PAYMENT OF THE FLORIDA MILITIA.

The government is not bound to pay such of the Florida militia as disbanded voluntarily, and without authority, and refused to render service.

Nor is the government bound to pay such as were mustered, and then directed to repair to their homes, to remain in readiness to serve at a moment's notice.

The disbanding was a virtual discharge from actual service; and, during such discharge, they were not entitled to pay as soldiers of the United States.

OFFICE OF THE ATTORNEY GENERAL,

October 30, 1841.

SIR: Your letter to me of the 28th instant, which I had the honor to receive yesterday, is in the following words: "In pursuance of the verbal request made by you this morning, I proceed to state what I conceive to be the questions involved in the dispute that has arisen respecting the payment of the Florida militia. The main question is, whether the United States are bound to pay militia for the time intervening between their being mustered into service and their being discharged formally, without inquiry into the fact of their having actually served during such intervening time? This question subdivides itself into two: 1st, whether the government is bound to pay such militia as shall have disbanded voluntarily, and without authority, and refused to render service? and, 2d, whether the government is bound to pay such militia as were duly mustered, and then directed, by competent authority, to disband and repair to their homes, and remain in readiness to serve at a moment's notice?"

I had, in compliance with your previous request, considered the subject of the claim for payment of the Florida militia, as it was exhibited in the papers of the proper officers which accompanied that request, and in a written argument in favor of the claim, submitted to me by the Hon. Mr. Levy, delegate of the Territory. The subject has challenged from me a degree of attention proportioned to its novelty in one of its aspects, and to its gravity and importance in all. Neither have the difficulties I have felt in regard to it, considered as a mere question of law, been at all diminished by the precedents which I have succeeded in hunting up in the course of my researches. There is no opinion, so far as I have been able to discover, on the records of this office, on the very points stated in your letter. One of my learned predecessors, indeed acting in another capacity, did, I find, (see record in your office,) pass upon a similar claim in his capacity of Acting Secretary of War, and allowed it. This was in the case of the Tennessee militia called out in the summer of 1836, and discharged or disbanded by General Wool, under an express order that they "should return to their homes and there wait, without pay, the further orders of the President, or the commanding officer for the time being." Afterwards, by the interference of one of the representatives from Tennessee, the claim of the military to pay, after this order of dismissal, was pressed upon the Department of War; and, on the 29th December of the same year, the Acting Secretary, Mr. Butler, on a full examination, as he himself states, of the whole case, and upon reference had to former precedents, decides that notwithstanding the express condition imposed by the order of General Wool when they were disbanded, and notwithstanding the admitted fact, as it should appear, that they had rendered no further service during the time for which compensation was claimed, full pay

should be allowed them. You are respectfully referred to the documents. in that case, which will speak for themselves. As to the precedents alluded to, but not cited by Mr. Butler, I have had no means of looking into them, and so am quite unable to say how far they might be (in my view of the case) fairly entitled to the weight which is conceded to them in the judgment of that gentleman. This circumstance I regret the more, not only because, with all my respect for his learning and ability, I feel myself under the painful necessity of dissenting from the opinion by which he has explicitly sanctioned them, but because one of those precedents happens to stand out in strong relief in our history, and to convey to us, as I have always understood, an admonition from pre-eminent authority in questions of military service and duty altogether irreconcilable with the precedent in question. General Jackson raised, in 1812, a voiunteer corps of militia, which, in December of that year, was mustered into the service of the United States. With this corps he repaired to Natchez, and was scarcely arrived there when he was directed by the Secretary of War to discharge his troops. This the general refused to do, but, having led them back to Tennessee, disbanded them in the spring of 1813. In the autumn of the same year they were again called out, and, having been in service until December, they claimed their discharge, on the ground that, by the act of February 6, 1812, the volunteers received into the service of the United States were bound to continue in service only for the term of twelve months after they should have arrived at the place of rendezvous, unless sooner discharged. This they claimed to have done, and were breaking up, when their general opposed their movement, and kept them in arms for a while by a display of military force, insisting that the service intended by the statute was a bona fide military service, and that their obligations to the government were not fulfilled by the mere lapse of twelve months between their first muster and their last. This was the opinion of a soldier speaking the sense of what was due from a soldier under a contract of service, and weigh with me, I confess, infinitely. I have not been able to ascertain what was the definitive decision of the government in reference to this case, but have been informed that these troops received no pay except for the term of actual service. You will, of course, employ the more effectual means which are at the disposal of your department to verify the facts. The precedent is too important to be omitted. Should it be found, on examination, that the opinion of the Acting Secretary of War, in 1836, only conformed to and confirmed that of the Executive at so distant a period, and under circumstances so well fitted to give it authority, I should scarcely undertake to advise you to set up a new rule. But if, as I cannot but be persuaded, it turns out that the decision then was flagrante bello, to pay for nothing but actual service, in the strict sense of that word, then I should have no hesitation in saying that the precedent of 1836 ought to be overruled.

