B. JUDICIAL OPINIONS

1. MILITARY AND CIVIL JURISDICTION CONTRASTED-WAR POWERS

(a) State and Federal Military Powers and Relations

1. HOUSTON v. MOORE.

(Supreme Court of the United States, 1820. 5 Wheat. 1, 5 L. Ed. 19.) 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 State, on the ground of its repugnancy to the constitution and laws of the United States, and the decision was in favor 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-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 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 ap-. pointed 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 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, (1 Stats. at Large, 85.) This cause was argued at the last term, and continued to the present term for advisement.

The judgment of the court was delivered at the present term by WASHINGTON, J., 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, (1 Stats. at Large, 259,) which is reënacted 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 certain fine, to be determined and adjusted by a court-martial, and to be imprisoned, by a like sentence, on failure of payment. The courtsmartial 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, (3 Stats. at Large, 134,) provides that courts-martial, 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, (1 Stats. at Large, 271,) for establishing a uniform militia in the United States. It declares who shall be subject to be enrolled in the militia and who shall be exempt; what arms and accoutrements the officers and privates shall provide themselves with; arranges them into 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 3d (2d?) of January, 1795, (1 Stats. at Large, 408.)

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.

The

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. 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, 2. 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 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 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 militia-men, and for their families, in case of their death, are, by other laws, confined to such militia as are, or have been, in actual service. There are other laws which seem very strongly to indicate the time at which they are considered as being in service. Thus, the act of the 28th of February, 1795, declares, that a militiaman called into the service of the United States, shall not be compelled to serve more than three months after his arrival at the place