
    *The State, ex Relatione W. C. Oakley et al. vs. Brigadier-General Edwards et al.
    Where a detachment of the Militia of the fourth Brigade, South Carolina Militia, had been detailed, (by the Brig.-Gen. of the Brigade,) as a fire-guard, in the City of Charleston, under the Act of 1825», and before their term of service as such guard had expired, the officers and sergeants belonging to this detachment, together with all the officers, &c., composing the said Brigade, had been ordered by the Brigadier, under orders from the Governor of the State, to encamp and perform encampment duty — It was held that the fire-guard and encampment duties did not conflict; and a prohibition to restrain the collection of fines imposed by the court martial against the relators, for a neglect of the latter duty, was refused.
    Before Earle, J., at Charleston, May Term, 1841.
    This was a suggestion for a prohibition to restrain the collection of certain fines imposed on the relators by a court martial. By an Act of 1829, the Brigadier-General or other officer commanding the fourth brigade, in order to prevent the confusion which may arise from too many men being under arms when fire shall break out in the city of Charleston, is authorized to fix the number of men necessary to be under arms in such cases, and to make regulations by which a certain portion only of the militia of Charleston shall be required, for the period of three months, to hold themselves in readiness to parade in case of alarm from fire; and the said portion of militia shall be commanded by a field officer, detailed according to the order of officers, &c. And the Act proceeds to impose upon defaulters, in case of alarm, the same fines that are imposed on persons making default at regimental musters. General Edwards being in command of the fourth brigade, in January, 18-39, according to the provisions of the Act, by general orders, detailed four companies from the 16th and 17th regiments, under the command of Major Oakley, and the other relators, to compose the fire-guard for three months from and after the first day of February, 1839, and they were accordingly organized and paraded as such. On the 6th of March, General Edwards, in obedience to the general orders of the Commander in-Chief, directed an encamPment °f the officers and sergeants of the *fourth brigade to be held at Morrison’s farm, seven miles from the on the 8th of April, for five days. On the 27th of March, the Commander-in-Chief, by general order, excused the officers and sergeants of the Charleston light dragoons, from attending the encampment at Accabee, and directed that the said corps of light dragoons should be officially detailed by the Brigadier-General, to serve as a fire-guard ad interim; and the Brigadier-General, on the 1st of April, issued his order to that effect, and thereby also dissolved the fire-guard under the command of Major Oakley, and ordered the officers and sergeants composing the same to attend the encampment at Accabee. This order Major Oakley and the other relators, officers in command of the fire-guard, did not obey, conceiving themselves already detailed upon a special duty under a law of the State, which exempts them for the time from the performance of the duty required of them. They did not attend the encampment, and were afterward fined by a court martial for their default. They then filed this suggestion for a prohibition to restrain the collection of the fine.
    The cause was heard upon the suggestion and answer, before Mr Justice Earle, at the May Term, 1839, who pronounced the following judgment, refusing the writ of prohibition prayed for :
    This application is made on the ground that the fire-guard for the city of Charleston, having been detailed in January, 1739, for three months from the 1st of February, neither the Brigadier-General nor the Governor had, for that time, any further command or control over them; but that they were entirely withdrawn and set apart from the general body of the militia, and from the jurisdiction of the military courts. The last Act of 1829, on the subject of the fire-guard, enacts that “the Brigadier-General be, and he is hereby authorized to fix the number of men necessary to be under arms, in such cases, and to make regulations by which a certain portion only of the militia shall be required, for the period of three months, to hold themselves in readiness,” &c. And provides for fines, courts martial, reporting defaulters, and ordinary parades; and the 8th section is in these words: “Nothing herein contained shall be construed so as to exempt that portion of the militia *of Charleston, which shall compose the fire-guard, from the performance of ordinary militia duty.” This is enough to show that it was never intended to exempt the fire-guard from the operation of the militia laws. In pursuance of the Act, the Brigadier-General designates certain corps to perform a particular duty, in an emergency, which may happen ; but which is not certain to happen during the whole term for which they are thus set apart. This affords no reason why they should