Page:United States Statutes at Large Volume 2.djvu/742



The President is the sole and exclusive judge whether the exigency has arisen, in which he is authorized to call out the militia. Ibid.Where a party justifies, in an action against him, under the orders of the President calling out the militia, it is not necessary that he should aver in his pleadings, that the exigency had actually occurred; it is sufficient that the President has so decided, and has issued his orders; and if the fact of the existence of the exigency were averred, it might be traversed. Ibid.Nor is it necessary to set forth the orders of the President at large; it is sufficient to state that the call made by the governor of the state was in obedience to the orders of the President. Ibid.A requisition from the President upon the governor, is an order, in legal intendment. Ibid.A militia man who refuses to obey the order of the President, calling him into public service, is liable to be tried for the offence, under the 5th section of the Ibid.The 64th of the rules and articles of war, enacted by the, which provides that general courts martial may consist of any number of commissioned officers, from five to thirteen inclusively, but they shall not consist of less than thirteen where that number can be convened without manifest injury to the service, being in a matter submitted to his sound discretion, is conclusive. Ibid.This article, however, is not obligatory in cases where the court martial is convened to try militiamen who have neglected to obey the orders of the President, calling them into public service.Where there is no positive statutory regulation as to the number of persons of whom the court is to be constituted, reference must be had to the general usage of the military service, or what may be called the customary military law. Ibid.Courts martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding by this customary military law in the absence of positive enactment. Ibid.In a case out of the operation of the articles of war, the sentence of a court martial, which has been approved by the President, is sufficiently approved. Ibid.A court martial regularly called under the, does not expire with the termination of the war then-existing; nor is its jurisdiction to try offences in any way dependent upon the fact of war or peace. Ibid.Where, in an action of replevin, the defendant being a deputy marshal of the United States, avowed and justified the taking of the plaintiff’s goods, by virtue of a warrant issued to the marshal of the district, to collect a fine imposed 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 organized and convened by general orders issued pursuant to the, 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 order 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 in 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 marital, and duly convicted of the said delinquency: Held, that the avowry was good. Ibid.Alien enemies, who had enrolled themselves as volunteers, and been accepted by the President, under the, are not entitled to a discharge on the ground of such alienage; there being no law enjoining the President from accepting their services. Wilson et al. v. Izard et al., Paine’s C. C. R. 68.It seems that the President had a right to accept volunteers to serve at a particular post, as well as for general service; the act being silent on the subject: at any rate, he had a discretion on the subject, not to be controlled by a court of justice. Ibid.The insertion in the enrolment, of the officer’s name, under whom the volunteers were to serve, was meant merely to ascertain the post where they were to serve, by designating its commander; and not to attach them to his personal command, so that he could not be changed. Ibid. United States be, and he is hereby authorized to require of the executives of the several states and territories, to take effectual measures to organize, arm and equip, according to law, and hold in readiness to march at a moment’s warning, their respective proportions of one hundred thousand militia, officers included, to be apportioned by the President of the United States, from the latest militia returns in the department of war; and, in cases where such returns have not been made, by such other data as he shall judge equitable.

. And be it further enacted, That the detachment of militia aforesaid, shall be officered out of the present militia officers, or others, at the option and discretion of the constitutional authority in the respective states and territories; the President of the United States apportioning the general officers among the respective states and territories, as he may deem proper: and the commissioned officers of the militia, when called into actual service, shall be entitled to the same pay, rations and emoluments as the officers of the army of the United States.

. And be it further enacted, That the said detachment shall not be compelled to serve a longer time than six months after they arrive at the place of rendezvous; and during the time of their service the non-commissioned officers, musicians and privates, shall be entitled to the