I will now state, as briefly as possible, some of the reasons that have led me to that conclusion. The constitution of the United States, in its fifth amendment, has the following express provision: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except-first, in cases arising in the land or naval forces; or, second, in the militia, when in actual service, in time of war or public danger." Whatever power the Executive or Congress itself may have over the militia, it is quite clear that, under

this amendment, no militiaman can be subjected to martial law, except he be in actual service; and that, under circumstances requiring actual service, no act of the legislature, no instructions from the Executive, no order of any general officer, can place a citizen under the responsibilities of a soldier, except when a pressing exigency requires actual military service, and then only so long as it does require such service.

It strikes me at the very outset as a confusion of all the landmarks of the constitution, to create a condition of service to which the law of war, and the powers of the federal government arising out of it, are clearly inapplicable, and yet to call that actual service according to the constitution. The idea is, that a body of militia once mustered, may be immediately disbanded and sent home, and that they are still subject to martial law, provided only they be ordered at some future day, and on some remote contingency, once more to assemble, in order to be discharged. Thus, under the acts of Congress, volunteers are held to service twelve months; every day of this time, according to this notion, they may be scattered over the country, engaged in their ordinary avocations-keeping lighthouses, arguing causes, &c.-and yet all that time be in actual service, and subject to the rules and articles of war, and liable to be tried, not by a jury, but by a court martial I have very little doubt that, if ever a trial under such circumstances should occur, this whole system of nondescript service would be pronounced unconstitutional. I feel strengthened in this conclusion by all the analogies of our legislation on the subject of military service, as well as by the judicial authorities. Thus it has been ruled that it is only when called out into actual service that the militia are subjected to the exclusive control of the federal authorities. Until detachments from it have been actually mustered, to be subjected in a solemn and authentic form to the articles of war, as in the parallel case of voluntary enlistment, the body of the people, armed and disciplined in self defence, (for that is the definition of the militia,) stand in all respects upon the same footing as in any other of their great political relations. Nor will any thing short of this formal dedication, so to express it, of portions of it to military responsibilities, and actual embodying of them into masses, under the rules and regulations of war, constitute them a part of the federal army. It is not any preparation, organization, or training for service; nor the being draughted and set apart for service; nor the being armed and equipped, arrayed, and held in readi ness to march at a moment's warning-however inconvenient all this may be to the citizen-that constitutes the actual service contemplated by the constitution and the law. All this is incident to the very idea of a militia---that is, an armed and disciplined people, under any circumstances and in every state of society. The old commission of array, to which Blackstone alludes, commanded the sheriff to make proclamation, on any appearance or threat of foreign invasion, that all men fit for service should arm and array themselves, and continue in arms and array, so as to be ready at a moment's warning, at the king's order; yet this was no actual service. In strict conformity with this view is the decision in the much litigated and leading case of Houston vs. Moore, 5 Wheaton, 1 sec. The plaintiff in error in that case had refused to march under orders from the governor of Pennsylvania, issued during the last war, at the requisition of the President of the United States; and it was held that, not having arrived at the place of rendezvous, and been mustered

into the service of the United States, he was still subject to the militia laws of the State. So in case of volunteers. In all the various acts passed to authorize the President to receive the services of such, the same distinction as to actual service, and any other kind of service, is kept up. Take one (the first of all) as a specimen-act of 24th February, 1807: It ordains that any company, &c., thus offering itself for service, shall be liable to be called upon to do duty at any time the President of the United States shall judge proper, within two years after he shall accept the same, and shall be bound to continue in service for the term of twelve months after they shall have arrived at the place of rendezvous, unless sooner discharged; and when called into actual service, and whilst remaining therein, (these words are very remarkable,) shall be under the same rules and regulations, and be entitled to the same pay, &c., with the troops of the regular army. Furthermore, that the President of the United States shall be authorized to organize the companies so tendering their service into battalions, &c.; but, until called into actual service, such companies shall be bound to do regular militia duty, as is required by law, in like manner as before the passing of this act. And, finally, it it is only in case any volunteer above mentioned, while in actual service, shall suffer any damage by injury done to his horse, or by loss of the same, without any fault or negligence on his part, that a reasonable sum shall be allowed him to indemnify him. All the other acts of the kind are to the same effect. (See act of 1812, referred to above.)

