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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)]

[Houston v. Moore continued
Return to pages 1-31 (Majority opinion).
Currently at 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).]

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 militia man 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 should 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.

Mr. Justice Johnson. 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 (p.33)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 cognizance 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 (p.34)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 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 recognized and preserved. Witness also the crime of robbing the mail on the highway, which is unquestionably cognizable 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. (p.35)The safety of each is so worked up with that of all the States, and the honour and peculiar safety of a particular State may so often be dependant 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 cognizable in its own Courts, or in those which derive their right of holding jurisdiction from the offended government.(p.36)

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 guaranty 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 favour 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 (p.37)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 dependant 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 dependant 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 (p.38)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 purposes of general defence, it is believed, that in no instance has it been done otherwise than by requisition, the only mode practised toward 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.[38.a] The words made use of are: "The President (p.39)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 as 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 (p.40)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 favourable. 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, (p.41)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; (p.42)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 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 (p.43)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, every thing 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 recognizes 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 (p.44)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 connexion 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, (p.45)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 can not, 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 honourable 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 as far as the laws of the United States were defective, or not brought into operation. And to vindicate her disinterestedness, she even gratuitously (p.46)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 candour.

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, 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, [paragraph continues next page]

[Return to pages 1-31 (Majority opinion).
Currently at 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).]

[38.a] Letter from the Secretary of War, to the Governor of Pennsylvania.

"War Department, July 4, 1814.


"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 enclosed 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 honour to be, &c.


"P.S. The points to be defended, by the quota from Pennsylvania, will be the shores of the Delaware, Baltimore, and this city."