
    Edward Haynes, Petitioner for Certiorari, versus Theodore R. Jenks.
    A citizen is not liable to a penalty for non-appearance al a company training &c., until six months after he is notified of his first enrolment in the militia. It seow that he is not entitled more than once to this six months’ indulgence.
    This case was argued at March term 1823, by Z. G. Whitman for the petitioner and Loring for the respondent, and was continued for advisement. The opinion of a ma jority of the Court was delivered by Wilde J. This case comes before us on petition for a writ of certiorari, to quash the proceedings before a justice of the peace on a prosecution for the recovery of a penalty under the militia laws, and involves a question of considerable difficulty and importance. We have taken more time for examination and consideration than was necessary, perhaps ; but the result, with the reasons of the opinion adopted by a majority of the Court, may be briefly stated.
    The respondent is a minor, and soon after his arrival at the age of eighteen years was duly and legally enrolled as a private in the company of militia of which the petitioner was clerk. On the same day that he was so enrolled, (September 28th, 1822,) he was notified to appear, armed and equipped, and to do duty at a company training of said company on the 30th day of the same September, and was also notified at the same time to appear, armed and equipped, at the company parade, for the purpose of brigade re view and inspection, on the 3d day of October next following. The respondent appeared at the time and place of parade appointed for the first training, and claimed to be allowed six months for the purpose of providing himself with arms and equipments agreeably to law; but he did not appear on the 3d day of October, and for this supposed delinquency process was commenced against him by the petitioner, and the question is, whether he was liable to the penalty established by the 29th article for the regulation of the militia, for non-appearance.
    By this article it is provided, that £< every non-commissioned officer or private, who being duly ordered, shall unnecessarily neglect to appear for any battalion, regimental, or brigade inspection or review, at the time and place appointed, shall forfeit four dollars.” Was then the respondent duly ordered to appear for the purpose of review and inspection ? If by virtue of his enrolment he was liable to do militia duty, he was duly ordered ; otherwise not. This liability depends on the construction to be given to the statute of the United States, passed in 1792, (2 cong. 1 sess. c. 33,) entitled ££ An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States ”; unless indeed this statute has been modified and partly repealed in this respect by a subsequent statute ; which I think I shall be able to show cannot be affirmed consistently with any reasonable construction of the latter act.
    By the first section of the first mentioned statute, all free, able-bodied, white male citizens, who shall from time to time arrive at the age of eighteen years, are to be enrolled in the militia and are to be without delay notified of such enrolment. And every citizen so enrolled and notified is required, within six months after notice of his enrolment, to provide himself with arms and equipments agreeably to the requisitions of the statute, and being so armed and equipped he is liable to be called out, trained and exercised, at such times and places as may by law be duly appointed.
    As the term of six months is allowed for the accommodation of the minor, it should seem a reasonable construction of the statute to hold him liable to militia duty within the six months, if he should within that time voluntarily provide himself with arms and equipments or should be supplied therewith by his father or guardian. But in no part of the statute is a non-commissioned officer or a private required to appear at any training or review, except with his arms and accoutrements ; on the contrary, it is expressly provided that he shall appear, when called out to exercise or into service, “ so armed, accoutred and provided,” except that when called out on company days to exercise only, he may appear without a knapsack. The construction contended for on the part of the petitioner is in direct opposition to this provision, nor is it supported by any expression to be found in the statute. After a careful examination of all the provisions of law relating to the militia, I think it manifest that it was never the intention of congress, or of the legislature of this commonwealth, to compel any one to appear at the company trainings without his arms and equipments. The object of these trainings, as expressed in the 18th section of the statute of this commonwealth is, that the captain may use his best exertions in instructing and perfecting his men in their company exercise and evolutions ; but it is difficult to imagine how this object is to be effected with men who appear on the parade without a single one of the articles which compose the arms and equipments of a soldier. So far from requiring any member of the militia to appear on the parade, when thus unprovided, the legislature have made it penal for any non-commissioned officer or private thus to appear. By the 30th article in the state law, it is provided, that every non-commissioned officer and private, who shall appear at the company inspection on the first Tuesday in May, or at any company training, or for any battalion, regimental, or brigade inspection or review, and shall not be armed and equipped as the law directs, shall for each article in which he is deficient, or which is of bad quality, forfeit &c. This article is perfectly consistent with the construction we give to the statute of 1792, but it could not be fully enforced, if by that statute minors, within the time allowed to provide themselves with arms and equipments, were compelled to appear at the company trainings ; and we are entirely satisfied that the law does not sanction such an unreasonable compulsion. To require a young man to appear in the military ranks, for the first time, without the insignia and equipments necessary for the performance of the exercises and evolutions required of him, would be to inflict a severe and unnecessary mortification upon that spirit of emulation and military ardor, which it is the object of the militia laws to excite and cherish.
    The remaining question to be considered is, whether the act of the United States of 1803 (7 cong. 2 sess. c. 68) has abrogated the indulgence of six months allowed by the law of 1792 for the purpose of providing arms and equipments.
    This question came before the Court in the case of the Commonwealth v. Annis, 9 Mass. R. 31, and was decided in the negative. This decision has been acquiesced in for twelve years without any interposition of the legislature, and ought not now to be overruled, unless the most clear and cogent reasons require it. But a majority of the Court have not been able to discover any good cause for calling in question the correctness of that decision.
    The question depends on the construction of the 2d section of the act of 1803, which provides “ that every citizen duly enrolled in the militia shall be constantly provided with arms, accoutrements and ammunition, agreeably to the directions of the said act, (act of 1792,) from and after he shall be duly notified of his enrolment; and any notice or warning to the citizen so enrolled, to attend a company, battalion or regimental muster or training, which shall be according to the laws of the State, in which it is given for that purpose, shall be deemed a legal notice of his enrolment.”
    The first part of this section requires that all persons enrolled in the militia shall be constantly provided &c. This was not expressly required by the former act. They were only required to provide themselves &c. and to appear armed and accoutred at all trainings &c. This clause is evidently explanatory, and was not intended to repeal or annul any part of the first statute. That statute is expressly referred to as containing the rule according to which the militia were to be provided. I cannot imagine that Congress intended to compel a man to provide himself with 32,1118 and equipments before his being notified of his enrolment, nor instantaneously after. A reasonable time for this purpose must be allowed, and that reasonable time .b limited and fixed by the statute of 1792. The latter clause of the section was intended to resolve another moot point, namely, whether a notice to attend a muster or training was equivalent to an express notice of enrolment.
    To remove these doubts was the only object, as it appears to me, of the 2d section of the act of 1803. Giving it a reasonable construction, it is not inconsistent with the first section of the act of 1792, and cannot therefore operate as an implied repeal of any part of that section.
    Acts in pan materia are to be taken together as one law, and are so to be construed, that every provision in them may (if possible) stand. Courts therefore should be scrupulous how they give sanction to supposed repeals by implication.
    
