This Court concurs in the judgment pronounced below, upon the ground, that the allowance of a troop of cavalry is by law confided to the brigadier-general, and that when allowed by him, the enrolment of a member whose certificate of enrolment is accepted by the captain of the beat, or whose name afterwards disappears from the beat company’s roll, exempts him from the performance of ordinary militia duty in the beat, so long as the troop exists, and his enrolment continues in it: and that hence an infantry court-martial had no jurisdiction over the persons of the relators.
In expressing this opinion, it is due, however, to the infantry officers in command of the battalion and beat company, to say that this Court regards the beat companies as the basis of the military organization of the State, and that they ought to be protected in their proper rights. The existence of two troops of cavalry in one regiment of militia, (Militia Laws, 3,) is directly in violation of the Act of Congress, which limits this portion of the militia organization to one company- in each regiment. The fact that a beat company is reduced below forty men, (if done by the raising of a volunteer company) is contrary to law, (Mil. Laws, 145,) and ought to be remedied. The brigadier, who, by the Act of 1815, may permit volunteer companies of cavalry to be raised, will, under the order of the commander-in-chief, “ at whose discretion,” by the Act of Congress, a troop of horse may be formed of volunteers from the brigade, have the authority to afford the proper remedy by disbanding or reducing the troop.
When a beat company has been reduced to forty men rank and file, the captain may refuse to permit any more of his men to enrol themselves in volunteer companies or troops of cavalry; and may compel any who attempt to thus withdraw from his command to do duty in the beat. But this authority must be exercised before the certificate of enrolment has been received, and before the name of the man who has unlawfully enrolled himself in the cavalry, has been dropped from the roll of the beat company.
The motion is dismissed.