
    * Commonwealth versus Lotan Smith.
    One claiming exemption from duty in the militia, as having been an officer ir the army of the United States, must produce his commission, or show actúa. ■ sendee by virtue of a lawful appointment.
    This was a writ of certiorari to Samuel Lathrop, Esq., a jus tice of the peace for the county of Hampden, grounded on a conviction and sentence of the respondent for unnecessarily neglecting to appear at a muster of a company of militia, in which he had beer enrolled.
    It appeared from the copy of the record and of the papers accompanying it, which were returned by the justice, that the respondent claimed to be exempted from duty in the militia, on the ground that he had been a lieutenant of infantry in the army of the United States. The evidence to support this claim was ;— 1. A certificate from the Secretary of the Senate of the United States, that, on the 25th of February, 1812, the respondent was nominated to the Senate to be a second lieutenant of infantry, and that the said nomination was confirmed by the Senate. 2. A notification of his appointment from the Secretary at War, with a request that he would communicate his acceptance or non-acceptance thereof, dated the 12th of March, 1812. 3. A certificate from the Inspector-General, that the respondent accepted said appointment on the 3d of April, 1812. 4. A letter from Major Aspinwall, commanding the recruiting district, dated the 26th of June, 1812, directing the respondent, in case he had accepted his appointment, to repair to him at Pittsfield; and, in case he had not accepted it, requesting information thereof by the mail. 5. Orders from Captain Thompson, dated at West Cambridge, August 31, 1812, informing the respondent that he was annexed to Thompson’s company, and directing him to report himself, for receiving recruiting instructions, unless he, the respondent, should think it expedient for him to recruit in some place near where he then was ; in which case he should be furnished with instructions, money, &c. 6. A requisition from the Adjutant-General’s office, addressed to the respondent, that every officer, having pretensions to rank from former services, should forward them to that office without * delay, dated June 19, 1812. 7. A certificate from the same office, that the respondent’s resignation of his lieutenancy had been accepted, to take effect from the 4th of September, 1812. It was also in evidence before the justice, on the part of the respondent, that, in June, 1814, he received from the paymaster of the United States army for this district the sum of $ 180, for his pay and rations for about five months’ service. It was .likewise proved, that the respondent never joined the army of the United States, nor performed any services as an officer of the army, but remained at home during the whole period between his appointment and resignation ; and had incurred no expense for dress or equipments in consequence of his said appointment.
    
      Bliss, for the respondent,
    argued, that he was exempted by the act for regulating, &c., the militia,  as an officer who had held a commission in the army of the United States. Though it was not in evidence that his commission was formally made and delivered to him, yet the documents and facts proved were equivalent. He was nominated, approved, and notified. He received orders, and he received pay and rations. He was for five months bound by law to do duty as an officer, as if commissioned ; and there is no doubt, had he refused or neglected to obey any orders given him at any time between his acceptance and resignation, that he would have been held subject to arrest, trial, and punishment, as an officer.  The expression in former statutes for regulating the militia, as to this class of exempts, was, “ persons who have held the office of a subaltern or office of higher rank.”  The change of expression must have been owing to accident; as there is no real difference in effect.
    
      Mills and Moms, in support of the conviction,
    contended, that the laws distinguish between an appointment and a commission. One is not an officer, subject to orders, nor by law entitled to pay, until he is commissioned, and has taken the prescribed oath, which is to be indorsed upon * his commission.  If the respondent would be exempted from duty in the militia, his commission thus indorsed is the only evidence capable of supporting his claim.
    
      
      
        Stat. 1809, c. 107.
    
    
      
      
        U. S. Laws, vol. 9, page 41.
    
    
      
      
        Stat. 1784, c. 55; 1793, c. 14.
    
    
      
      
        U. S. Laws, vol. 3, page 345.
    
   By the Court.

We affirm the proceedings of the justice, because it appears, not only that the respondent never had a commission in the army of the United Slates, but that he never acted in any manner in the office to which he bad been appointed. Whether, in all cases, a commission is necessary to entitle a person to the exemption from militia duty under our militia laws, it is unnecessary now to determine ; although in terms the exemption is confined to those who have held a commission. But when no commission is produced, we think an actual service of the officer, by virtue of a lawful appointment, can alone be equivalent to the holding of a commission.

In this case, it appears, by evidence not of the highest nature, which would be the commission from the President, under the seal of the United States., that the respondent was appointed to an office in the army, that he accepted his appointment, and that he received his pay, &c., until his resignation was accepted. But it further appears, that he never left his home on public business, nor obeyed any military orders, nor did any single act in consequence of his appointment. It is enough for him, that the government of the United States have gratuitously given him his wages, without his being exonerated from those duties to the Commonwealth which his fellow-citizens are obliged to perform.  