not perform the other ordinary duties of the militia, or that they should be released from the obligations to obey the lawful commands of their superior officers. Independently of the subsequent Act, appointing encampments, I should consider the fire-guard, thus detailed, as being a detachment for a particular service, under orders; that the same commanding officer, who sent them on detachment, may at any time, by a subsequent order, recall them, and send other troops in their stead; and that the Commander-in-Chief, of necessity, from the very nature of his position, has the same authority. The Act of 1829 confers no new power on the Brigadier-General. In cases of alarm from fire, or other great unexpected danger, I apprehend, he would have had authority to call out the militia, or any part of it, to preserve the public tranquillity and safety. It authorizes him to make regulations for detaching a certain portion only, (leaving the number and description to him,) for an extended time; he may, in his discretion, detach and recall, as the public interest may require. But the Act of 1833 makes it the duty of the Brigadier-General, under the direction of the Commander-iu-Ohief, once in two years, to assemble the commissioned officers of his brigade, at some convenient place within the brigade, to be encamped for five days, for instruction and exercise. Hero is no exception in favor of the fire-guard; nothing which exempts the commissioned officers composing it from being summoned to attend the encampment; especially if the order by which the guard was organized, be expressly rescinded, and the guard dissolved. Nor is there any thing in the nature of their office and duty which makes such a proceeding at all inconvenient to them, or incompatible with the public interest. It would, of course, be the duty of the Brigadier-General, when dissolving one guard, to enable it to attend the encampment, to organize another ⅛ its stead ; a duty *which he would be highly culpable if he omitted to perform. The fire-guard is expressly declared not to be exempt from ordinary militia duty. I understand, by ordinary duty, any parade or muster for review, inspection, exercise or instruction, prescribed by law, and recurring periodically. I consider an encampment an ordinary militia duty. Extraordinary duty, is such as arises on occasion of sudden emergency or alarm; as invasion, insurrection and the like, when recourse is had to the extraordinary powers vested in commanding officers. Yery many persons, and some classes of persons, are liable to serve on these last occasions of extraordinary duty, who are exempt from ordinary duty. If to attend an encampment be an ordinary duty, then, by law, the fire-guard is not exempt. If it be an extraordinary duty, then the special commands of the executive were of such authority as to require their obedience.
    If the officers had attended the encampment, and had been brought to a court-martial, for not attending a parade of the fire-guard, in their absence, can it be doubted that their excuse would have been sufficient ? And here, I may ask w'hy they did not attend before the court martial, and render their excuse for not attending the encampment. After refusing to obey the orders of the Commander-in-Chief, and of the Brigadier-General, and evincing such confidence in their own judgment as to refuse also to appear before the court martial, to justify themselves, they come with an ill-grace before the court to ask its interposition. I cannot but allude here, in terms of strong reprehension, to the frequency with which this course is adopted, in regard to all inferior tribunals having limited judicial powers. A man omits to perform some public duty required of him, as to work on the roads, or attend a muster, on some legal grounds affording a pretext; when summoned to answer for it, before the proper authority, he refuses to attend, and when fined, as he ought to be, he straightway goes to a lawyer, and brings his complaint before the Court. I confess I have no sympathy for those who neither perform their duty nor have the courtesy to excuse themselves for the omission ; nor will I convert the power of this Court, to grant writs of prohibition, into a general dispensing power in favor of the negligent and the wilful. It is very clear to my mind, that the relators were subject to the jurisdiction of ^le courk Rmrtial, as *was also the cause of the complaint against them. That is enough to induce me to refuse their motion. I have, however, as little doubt that they were liable to perform the duty required of them; that the orders of the Major-General and the Commander-in-Chief were no violation of the law, and were strictly conformable to military usage ; and that it was the duty of the relators to obey.
    The motion for a new writ of prohibition is refused.
    This judgment the relators now move the Court of Appeals to reverse.
    GROUNDS OF APPEAR.
    1. That fire-guard and encampment duties are conflicting duties, and the persons liable to do both at the same time, have the right of election which to perform.
    
