Church, J.
Some of the questions arising upon this motion, have been waived, on the argument ; and the remaining one is, whether Hunt, the defendant, was captain of the company which he assumed to command, and had power, as such, to impose the fine, for the collection of which the plaintiff’s property has been taken.
The plaintiff objected to the captain’s commission, which the defendant offered in evidence, as conferring upon him the authority claimed ; because, as he says, the constitution of the state, as well as the statute law on this subject, empowers only the governor to issue commissions to militia officers; whereas this commission purports to be issued by the Captain-General and Commander-in-chief in and over the State of Connecticut — an officer unknown to the constitution. “ Qui hceret in litera, hceret in cortice.” The objection is to the letter, and not to the substance. The constitution constitutes the governor the captain-general of the militia of the state, and the statute superadds to this the title and power of commander-in-chief. To be commander-in-chief of the militia of the state, is equivalent to being commander-in-chief of the state ; as the militia is the only military force of the state. The governor, therefore, signed this commission in his military capacity ; and it being a military document, it was thus appropriately authenticated, with the addition of the seal of the state, and attestation of the secretary. And such has been the form in which these commissions have been issued, ever since the revolution, at least,
[571]*571This document was properly admitted in evidence ; and if not conclusive proof that the defendant was captain, it was sufficient, unless it could be shown, that it was granted without authority, or by mistake. The plaintiff claimed to be [572]*572ready to show this, and offered evidence to prove, that Hunt -was not legally chosen captain, by the members of the company ; first, because, at the time when Col. Hollister ordered the company to be warned for the choice of a captain, Anson [573]*573been deprived of his command, but was still the colonel-commandant. And secondly, because the proceedings of Col. Hollister, in leading the company to the choice of a captain, as detailed in the motion, were in violation of law, and subversive of the rights of the company to elect its own officers; and that Hunt was declared chosen, upon receiving only five votes against thirty opposed to him.
As to the first reason ; it was conceded, that Hollister appeared de facto as colonel, and as such acted in issuing his orders to warn the company for the choice of a captain, and in conducting the election, and in making his returns to the General Assembly. He was also recognized and obeyed as colonel, by his subordinates; and his return of the proceedings to the General Assembly was received and acted upon. He acted, therefore, colore officii, and under strong pretence and probability of right, and not as a naked usurper of office. Thus he was colonel de facto, and his public acts, as such, [574]*574affecting the public or strangers, who are not required to look into his rights of office, may be regarded as the acts of an 0ff¡cer ¿e jure aiso. We cannot, in this collateral way, and under a process to which neither of the pretending claimants are parties, settle the conflicting claims of Rogers and Hollister to the command of-fhis regiment. The People v. Collins, 7 Johns. R. 549. McInstry v. Tanner, 9 Johns. R. 125. Wilcox v. Smith, 5 Wend. 231. Fowler v. Bebee, 9 Mass. R. 231. The King v. Lisle, Andrews, 163.
As to the second i'eason ; we think very certainly, if the proceedings set forth in this motion are true, that, unexplained, they disclose a strong case of illegality, which, had they been known to the General Assembly, would have defeated the defendant’s claims to a commission. But it was for the General Assembly alone to sit in judgment upon them. The law requires that the choice of commissioned company officers should be approved by the legislature, before they are commissioned by the governor. The course of proceeding by the General Assembly, in such cases, has been sanctioned, by an immemorial practice, which we recognize. It is the common law of that body. The militia officer who superintends the choice of company officers, makes his return of the facts, as was done in this case, to the General Assembly. This return is referred, by the Assembly, to a committee appointed to receive military returns, whose duty it is to investigate all the circumstances connected with the election of such officers, hear all remonstrances, and decide in view of the whole ground; and such persons as this committee believe to have been legally chosen as militia officers, it reports as entitled to commissions. If this report is approved, the General Assembly, by resolution, requests the governor to commission the officers therein named. Such course, we must presume, has been taken, in the present case ; and that the election of this captain has been pronounced legal and valid, by the only tribunal, which, in our opinion, has the power to decide. Of this the commission is evidence.
The evidence objected to, by the defendant, in the superior court, was correctly rejected; and no new trial is advised.
In this opinion the other Judges concurred.
New trial not to be granted.