    But it is argued, that if the indulgence of six months is to be allowed to minors, the like indulgence, by - a consistent construction of the statute, must be extended to all those who may from time to time change their domicils ; and that any one so disposed might, by frequent and timely removals, evade the performance of militia duty altogether. Whether such an evasion might be successfully practised, I will not at present undertake to determine ; but I apprehend few, if any, will be induced to encounter the manifold evils of an unsettled and wandering life, merely to avoid militia duty. The motive is altogether inadequate. Some, no doubt, may be led by other motives to embrace so comfortless a destiny ; but on these little reliance can be placed for national defence under any arrangement. We do not however admit that this supposed construction of the statute is a necessary one. Every citizen duly enrolled in the militia is bound to provide himself with arms and equipments within six months after notice of his first enrolment. A removal from the bounds of one company to those of another does not exempt him from this obligation. At the expiration of six months he is to be duly provided, and is to be constantly provided after-wards. If after the six months he should remove and be enrolled anew, the law may presume him to be still provided, and not suffer him to prove the contrary. But on this point the Court do not at present give any decided opinion. This case can only settle the construction of the statute as it relates to minors, or to those who may be called upon to do militia duty within six months after their first enrolment. As to all such, we think they cannot incur a penalty for non-appearance, not being armed and equipped, and not being required to be by law.
    
      
      
        Commonwealth v. Crowley, 1 Ashmead, 179 ; Jenk. Cent. 89 ; Dr. Foster's case, 11 Co 63.
    
   Lincoln J.

dissenting. The liability of the respondent to the forfeiture created by law for a neglect of military duty, depends upon the construction to be given to the provisions in the statutes of the United States, recited in the act of this commonwealth for regulating, governing and training the militia, which relate to the enrolment of the citizens, and the opportunity subsequently afforded them for military equipment. Had the question involved in the issue of the cause been entirely original, and now for the first time presented for judicial consideration, I should have entertained less apprehension of mistake and error in the opinion, upon which, after the best examination I have been able to make, my mind rests with the most satisfaction. The issue of the cause as between the' parties to it is but of little consequence, but the decision which is had will be of constant application to the condition of the citizens of this commonwealth, in relation to the discharge of a most important public duty, and from its bearing upon laws of common obligation in every State of the Union, will be regarded with interest and examined with care elsewhere, and most probably by other judicial tribunals. It has been from this consideration, that more time has been given to advising upon the case than is usual, and more of regret is now entertained at an ultimate diversity of opinion, than upon subjects of less extensive influence.

