U.S. Supreme Court
Houston v. Moore, 18 U.S. 1 (1820)
Houston v. Moore
18 U.S. 1
The Act of the State of Pennsylvania, of 28 March 1814, providing (section twenty one) that the officers and privates of the militia of that state neglecting or refusing 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 Congress of 28 February, 1795, c. 277, or to any penalty which may have been prescribed since the date of that act, or which may hereafter be prescribed by any law of the United States, and also providing for the trial of such delinquents by a state court martial, and that a list of the delinquents fined by such court should be furnished to the marshal of the United States, &c., and also to the Comptroller of the Treasury of the United States, in order that the further proceedings directed to be had thereon by the laws of the United states might be completed, is not repugnant to the Constitution and laws of the United States.
This was a case where was drawn in question the validity of a statute of that chanroblesvirtualawlibrary
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 28 March, 1814, and enacts, among other things (sec. 21), that every noncommissioned 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 28 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 the 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 4 July, 1814. Being duly notified and called upon, he neglected to march with the detachment to the appointed 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 from 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 chanroblesvirtualawlibrary
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. chanroblesvirtualawlibrary