The form of the commission of a captain in the militia of this state, was established, by a concurrent vote of both houses of the General Assembly, at a [571]*571special session in November 1776. The form then prescribed, has the following caption: “JONATHAN TRUMBULL Esq. Captain-General and Commander-in-chief of the state of Connecticut in America?' The body of the commission, according to the prescribed form, was much like that now in use, mu-talis mutandis ; was signed with the name of the governor; and was countersigned thus : “ By His Honour’s command,
—- Secretary.” In May 1777, the title of the governor was changed by law, from “ His Honour,” as it had been from the earliest period of our government, to “ His Excellency.” At a session of the General Assembly in 1819, the first session after the adoption of our state constitution, an act was passed prescribing the forms of commissions for certain civil officers ; but no alteration was made in the forms oí military commissions.
From the specimens of ante-revolutionary commissions for military officers in the collections of the Connecticut Historical Society, it appears, that for a century and a half at least, they have undergone very little change, in form or substance. One of the earliest in the possession of the society, was given by John Winthroy, (otherwise called File-John Ho) the second governor of Connecticut, of that name, to Cyprian Nichols, great-grand-father of the respectable gentleman of that name, now residing in the city of Hartford. That commission runs thus:
“ JOHN W1NTHROP Esq., Governour and Commander-in-Chief of Her Majesty’s Colony of Connecticott in New-England, To Cyprian Nichols, Greeting.
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Church, J.
Some of the questions arising upon this motion, have been waived, on the argument ; and the remaining one is, whether Hunt, the defendant, was captain of the company which he assumed to command, and had power, as such, to impose the fine, for the collection of which the plaintiff’s property has been taken.
The plaintiff objected to the captain’s commission, which the defendant offered in evidence, as conferring upon him the authority claimed ; because, as he says, the constitution of the state, as well as the statute law on this subject, empowers only the governor to issue commissions to militia officers; whereas this commission purports to be issued by the Captain-General and Commander-in-chief in and over the State of Connecticut — an officer unknown to the constitution. “ Qui hceret in litera, hceret in cortice.” The objection is to the letter, and not to the substance. The constitution constitutes the governor the captain-general of the militia of the state, and the statute superadds to this the title and power of commander-in-chief. To be commander-in-chief of the militia of the state, is equivalent to being commander-in-chief of the state ; as the militia is the only military force of the state. The governor, therefore, signed this commission in his military capacity ; and it being a military document, it was thus appropriately authenticated, with the addition of the seal of the state, and attestation of the secretary. And such has been the form in which these commissions have been issued, ever since the revolution, at least,
[571]*571This document was properly admitted in evidence ; and if not conclusive proof that the defendant was captain, it was sufficient, unless it could be shown, that it was granted without authority, or by mistake. The plaintiff claimed to be [572]*572ready to show this, and offered evidence to prove, that Hunt -was not legally chosen captain, by the members of the company ; first, because, at the time when Col. Hollister ordered the company to be warned for the choice of a captain, Anson [573]*573been deprived of his command, but was still the colonel-commandant. And secondly, because the proceedings of Col. Hollister, in leading the company to the choice of a captain, as detailed in the motion, were in violation of law, and subversive of the rights of the company to elect its own officers; and that Hunt was declared chosen, upon receiving only five votes against thirty opposed to him.
As to the first reason ; it was conceded, that Hollister appeared de facto as colonel, and as such acted in issuing his orders to warn the company for the choice of a captain, and in conducting the election, and in making his returns to the General Assembly. He was also recognized and obeyed as colonel, by his subordinates; and his return of the proceedings to the General Assembly was received and acted upon. He acted, therefore, colore officii, and under strong pretence and probability of right, and not as a naked usurper of office. Thus he was colonel de facto, and his public acts, as such, [574]*574affecting the public or strangers, who are not required to look into his rights of office, may be regarded as the acts of an 0ff¡cer ¿e jure aiso. We cannot, in this collateral way, and under a process to which neither of the pretending claimants are parties, settle the conflicting claims of Rogers and Hollister to the command of-fhis regiment. The People v. Collins, 7 Johns. R. 549. McInstry v. Tanner, 9 Johns. R. 125. Wilcox v. Smith, 5 Wend. 231. Fowler v. Bebee, 9 Mass. R. 231. The King v. Lisle, Andrews, 163.
