Martin v. Mott. 12 W. dent of the United States," &c., shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court-martial." And it further provides, s. 6, " that courts-martial for the trial of militia shall be composed of militia officers only." These are the only provisions in the act on this subject. It is not stated by whom the courts-martial shall be called, nor in what manner, nor of what number they shall be composed. But the court is referred to the 64th and 65th of the rules and articles of war, enacted by the act of 10th of April, 1806, c. 20,' which provide, "that general courts-martial may consist of any number of commissioned officers from five to thirteen inclusively; but they shall not consist of less than thirteen, where that number can be convened without manifest injury to the service;" and that, "any general officer commanding an army, or colonel commanding a separate department, may appoint general courts-martial when necessary." Supposing these clauses applicable to the court-martial in [35] question, it is very clear, that the act is merely directory to the officer appointing the court, and that his decision as to the number which can be convened without manifest injury to the service, being in a matter submitted to his sound discretion, must be conclusive. But the present avowry goes further, and alleges, not only that the court-martial was appointed by a general officer commanding an army, that it was composed of militia officers, naming them, but it goes on to assign the reason why a number short of thirteen composed the court, in the very terms of the 64th article ; and the truth of this allegation is admitted by the demurrer. Tried, therefore, by the very test which has been resorted to in support of the objection, it utterly fails. But, in strictness of law, the propriety of this resort may admit of question. The rules and articles of war, by the very terms of the statute of 1806, are those "by which the armies of the United States shall be governed;" and the act of 1795 has only provided, "that the militia employed in the service of the United States, (not the militia ordered into the service of the United States,) shall be subject to the same rules and articles of war as the troops of the United States;" and this is, in substance, reënacted by the 97th of the rules and articles of war. It is not, therefore, admitted, that any express authority is given by either statute, that such a court-martial as is contemplated for the trial of delinquents under the 5th section of the act of 1795, is to be composed of the same number of officers, organized in the same manner as these rules and articles contemplate for 1 2 Stats. at Large, 367. Martin v. Mott. 12 W. persons in actual service. If any resort is to be had to them, it can only be to guide the discretion of the officer ordering the court, as matter of usage, and not as matter of positive institution. If, then, there be no mode pointed out for the formation of the court-martial in these cases, it may be asked, in what manner is such court to be appointed? The answer is, according to the general usage of the military service, or what may not unfitly be called the customary military law. It is by the same law that courts-martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. Upon any other principle, courts-martial would be left without [ 36 ] any adequate means to exercise the authority confided to them; for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them. The act of the 18th of April, 1814,1 which expired at the end of the late war, was, in a great measure intended to obviate difficulties arising from the imperfection of the provisions of the act of 1795, and especially to aid courts-martial in exercising jurisdiction over cases like the present. But whatever may have been the legislative intention, its terms do not extend to the declaration of the number of which such courts-martial shall be composed. The 1st section provides: "That courts-martial to be composed of militia officers alone, for the trial of militia drafted, detached, and called forth, (not or called forth,) for the service of the United States, whether acting in conjunction with the regular forces or otherwise, shall, when necessary, be appointed, held, and conducted in the manner prescribed by the rules and articles of war, for appointing, holding, and conducting courts-martial for the trial of delinquents in the army of the United States." This language is obviously confined to the militia in the actual service of the United States, and does not extend to such as are drafted and refuse to obey the call. So that the court are driven back to the act of 1795 as the legitimate source for the ascertainment of the organization and jurisdiction of the court-martial in the present case. And we are of opinion that nothing appears on the face of the avowry to lead to any doubt that it was a legal court-martial, organized according to military usage, and entitled to take cognizance of the delinquencies stated in the avowry. This view of the case affords an answer to another objection which has been urged at the bar, namely, that the sentence has not been approved by the commanding officer, in the manner pointed out in the 65th of the rules and articles of war. That article cannot, for 13 Stats. at Large, 134. * Martin v. Mott. 12 W. the reasons already stated, be drawn in aid of the argument; and the avowry itself shows that the sentence has been approved by the President of the United States, who is the commander[ 37 ] in-chief, *and that there was not any other officer of equal grade with the major-generals by whom the court-martial had been organized and continued within the military district, by whom the same could be approved. If, therefore, an approval of the sentence were necessary, that approval has been given by the highest, and indeed only military authority competent to give it. But it is by no means clear that the act of 1795 meant to require any approval of the sentences imposing fines for delinquencies of this nature. The act does not require it either expressly or by necessary implication. It directs, s. 7, that the fines assessed shall be certified by the presiding officer of the court-martial to the marshal, for him to levy the same, without referring to any prior act to be done, to give validity to the sentences. The natural inference from such an omission is, that the legislature did not intend in cases of this subordinate nature, to require any further sanction of the sentences. And if such an approval is to be deemed essential, it must be upon the general military usage, and not from positive institution. Either way, we think that all has been done which the