Martin v. Mott
25 U.S. 19

Annotate this Case

U.S. Supreme Court

Martin v. Mott, 25 U.S. 12 Wheat. 19 19 (1827)

Martin v. Mott

25 U.S. (12 Wheat.) 19

Syllabus

The authority to decide whether the exigencies contemplated in the Constitution of the United States and the Act of Congress of 1795, ch. 101, in which the President has authority to call forth the militia, "to execute the laws of the union, suppress insurrections, and repel invasions" have arisen is exclusively vested in the President, and his decision is conclusive upon all other persons.

Although a militia man who refused to obey the orders of the President calling him into the public service under the act of 1795 is not, in the sense of that act, "employed in the service of the United States" so as to be subject to the rules and articles of war, yet he is liable to be tried for the offense under the fifth section of the same act by a court martial called under the authority of the United States.

Where, in an action of replevin, the defendant, being a deputy marshal of the United States, avowed and justified the taking the plaintiff's goods by virtue of a warrant issued to the marshal of the district to collect a fine imposed on him 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 Act of Congress of February 28, 1795, ch. 101, 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 orders of the commander in chief of the State of New York of 4 and 29 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 martial and duly convicted of the said delinquency, held that the avowry was good.

It is not necessary that the court martial for the trial of delinquents under the act of 1795 should be composed of the precise number of officers required by the rules and articles of war for the composition of general courts martial in the army.

A court martial regularly organized under the act of 1795 does not expire with the termination of a war then existing.

This was an action of replevin, originally brought in the supreme court of New York by the defendant in error Mott against the plaintiff in error Martin to which an avowry was filed, containing substantially the following allegations:

That on 18 June, 1812, and from thence until 25 December, 1814, there was public and open war between the United States of America and the United kingdom of Great Britain and Ireland and its dependencies and the citizens and subjects of the said countries respectively, and that during the continuance of the said war, to-wit, on 4 August, 1814, and also on the 29th day of the same month, in the same year, at the City of New York, to-wit, at Poughkeepsie, in the County of Dutchess, his Excellency Daniel D. Tompkins, Esq., was then and there Governor of the State of New York and Commander-in-Chief of the militia thereof, and being so governor and commander-in-chief, he, the said Daniel D. Tompkins, as such governor and Commander in Chief, on the several days last aforesaid, and in the year aforesaid, and at the place aforesaid, upon the previous requisitions of the President of the United States, for that purpose made, and to him directed, as such governor and commander-in-chief, did issue two several general orders, bearing date respectively on the said 4 and 29 August in the year aforesaid, in and by which said two general orders, among other things, the said Daniel D. Tompkins, as governor and commander-in-chief as aforesaid, pursuant to such requisitions, and in compliance therewith, did detail certain parts and portions of the militia of the state, as he was required to do in and by the requisitions of the President of the United States, as aforesaid, and did order the militia so detailed into the service of the United States of America, at the City of New York, within the Third Military District of the said United States, as in and by the said two general orders may more fully appear. That the said Jacob E. Mott, on the several days and in the year aforesaid and until 25 December in the same year, being a white citizen of the said State of New York, inhabiting and residing within the same, and between the ages of eighteen

Page 25 U. S. 21

and forty-five years, was liable to do military duty in the militia of the said state and was a private in the militia of the said state that was so detailed and ordered into the service of the United States aforesaid, and as such private in said militia was bound to do military duty in the militia of the said state so detailed and ordered into the service of the United States in the Third Military District of the United States. That on 24 September, 1814, Morgan Lewis, Esq. was a Major General, commanding the army of the United States, of the Third Military District of the said United States, in which district the militia of the State of New York, detailed and ordered into the service of the United States as aforesaid, had been ordered to do military duty in the service of the United States. And the said Morgan Lewis, so being a Major General, and commanding as aforesaid, did, on the day, and in the year last aforesaid, as such major general and commander, issue general orders to convene a general court martial for the purpose in the said orders expressed, composed of so many and such militia officers in the service of the United States in the said Third Military District as in the said orders are mentioned, it having been then and there considered and adjudged by the said Morgan Lewis that a greater number of officers than those detailed on the said court martial could not be spared from the service of the United States without manifest injury to the said service, which said general orders are in the words and figures following, to-wit:

"Adjutant General's Office, 3d M.D. New York, 24 September, 1814. General Orders. A General court martial, under the Act of Congress of 28 February, 1795, 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 have failed to rendezvous pursuant to orders, will convene on Monday, the 26th instant at Harmony Hall, and will consist of the following members, [enumerating them, being six in number], which General court martial was continued (although varied as to its members) by various general orders set out in the avowry

Page 25 U. S. 22

until 13 May, 1818."

