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individual, “has by the law of nature a right to judge for itself, how far its intercourse, either of a commercial or friendly sort, is likely to be detrimental to itself; so, that to cut off either or both will be no act of injustice, though it may be wrong, if causelessly done. A nation has a moral power to withhold its benevolence; and they from whom it is withheld unreasonably, though they are not treated kindly, are not injured. Now it is clear that the power of the state is not exercised with any unreasonable degree of rigour in exacting this petty service from the alien. He is permitted to reside and trade here, his life, his liberty, and his property are protected in equal degree with that of the citizen; and with what propriety can he complain? Can it be unjust to require him to support that law which protects him? Is it reasonable that he should derive all the benefit which these laws afford, and be exempt from rendering any return for the benefit? Is it just in return to the citizens of the country that he should be more favoured than they? No restraint is put on his person. He is at liberty to depart when he please. If the condition on which he is permitted to reside here be onerous, he can rid himself of the burthen by leaving the state. I think, then, it is clear, that the act of 1794, requiring aliens to do militia duty, and, consequently, subjecting them to patrol duty, is neither unconstitutional, nor against the law of nations.
The motion, is therefore, dismissed.
ARMS OF MILITIAMAN. James CrockeR vs. James Hunt. 2 M Cord, 352. The arms of a militiaman are exempted from execution by law. 263. This was an action brought against the defendant, who as sheriff, had levied upon the musket of the plaintiff, and sold it to satisfy an execution against the plaintiff. It appeared that the plaintiff was a private in a company of artillery, to which was attached no ordnance. The plaintiff was nonsuited on the ground that his arms were not exempted by the act of Congress, passed on the 8th May, 1792, providing for the national defence and establishing an uniform militia throughout the United States.
A motion was now made to set aside the nonsuit and reinstate the case on the docket.
Mr. Justice Huger delivered the opinion of the court:
By the congressional act of 1792, it is declared that every free able-bodied white male citizen, between the ages of eighteen and forty-five shall be enrolled in the militia, and that every citizen so enrolled, shall provide himself with a good musket or firelock, sufficient bayonet and belt, two spare flints, and a knapsack, and a pouch with a box therein ; and every citizen is required to appear so armed when called out to exercise or into service; and the same clause further provides that any citizen so enrolled, providing himself with the arms and accoutrements required as aforesaid, shall hold the same exempted from all suits, distress, executions, or sales for debt or for the payment of taxes. The seventh section of the act declares that to every division of militia, there should be at least one company of artillery, each private of which shall furnish himself with all the equipments of a private in the infantry until proper ordnance and field artillery is provided.
The first recited clause requires every citizen enrolled to fur. nish himself with a musket, &c. and exempts such musket, &c. from suits, &c. The second recited clause impliedly exempts a private or matross of artillery, from the necessity of furnishing himself with the equipments of a private of infantry, when proper ordnance and field artillery are provided : In this case, however, the plaintiff and his company, not having been furnished with ordnance and artillery, are required to equip themselves as infantry, and their equipments are protected by the act: Had the company been furnished with ordnance and artillery, I should even then doubt whether the plaintiff's equipments as a private of infantry, were not also exempted. The situation of the country, the improbability of artillery being ever used, the necessity of employing constantly the privates of artillery of militia as patrols, and on other duty requiring the equipments of the infant. ry, bring them within the policy and spirit of the first clause.
The motion is granted.
CIVIL PROCESS. A. KIRKPATRICK vs. Samuel Irby. 3 M Cord, 205. 264. The act of 1813, which avoids any civil process served on any person “ when he shall be called out into service or imbodied by the executive authority, or within thirty days after such person shall be discharged from the service, applies only to those cases where the militia are called out to actual service, in a state of actual warfare, or an emergency of war; and not upon an occasion like the reception of Gen. Lafayette.
COURTS MARTIAL. THE STATE vs. David L. WAKELY. 2 Nott and M-Cord, 412. The captains of militia companies, for defaults of attendance at petty mus
ters, are authorised by law to hold courts martial, without any order from
any of the field officers of the regiment. The captain, ordering the court martial, may preside as president; and is
the one to approve of the sentence of the court. A militia man is not allowed to send a substitute. · Under the act of 1808, (enacting that “every private who shall wilfully neglect to turn out at any ordinary muster, shall be fined the sum of one dollar and fifty cents, and fifty per cent. on the amount of his general tax) a sentence in these words and figures, viz. “$1 50 and 50 per cent. is sufficiently definite.
Every court, acting clearly within its jurisdiction, in a case legally submitted, is independent of all other courts, to which no appeal is given.
265. Prohibition ordered by his Honor Mr. Justice Nott, at Colurobia ; motion to reverse the order of his honor and set aside the writ of prohibition.
In this case it appeared, that David L. Wakely was captain of a militia beat company ; that for a default of Ainsley Hall, a private, in said company, in attending company muster, the said Ainsley Hall was summoned before a court martial to answer for such default. That captain Wakely presided, and two of the lieutenants of his company were members of the same; that upon the trial of the said Ainsley Hall, he was fined for said default, and an execution issued, by the said captain Wakely, to enforce the collection of the said fine.
His honor Mr. Justice Nott, granted a writ of prohibition, to restrain proceedings on the said execution, on the grounds :
1st. That the said David L. Wakely, and the other members of the court martial, were never authorised to hold said court by any order issued by any of the field officers of the regiment to which he was attached, or any other officer having authority to make such order.
2d. Because the said court martial exceeded its jurisdiction, or acted without any jurisdiction.
