1820.

Houston

V.

Moore.

March 15th,

1819.

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

Houston

V.

Moore.

the appointment of the officers, and the authority of 1820. 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." 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. 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,

a Act of the 28th of February, 1795, c. 277. (CI.)
b Livingston v. Van Ingen, 9 Johns. Rep. 507. 565. 575.

1820.

Houston

V.

Moore.

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." Meade's case is an exam-
ple of the application of the same principle to the
very question now before the Court.' 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 Uni-
ted States' Courts of their jurisdiction, or might sub-
ject the alleged delinquents to be twice tried and pu-
nished 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, conse-
quently, 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

a Livingston v. Van Ingen, 9 Johns. Rep. 507. 565. 575.
b 5 Hall's Law Journ. 536.

between the United States and Great Britain, ratified in February, 1815, suspended and abrogated all proceedings under the State law.

1820.

pro- Houston

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 inrested 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

V.

Moore.

1820.

Houston

V.

Moore.

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." 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." 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 constitu

a Calder et ux. v. Bull et ux. 3 Dall. 399. Emerick v. Harris, 1 Binney, 416. 423. 6 Cranch, 87. Cooper v. Telfair, 4 Dall. 14. 18.

b Livingston et al. v. Van Ingen, 9 Johns. Rep. 501. 565. 573. et seq. 1 Tuck. Bl. Com. Appx. 308.