That the said J. E. Mott, being so liable, &c., did fail, neglect, and refuse to rendezvous and enter into the service of the United States in obedience to the orders issued by the governor of the state on the requisition of the President of the United States and in compliance therewith. That on 30 May, 1818, the said court martial convened at Poughkeepsie, within the said Third Military District, at which time and place, the said Jacob E. Mott was duly summoned to appear before the said court martial, and did then and there appear before the said court martial and make his defense to the charges alleged against him a aforesaid. That the said General court martial then and there tried the said Jacob E. Mott for having failed, neglected, and refused to rendezvous and enter into the service of the United States in obedience to the orders aforesaid, issued in compliance with the requisition aforesaid, and after hearing the proofs and allegations as well on the part of the United States as on the part of the said Jacob E. Mott, then and there convicted the said Jacob E. Mott of the said delinquency, and thereupon the said General court martial imposed the sum of $96 as a fine on the said Jacob E. Mott for having thus failed, neglected, and refused to rendezvous and enter into the service of the United States when thereto required as aforesaid. That before the said last mentioned day, to-wit, on 25 December, 1814, a treaty of peace was made and concluded between the United States and the United kingdom of Great Britain and Ireland and its dependencies, and that the said Morgan Lewis, and Daniel D. Tompkins, the major generals who issued the orders organizing, convening, and continuing the said general court martial as aforesaid, were not continued as such major generals as aforesaid in the service of the United States aforesaid at the time herein next afterwards mentioned, nor was there any other officer of equal grade with the said last mentioned major generals in the service of the United States commanding in the military district aforesaid at the time the said court imposed the fine and sentence aforesaid

Page 25 U. S. 23

on the said plaintiff as aforesaid by whom the said sentence could be approved, but that the said fine, sentence, and proceedings of the said court martial, so far as they related to the case of the said Jacob E. Mott, were duly approved by the President of the United States before the same were certified by the President of the court martial aforesaid, to the Marshal of the Southern District of the State of New York, as hereinafter mentioned, and before 4 June, 1814. That the President of the said general court martial, afterwards, to-wit, on the day and year, and at the place last aforesaid, in pursuance to the statute of the United States in such case made and provided, did make a certificate in writing whereby he did, under his hand, certify to the Marshal of the Southern District of New York that the sum of $96 was imposed as a fine on said Jacob E. Mott for having thus failed, neglected, and refused to enter the service of the United States when hereunto required as aforesaid, and that the said Jacob E. Mott was sentenced by the said General court martial, on failure of the payment of said fine imposed on him, to twelve months' imprisonment.

The avowry then proceeded to state the authority of the plaintiff in error, Martin, as deputy marshal, to execute such certificate, and that in the execution thereof he took the said goods, &c.

To this avowry the plaintiff in replevin demurred, and assigned the following causes of demurrer:

"1. The said defendant, in his said avowry, does not allege that the President of the United States had adjudged that there was an invasion or imminent danger of an invasion, or that any of the exigencies had occurred in which the President is empowered to call out the militia by the Constitution of the United States."

"2. The said defendant in the said avowry does not aver that any such previous requisition upon the governor was in fact made by the President of the United States; no such requisition is set forth, nor is the date or substance thereof,

Page 25 U. S. 24

or the number of militia thereby required, stated in the said avowry."

"3. The said avowry does not state that the said militia were ordered into actual service in compliance with such requisition, nor does it appear that the militia were required by said requisition to rendezvous or act within the Territory of the United States."

"4. The said avowry does not sufficiently show or set forth either the particulars or substance of the said orders of the Governor of the State of New York in the said avowry mentioned in such manner that it can appear whether the said orders, or either of them, directed all those of the militia called out thereby to rendezvous or enter the service of the United States upon the requisition of the said President solely, or whether the said orders also called out a part of the same militia by, under, and pursuant to the authority and laws of the State of New York, without the requisition of the said President, and without designating which were ordered to rendezvous and enter the service by the said respective authorities."

"5. The said avowry does not show that the two said several orders of the governor were cumulative, explanatory of, auxiliary to, or in any way connected with each other, nor whether both of the said orders embraced the same or different persons and required the same or different duties, nor with such certainty that it can appear whether a disobedience of the other or both of the said orders would be the same, a different, or an additional offense, subject to the same or different jurisdiction, nor does it state the number of the militia called out by the said orders, so that it can appear whether in that respect the said orders were in compliance with the requisitions of the President, nor by which of the said orders the said plaintiff was called forth into the service of the United States, in all which the said avowry is uncertain and insufficient."

