The opinion of the court was delivered by
Gibson, C. J.Whether a court martial has jurisdiction of the-person of an exempt, is I apprehend, not open to debate; it. having been ruled during the last term of this court at Chambers burg, that the liability of the accused to military duty, is the foundation of the whole charge, and consequently that the adjudication of the court on this, as on every other fact necessary to be made out by the pro*146seculor, is conclusive where the same fact again comes into controversy., The District Court, therefore, erred in charging that the officer who executed the warrant, was bound to Icnowthat the plaintiff was an exempt. ‘ There vvas also error in charging, as it seems to me the court did, that if the minutes of the proceedings were lost, the substance of their contents could not be proved by secondary evidence'; and'although this, might be immaterial, if secondary evidence had in fact not been given, yet'it would seem, that the warrant proved by Colonel Patterson to have been copied from the minutes, and afterwards compared with them, was competent evidence to be left to the jury. , There was, however, no error in any other part of the charge. It was essentially necéssary to show the authority of the officer by whose order the court was constituted, and of the members by whom it was composed, and this, if disputed, could be done only by producing their commissions. If the defendant fail in this, there must be a verdict against him, for it is certain that, a warrant unsustained ,hy the sentence of a court regularly constituted, affords no protection.
Huston, J.,(after stating the facts and the charge of. the court below,) delivered the following opinion.
The requisites to constitute a legal court of appeals is correctly set .out in the first paragraph of the. charge. This is not questioned. .The act .is expre.ss, and á decision of this court in Wilson v. John, 2 Binn. 209, had .settled' that this must be shown by the collector when sued as a trespasser. The commission of.tbe officer appointing the court martial, of each of the officers composing it, and that they were sworn, must appear, .or the defendant is not justified. If any of the commissions are lost, the fact that they existed, and .their contents; may be proved. Moore v. Houston, 3 Serg. & Rawle, 191. But, in this case, no evidence was given or offered; of the existence or loss of the commission of the colonel; no.evidence that he appointed the court of appeals'; that it was composed of commissioned officers; that they were sworn; or that they met or acted. The want of all this is now alleged to be cured, because it would seem the defendant, after the plaintiff had made out' his case, handed him his-warrant, and the plaintiff’s cotfnsel read it; ' but it was no part of his case, and was the sine qua non of the defendant’s defence. There may be instances where the plaintiff, to make out his-own case, must .read a deed, or book, or document; and, it being part of his. case, and without which he could not recover, he may be precluded from contradicting or denying it. The rule is a strict one, and has some limitations not necessary to be mentioned here; for this evidence was not necessary to- the plaintiff’s case. It would seem the jailer, was reading his copy, .(wholly unnecessary,) and the defendant handed'the original. I should be' sorry if the fights of parties.depended on matters so trifling. This case does not come within the rule, and it must be considered as it *147was below, as really the defendant’s evidence, and his sole-pretence of defence.
The second error assigned is, because the court did not charge the jury, that the proceedings of the court of appeals and warrant were a legal justification of the defendant. Now, I have shown the court had no evidence, legal or illegal, that there ever was a court of appeals in that regiment.
The last error assigned, and it includes all the-others, is, “because the court charged the jury, that if the proceedings of the court martial were lost, no secondary evidence, could be given of them, and that the persons who acted' under the authority of such proceedings, must, after their loss, be treated as trespassers.”
In the first-place, the court said no such thing. There was no secondary evidence offered of the appointment, commissions, oaths, or proceedings of the Court of Appeals, or of any part of them, except the schedule annexed to the warrant; and the judge did not say one word about secondary evidence in the cause. As none was offered, it was not in his mind. He does say, the only legal evidence is, as decided in 2 Binn. 209, and cites-it. If secondary evidence had been, offered, he must have decided on its admissibility first, and its effect afterwards. He says again, the plaintiff has a right to call for complete evidence of. the authority by which he was deprived of his liberty. Now, complete evidence cannot mean more than legal evidence. The defendant having omitted to offer secondary evidence, after having proved the loss of some of the documents,' omitt'ed to prove, or to offer to prove, the contents of them; nay, even omitted to produce the commissions which were not stated to be lost,, and then asks this court to infer, from the expressions of a judge, used as applicable-to a total failure of proof, that he would have rejected proof of the contents of lost papers: in other words, to reverse on suspicion of what would have been decided, if certain matters had been offered.
But a matter was much argued, which is totally immaterial to the cause; viz. the third error, that the judge said the defendant was bound to know that the plaintiff was an exempt. I say totally immaterial; for, if the defendant were bound to show a regular Court of Appeals, and their proceedings, his defence fails instantly.
The legislature, on the subject of exempts, have been very explicit. As to their meaning I cannot, doubt. In the act of 1816,- the captain is to make two lists; one, of all persons liable to perform militia duty, and another, of persons who shall decline to be enrolled, &c.; which last are to be returned as exempts. Some disputes having arisen on the construction of the word decline, when the act of 1818 was passed, in which it is declared that they who shall ómit or decline to be enrolled shall be considered as exempts, to remove all doubts, it is added, “ and every person omitting, or declining to make a. choice, shall he considered as an exempt.” Two rolls aré to *148be made out, and one to be sent to the commissioners, who are to charge each exempt four .dollars in addition to His county tax.
And it is further provided, that-neither , the commissioners, nor any other tribunal, shall exonerate such exempt; nor has he the right of.appealing to any other tribunal, except the Court of Appeals of the regiment in which he resides. The county commissioners may, however, exonerate on a certificate produced to' them by the exempt under the. signature of the president' of the Court of Appeals, and the commissioners were bound to procure such certificate to be produced, if necessary. ' . . •
Why,exempts were to be heard before;the Court'of Appeals is well known. All who omitted to procure themselves to be enrolled were set down as exempts, and their'names sent to the commissioners. Some of these attended and mustered everyday; and,'oh satisfying the Court of Appeals of this, they got á certificate, and were freed from paying the tax of four dollars. But, except for the purpose of exonerating them, the Court of Appeals had no more authority over an exempt, nor had their collector any more right to imprison an exempt, than a minister of the gospel or a judge- of this court, who are totally exempted from .all militia duty.
Our law's,have provided for this class of citizens most carefully. There are people who speak disparagingly of those who will not bear'arms. We'have no right.to do so, and I feel no disposition to do so. The legislature have made the law—it is our duty to enforce it. In my opinion, no officer, and no Court of Appeals, can touch an exempt without violating an express and plain' law, and being a trespasser.
Although I did not agree to the decision at Chambersburgy it will, I think, be found to be the case not of an exempt, or one alleging himself to be so; but that of a man clearly within the jurisdiction of a Court of Appeals,
Judgment reversed, and a venire facias de novo awarded.