History, 1838–1856, volume E-1 [1 July 1843–30 April 1844]

  • Source Note
  • Historical Introduction
Page 1694
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<​August 14​> that whenever the safety of any of the frontier settlements in this , shall, in the opinion of the Governor, require it, he may exempt the Militia in such settlements from being called into service, and make such further provision for the defence, as the necessity of the case may require; which exemption shall be expressed in his orders to commandants of the divisions; who, together with the commandants of brigades, regiments, battalions and companies, shall govern themselves accordingly:— And provided also, that such militia men may be required to serve as spies on their own frontiers; and that on actual invasion or any extreme emergency, the commander-in-chief, commandants of divisions, brigades, battalions and companies, may call on the whole or any part of the militia under their respective commands, as the nature of the case may require, who shall continue in service, if necessary, until the Militia can be regularly called out.”
The Governor has no other authority in calling out the Militia than that which is contained in this section; by which it appears that there must be either a requisition from the President, an actual or threatened invasion, or some extreme emergency to warrant the Governor in exercising this power. No one of these contingencies has arisen. There has been no requisition from the President— there has been no actual or threatened invasion of the — nor is this such an extreme emergency as is contemplated by the Law. If we allow that force was exhibited and threatened, to compel your to carry his prisoner before the municipal court of ; that [HC 5:535] the court there took cognizance of the cause without jurisdiction, and against the consent of your , it would amount at most to a riot; and to a resistance of authority in a single case, and that too under color of law and legal process. To constitute an extreme emergency, so as to justify a call for the militia, there ought, in my opinion, to be something more than a <​mere illegal act— something more than a——​> design to resist the law in a single instance. The design ought to be general as in treason, rebellion, or insurrection; in which cases an universality of design is essential to constitute the offence.
If a person resists a constable or Sheriff, or other officer charged with the of process, with an intention to resist the Law in that particular instance; such an act is a misdemeanor at most— is indictable as such, and may be met by the . But something more than a mere misdemeanor must have been contemplated by the law. It would seem to me that it could never have been intended that the Governor should call out the Militia in every case, where a constable or Sheriff may be resisted, and even in a case of a riotous resistance it would not be an extreme emergency without some military array, some warlike show, or some threatened resistance to the government itself.
In this case, there has been no warlike array in the proceedings of Smith and his friends; no exhibition of arms, and no actual force of an illegal character. was not subjected to illegal imprisonment. He was arrested on lawful process, and although that process may have been wrongfully obtained, yet his arrest was not riotous or unlawful, but according to the forms of law. continued in the custody of the Sheriff by virtue of that process, until he was taken to , and although he was taken to that against his will, and was by [p. 1694]
August 14 that whenever the safety of any of the frontier settlements in this , shall, in the opinion of the Governor, require it, he may exempt the Militia in such settlements from being called into service, and make such further provision for the defence, as the necessity of the case may require; which exemption shall be expressed in his orders to commandants of the divisions; who, together with the commandants of brigades, regiments, battalions and companies, shall govern themselves accordingly:— And provided also, that such militia men may be required to serve as spies on their own frontiers; and that on actual invasion or any extreme emergency, the commander-in-chief, commandants of divisions, brigades, battalions and companies, may call on the whole or any part of the militia under their respective commands, as the nature of the case may require, who shall continue in service, if necessary, until the Militia can be regularly called out.”
The Governor has no other authority in calling out the Militia than that which is contained in this section; by which it appears that there must be either a requisition from the President, an actual or threatened invasion, or some extreme emergency to warrant the Governor in exercising this power. No one of these contingencies has arisen. There has been no requisition from the President— there has been no actual or threatened invasion of the — nor is this such an extreme emergency as is contemplated by the Law. If we allow that force was exhibited and threatened, to compel your to carry his prisoner before the municipal court of ; that [HC 5:535] the court there took cognizance of the cause without jurisdiction, and against the consent of your , it would amount at most to a riot; and to a resistance of authority in a single case, and that too under color of law and legal process. To constitute an extreme emergency, so as to justify a call for the militia, there ought, in my opinion, to be something more than a mere illegal act— something more than a—— design to resist the law in a single instance. The design ought to be general as in treason, rebellion, or insurrection; in which cases an universality of design is essential to constitute the offence.
If a person resists a constable or Sheriff, or other officer charged with the of process, with an intention to resist the Law in that particular instance; such an act is a misdemeanor at most— is indictable as such, and may be met by the . But something more than a mere misdemeanor must have been contemplated by the law. It would seem to me that it could never have been intended that the Governor should call out the Militia in every case, where a constable or Sheriff may be resisted, and even in a case of a riotous resistance it would not be an extreme emergency without some military array, some warlike show, or some threatened resistance to the government itself.
In this case, there has been no warlike array in the proceedings of Smith and his friends; no exhibition of arms, and no actual force of an illegal character. was not subjected to illegal imprisonment. He was arrested on lawful process, and although that process may have been wrongfully obtained, yet his arrest was not riotous or unlawful, but according to the forms of law. continued in the custody of the Sheriff by virtue of that process, until he was taken to , and although he was taken to that against his will, and was by [p. 1694]
Page 1694