Stone v. Osgood , 16 Me. 238 ( 1839 )

The opinion of the Court was by

Weston C. J

By the constitution of the United States, Congress has power to provide for organizing, arming and disciplining the militia. This power was exercised in May, 1792, and the act of Congress then passed, has been inserted in the general revision of the laws, in relation to the militia. In the first section, Congress has determined, who shall be liable to do military duty, how and where they shall be enrolled, and with what arms and equipments, they shall be provided. And it makes provision further for the enrolment of every such citizen, who may, from time to time, come to reside within the bounds of any company, by the commanding officer thereof. This part of the statute has received, in Massachusetts, a judicial construction, both before and since our separation. And it has there been held, that the temporary absence of a citizen, liable to do military duty, from the place of his domicil, not only left his enrolment there in full force, but that he was not liable to enrolment in the place of his temporary residence. Commonwealth v. Walker, 4 Mass. R. 556; Commonwealth v. Swan, 1 Pick. 194. We refer to those cases, as giving, in our judgment, a just exposition of the law.

And wc are of opinion, from the facts stated, that at the time of the delinquency charged, the domicil of the plaintiff in error was at Salem; and that his residence at Bangor was temporary only, at the time of his enrolment there. It results, that he is not liable to the fine sought to be recovered in this action.

Judgment reversed.