
    Vanderheyden against Young.
    NEW-YORK,
    May, 1814
    in a plea of anStlactionn’of trespass, assáult and battery, and false íroug'ht”1byn» th^ttate^errf ployed as a sol-vice10? tK?" United Suites, ádentofacourt accessarytoai.M‘occurred thority8to^thé President of' state?tocaU litia1 of" states,^ under grass of the 28th February, 1795, ' Cong. 3. sess. 1. c. 91.)
    e The President of the United States, alone, is made the judge of the happening of such even and he acts upon his responsibility under the constitution.
    Nor is it necessary to allege what president, by. name, issued his orders to the governor of .th state, to order into the service of the United States a portion of the militia of the státe, nor tí number of militia ordered out.
    Nov is it necessary lo allege that the officers composing the court martial were in the service < the United States ; nor that the general who ordered the court martial commanded in the am of the United States when he issued the order, or approved the sentence of the court.
    The militia of the states, ordéredinto the service of the United States, under the act of the 28t February, 1795, are subject to the rules and articles of war of the United States, though made su sequent to that act, which is prospective
    Whether a militia man ordered into the service of the United States, wider that act, is liable "be arrested, tried and punished, for desertion, &c. after his term of service has expired ? guare.
    
    A court martial, under the United States, constituted to try delinquent militia men, sitas judg< and where a party arrested waives all objection to the jurisdiction of the court, by pleading guilt he cannot afterwards allege that the court had no jurisdiction. The party aggrieved by the sejiteyn of the court martial, which has' nó power to Carry the sentence into execution, must apply for i dress to the commanding officer, to whose revision all the* proceedings of the court are subject, ai who is to order the execution of the sentence. - , . .
    Where the court has jurisdiction of the person of the delinquent and of .the subject matter^ th are not answerable for their sentence, in an action at the suit of the party*
    THIS was an action of trespass, assault and battery, and false imprisonment. The declaration contained two counts. The defendant pleaded, 1. Not guilty; 2. A special plea, in bar to A „ , . • n the first count, stating that before the time when, &c. to wit, on the 15th September, 1812, at, &c. Daniel D. Tompkins, Esq. g°vernor °f the state, &c. upon application of, and conformable to directions and by authority of, the President of the Unitea States, and pursuant to the act of congress passed the 28th oi ge]}ruarj, 1795 ordered into the public service of the Unitec States a portion of the militia of the state.of New-Yorlc, and foi that purpose issued his orders, as such commander in chief, datec I5t^ September, 1812, whereby the officers, non-commissionec °®cers» musicians and privates of Captain Higbee’s company ol light infantry of Troy, were ordered to rendezvous at, &c. 01 the 18 th September, in the same year, and from thence to marc Pittsburgh, there to receive and obey the. orders of Briga dier General Bloomfield, the commandant of the military forc< there employed in the service of the United States; in pursr anee of whi eh orders, Captain Iligbcc's company, of which the plaintiff was a private, did rendezvous at, &c. and afterwards, to wit, on the same day did march with and under the command of the said Captain lligbce to Plattsburgh, where they were stationed, and continued in the service of the United States, under the command of General Bloomfield, until the 30th of September in the same year, when the plaintiff, without the leave or license of any or either of his superior officers, deserted and ran away to places unknown, without being discharged, and his time of service not having ended. That after the plaintiff’s desertion, and before the assaulting, &c. is supposed to have been done, to wit, on the 16th January, 1813, Major General Dear-born, by general orders of that date, appointed a general court martial, composed of militia officers of the state of Nem-York, consisting of the defendant, being a major in the militia, Ira Gale, Oliver Lyon, and - Moss, jun. captains, and Lucas Goes, W illiam L. Marcy, and Henry Spear, lieutenants, and directed the said court martial to proceed to the trial of all such persons, within the counties of Rensselaer, Columbia and Washington, as had been lawfully ordered into the military service of ;he United States, during the year 1812, and had refused or neglected to obey such orders, or to perform the duties required if them, and to convene at the city of Hudson on Monday, the 1st of February, and to adjourn to one or more places within he limits of the said counties at the discretion of the court; He the said Henry Dearborn, having competent jurisdiction, lower and authority to issue said orders, and to appoint the said :ourt martial in the manner and form aforesaid.) That the :ourt convened on the said 3 st of February, at the city of Hudon, and proceeded to the trial of all such persons, &c. and adourned from day to day, until the 3d of February, at the city of ludson, the said court being then and there sitting and holden, if which the defendant was president, a charge was exhibited gainst the plaintiff for deserting on the 30th September as above tated, and the said plaintiff being in court, voluntarily pleaded ;uilty to the said charge and put himself upon the mercy of the :ourt, and the said court having competent jurisdiction, power, nd authority to take cognizance of the offence charged against he plaintiff, and to hear, try, and determine the same, did, as uch court, and not otherwise, adjudge and sentence the plains’ for the offence aforesaid, to pay a fine of 75 dollars, and be imprisoned one month, and to remain in prison until the fine be paid ■ and, as such court, did cause the plaintiff to be placed under guard, using no more force than was necessary to detain him confined under guard, until afterwards, to wit, on the 7th of February, the record of the proceedings being in due form of law transmitted to the said Henry Dearborn, who, as major general, approved the sentence. And the defendant averred that from the time of. issuing the orders by the governor, until the time that the sentence of the court was approved of, the plaintiff continued to be one of the persons, to wit, a private in the militia, within the counties of Washington, Rensselaer, and Columbia, and as such had been lawfully ordered into the military service of the United States, in the year 1812, by virtue of the-act of congress of the 28th of February, If95, which is the-same assaulting, &c. And this he is ready, &c.
