Cousins v. Cowing

Morton J. afterward drew up the opinion of the Court. Several exceptions have been taken to the proceedings of the magistrate ; one only of which goes to the merits of the case ; the rest relating to matters of form. We will examine them, in the order in which the petitioner has arranged them. 1. The petitioner contends that he is not liable to perform military duty. Being “ an able bodied white male citizen ” of the age of eighteen and under the age of forty-five,” the burden is upon him to show exemption. The only ground upon which he founds his claim to be exempt, is, that he was employed as first officer and pilot on board the steamer General Lincoln, which then plied between Boston and Hingham, and carried the mail. It is not pretended that he was a mariner within the meaning of the United States militia law. Commonwealth v. Newcomb, 14 Mass. R. 394. Nor was he “a post officer,” “ a stage driver,” or “ a post rider.” He must therefore claim to be “ a ferryman employed at a ferry on the post road.” “ A ferry ” and “ a ferryman,” are terms of definite and fixed meaning and well understood, not only in legal language, but in common parlance. To denominate the passage across the bay between Boston and Hingham “ a ferry,” the steamer running there a ferry boat, and those employed on board of her “ ferrymen,” is not much if any less absurd than to call the Atlantic ocean between England and America “ a ferry,” the great steamers there navigated “ ferry boats,” and the men employed on board of them “ferrymen.” By the Revised Stat. c. 26, § 1 and 6, ferries must be authorized, and ferrymen licensed, by the county commissioners; and there can be neither in this Commonwealth without their authority. There are very few if any men in the community, who could not establish as good a claim to be exempt from military duty as the petitioner. 2. The next exception is to the enrolment. This embraces all the ground mainly relied upon by the petitioner. His name was borne on two lists or rolls, the one made by the selectmen of the town in which he resided, the other by the officer detailed to command the company. The petitioner contends, that neither the selectmen nor the officer had any authority to [213] maite a roll, and if they had that they did not exercise it lawfully. To make a roll of a militia company is not one of the ordinary duties of selectmen. If they possessed the power, it was given them by some special provision of law and grew out of some extraordinary contingency. By the Revised Stat. c. 12, § 7, it is enacted, that “ when it shall appear to the commanding officer of a regiment, that any company, within his command, is without a commissioned officer” or a clerk, he “shall require, in writing, the selectmen of the town in which such company is situated, to make out and return to him, within ten days, a list of the names of all the persons ” liable to be enrolled in such company. The evidence introduced at the trial, if competent, shows that this company had neither commissioned officers nor clerk. The company were ordered, in a manner to which no exception has been taken, to meet for the election of officers, on the 31st of December, 1836. The meeting was adjourned several times, and many ballotings were had, which finally resulted in the choice of three company officers. Whether this election was legal or not, or whether these officers were entitled to their commissions or not, we shall not stop to inquire. Because it is enough for this case, that they had not accepted, or been commissioned or been qualified. There clearly were no commissioned officers of the company, and therefore the contingency had happened which authorized the colonel of the regiment to call upon the selectmen to make and return to him a roll of the company. An order was accordingly issued, which conforms substantially, if not literally, with the statute of 1837, c. 240, § 1. The selectmen, in conformity to the requisitions of this order, did made and return a list or roll of those liable to be enrolled in the company. If the order and return were a little more comprehensive than the statute required, it would not invalidate either. The legality of the enrolment does not depend upon the entire accuracy of the roll. If the petitioner might complain of the omission of persons liable to be enrolled, surely he cannot complain because more were enrolled than were liable. To include exempts might put them to trouble, but could not injure those rightfully enrolled. [214] The roll thus made and returned by the selectmen was clearly a legal roll for the purposes for which it was made. It bore the petitioner’s name. The Revised Stat. c. 12, § 25, provides, that whenever a “ company shall neglect or refuse to elect any officer, or no persons elected shall accept, the commanding officer of the regiment shall detail some officer to train and discipline said company ” until an officer shall be elected or appointed. If this company had not neglected to elect officers, those elected had not accepted. It therefore became the duty of the colonel to select, in conformity to military usage, an officer to take the command. He accordingly detailed the complainant, who thereby became the commanding officer of the company anil was required to keep its records. In the discharge of this duty, he, from the selectmen’s return, made a roll, which also contained the name of the petitioner. Both these rolls were legal and valid ; and thus the objection to the enrolment fails. The complainant, by the same section, was authorized to' “prosecute for all fines and forfeitures, in like manner as the clerk might do, by the provisions of the 112th section.” This prosecution, therefore, was instituted by the proper person and in the proper manner. 3. The legality of the order for warning the company is called in question, on the ground that the officer detailed was not authorized to issue it. But we have already shown that the enrolment was legal and the detail of the officer legal, and we can discover no objection to the order. It was in the usual form, contained the name of the petitioner, and if if contained the names of others not liable to enrolment or to military duty, it was not the less valid 'as to those who were' liable. 4. It is now objected, that it did not appear upon the trial, that the petitioner had received six months’ notice of his enrolment. We will not inquire whether he was entitled to this notice or not; because this exception was not taken before the justice and therefore is not open to the petitioner. If it had then been taken, non constat that the fact would not have beer» proved Arms v. Ashley, 4 Pick. 74. [215] 5. The last objection is very general, and is,.that incompetent evidence was admitted and that all the evidence was not sufficient to support the complaint. The latter point we cannot revise. Whether the case was proved or not, is a question for the magistrate, in his discretion, to determine. And his judgment upon it is final. If incompetent evidence, being seasonably objected to, was admitted, it may be a good ground for quashing the proceedings. We presume the petitioner refers to the secondary evidence, a great deal of which was introduced on the trial. Parol evidence was admitted to prove the contents of the order for notifying the election on the 31st of December, 1836 ; of the return of the warning officer on the same ; of the records of the several company meetings for election of officers, of the 31st of December, 1836, of the 3d of January, 1837, and of the 5th of January, 1839, and of the returns of the elections made. But in all these instances, it was first proved that the written evidence was lost or destroyed. Now there is no kind of written evidence, whether of private contracts or public records, so high or sacred, that its loss cannot be supplied by secondary, and if necessary, by parol, evidence. On this trial no secondary evidence was admitted till after proof had been introduced of the loss of the primary evidence. Neither of the petitioner’s exceptions is well -founded, and k"s petition must be dismissed.