The law of the United States passed in 1792, upon the subject of the militia, requires the enrolment of every free, able-bodied, white male citizen of the respective States, who shall be of the age of eighteen years and under the age of forty-five years, with the exceptions mentioned in the act, and makes it the duty of the captains or commanding officers of companies to enrol such citizens in the companies within the bounds of which they respectively reside, and also those who shall from time to time arrive to the age of eigh teen years, or being of the age of eighteen years and under the age of forty-five shall come to reside within their bounds.

By this explicit enactment, which is still in force and has never been modified by the legislature, nor received any other than a literal construction, a citizen of the description mentioned in the statute becomes liable to enrolment immediately upon arriving at the age of eighteen years. Upon the facts in the case before us, there can be no doubt therefore that the respondent was rightfully enrolled in the company of which the petitioner was clerk, at the time of his notification to do military duty, and if he is not excused by law for his neglect of appearance, he has incurred the forfeiture, for the recovery of which the original complaint was filed. The statute before cited, in the same section, but in a distinct and entirely independent clause, provides, that every citizen so enrolled shall, within six months after he is notified of his enrolment, provide himself with the arms and equipments, which are particularly enumerated, and shall appear so armed and equipped, when called out to exercise or into service ; and it has been argued that this provision dispenses with his personal appearance for the period of six months after his enrolment. This construction of the statute of 1792 may be sound and defensible, for it is most obvious, as judicially held in the case of the Commonwealth v. Annis, 9 Mass. R. 31, that where the law required an appearance of the soldier armed and equipped, it could not intend an obligation to appear within the period allowed for providing himself with aims and equipments. But by a subsequent statute passed in 1803, in the 2d section, it is enacted, that “ every citizen, duly enrolled in the militia, shall be constantly provided with arms &c., agreeably to the direclions of the said act, (referring to the former act,) from and after he shall be duly notified of his enrolment, and any notice or warning to the citizen so enrolled to attend any company, battalion or regimental muster or training, which shall be according to the laws of the State in which it is given for that purpose, shall be deemed a legal notice of his enrolment.” This language is altogether precise and intelligible, and as it seems to me admits of no misconstruction. The statute was passed after an experience of more than ten years of the operation of the provision in regard to the enrolment of the soldier, contained in the former act, and was doubtless intended to effect some change in the law’ in this particular. By the first act the enrolled soldier was allowed six months, in which to provide himself with arms and equipments, after notice of enrolment; by the latter act he was required to be provided from and after he was notified of his enrolment, and any notice to train was made notice of enrolment. It is expressly declared in the statute of 1803, that he shall be constantly provided from and after, using these most precise and definite terms ; not as in the former act, that within six months he shall provide himself. The second section of the statute of 1803 contains no other provision than in relation to the time when the citizen, after enrolment, shall be provided with arms, and it enacts that it shall be constantly from and after he is notified of his enrolment. A different construction given to the section would render it utterly insignificant and unmeaning, and if notwithstanding its enactment the indulgence of six months allowed by the act of 1792 is still continued, the wisdom of Congress must have been betrayed into the use of terms contradictory and repugnant to a plain and direct purpose. An application of the provisions of the several statutes to the facts in the present case, will serve to illustrate the argument. The first section of the statute of 1792 describes the persons who shall be enrolled. The respondent comes within .this description. No objection is made that he was not duly enrolled, but <?n the other hand his claim to be discharged of the forfeiture which is ^required of him proceeds on the ground of his due enrolment, and denies his liability to personal service within six months next after he was notified. By the 2d section of the statute of 1803, additional to that of 1792, any notice or warning to the citizen so enrolled, to attend any company, battalion or regimental muster or training which shall be according to the laws of the State in which it is given, is declared to be due notice of enrolment. The case finds that the respondent had such notice to attend a brigade review and inspection. By the same section of the law, any person so enrolled and notified shall constantly thereafter be provided with arms and equipments, and shall appear so armed and equipped when’ called out for military duty. The respondent, being so enrolled and notified, was not provided with arms and equipments required, and did not appear when called out as before mentioned. The obligation to the performance of these public duties is recited and re-enacted in the statute of the commonwealth, of 1809, c. 108, and the forfeiture for neglect there given. It seems to my mind therefore a necessary conclusion from the premises, that the penalty has been incurred by the respondent.