      2. That the organization of the fire-guard is a privilege of the city of Charleston, to secure her against internal commotions in cases of fire, guarantied to her by Act of the Legislature, and neither the Brigadier-General nor the Governor has the right to deprive her of it.
    
      Yeadon, for the motion,
    contended that the fire-guard belongs to the city of Charleston, and that the interests of the city are involved, and that no power but the Legislature could deprive her of her privilege. He cited Acts of A., 1829, (Mill. Laws, 122, 2d and 3d sec.) The Legislature recognized the necessity of having this guard. He said the city was liable to incendiarism and an influx of strangers, without this guard; and argued further that this fire-guard was completely detached from the militia of the State, during the three months service required by the Act. Cited in the course of argument, Condy’s Dig., 146.
    
      Northrop, contra,
    cited Act, 1S33 — army regulations. He contended that the jurisdiction of a military court was exclusive. The militia are under the command of the Governor. He has the right to demand their duty as he pleases, unless he is restrained by law or there is some exception. The Brigadier is made the officer commanding Charleston, so far as a fire-guard is concerned, and he had the right of regulating the detail.
    
      
       6 Stat. 395. An.
      
    
   * Curia, per

Earle, J.

The earnestness with which the motion has been urged upon this Court, has induced me to recoil-sider the grounds taken in argument, both here and in the Court below. And I confess myself still unsatisfied with the reasoning by which it is attempted to establish the claim of the relators, to be exempt from the operation of a law for the discipline of the militia, which makes no exception in their favor ; and to be released from the obligation of obedience to the orders of their superior officers, and of the Commander-in-Chief. Obedience is the first duty of a soldier ; without it, that subordination which is essential to the effective operations of an armed force, cannot be obtained or preserved. It would be very injurious to the organization and discipline of the militia, if the civil courts were habitually to interfere with the jurisdiction of and decisions of courts martial, in cases where they may lawfully take cognizance of the persons and subject matter. Such, in the opinion of the majority of the Court, was the case of the relators, and we have striven, in vain, to perceive the force of their claim to an absolute exemption. In the view which the Court has taken of the subject, it was not a case of conflicting duties. It was the duty of the rela-tors to obey the last orders of their superiors in command, by whose order they had, in the first instance, been detailed for a particular service. They were expressly recalled from that service, and another corps detailed in their stead. These orders were surely within the competent authority of the Brigadier-G-eneral and Commander-in-Chief. There was then no conflicting duty. If it had been a case of that kind, it would have furnished no ground for prohibition, as a case of exemption from the jurisdiction of a court martial. Both the supposed duties were under the orders of the same superior officer, and a default in the performance of either would have brought the relators before the same tribunal. What they claim as an exemption was merely matter of excuse, to be considered by the court martial. Can it be supposed that after the order dissolving the fire-guard, and requiring them to attend the encampment, they could have been brought to trial for omitting to attend a parade as a fire-guard, or that the last order would not have been a valid excuse ?

To dispose of the whole question, it is only necessary to inquire, had the court martial jurisdiction of the persons and *the subject matter ? and it is obvious that it had. The relators are milithi officers of the fourth brigade, liable to be tried for any default of militia duty within it, and the charge was a failure to attend an encampment of the officers of that brigade, in obedience to the orders of the Commander-in-Chief. The persons and the subject matter were therefore properly and exclusively within the cognizance of the court martial Not only does the Act of 1829, which requires the guard to be detailed, expressly declare that they shall not be exempt from the performance of ordinary militia duty, but the Act of 1833, providing for brigade encampments, makes no exception in their favor, and from the generality of its terms necessarily includes them. This Court, therefore, will not undertake to review the decision of a competent tribunal on a subject within its peculiar jurisdiction ; and there is no ground to interfere by prohibition. A majority of the Court concur in the reasoning and conclusions of the Circuit Court, and the motion to reverse its judgment is refused.

Note. — As the judgment of the Circuit seems to impute blame to the relators for not attending personally before the court martial to plead their exemption, or render it as an excuse, it is proper to add that, for this omission, they liad the sanction of the late Mr. Justice Bay, who had, on a former occasion, held the guard legally exempt from such duty, and had granted a prohibition. That was the reason for their not attending the court martial.

Richaudson, O’Neall, Evans, and Butler, JJ., concurred. Gantt, J., dissented. 
      
       8 Stat., 572, § 26. An.
      
     