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ACT of Dec. 19, 1827. Pamphlet edit. 61. 257. Sec. I. And be it enacted, &c. That hereafter it shall Winnshor
*** ough liglit and may be lawful for any person residing within Fairfield dis- infantry trict, and liable to do militia duty, to join and become a member of the Winnsborough light infantry volunteer company, in the same manner as such person would be entitled to do, were he a resident of that regiment to which said company is attached.-[See No. 118.]
VOLUNTEER CORPS, RANK OF.
Head Quarters, Columbia, Dec. 5th, 1825. 258. A board of officers of which major general Youngblood is president, and major generals Ware and O'Neal, and brigadier generals Dawkins, Blocker, Woodbury, Irvin and Gillespie, members, and major John Mayrant, judge advocate, will assemble at the state house at 6 o'clock this evening, to settle the relative rank of the volunteer corps of the militia of this state.
J. B. EARLÉ, Adjut. and Insp. General. In pursuance of the above order, the following court was organised :
Major general Youngblood, President. Members, maj. gen. Ware, maj. gen. O'Neal, brig. gen. Gillespie, brig. gen. Woodbury, brig. gen. Blocker, brig. gen. Irvin. Major John Mayrant, judge advocate.
The board determined to hear the statements of captains Arthur and Maxcy, as being a case embraced within the above order. The following resolutions were adopted by the board :
Resolved, That it is the unanimous opinion of this board, that the corps of this state shall rank as follows:
1st. The Light or Horse Artillery.
Resolved, That it is also the unanimous opinion of this board, that in any regiment of militia, when there shall be but one corps of light infantry, and another of riflemen, that the light infantry shall occupy the right, and the riflemen the left, and when there is but one corps of riflemen, that corps shall occupy the right, and when there are two or more corps of light infantry, and two or more of riflemen, that they may be formed on the right, commencing with the light infantry.
Prest. of the Board of General Officers. J. MAYRANT, Jr. Judge Adv. to the Board of Gen. Officers.
Executive DEPARTMENT, 6th Dec. 1825. The proceedings of the above court are hereby approved by
RICHARD J. MANNING. Ordered to be published by the commander in chief.
WM. C. PRESTON, Aid.
RELATING TO THE MILITIA.
Wise vs. WITHERS. 3 Cranch, 330. 259. This was an action of trespass, vi et armis, brought by the plaintiff, a justice of the peace in the District of Columbia, against the defendant, a collector of militia fines, for entering his house and taking away his goods. Determined that a justice of the peace in the district of Columbia, is an officer of the United States, and within the letter of the exemption of the act of Congress, 8th May, 1792, and therefore not liable to perform militia duty. That the court martial had no jurisdiction over a justice of the peace as a militiaman; he could never be legally enrolled, and that it is a principle that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the offiecer who executes it. The court and the officer are all trespassers.
Houston vs. Moore. 5 Wheaton, 1. 260. The act of the state of Pennsylvania, of the 28th of March, 1814, (providing, [sec. 21] 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 the 28th of 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.
MARTIN vs. Mott. 12 Wheaton, 19. 261. The authority to decide whether the exigencies contemplated in the constitution of the United States, and the act of Congress of 1795, c. 101, in which the president has authority to call forth the militia, “ to execute the laws of the Union, suppress insurrections, and repel invasions,” have arisen, is exclusively vested in the president, and his decision is conclusive upon all other persons.
It is not necessary in such a case that it should appear in point of fact that the particular exigency actually existed. It is sufficient that the president has determined it, and all other persons are bound by his decision.
It is unnecessary to set out the orders of the president. It is sufficient to show that the governor of the state called out the militia upon the requisition of the president.
A militiaman who refuses to obey the orders of the president calling him into the public service, is liable to be tried for the offence under the 6th section of the act, 1795.
It is not necessary that the court martial for the trial of delinquents under the act of 1795, should be composed of the precise number of officers required by the rules and articles of war for the composition of general courts martial in the army.
A court martial regularly organised under the act of 1795, does not expire with the termination of a war then existing,
Although a militia man, who refused to obey the orders of the president, calling him into the public service under the act of 1795, is not, in the sense of that act, “ employed in the service of the United States," so as to be subject to the rules and articles of war; yet he is liable to be tried for the offence under the 5th section of the same act, hy a court martial called under the authority of the United States.
Where, in an aciion of replevin, the defendant, being a deputy marshal of the United States, avowed and justified the taking the plaintiff's goods, by virtue of a warrant issued to the marshal of the district, to collect a fine imposed on him by the judgment of a court martial, described as a general court martial composed of officers of the militia of the state of New-York, in the service of the United States, (six in number, and naming them,) duly organised and convcned, by general orders, issued pursuant to the act of Congress of February 28, 1795, c. 101, for the trial of those of the militia of the state of New-York, ordered into the service of the United States in the third military district, who had refused to rendezvous and enter into the service of the United States, in obedience to the orders of the commander in chief of the state of New York, of the 4th and 29th of August, 1814, issued in compliance with the requisition of the president, made id pursuance of the same act of Congress, and alleging that the plaintiff, being a private in the militia, neglected and refused to rendezvous, &c., and was regularly tried by the said general court martial, and duly convicted of the said delinquency : Held, that the avowry was good.
. CASES Determined in the Constitutional Court and Court of Appeals
RELATING TO THE MILITIA.
ALIENS. J. D. Ansley, a British subject, vs. George TIMMONS, collector
of fines. 3 MCord, 329. The act of 1794, requiring aliens to do militia and patrol duty, is neither
against the constitution of the United States, nor against the Laws of Na
tions. The constitution of the United States has not given to Congress the abso..
lute and exclusive control over the militia of the states. It seems. the power given to Congress, by the 8th section of the first article
of the constitution, is of a limited nature and confined to the objects specified in the clauses, and in all other respects and for all other purposes, the militia are subject to the control and government of their respective states.
262. This was an application to judge Bay for a prohibition to restrain the fine collector, of the 17th regiment of militia, from collecting a fine, imposed by a court martial on J. D. Ansley, a British subject, following the occupation of a merchant, for nonperformance of ordinary militia duty. The 23d clause of the militia act, under which the relator was required to do militia duty, is as follows: “Whereas a doubt has arisen, whether aliens and other transient persons, who have resided or may reside in this state, for a considerable length of time, and enjoy the benefit and advantage resulting from the organization of the militia of this state, are liable to do militia duty, and whereas it is but just and reasonable, that those whose property is secured by the care and watchfulness of the community in which they reside should contribute to its protection : Be it enacted by the authority aforesaid, that all free white aliens, or transient per