Martin v. Mott

• Decision Date: 02 February 1827
• Citation: 12 Wheat. 19,6 L.Ed. 537,25 U.S. 19
• Parties: MARTIN, Plaintiff in Error , v. MOTT, Defendant in Error
• Court: U.S. Supreme Court

25 U.S. 19

6 L.Ed. 537

12 Wheat. 19

MARTIN, Plaintiff in Error, v. MOTT, Defendant in Error.

February 2, 1827

ERROR to the Court for the Trial of Impeachments and Correction of Errors of the State of New-York.

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 the 18th of June, 1812, and from thence until the 25th of 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 the 4th day of 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 4th and 29th days of 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 the 25th day of 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

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 the 24th of 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, 24th September, 1814. General Orders. A General Court Martial, under the act of Congress of the 28th of 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 until the 13th of 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 the 30th of 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 defence 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 dollars 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 the 25th of 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 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 the 4th day of 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 dollars 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 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...