As to the second i'eason ; we think very certainly, if the proceedings set forth in this motion are true, that, unexplained, they disclose a strong case of illegality, which, had they been known to the General Assembly, would have defeated the defendant’s claims to a commission. But it was for the General Assembly alone to sit in judgment upon them. The law requires that the choice of commissioned company officers should be approved by the legislature, before they are commissioned by the governor. The course of proceeding by the General Assembly, in such cases, has been sanctioned, by an immemorial practice, which we recognize. It is the common law of that body. The militia officer who superintends the choice of company officers, makes his return of the facts, as was done in this case, to the General Assembly. This return is referred, by the Assembly, to a committee appointed to receive military returns, whose duty it is to investigate all the circumstances connected with the election of such officers, hear all remonstrances, and decide in view of the whole ground; and such persons as this committee believe to have been legally chosen as militia officers, it reports as entitled to commissions. If this report is approved, the General Assembly, by resolution, requests the governor to commission the officers therein named. Such course, we must presume, has been taken, in the present case ; and that the election of this captain has been pronounced legal and valid, by the only tribunal, which, in our opinion, has the power to decide. Of this the commission is evidence.
The evidence objected to, by the defendant, in the superior court, was correctly rejected; and no new trial is advised.
In this opinion the other Judges concurred.
New trial not to be granted.
The form of the commission of a captain in the militia of this state, was established, by a concurrent vote of both houses of the General Assembly, at a [571]*571special session in November 1776. The form then prescribed, has the following caption: “JONATHAN TRUMBULL Esq. Captain-General and Commander-in-chief of the state of Connecticut in America?' The body of the commission, according to the prescribed form, was much like that now in use, mu-talis mutandis ; was signed with the name of the governor; and was countersigned thus : “ By His Honour’s command,
—- Secretary.” In May 1777, the title of the governor was changed by law, from “ His Honour,” as it had been from the earliest period of our government, to “ His Excellency.” At a session of the General Assembly in 1819, the first session after the adoption of our state constitution, an act was passed prescribing the forms of commissions for certain civil officers ; but no alteration was made in the forms oí military commissions.
From the specimens of ante-revolutionary commissions for military officers in the collections of the Connecticut Historical Society, it appears, that for a century and a half at least, they have undergone very little change, in form or substance. One of the earliest in the possession of the society, was given by John Winthroy, (otherwise called File-John Ho) the second governor of Connecticut, of that name, to Cyprian Nichols, great-grand-father of the respectable gentleman of that name, now residing in the city of Hartford. That commission runs thus:
“ JOHN W1NTHROP Esq., Governour and Commander-in-Chief of Her Majesty’s Colony of Connecticott in New-England, To Cyprian Nichols, Greeting. You being, by the General Assembly of this Colony, accepted to be Captain of the Train-Band on the South Side of the Riverett in the Town of Hartford ; Reposting Special Trust and Confidence in your Loyaltie, Courage and Good Conduct., Ido Appoint and Impower you to take the said Train-Band into your Care and Charge, as their Captain, Carefully and dilligently to discharge that Trust, Exercising your Inferiour Officers and Souldiers in the use of their Arms, according to the discipline of Warr, keeping them in Good Order and Government, and Commanding them to obey you as their Captain for Her Majesty’s Service; and you are to observe all such Orders and Directions as from Time to Time you shall receive, either from me, or from other your Supe-riour Officer, pursue nr to the trust hereby reposed in you.
“ Given under my hand, and the Seal ofthis Colony, in New-London, the two and twentieth day of October, in the first year of the Reign of our Sovereigne Lady Anne, by the Grace of God, Orneen of England, &c. Annoque Domini, 170?.
By his Honour’s Command, J. WINTHROP.”
E. Kimberly, Secretarye!
On the left margin of the commission is impressed the seal of the colony in red wax, having the same motto as the present seal of the state, but bearing on its shield, instead of three vines with a few bunches of grapes, a vineyard loaded with fruit.