    3. Another special plea in bar to the first count, stating that before, &c. to wit, on the 18th of September, 1812, the said plaintiff, being a private soldier within the county of Rensselaer, in a company of light infantry commanded by Captain Benjamin Higbee, was, among others, by virtue of the act of congress of the 28th of February, 1795, entitled “An act to provide for calling forth the militia to execute the laws of the union,, suppress insurrections and repel invasions, and to repeal the act now in force for those purposes,” called forth, in pursuance of orders issued by the president to Daniel D. Tompkins, Esq. governor, and was actually employed in the service of the United States, and did actually rendezvous at the village of Troy on the said 18th of September, 1812, and from thence [that time] continued to be employed in the service of the United States as such private, and marched to Plattsburgh, and there continued in such employment and service until, 8tc. he deserted, &c. whereby he became subject to be tried and punished by a court martial, according to the laws of the United States. That after the plaintiff’s desertion, and before the assaulting, & c. to wit, on the 3d of February, 1813, at a general court martial, composed of militia officers, held at Hudson before the defendant, &c. the defendant being a major and president of the court, and Ira Gale, Sec. being .captains and members of the court,-and Lucas L. Goes, Sec. being lieutenants and members of the court, which court was, on the 16th of January, 1813, duly constituted by Major General Dearborn, by general orders, bearing date the ¡¿aid day, he having competent power, &c. by which orders the said court was directed to try all persons within, &c. and who had refused, &c. and the said plaintiff was charged with the crime of desertion by him committed on, &c. and being so charged in proper person, came into the said court and pleaded guilty, and put himself upon the mercy of the court, who did convict and adjudge the plaintiff guilty, and did, as such court martial, and not otherwise, sentence, &c. the said court martial having competent jurisdiction to take cognizance of such offence and try, convict and punish the plaintiff for the same. And that the said court, of which the defendant was president, did, as such court martial, and not otherwise, on the conviction aforesaid, order, &c. which was lawful for the said court to do for the cause aforesaid, until afterwards, to wit, on the 7th of February, the record, &c. was transmitted to the said II. Dearborn, who, as major general, approved the sentence, and which is the same assaulting, &c. And this he is ready, Sec.
    4. A third special plea in bar to the first count, stating that by an act of congress, entitled an act, & c. passed 28th February, 1795, it was, among other things, enacted as follows: that the militia employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States: that after the passing the said act and before, &c. to wit, on the 30th September, 1812, the said plaintiff, being one of the militia of the state of New-York, was, at Plattsburgh, in due form of law, pursuant to, and by virtue of, the said act, employed as a private, among others, in the service of the United States, thereby became subject to the same rules and articles of war as the troops of the United States. That by another act of congress, passed the 10th April, 1806, entitled “ An act for establishing rules and articles for the government of the armies of the United States,” it was, among other things, enacted a,s follows : “ all oflicers and soldiers who have received pay, or have been duly enlisted in the service of the United States, and shall be convicted of having deserted the same, shall suffer death, or such other punishment as by a court martial shall be inflicted.*’ That after the passing of the said acts, and before, &c. on the 30th September, 1812, at Plattsburgh, the said plaintiff being employed in the service of the United States, without the leave ®r license, privity, or consent of, &c. deserted, &c= whereby he became liable to be tried, convicted, and punished for the said offence. That after the said 30th of September, and the desertion, &c. and before, Sec. to wit, on the 3d of February, 1813, at Hudson, at a general court martial composed of militia officers of the state of New-York, ordered by, Sec. then and there having competent jurisdiction, Sec. and which court was composed of the defendant, being a major, Sec. the said plaintiff was tried and convicted of the crime of desertion, upon the confession of the said plaintiff, in open court, of the crime of desertion aforesaid as above stated: whereupon the said court, of which the defendant was president, as such court, and not otherwise, did adjudge, See. the said court having competent jurisdiction, &c. (as in the third plea to the end.)
    The 5th, 6th, and 7th special pleas in bar to the second count, were merely a repetition of the special pleas to the first count.
    The plaintiff demurred to the special pleas to both counts, and assigned thé following causes of demurrer:
    1. That it is not alleged in either of the said pleas that the United States were invaded, or in imminent danger of invasion, from any foreign nation or Indian tribe; nor that the laws of the United States were opposed, or the execution thereof obstructed, in any state :
    2. That it is not alleged when or where, or in what manner, the President of the United States issued his orders to the governor of this state, to order into the public service of the United States a portion of the militia of this state; nor is it alleged which of the Presidents of the United States issued such orders to the governor of this state, nor what number of the militia of the state were ordered into the service of the United States, by authority of the president:
    3. That it is not alleged that the plaintiff was one of the militia of this state, employed in the service of the United States, at the time when General Dearborn issued his orders for calling the court martial, on the 16th of January, 1813; nor that the time for which the plaintiff was liable to be employed in the military service of the United States, had not expired previous to issuing such orders; nor that the plaintiff had not been discharged from the military service of the United States, when employed as a private in the militia, &c.
    4. That it is not alleged that General Dearborn ever ordered the pretended sentence of the court martial to be executed,
    
