on legal subtleties, with the enemy at her door, or to have shrunk from duty, under shelter of pretexts which she could remove, would have been equally inconsistent with her character for wisdom and for candor.

I will make one further observation, in order to prevent myself from being misunderstood. I have observed, that the governors of states, as military commanders, must be considered as subordinate to the president: I do not mean to intimate, nor have I the least idea, that the act of 1795 gives authority to the president to issue an order to a governor, in that capacity. I hold the opinion to be absurd; for he comes not within the idea of a militia officer, in the language of that act. If he is so, what is his grade? He will not be included under any title of rank, known to the laws of the United States, from the highest to the lowest. And how is he to be tried? What is his pay? What his punishment? An act which authorizes an order for militia, obviously authorizes a requisition. And if the purposes of the general government could as well be subserved, by depending on the state authority for calling out the militia, [Volume 3, Page 197] there was no reason against resorting to that authority for the purpose. But the power of ordering out the militia is an alternative given to the president, when the other is too circuitous, or likely to fail. In that case, the president may address himself to the executive; and having obtained through him the necessary information relative to the distribution and organization of the militia, may proceed, under his own immediate orders, to draft and detach the numbers wanted. And thus everything in the act becomes sensible, consistent and adequate to the purposes in view, with the sole defect intended to have been remedied by the 1st section of the act of 1814.

In this case, it will be observed, that there is no point whatever decided, except that the fine was constitutionally imposed upon the plantiff in error. The course of reasoning by which the judges have reached this conclusion are various, coinciding in but one thing, viz., that there is no error in the judgment of the state court of Pennsylvania.

  1. Letter from the Secretary of War to the Governor of Pennsylvania.
         "War Department, July 4, 1814.
         "Sir:--The late pacification in Europe offers to the enemy a large disposable force, both naval and military, and with it the means of giving to the war here, a character of new and increased activity and extent. Without knowing, with certainty, that such will be its application, and still less, that any particular point or points will become objects of attack; the president has deemed it advisable, as a measure of precaution, to strengthen ourselves on the line of the Atlantic; and (as the principal means of doing this will be found in the militia) to invite the executives of certain states to organize and hold in readiness for immediate service, a corps of ninety-three thousand, five hundred men, under the laws of the 28th of February 1795, and the 18th of April 1814. The inclosed detail will show your Excellency what, under this requisition, will be the quota of Pennsylvania. As far as volunteer uniform companies can be found, they will be preferred. The expediency of regarding (as well in the designations of the militia, as of their places of rendezvous) the points, the importance or exposure of which will be most likely to attract the views of the enemy, need but be suggested. A report of the organization of your quota, when completed, and of its place or places of rendezvous, will be acceptable. I have the honor to be, &c.
         (Signed)     John Armstrong."
         "P. S.--The points to be defended by the quota from Pennsylvania, will be the shores of the Delaware, Baltimore and this city."

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 15, Document 20
The University of Chicago Press