The defendant moved, that the said order of his honor be reversed, and that the writ of prohibition be set aside, on the grounds:
1st. That the captains of companies for defaults of attendance at petty musters, are authorised by law to hold courts martial and preside as presidents of such courts, together with their subaltern officers as members of such courts in their respective companies, without any order from any superior officer of the regiments to which they may be attached, and may enforce the sentence of their respective courts, without the same being ap-, proved of by any superior officer.
2d. Because the court martial that tried Ainsley Hall was constituted according to law, and had jurisdiction of his case, and tried the same fairly and according to law, and had a right to enforce the sentence of the court without submitting it to the approval of any other officer.
3d. Because the order for a writ of prohibition is not founded in law, and ought to be reversed, and the writ set aside.
The opinion of the court was delivered by Mr. justice Richardson.
The grounds suggested for a writ of prohibition, are,
1st. That the captain of a militia company cannot order a court martial.
2d. That the sentence of the court must be approved by some officer ordering the court.
3d. That a militia man has a right to send a substitute. This court is of opinion, that none of these grounds are tenable.
As to the 1st, the act directs simply " that &c. privates be tried by not less than three commissioned officers ;" [Miller's Mil. Law, sec. 57,] but by whom the court shall be ordered is not expressly pointed out. In order that the statute may avail, we must conclude, that the court is to be ordered by the officer commanding at the time when the default occurred; that is to say, the captain, in this case.
This construction also points out who is to approve of the sentence. The injunction Miller's M. L. sec. 57,7 is, that it shall be done by the officer ordering the court. In the instance before us, the captain in adjudging the fine, together with the rest of the court, and by his execution, of course, approved.
Upon the third ground, it is enough to say, that there is no law authorising a militia man to send a substitute, and though in general, but a reasonable indulgence, yet it is too disadvantageous to military discipline and improvement, to admit it as a general privilege, unless expressly given.
It was noticed, that the sentence being in these words and figures, to wit: “$1 50 and 50 per cent." was indefinite: But the statute See Miller 42 sec. 124,) fixes the fine at $1 50, and 50 per cent. on the general tax of the defaulter, which render the sentence intelligible.
After the other case of the Stase vs. D. L. Wakely, just now decided, and several others lately adjudged, in cases of patrol fines, militia fines, and upon proceedings by justices and freeholders between landlord and tenant, I will not repeat the doctrine of prohibition further than to repeat that every court, acting clearly within its jurisdiction, in a case legally submitted, is independent of all other courts, to which no appeal is given. Mere irregularity, insufficiency of proof, and mistaken judgments, in such cases, generally, afford matter of appeal only. But should we, under the name of prohibition, entertain appeals not expressly given to us, this court would take jurisdiction and might review all cases from inferior courts.
The motion to reverse the order is therefore granted.
FERRYMAN. Joseph Clarke ads. The State. 2 M-Cord, 47. Employing a boat between Charleston and Sullivan's Islahd, does not con
stitute the person a ferryman within the meaning of the exemptions at
common law, or the militia act, from militia duty. A person so running a boat, has not the exclusive rights of a ferryman, nor is he liable to the same restrictions.
266. This was an application brought before judge Bay, at Chambers, for a prohibition to restrain the officer from levying a militia fine
Mr. justice Bay delivered the opinion of the court :
The first ground of this application was, that the applicant was the owner of a boat which plied between Charleston and Sullivan's Island, which constituted him a ferryman.
2d. That he had a license as the master of a coasting vessel, and was sometimes employed in that service.
With respect to Clarke's first ground, I was of opinion, that employing a boat between this city and Sullivan's Island, did not constitute him a ferryman within the meaning of the exemption at common law, or the militia act, as there were at least twenty persons who employed boats of different kinds between Charleston and Sullivan's Island ; all of whom had equal rights, and that twenty more might employ boats in the same business if they thought proper. There was nothing exclusive, or which was confined to a single individual in that kind of intercourse ; it was equally open to all. Whereas, a ferryman in the understanding of the common law, and also of the militia act, was one who had the exclusive right of transporting passengers over rivers or other water courses for hire, at an established rate : And no other person could keep or employ a boat to his prejudice, either at the same place, or within a limited distance, above or below him : And he was bound, at all times, to be ready with good boats and craft, to convey passengers backwards and forwards, otherwise an action would lay against him. In the present case, however, Mr. Clarke was under no such obligation. It was merely optional in him to go and carry what and when he pleased. He could not, therefore, be considered in law as a ferryman, only as the owner of a boat, who was employed occasionally, (when he pleased,) in carrying passengers and their baggage to and from Sullivan's Island. And with regard to his being a sea-faring man, it was alleged that he had got a license from the custom-house for commanding a coaster; but when, and at what time, did not appear. Nor did it appear that he was employed in that business at the time he was summoned to do duty as a militia man. And the exemption by the militia law extends only to those who are actually employed in the seafaring business at the time of summons.
FINES. THE STATE vs. J. H. Stevens and WM. Evans, Collectors of
militia fines. 2 M. Cord, 32. All Militia fines, when collected, are to be paid over into the hands of the
regiment to which the delinquent may belong. Cases of a military nature, are very properly of military cognizance, and
ought to be submitted to and determined by the military tribunals only; and the court of Common Pleas ought not to sustain any cognizance of them, unless where the courts martial exceed their jurisdiction.
267. Motion for a prohibition to restrain the defendants from paying over to the paymaster of the 16th regiment, the amount of militia fines in their hands.
In support of this motion it was contended, that all fines imposed by a company court martial, ought to be paid over and be subject to the disposal of the captain of each company, to be by him appropriated to the purposes of said company in the pur