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1820.

Houston

v. Moore.

and District Courts; no person has ever contended that such offences are cognizable before the common law Courts. The militia laws have, therefore, provided, that the offence of disobedience to the President's call upon the militia, shall be cognizable by a Court Martial of the United States; but an exclusive cognizance is not conferred upon that Court, as it had been upon the common law Courts as to other offences, by the judiciary act. It follows, then, as I conceive, that jurisdiction over this offence remains to be concurrently exercised by the national and State Courts Martial, since it is authorized by the laws of the State, and not prohibited by those of the United States. Where is the repugnance of the one law to the other? The jurisdiction was clearly concurrent over militia men, not engaged in the service of the United States; and the acts of Congress have not disturbed this state of things, by asserting an exclusive jurisdiction. They certainly have not done so in terms; and I do not think that it can be made out by any fair construction of them. The act of 1795 merely declares, that this offence shall be tried by a Court Martial. This was clearly not exclusive; but, on the contrary, it would seem to import, that such Court might be held under national, or State authority.

The act of 1814 does not render the jurisdiction necessarily exclusive. It provides, that Courts Martial for the trial of militia, drafted and called forth, shall, when necessary, be appointed, held, and conducted, in the manner prescribed by the rules of war.

If the mere assignment of jurisdiction to a particu

1820.

Houston

Moore.

lar Court, does not necessarily render it exclusive, as I have already endeavoured to prove, then it would follow, that this law can have no such effect; unless, indeed, there is a difference in this respect between the same language, when applied to military, and to civil Courts; and if there be a difference, I have not been able to perceive it. But the law uses the expression “ when necessary ? How is this to be understood ? It may mean, I acknowledge, whenever there are delinquents to try; but, surely, if it import no more than this, it was very unnecessarily used, since it would have been sufficient to say, that Courts Martial for the trial of militia called into service, should be formed and conducted in the manner prescribed by the law. The act of 1795, had declared who were liable to be tried, but had not said with precision before what Court the trial should be had. This act describes the Court; and the two laws being construed together, would seem to mean that every such delinquent as is described in the act of 1795, should pay a certain fine, to be determined and adjudged by a Court Martial, to be composed of militia officers, to be appointed and conducted in the manner prescribed by the articles of war. These words, when necessary, have no definite meaning, if they are confined to the existence of cases for trial before the Court. But if they be construed (as I think they ought to be) to apply to trials rendered necessary by the omission of the States to provide for State Courts Martial to exercise a jurisdiction in the case, or of such Courts to take cognizance of them, when so authorized, they have an important, and a useful

1820.

Houston

V. Moore,

meaning. If the State Court Martial proceeds to take cognizance of the cases, it may not appear necessary to the proper officer in the service of the United States, to summon a Court to try the same cases ; if they do not, or for want of authority cannot try them, then it may be deemed necessary to convene a Court Martial under the articles of war, to take, and to exercise the jurisdiction.

There are two objections which were made by the plaintiff's counsel, to the exercise of jurisdiction in this case, by the State Court Martial, which remain to be noticed.

1. It was contended, that if the exercise of this jurisdiction be admitted, that the sentence of the Court would either, oust the jurisdiction of the United States' Court Martial, or might subject the accused to be twice tried for the same offence. To this I answer, that, if the jurisdiction of the two Courts be concurrent, the sentence of either Court, either of conviction or acquittal, might be pleaded in bar of the prosecution before the other, as much so as the judgment of a State Court, in a. civil case of concurrent jurisdiction, may be pleaded in bar of an action for the same cause, instituted in a Circuit Court of the United States.

Another objection is, that if the State Court Martial had authority to try these men, the Governor of that State, in case of conviction, might have pardoned them. I am by no means satisfied that he could have done so; but if he could, this would only furnish a reason why Congress should vest the jurisdiction in these cases, exclusively in a Court Martial acting under the authority of the United States.

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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

1820.

Houston

v. Moore.

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 wasa candid, spontaneous, ancillary effort in the service of the United States; and all the plaintiff in error has to coinplain 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

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