But it has been argued, that the additional act of 1803, does not repeal the provision of the statute of 1792, which allows six months to the soldier, after notice of enrolment, to 'be provided with arms and equipments, and that as the laws both of the United States and of this commonwealth require that he should appear armed and equipped when called out for military exercise, it would be absurd to enforce his personal appearance within the period which the law allows to him to procure his arms and equipments. This objection would have much weight, were the construction admitted, that the indulgence of six months given by the act of 1792 was continued after the passage of the additional act of 1803. It is true that in the latter statute there are no express words of repeal, but if the view I have taken of the provisions of the different statutes is correct, there is a repugnancy and contradiction between them, which upon the well known principles of law will operate a virtual repeal of the former enactment, so far as it respects the same subject.* It is an established rule, that where several acts are in pari materia, which contain principles inconsistent and rreconcilable with each other in their application, the latter shall stand as expressing the latest intention of the legislature. Authorities are abundant to this point, in elementary writers and in the books of reports. 6 Bac. Abr. tit. Statute, S ; Rex v. Cator, 4 Burr. 2026 ; Harcourt v. Fox, 1 Show. 521 ; Ex parte Caruthers, 9 East, 44 ; Goodenow v. Buttrick, 7 Mass. R. 140 ; Bartlett & al. v. King, 12 Mass. R. 537. Many of the statutes of the commonwealth are subject to the application of this rule and have been construed by it. Such particularly is the case in reference to the statute of 1788, c. 65, § 6, and of 1817, c. 143, upon the subject of rescue and pound breach. But it is answer ed, that the statute of 1803 upon the subject of the militia, taken in connexion with the previous statute, may be construed in such manner as to refer the provision, which requires that the citizen shall be constantly provided with arms from and after his enrolment, to the expiration of the time within which by the first act he was to be so provided ; and stress is laid upon the words, “ agreeably to the directions of the said act,’'’ (meaning the first act,) used in the addition al statute. But it is apprehended, that this relative expression refers only to the manner of being armed, that every citizen shall be provided with a musket, bayonet &c., agreeably to the directions of the said act, and does not respect the time in which he shall be so provided. This interpretation of the meaning of the legislature results from an examination of the whole section, and is consistent with the obvious rules of construction. The requirement of law, although expressed in somewhat different words, is, that every citizen shall be constantly provided with arms &c. immediately after his enrolment, of which any warning to train shall be sufficient notice. I do not perceive the force of the objection, that this construction would be unreasonably severe. There seems to be nothing more unreasonable in requiring the soldier to be provided upon notice of his enrolment, than in six months afterwards. The law points out to him his duty. It requires that at the period of eighteen years of age he shall be enrolled. This period may as well be anticipated, as provided for after it arrives. The obligation is plainly expressed. Every individual may determine for himself whether he is of the description of persons mentioned in the law. He knows his own age, and can seasonably be prepared for the liability which is imposed upon him for the highest and most important public purpose, that of the security and defence of the nation. Il he neglects, it must be upon a presumption of impunity arising from the neglect of others, of the officer whose duty it is, that he may not enrol him, or subsequently that he may not be summoned to the discharge of military service. He can never be surprised into the exaction of a forfeiture, because it must at all times be in his power to know his liability and to be prepared to meet it. The argument derives strength from considering the right of every enrolled soldier to vote in the election of officers, and his liability expressly declared to detachment from the militia in case of invasion. Indeed all the provisions of law regard the right of the government to the active service of the soldier at the age of eighteen, and upon a construction of the statutes which should dispense with the obligation of the citizen to service for six months after this period, it would be difficult to justify a claim to the person of the adult who should remove from the company of his original enrolment and come to reside within the limits of another. The language of the statute is alike applicable to the condition ot those who from time to time shall arrive at the age of eighteen, and of those, who being of the age of eighteen and undei the age of forty-five, shall come to reside within the bounds of a company. And if it shall be adjudged, that instead of an immediate obligation to be provided with arms, and a liability to personal attendance upon notice of enrolment, the soldier may avoid these duties for six months thereafter, to my mine' it seems a necessary consequence, that by a convenient ant timely removal of residence from year to year, he may es cape the performance of military service altogether.

It has not been without much reluctance that I have found "myself constrained in this case to dissent from my senior brethren of the bench. An entire respect for their more mature and experienced judgment will ever induce me to hold in great distrust nay own opposing opinion. But having investigated the subject, and wdth care again and again reviewed it, the obligation to fidelity in office requires me to express this result.

Parker C. J., after these opinions were delivered, expressed a decided opinion, that the six months’ indulgence was applicable to the first enrolment only ; and intimated that where the age of the party coming into the bounds of a company, and other circumstances, would justify the presumption, it probably would be presumed, that what the law requires had been done in the company from which he came. He also stated that he considered the main question to have been decided twelve years ago, in the case of Commonwealth v. Annis.

Petitioner takes nothing by his petition. 
      
      
        King v. Middlesex, 2 Barn. & Adol. 818; Commonwealth v. Cromley, l Ashmead, 179.
     