Peters v. Prevost.

right of proceeding, as they might have done, against the original tenants. If the prevention of costs were of itself a reason for a Court of Equity's interposing in this way, it might encourage tenants who had no right but possession, to put the owner to the trouble and expense of asserting his title in a Court of Justice, in hopes of discovering some defect in it, if they could force him to consolidate his actions, and thus divide the costs of only one suit among them.

Upon the whole, I think it improper to allow an injunction.

1. Because the only relief which is sought by the bill, if it be proper at all, can be afforded as well at law as in this Court.

2. Because the parties are much too early in making the present application. If the defendants obtain verdicts at law in four or five successive trials, I will not say that the plaintiffs might not then be perpetually enjoined from proceeding in the other actions; but, until then, each party must be left to conduct the suits in such way as they think proper, under such rules as the Court, where they are pending, may prescribe.

The application for a commission to take depositions in Canada must be made in open Court, a Judge at chambers having no power to award one; nor is it necessary or proper to come into equity for it, the Circuit Court, sitting as a Court of law, having full power to grant it. I perceive, however, no objection arising out of the war, to taking out such a commission. If it be not executed in a reasonable time, the Court may discharge the rule, and permit the plaintiffs at law to proceed.

CIRCUIT COURT OF THE UNITED STATES,

NEW-YORK, APRIL TERM, 1815, AT NEW-YORK.

BEFORE

Hon. BROCKHOLST LIVINGSTON, Associate Justice of the Sapreme Court.

Hon. WILLIAM P. VAN NESS, District Judge.

WILSON ET AL. v. IZARD ET AL.

Alien enemies who had enrolled themselves as volunteers, and been accepted by the President, under the act of the 6th of February, 1812, not entitled to be discharged; there being no law enjoining the President from accepting them.

It seems that the President had a right to accept volunteers, to serve at a particular post as well as for general service, the act being silent on the subject. At any rate he had a discretion in the premises, not to be controlled by a Court of Justice.

The insertion in their enrolment of the officer's name under whom the volunteers were to serve, was meant merely to ascertain the post where they were to serve by designating its commander, and not to attach them to his personal command, so that he could not be changed.

LIVINGSTON, J. By the return made to the habeas corpus issued in this case it appears, "that the complainants had enrolled themselves as privates in a corps of volunteers, under the command of Lieutenant Colonel Denniston; that as such their services have been accepted by the President of the United States, agreeable to the act authorizing him to accept and organize certain volunteer military corps, passed the 6th

Wilson r. Izard.

of February, 1812, and an act supplementary thereto, passed the 6th of July in the same year; and that the parties are now doing duty as private soldiers in the city and harbour of NewYork, as stipulated in the original instrument by which they enrolled themselves."

On referring to this instrument of enrolment, which is annexed to and made part of the return, it appears that the complainants, among others, did thereby "volunteer and offer their services to the United States, pursuant to the act of Congress of the 6th of February, 1812,a to serve under the command of Brigadier General Armstrong, for the sole purpose of defending the city and harbour of New-York, for one year only." This roll was signed by one of the complainants as an artificer. It is not stated in the return that the parties have received pay as privates, nor that they have taken the oath prescribed by the 18th section of the act "to raise an additional military force," "to observe and obey the orders of the President of the United States, and the orders of the officers appointed over them, according to the rules and articles of war." But, as it is averred in the return that the President has accepted them, and that they are in actual service, it is fairly to be presumed, until the contrary be made to appear, that they receive pay, and have taken the oath just recited.

On this state of facts, it has been intended that these volunteers are entitled to their discharge.

First. Because they are alien enemies, which is a fact not appearing on the return, but sworn to at the time of the allowance of the habeas corpus. This objection is at once disposed of by saying, that the President is not enjoined by any law, either from enlisting alien enemies in the armies which have been ordered to be raised during the present war, or from accepting of the voluntary services of persons of that description. Whether British subjects may not thus commit themselves

a 4 Laws U. S. 374.

Wilson v. Izard.

with their natural sovereign, or whether it be good policy to employ them, are questions of legislative, not of judicial consideration.

A second ground of relief is, that the President is not authorized to accept of volunteer corps for the defence of a particular place, but only for general purposes; so that they may be ordered, in case of necessity, to any part of the United States.

On this point the act in question is silent, and as far as the power delegated by it to the President may be misused, it is unimportant which construction prevails; for in either case there will be a latitude of discretion, as must ever exist in such cases, which will afford ample scope for very serious abuses. As commander in chief of the army, it does not appear to have been reposing too much confidence in the President to leave it to him to accept of these volunteer corps, either for the defence of particular forts or cities, which must be garrisoned throughout the war, or for the general defence of the Union. For the first of these purposes it would be more easy to obtain volunteers, and when obtained they would feel better reconciled to the service, and in general be more useful and zealous in the defence of their own firesides, than they would be if marched to a great distance from home, and employed to defend remote parts of the United States. But this Court does not think it necessary to express any opinion whether the President has a right or not to accept of volunteers for the defence of a particular city or harbour, because under the powers vested in him by this act, he has a discretion in the premises, in the exercise of which he cannot and ought not be controlled by any Court of Justice. If he abuses this discretion, he must be amenable for his acts, if at all, in some other way. But however the public interests may be affected by accepting of soldiers for the discharge of a particular duty, it does not lie in the mouth of the men who have

Wilson v. Izard.

thus made a good bargain with the President, to allege as a reason for their not being bound, that he had exceeded his powers. So long as they receive pay, and are employed agreeably to their offer, this Court feels disposed to consider them as regularly in service under the act in question, and can perceive no cause whatever of complaint on their part. It might be added that, for aught that appears, the President may have accepted of them for general purposes. If so, it will not be denied that he has a right to use them for the defence of the harbour of New-York, and that so long as they are thus employed, they are doing duty within the terms of the offer which they made of their services.

Another complaint is, that Wilson, one of the parties in the instrument of enrolment which is produced, has engaged as an artificer; whereas by the return it appears, that he is doing duty as a private soldier, as stipulated in the original instrument of enrolment. The Court is not prepared to say that this return furnishes any evidence of the employment of this man contrary to the offer which he made of himself. A company of artificers may, for aught that appears, be called a company of soldiers, and may be compelled, for any thing that appears to the Court, to do duty as such. This man has certainly sworn, as well as the others, that he will faithfully serve against the enemies of the United States," and it is presumed that, in day of battle he might, although he be called an artificer, be compelled to fight against the enemy.

Again, it is said these men engaged to serve under Brigadier General Armstrong, and are now placed under another officer.

This gentleman having, at the time of this enrolment, the command of the city and harbour of New-York, his name must have been inserted for no other purpose than for designating the extent of the duty to which they obliged themselves; or, as is more probable, merely for the purpose of