act required. Another objection to the proceedings of the court-martial is, that they took place, and the sentence was given, three years and more after the war was concluded, and in a time of profound peace. But the opinion of this court is, that a court-martial, regularly called under the act of 1795, does not expire with the end of a war then existing, nor is its jurisdiction to try these offences in any shape dependent upon the fact of war or peace. The act of 1795 is not confined in its operation to cases of refusal to obey the orders of the President in times of public war. On the contrary, that act authorizes the President to call forth the militia to suppress insurrections, and to enforce the laws of the United States in times of peace. And courts-martial are, under the 5th section of the act, entitled to take cognizance of, and to punish delinquencies in such cases, as well as in cases where the object is to repel invasion in times of war. It would be a strained construction of the act to limit the au[*38]thority of the court to the mere time of the existence of the particular exigency, when it might be thereby unable to take cognizance of and decide upon a single offence. It is sufficient for us to say, that there is no such limitation in the act itself. The next objection to the avowry is, that the certificate of the president of the court-martial is materially variant from the sentence itself, as set forth in a prior allegation. The sentence as there set Clark v. Corporation of Washington. 12 W. forth is, "and thereupon the said general court-martial imposed the sum of $96 as a fine on the said Jacob, for having thus failed, neglected, and refused to rendezvous and enter in the service of the United States of America, when thereto required as aforesaid." The certificate adds, "and that the said Jacob E. Mott was sentenced by the said general court-martial, on failure of the payment of said fine imposed on him, to twelve months' imprisonment." It is material to state that the averment does not purport to set forth the sentence in hæc verba; nor was it necessary in this avowry to allege any thing more than that part of the sentence which imposed the fine, since that was the sole ground of the justification of taking the goods and chattels in controversy. But there is nothing repugnant in this averment to that which relates to the certificate. The latter properly adds the fact which respects the imprisonment, because the certificate constitutes the warrant to the marshal for his proceedings. The act of 1795 expressly declares that the delinquents "shall be liable to be imprisoned by a like sentence, on failure of payment of the fines adjudged against them, for one calendar month for every five dollars of such fine." If indeed it had been necessary to set forth the whole sentence at large, the first omission would be helped by the certainty of the subsequent averment. There is, then, no variance or repugnance in these allegations; but they may well stand together. Of the remaining causes of special demurrer, some are properly matters of defence before the court-martial, and its sentence being upon a subject within its jurisdiction is conclusive; and others turn upon niceties of pleading, to which no separate answers are deemed necessary. In general, it may be said [ 39 ] of them, that the court do not deem them well-founded objections to the avowry. Upon the whole, it is the opinion of the court that the judgment of the court for the trial of impeachments and the correction of errors ought to be reversed; and that the cause be remanded to the same court, with directions to cause a judgment to be entered upon the pleadings in favor of the avowant. 5 H. 295; 7 H. 1; 18 H. 272. CLARK V. THE MAYOR, ALDERMEN, AND COMMON COUNCIL OF THE CITY OF WASHINGTON. 12 W. 40. The clause in the charter of Washington, that the city shall have power 26 to authorize the drawing of lotteries," &c., confers a power to be exercised, by drawing the lotteries on account, and at the risk, of the city, which is bound to the holder of a ticket to pay the prize it drew. Clark v. Corporation of Washington. 12 W. ERROR to the circuit court for the District of Columbia. This was an action of assumpsit, brought by the plaintiff in error, to recover of the defendants the amount of a prize drawn in a lottery called "the fifth class of the national lottery." A verdict was found for the plaintiff in the court below, subject to the opinion of the court, on a case agreed, on which judgment was rendered for the defendants, and the cause was brought by writ of error to this court. The questions decided, and the facts upon which they depended, are sufficiently stated in the opinion of the court. The Attorney-General and Webster, for the plaintiff. Jones, for the defendants. * [ 52 ] MARSHALL, C. J., delivered the opinion of the court. This cause depends on the liability of the corporation to pay the ticket on which the suit was instituted. In considering this question, that part of the charter which contains a grant of power on the subject of lotteries, the ordinances of the corporate body in execution of the power, and the proceedings of its agents, must be reviewed. The charter enacts,' "that the corporation shall have full power and authority"" to authorize the drawing of lotteries, for effecting any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish; provided, that the amount to be raised in each year shall not exceed the sum of $10,000. And provided also, that the object for which the money is intended to be raised, shall be first submitted to the President of the United States, and shall be approved of by him." Some doubt has been expressed whether this power is to be exercised by drawing the lottery, on account and at the risk of the corporation, or by selling the privilege to individuals, and authorizing them to draw it on their own account. This doubt is founded on the word "authorize." Congress, we are told, has not granted the power to draw lotteries, but to "authorize" their being drawn. [ * 53 ] * We cannot admit the correctness of this criticism. We do not admit the justice of that construction which denies to the corporation the power of causing the lottery to be drawn on its own account. A corporation aggregate can legislate within its prescribed limits, but can carry its laws into execution only by its agents. Any legislative act directing a lottery to be drawn, is literally an act "to authorize the drawing of lotteries." The object for which the lottery may be authorized is, " any important improvement in the city." Its produce is to come in aid of the ordinary funds or revenue thereof; and "the amount to be raised 12 Stats. at Large, 725. |