      Other objections to the pleas were also raised by the plaintiff, on the argument of the cause: 1. That it is not alleged that General Dearborn, when he ordered the court martial, comnianded an army of the United States, or had any command whatever in such army.
    new-york, Vanderhbydbk Yobmo.
    2. That it is not alleged that the defendant was ever employed in the service of the United States, as a major of the militia of this state.
    3. That it is not alleged that General Dearborn was commanding officer of an army of the United States, for the time being, or that he had any command whatever in the army, when he approved of the sentence of the court martial.
    4. That it is not alleged that the defendant was ever ordered to place the plaintiff under guard, or to imprison him.
    5. That the rules and articles of war set forth in the last plea to each count, were not enacted by the congress of the United States, until long after the passing of the act of the 28th of February, 1795, to wit, not until the 10th of April, 1806.
    6. That it is not alleged that the President of the United States ever issued his orders for calling forth any portion of the militia of the state of New-York into the service of the United States.
    
    The cause was argued by
    
      Paine, for the plaintiff; and
    J. Russell, contra.
    The plaintiff’s counsel, to show that an action would lie-against an officer of the court martial, cited Mostyn v. Fabrigas. (Comp. 161. 169.) Rafael v. Verelst. (W. Bl. 983.)
    As to the jurisdiction of the court martial, which appeared to be the principal point in the case, he contended that the fourth section of the act of congress, passed the 28th of February, 1795, (cong. 3. sess. 1. c. 91.) declaring that the militia, employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States, had reference only to the rules and articles of war then in existence, and not to such as may have beeii subsequently made, in the year 3 806. The word employed must be taken and understood to mean, whilc actually employed, or in actual service. A person in the militia cannot be subject to punishment after the time of his service has expired. If he were so, how long after the expiration of the term of service is he liable? Is it for an indefinite period ? Can he be tried and punished, after he has returned home, has married, perhaps, and has a family? The act of congress of the 11th of January, 1812, to raise an additional military force, (cong. 12. sess. 1. c. 14. s. 16.) xvhich provides that a deserter from the service of the United States may be tried by a court martial, and punished, although his term of enlistment had elapsed previous to his arrest, shoAvs the sense of congress, that Avithout such special regulation, a soldier could not be tried or punished after his term of service had expired.
    For the defendant it was insisted, that the court martial ivas not a court of inferior jurisdiction, though it ivas limited as to place, and as to the subject matter, or persons to be tried. The only question is, whether the plaintiff was subject to the jurisdiction of the court martial. The court proceeded under the authority of the act of congress of the 2oth of February, 1795. The plea states, and the fact is admitted] by the demurrer, that the plaintiff was employed in the service of the United States. As soon as he ivas employed, he became liable to the rules and articles of Avar. The act is prospective; it relates to persons when employed, or for the time being. The rules and articles of Avar, in 1806, are the same as those which were in force in the year 1795. The latter (art. 1. s. 6. See Gray don's Digest, Appendix, 146.) declare that all officers and soldiers, Avho, having received pay, or having been duly enlisted in the service of the United States, Avho shall be convicted of deserting, shall suffer death, or such other punishment as a court martial may inflict. So by art. 1. s. 17. (Graydon's Digest, Appendix, 156.) militia men, mustered and in pay, and joined