Haynes v. JenksHaynes v. Jenks
dissenting. The liability of the respondent to the forfeiture created by law for a neglect of military duty, depends upon the construction to be given to the provisions in the statutes of the United States, recited in the act of this commonwealth for regulating, governing and training the militia, which relate to the enrolment of the citizens, and the opportunity subsequently afforded them for military equipment. Had the question involved in the issue of the cause been entirely original, and now for the first time presented for judicial consideration, I should have entertained less apprehension of mistake and error in the opinion, upon which, after the best examination I have been able to make, my mind rests with the most satisfaction. The issue of the cause as between the' parties to it is but of little consequence, but the decision which is had will be of constant application to the condition of the citizens of this commonwealth, in relation to the discharge of a most important public duty, and from its bearing upon laws of common obligation in every State of the Union, will be regarded with interest and examined with care elsewhere, and most probably by other judicial tribunals. It has been from this consideration, that more time has been given to advising upon the case than is usual, and more of regret is now entertained at an ultimate diversity of opinion, than upon subjects of less extensive influence.
The law of the United States passed in 1792, upon the
By this explicit enactment, which is still in force and has never been modified by the legislature, nor received any other than a literal construction, a citizen of the description mentioned in the statute becomes liable to enrolment immediately upon arriving at the age of eighteen years. Upon the facts in the case before us, there can be no doubt therefore that the respondent was rightfully enrolled in the company of which the petitioner was clerk, at the time of his notification to do military duty, and if he is not excused by law for his neglect of appearance, he has incurred the forfeiture, for the recovery of which the original complaint was filed. The statute before cited, in the same section, but in a distinct and entirely independent clause, provides, that every citizen so enrolled shall, within six months after he is notified of his enrolment, provide himself with the arms and equipments, which are particularly enumerated, and shall appear so armed and equipped, when called out to exercise or into service ; and it has been argued that this provision dispenses with his personal appearance for the period of six months after his enrolment. This construction of the statute of 1792 may be sound and defensible, for it is most obvious, as judicially held in the case of the Commonwealth v. Annis,
But it has been argued, that the additional act of 1803, does not repeal the provision of the statute of 1792, which allows six months to the soldier, after notice of enrolment, to 'be provided with arms and equipments, and that as the laws both of the United States and of this commonwealth require that he should appear armed and equipped when called out for military exercise, it would be absurd to enforce his personal appearance within the period which the law allows to him to procure his arms and equipments. This objection would have much weight, were the construction admitted, that the indulgence of six months given by the act of 1792 was continued after the passage of the additional act of 1803. It is true that in the latter statute there are no express words of repeal, but if the view I have taken of the provisions of the different statutes is correct, there is a repugnancy and contradiction between them, which upon the well known principles of law will operate a virtual repeal of the former enactment, so far as it respects the same
Parker C. J., after these opinions were delivered, expressed a decided opinion, that the six months’ indulgence was applicable to the first enrolment only ; and intimated that where the age of the party coming into the bounds of a company, and other circumstances, would justify the presumption, it probably would be presumed, that what the law requires had been done in the company from which he came. He also stated that he considered the main question to have been decided twelve years ago, in the case of Commonwealth v. Annis.
Petitioner takes nothing by his petition.
Notes
King v. Middlesex, 2 Barn. & Adol. 818; Commonwealth v. Cromley, l Ashmead, 179.