
    Moses Sherman, Petitioner &c., versus Jonathan Needham.
    
      Sept. 29th.
    
    Upon a complaint by a clerk of a company of militia against a private soldier; for neglect of duty, paroi evidence that the clerk had been duly sworn, is not admissible ; but the fact must be proved by a certificate made on the back of his warrant by the officer who administered the oath. Semble.
    The provision in St. 1821, c. 92, § 11, [see Revised Stat. c. 12, § 94,] requiring all excuses of non-commissioned officers and privates for neglect of military duty, to be made to the commanding officers of their respective companies within twenty days after such neglect, is not repugnant to the constitution or laws of the United States.
    This was a petition for a writ of certiorari to a justice of the peace, by whom the petitioner had been fined, on the 7th of February, 1835, for unnecessarily neglecting to appear at a regimental inspection and review on the 13th of October, 1834. The proceedings before the justice were alleged to be erroneous, first, because no certificate or written evidence was exhibited, that Needham, the complainant, had been duly sworn as clerk of the company in which the petitioner had been warned to appear, but that the testimony of a witness was admitted to prove the same, though objected to by the petitioner; secondly, because testimony offered by the petitioner, to prove that he was disabled by sickness and infirmity to perform militia duty on the 13th of October, was rejected by the justice.
    
      Bliss junior, for the petitioner,
    referred to St. 1809, c. 108, § 8, which provides, that C£ the captain or commanding officer of the company shall, at the time of his administering said oath, certify on the back of the warrant of the sergeant appointed to be clerk, that he was duly qualified, by taking the oath required by law ; ” and he contended that this certificate was the only evidence admissible to show that the oath had been administered. Commonwealth v. Hall, 3 Pick. 262; Commonwealth v. Dedham, 16 Mass. R. 141. In the case of Bassett v. Marshall, 9 Mass. R. 312, where paroi evidence was admitted, the justice of the peace who administered the oath having made no record of it, the clerk was appointed and sworn under St. 1793, c. 14, which does not require such a certificate to be made.
    
      
      Sept. 30th.
    As to the other error, it is true that the St. 1821, c. 92, §11, says no excuse shall avail a private, upon a prosecution for the recovery of a fine, unless made within twenty days after any training ; but this interferes with the law of the United States, which provides that “ every free, able-bodied, white male citizen &c., of the age of eighteen years and under the age of forty-five years ” &c., shall be enrolled. Congress having, by the constitution of the United States, exclusive power to provide for organizing and disciplining the militia, and having thus exercised their power, it is unconstitutional in the State to say that a man shall not be allowed to prove himself not able-bodied, or not a citizen, &c.
    Bates, for the respondent.
    The fact of the clerk’s being sworn is the only one which is material. That subjects him to all the duties of his office.- He can do no more than take the oath, and if the commanding officer omits to certify it, secondary evidence must be admissible. The case of Commonwealth v. Hall, respecting the appointment of a clerk, is different, for until he is appointed in a particular manner, there is no clerk. The same remark applies to Commonwealth v. Dedham, respecting a town schoolmaster.
    The provision in the statute of 1821 is not at variance with the law of the United States. It was designed to prevent the clerk from bringing unnecessary suits. It does not subject the party to a fine for being unable to appear, but allows him twenty days to make his excuse to the commanding officer of the company, and if he makes no excuse before the expiration of twenty days, he is allowed by the latter part of the section in question, to prove to the justice that it was not in his power to offer it within that period.
   Per Curiam.

We incline to the opinion, that the first objection is well taken; and that this is not like the case where the regular evidence has been lost and inferior evidence is admitted. The legislature seem to have prescribed the mode of taking the oath, and the time when it shall be certified, and we think the evidence of the certificate cannot be dispensed with. We shall grant a certiorari on this ground, leaving the question open however for further argument, upon the return of the writ.

The other objection is not valid. We think the legislature have made a reasonable rule, and that it is not repugnant either to the constitution of the United States or to the act of congress.

Certiorari awarded. 
      
       See Commonwealth v. Sherman, 5 Pick. 239; Clapp v. Watson, 8 Pick 449; Revised Stat. c. 12, § 112.
     