or acting ívith the regular forces of the United States, are to be governed by the rules and articles of war, and subject to be tried by court martial, in the same manner as the regular forces, except that the .court martial is to be composed of militia officers. To the same effect is the 97th article of the rules of Avar, established by the act of congress of the 10th of April, 1808. (Cong. 9. sess. 1.) -Lapse of time Avill not oust the court martial of its jurisdiction, if no time is fixed; but by the 88th article of the rules of war, there is a limitation fixed for such trials to two years after the offence committed. The plaintiff was amenable to the court when it was ordered to be held. A court of limited jurisdiction, acting within its jurisdiction as to place and the subject matter, cannot be made liable to an action. The court could not know who were ordered into the service of the United States, until the person accused was tried. That was to be ascertained at the trial. The plaintiff made no' objection to the jurisdiction of the court martial.
    Again, the court martial merely pronounces judgment; the sentence is to be reviewed and executed by the commander in chief, to whom all their proceedings are to be reported, and who, if he approves them, confirms the sentence, and orders it to be executed. The plaintiff, then, if he was aggrieved by the proceedings of the court martial, should have applied to General Dearborn, and made his objection. That was his remedy. The case of Mostyn v. Fabrigas (Comp. 172.) shows that a court if limited jurisdiction is not liable to this action, but the party iggrieved should apply to the superior court of review, having lower to correct the proceedings of which he complains. A lourt deciding a question within its jurisdiction, can never be iable for their decision. While it remains unreversed, it is inal and conclusive.
    
    
      
      
        Bonnell v. Brington, 5 Term Rep. 182.
    
    
      
      1 Salk, 396. 1 Ld. Raym. 467.
      
    
   Spencer, J.

delivered the opinion of the court. The first ,nd second objections to the pleas are wholly untenable. It is tot necessary to allege that a case had occurred which gave uthority to the President of the United States to call forth the lilitia,under the act ofthe 28th of February, 1195. That act, after numerating the cases, on the occurrence of which the militia lay be called into the public service of the United States, vests i the president a high discretionary power: he, and he alone, ; made the judge, as well of the happening of the events, on diich the militia may be called forth, as of the number, time, nd destination of that species of force. In every case in •liich the president acts under that law, he acts upon his responbiiity under the constitution.

If it was necessary to the validity of these pleas to state, tiier that the United States were invaded, or in imminent dan» cr of invasion, or that the laws of the United States were opposed, or the execution thereof obstructed, the matter thus stated would be issuable, and the plaintiff might, in his replication, take issue on them, and oblige the defendant to prove the occurrence of a case specified in the act; and thus every subordinate officer, who should be called into service, would be put to the necessity, when he was sued for any act of discipline upon the privates, to prove to a jury that the president had acted correctly in making his requisitions; and if he failed in this proof, it Avould subject him to damages for an act otherwise lawful.

To countenance such a construction of the act, Avould be monstrous. Every trial would either subject all the archives o: state to an examination before the court and jury, or the de fendant Avould inevitably be found guilty. No man would dare to obey the orders, either of the president, or of his superior officer, lest, peradventure, the president had either abused his áutho rity, or misjudged, in relation to the occurrence of the fact Avhich authorized him to call forth the militia.