"6. The said avowry is double and uncertain inasmuch as therein the said plaintiff is charged with having committed two several offenses in the disobedience of the two said several

Page 25 U. S. 25

orders of the governor, without showing that both offenses were necessary for the trial and conviction of the said plaintiff, or any reason why the said orders should be so blended together, and because the said orders are so blended together without showing any dependence upon each other or any connection between them."

"7. The general orders in the said avowry set forth, under and by virtue of which the said court martial was convened, and tried, convicted, and fined the said plaintiff, are deficient, uncertain, vague, inoperative, void, and of no effect, and conferred upon the said court martial, or the members thereof, no jurisdiction over the said plaintiff, or the offense with which he is charged in the said avowry, inasmuch as the said last mentioned general orders convened said court martial for the 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 failed to rendezvous pursuant to orders, without specifying in any manner when, by whom, to whom, or by what authority or in what manner such orders should have been issued in regard to the said militia, or when such militia had failed to rendezvous, or whether the orders pursuant to which said militia should have failed to rendezvous were the same orders calling said militia into service in said Third Military District or required them to rendezvous elsewhere or otherwise."

"8. The said defendant in his said avowry states that the said court martial was duly convened in pursuance of the said several general orders, in the said avowry set forth on 24 October, 1814, a day long before the last of the said general orders, by which the said court is stated to have been duly convened, was issued, as appears by the said avowry, all which is repugnant and contradictory."

"9. The orders for convening the said court martial, as in the said avowry set forth, are further uncertain because by the said orders, the said court martial is stated to have been convened under the Act of Congress of 28 February, 1795, without showing which of the acts of Congress of that date is intended. "

Page 25 U. S. 26

"10. The trial of the said plaintiff by the said court martial, as appears by the said avowry, was in a time of profound peace."

"11. The said court martial had no power or authority under the said general orders by which they were convened, to try, convict, and fine the said plaintiff, for having failed, neglected, and refused to rendezvous and enter the service of the United States, in obedience to the orders aforesaid, issued in compliance with the requisitions aforesaid."

"12. The said court martial, consisting of less than thirteen members, had no power nor authority to try, convict, and fine the said plaintiff, at the time said trial was had, it being a time of peace, without showing that thirteen militia officers could not at that time be spared without manifest injury to the service."

"13. By the said avowry it doth not appear whether all or how many of the persons detailed by the said general orders as members of the said court martial, continued to remain in the service of the United States at the time when the said plaintiff was tried, or that the places of such as had resigned were supplied by others appointed in their stead, or in what manner the said court was duly convened, or of how many members it was then composed, and whether all the persons who acted as members of the said court martial, at the time when the said plaintiff was tried, were then commissioned officers of the militia of competent rank and in the service of the United States."

"14. The said avowry does not allege that the orders by which the said court martial was continued in service until further orders remained still unrevoked at the time when the said plaintiff was tried."

"15. The said avowry does not show in what manner, when, or by whom the said plaintiff was duly summoned to appear before the said court martial."

"16. The said avowry does not show at what time the said Morgan Lewis and Daniel D. Tompkins were discontinued, nor but that they were such major generals commanding as aforesaid, on the said 13 May, 1818, nor

Page 25 U. S. 27

but that at the time of the said trial there was a major general of equal rank with the said Morgan Lewis and Daniel D. Tompkins commanding an army in the service of the United States or some other officer of competent authority in some military division of territory comprising the said Third Military District by whom the sentence of said court martial could have been approved."

"17. By the said sentence of the said court martial as the same is in the said avowry set forth, the said Gerard Steddiford, president of the said court, had no power or authority to issue such a certificate as is in the said avowry mentioned, inasmuch as the said certificate is variant from the said sentence."

"18. The said defendant does not in his said avowry allege that the said plaintiff ever was in the service of the United States before, at the time when, or after the said orders of the governor of 4 and 29 August, 1814, were issued or at the time when the said orders for detailing the said court martial were issued, when said court martial convened, or when the said trial took place and the said fine was imposed."

"19. The said certificate of the said Gerard Steddiford, as in the said avowry set forth, does not show with sufficient certainty by what court, or by whom, or by what authority the said fine was imposed, nor does it appear that the said Gerard Steddiford made the said certificate, as such president of the said court martial, or signed the same in his official capacity."

"And also that the said avowry is in other respects uncertain, informal, and insufficient, &c."

The defendant in replevin (now plaintiff in error) joined in demurrer, and judgment was rendered in behalf of the plaintiff in replevin, in the supreme court, which was affirmed by the Court for the Trial of Impeachments and Correction of Errors.

The cause was then brought before this Court, by writ of error under the 25th section of the Judiciary Act of 1789, c. 20.

Page 25 U. S. 28

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