The introductory and concluding parts of a few other commissions, with the names and offices of the persons commissioned, issued by subsequent governors, will here be given, arranged chronologically :
[572]*572“ GURDO.Y SALTONSTALL, Esq.,Governour and Commander-in-Chief of His Majesty’s Colony of Connecticut in New-England ; To Joseph Mo/rlyn, Gent. Greeting. You being, by the General Assembly of this Colony, Accepted to be Lieutenant of the --■ Company or Train-Band in the North Parrish in the Town of Leba,non ; Reposing Special Trust.” &c. “ Given under my Hand, and the Seal of this Colony, in Hartford, the 23d day of May, in the Tenth Year of the Reign of Our Sovereign Lord, George, King of Great Britain, Ac,. Annoqne Domini, 1724.
By His Honour’s Command, G. SALTONSTAL
Hez. Wyllys, Seer.
“ JOSEPH TALCOTT, Esq., Governour and Commander-in-Chief of His Majesty’s Colony of Connecticut in New-England-, To Giles Hooker, Gent. Greeting. You being, by the General Assembly of this Colony, Accepted to be Lieutenant of the First Company or Train-Band in the town of Farming-ton ; Reposing special Trust,” &c.“ Given under my Hand, and the Seal of this Colony, in Hartford, the 22nd day of May, in the 4th Year of the Reign of Our Sovereign Lord, George the Second, King of Great Britain, Sec. Annoqne Domini, 1734.
By His Honour’s Command, J. TALCOTT,”
“JONATHAN LAW, Esq.. Governour and Commander-in-Chief ofHis Majesty’s Colony of CONNECTICUT in New-England, To Thomas Grant, Gent. Greeting. You being, by the General Assembly of this Colony, accepted to be Lieutenant of the Company or Train-Band of the Town of Windsor; Reposing Special Trust,” &c. . . . “ Given under my Hand, and the Seal of this Colony, in New-Haren, the 29th day of October, In the 17th Year of the Reign of our Sovereign Lord, George the Second, King of Great-Britain, See. Annoqne Domini, 1743,
By His Honour’s Command, J. LAW.”
George Wyllys, Seer,
“ THOMAS FITCH, Esq., Captain-General and Govcmor-in-Chief in and over His Majesty’s English Colony of Connecticut, in New-England, in America ¡ To Hugh Led'tie, Esq. Greeting. By virtue of the power and authority to me given, in and by the Royal Charter to the Governour and Company of the said Colony, under the Great Seal of England,, I do, by these Presents, reposing Special Trust,” &c.“ Given under my Hand, and the public Seal of the said Colony, at Norwalk, the twenty-fourth day of March, in the 33rd Year of the Reign ofHis Majesty, King George Üw Second, Annoqne Domini, 1760.
By His Honour’s Command, THOMAS FITCH.”
George Wyllys, Secret.
JONATHAN TRUMBULL, Esq., Captain-General and Commander-in-Chief of his Majesty’s Colony of Connecticut, in New-England. To John Johnson, Junr., Gent, Greeting. You being, by the Genera! Assembly of this [573]*573Colony, accepted to be Ensign of the tenth Company or Train-band, in the 22nd Regiment in this Colony ; Reposing Special Trust,” &c. “ Given under my Hand, and the Seal of this Colony, in Hartford, the 18th Day of May, in the 15th year of the Reign of Our Sovereign Lord, George the Third, King of Great-Britain, &c. Annoque Domini, 1775.
By His Honour’s Command, JONTH. TRUMBULL,”
George Wyllys, Seer.
“ MATTHEW GRISWOLD, Esquire, Captain-General and Commander-in-Chief in and over the State of Connecticut in America. To Nathaniel Root, Gent. Greeting. You being, by the General Assembly of this State, accepted to be Lieutenant of the Seventh Company or Train-Band in the fifth Regiment in this State; reposing Special trust,” &c. .... “Given under my Hand, and the public Seal of this State, at Hartford, the 19th Day of MATTHEW GRISWOLD.” May, A. D. 1785.
By His Excellency’s Command.
SAMUEL HUNTINGTON, Esquire, Captain-General and Commander-in-Chief in and over the State of Connecticut in America. To Ancel Stocking, Gent. Greeting. You being, by the General Assembly of this State, accepted tobe Lieutenant of the Seventh Company of Militia in the Sixth Regiment in said State* reposing special trust,” &c. . “ Given under my Hand, and the public Seal of this State, at Hartford, the 22nd Day of May, A, D. 1790.
By His Excellency’s Command, SAML. HUNTINGTON.”
George Wyllys, Seer. R.