It is a general and sound principle, that whenever the laAi vests any person Avith a poAver to do an act, and constitutes him a judge of the evidence on which the act may be done, and, a! the same time, contemplates that the act is to be carried inte effect, through the instrumentality of agents, the person thu clothed with power is invested Avith discretion, and is, quoai hoc, a judge. His mandates to his legal agents, on his declaring the event to have happened, avíII be a protection to those agents and it is not their duty or business to investigate the facts thu referred to their superior, and to rejudge his determination. Ii a military point of view, the contrary doctrine Avould be sub versive of all discipline; and as it regards the safety and securit; of the United States and its citizens, the consequences would b deplorable and fatal. It was not necessary, therefore, to se forth the occurrence of these events in the pleas, as a j ustifica tion of the defendant’s conduct, because they were not, am could not, be matter of trial.

The objection that the governor’s order does not mentioi which president gave the order to him, nor what number o militia Avas called out, is too refined and idle to require exami nation.

The third objection is also untenable. Court martials for th( trial of militia officers or privates, are to be composed of mili fia officers. . (97th article of rules and articles of war.) It ii not a sugeradded qualification that such officers shall have been in the service of the United States.

The objections that the pleas do not allege that General Dear-born, when he ordered the court martial, commanded the army of the United States, or that he ordered the sentence to be executed, are not well taken. The plea states that General Dearborn, when he issued the order, was a major general of the army of the United States ; and this imports that he then commanded' the army; but, under the act of 1795, it is not required that courts martial should be ordered by a general commanding an army.

The 65th article gives to the officer ordering the court the power of confirming and executing the sentence; but it does not prescribe the manner of doing either; and from analogy to all other courts of criminal jurisdiction, it necessarily follows, that the court before whom the trial is had, has the power, liter conviction, of keeping the person of thp delinquent, until the will and pleasure of the superior officer be known.

It is also objected that the plaintiff was not subject to the rules md articles of war, because they were enacted in 1806, and posterior to the act authorizing the president to call out the nilitia.

The 4th section of the act of the 28th of February, 1795, provides that the militia employed in the service of the United' States, shall be subject to the same rules and articles of war as ;he troops of the United States. The act of the 10th of April, 1806, establishing the rules and articles of war, ordains, that rom and after the passing that act, the rules and articles therein ¡hall be the rules and articles by which the army of the United States shall be governed. It follows, necessarily, then, that hese rules and articles attached to the militia which were called nto the service of the United States thereafter, without refermce to the time when the power to call them out was confer-ed; and this independently of the 97th article, which actually ;xtends the rules to the militia. The act of 1795 is clearly irospective.

The only remaining objection is, that the pleas do not state hat the plaintiff’s term of service was unexpired when he was ried and sentenced, and put under guard.

Without examining the question whether the plaintiff was liade to be tried, after the period for which he was called out ¡ad elapsed, we are clearly of opinion that the defendant is not iable to this action.

The court martial was constituted to try all the delinquen) militia men in three counties, and the defendant was personally and regularly before the court, and charged with the offence oi desertion. The defendant, and the other members of the court, were sitting as judges. It was competent to the plaintiff tc have raised the objection under consideration, or any other but he waived every objection by pleading guilty, and throw ing himself on the mercy of the court. (Comp. 172.). Aftei this can he be permitted to turn round upon the court, and pre tend that he was not liable to their jurisdiction 7 Had he urgec the objection, it might have availed him; but his plea admit: their jurisdiction, and his own guilt. Besides, the court martia had not power to carry any sentence into execution. Theii proceedings were liable to the' review of General Dearborn and there he should have resorted with his exculpatory proof (5 Term Rep. 182. 6 Term Rep. 248.)

The distinction taken by Justice Wilson, in Drervy v. Coulton, (1 East, 56. in the notes,) is a very sound one. In ver] few instances,” he says, “ is an officer answerable for what he does to the best of his judgment, in cases where he is compel lable to act; but the action lies where the officer has an optioi whether he will act or not.” If the court martial had jurisdic tion over the person of the plaintiff, and over the subject mat ter, (his offence) then, most clearly, the members of that cour are not answerable. (1 Ed. Raym. 467.) The plaintiff admit ted both facts, by submitting to the jurisdiction of the court and pleading guilty. I will only add, that it would be most mis chievous and pernicious, to subject men acting in a judicia capacity, to actions, where their conduct is fair and impartial when they are uninfluenced by any corrupt or improper mo fives, for a mere mistake of judgment. In the present case they are called in question by a person who, by acknowledging the jurisdiction of the court and his own guilt, never require* them even to deliberate on any of these points or objections.

Van Ness, J. dissented.

Platt, J. not having heard the argument, gave no opinion.

Judgment for the defendant. 
      
       See ante, p. 114. Jenkins and others v. Waldron.
      
     