Article 1, Section 8, Clause 16
William Wirt, Courts-Martial--New York Militia19 June 18211 Ops. Atty. Gen. 473
Sir: I am of the opinion that the court-martial which imposed the fine on Cyprian Elton had no jurisdiction of the case. The call was not made by the President on the militia of New York. The militiaman, therefore, disobeyed no order of the President, and, consequently, is not within the provisions of our act of Congress. By the circular from the War Department, of the 4th July, 1814, the executive of the State of New York was merely invited to organize and hold in readiness for immediate service that State's quota of ninety-three thousand men, under the laws of the 28th February, 1795, and the 18th April, 1814. The details of designating the portion of the State's militia which should be held in readiness, of appointing the place of rendezvous, and ordering them to this place, were all confided to the executive of New York; and the alleged offence of Elton was a disobedience, not of the orders of the President, but of the orders of the governor of the State, in refusing to march to the place of rendezvous, This was no violation of any existing law of the United States; and a court-martial of the United States had no jurisdiction over the offence, because our laws take cognizance of no other offence, in this respect, but a disobedience of the orders of the President of the United States issued to the officers of the militia. I am of the opinion, therefore, that the United States are not entitled to the fines imposed on the militia of New York by the court-martial which was convened under the authority of the United States. But the cause of Houston and Moore, (5 Wheaton, page 1,) leaves it very questionable whether the Supreme Court might not decide otherwise. For this reason, and with a view to the settlement of so delicate and important a question by a court of the last resort, I submit it to you whether it would not be advisable to have the avowry (which is confessedly defective) amended, and bring up the case to the Supreme Court of the United States. One case might, by consent, decide all the rest.
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