Gowell v. True , 17 Me. 32 ( 1840 )

The opinion of the Court was by

Weston C. J.

The act of Congress of 1792, 2d Cong. 1st Sess. c. 33, to provide for the national defence, by establishing an uniform militia throughout the United States, required that every citizen, liable to be enrolled in the militia, should provide himself with the necessary arms and equipments, within six months after notice of his enrolment, and being so armed and equipped, he is liable to be called out, trained and exercised, at such times and places, as may by law be duly appointed.

In the case of the Commonwealth v. Annis, 9 Mass. R. 31, it was decided, that the period of six months, allowed by this statute, was not taken away by the subsequent stat. of 1803, 7 Cong. 2 Sess. c. 68. And this decision was sustained in the case of Haynes v. Jenks, 2 Pick. 172. In the latter case it was held, that the citizen so enrolled was not required to appear at military trainings or reviews, until after the termination of the six months. It was however very strongly intimated, that this immunity is to be limited to the first, or original enrolment.

The case finds, that the plaintiff in error was first enrolled in the company of which the defendant in error was clerk, on the 29th of August, 1838, having lived within the hounds of that company over four years, from the age of seventeen. Ho did not appear at the military training, duly ordered on the eleventh of September, the next month following his enrolment, and for this alleged delinquency, he was adjudged liable to a penalty. This could not have been incurred, until the lapse of six months from his enrolment, unless he had been previously enrolled. It is urged, that his enrolment in the rifle company, took away this immunity.

If that enrolment was in conformity with law, it would protect him from the penalty sought to be recovered, for it appears that he did duty in that company, on the very day when he was required to appear in the standing company. But the enrolment in the rifle company, not having been made in pursuance of law, was a nullity. His liability to be enrolled in the other company, and the duties consequent thereon, remained unaffected. As it gave him no rights, it impaired none, which he was entitled to claim. His first legal binding enrolment, not having been made six months before the training, at which he is alleged to have been delinquent, the penalty or forfeiture claimed, cannot legally be recovered.

Judgment reversed.