Thayer v. Stacy

20 Mass. 506

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1826
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. It has been suggested, that the sole object of the legislature was to avoid the effect of the decision of this Court in the case of Commonwealth v. Cummings, by which it was virtually determined, that a member of a company raised at large must have his residence or domicile within the limits of the brigade within which the company is raised ; but the words of the statute are inadequate for this purpose, nor do they necessarily, nor even probably, convey any such meaning. Without doubt, had it been the intention of the legislature to authorize enlistments into volunteer companies in a manner determined by the Court to be contrary to the meaning of existing statutes, an explicit provision would have been made for that purpose.

We can consider the 4th section of St. 1825, c. 153, in no other light, than as providing for the evidence on which one claiming to belong to a volunteer company, is to be exempt from duty in the standing company of militia, no such evidence having been before required by any statute.

The provision is exceedingly loose and incomplete, for it does not appear when such certificate is to be produced, nor how long it is to be in force. But it was undoubtedly intended, that where any one should be enrolled in a standing company and notified of such enrolment, he should show by the certificate required by this statute, that he is not liable to such enrolment. The object of the legislature seems to have oeen, to require something beyond the mere enlistment in the volunteer company, to wit, that he should do actual duty therein when required, and keep himself armed, equipped, and uniformed as a member thereof.

Petitioner took nothing by his petition.