The actual service thus expected by the government and exacted by the whole tenor of its legislation, is not simply a constructive actual service that is to say, it is plainly not enough to satisfy the spirit or the letter of the acts just referred to, that detachments of the militia have been called out and mustered into service. They must serve as regular troops serve; they must serve up to the whole extent of duty and responsibility under the articles of war. As Judge Washington, in delivering the judgment of the court in Houston vs. Moore, expresses it, (if authority be wanted to establish a truism,) "it would seem to border on absurdity to say that a militiaman was in the service which he had refused to enter;" or, I will add, in which he had refused to continue, or had not in fact continued. There is nothing in military service which distinguished it from any other, and exempts it from the equitable principles which govern cases of work and labor done.

The act of 1795, like the act of 1812 and all the others, declares that no militiaman shall be compelled to serve more than three months after his arrival at the place of rendezvous, in any one year. We have seen the construction which General Jackson placed upon these words. So at common law the tenant by escuage was bound to serve forty days; and if his lord distrained him for the escuage so assessed, it was necessary that he should plead and aver that he was with the King forty days;-Lit. 102: that is to say, military service put on the footing of contract is subject to the usual law of contract, and the rendering of a quid pro quo. The argument, however, on behalf of the present claim, is, that admitting that actual service is necessary, yet that actual service is a fiction, and that troops having been once mustered into it by the commissaries of the United States must be intended to have continued in it until regularly mustered out of it: in short, that the presumption arising on a musterroll regularly made, is as against the United States a presumption juris et

de jure, to the contrary of which nothing can be averred. The Paymaster General, the Commission of Officers, and the Comptroller of the Treasury, all concur that no such principle in their opinion exists, or ought to exist, in the practice of the government; and the facts which are presented in their reports abundantly show that such a principle would, if once established, be fruitful of iniquity and imposition.

Is any such principle known to the laws as that the government, standing in the relation of a defendant in a question of contract, of payment, of pecuniary equivalent for damage suffered, or services rendered, is estopped by the acts of its own officers, however negligent or fraudulent, and bound in a constructive liability to any extent, though it be ever so clearly demonstrated that no liability in fact exists? To this length the principle must go, if it is worth anything at all. I answer, that I have never met with anything like an authority to countenance such a proposition, and that all the analogies seem to me utterly irreconcilable with it. The government suffers by no laches, is generally exempt from the effects of the summum jus, and cannot be sued so as to be bound only in foro conscientie

That the certificate or return of the mustering officer is prima facie evidence of what it imports, I concede, and, donce probetur in contrusium, would be binding in law, and ought to be binding upon the government in the absence of all suspicion of actual collusion or gross negligence. But, in the case before you, the evidence seems clearly to repel the presumption just stated, and to satisfy the utmost exigency of the law. At least, whether it does or not, for the purpose of this argument in answer to one of your questions, it must be assumed to have that effect. You will agree with me, I think, that there is a difference between the case of the gov ernment seeking to compel service under the statute, or to punish failure in rendering it, and that of recompense or payment claimed for pretended service. If a man were taken up and tried for a deserter because, after the six months elapsed, during which, under the act cited, he could be held in actual service, his producing the muster return might very well insure his acquittal, though he could not show that he had been mustered out of the service, or that he had served at all. But would such an acquittal be conclusive evidence in the claim upon the government for the full amount of his wages? Assuredly not. As to the value of horses, &c., the unreasonableness of such a rule is still more apparent. The extreme jealousy of the law upon the subject of actual presence in camp and corps of every man liable to duty as a soldier is clearly shown by the severity with which it punishes officers guilty of imposing upon their su periors in the slightest degree in the matter of muster certificates, &c. The Articles of War abound in the sternest provisions to secure the public against any possibility of fraud in so vital a particular. It is clear that, in actual service, the absence from duty falls, in contemplation of law, little short of desertion, as, indeed, it is fatal to discipline. The soldier must be at his post, within the sound of the bugle or the drum. He must never, except in the special case of a furlough, which is always limited, be out of sight of his superiors. Information of his presence must be continually communicated to headquarters. Disbanding, or anything like disbanding, seems to me inconsistent with the very idea of a regular armed force and of actual military service; and the Articles of War show that my impressions on a subject with which I am only theoretically acquainted coincide with the conclusions of practical soldiers.