Art. lxxvi. Every officer having power to order a general court Pardon or mitigation of punmartial may pardon or mitigate any sentence of the court except sen- ishment. tence of death and cashiering; and he may suspend the execution of these until the commander in chief shall be informed thereof; and he with the advice and consent of the council shall have power to pardon or mitigate the sentence. U. S. art 89.

SECT. 146. In this chapter the word soldier shall be construed Construction of to include all persons enrolled in the militia except commissioned of the word "solficers.

dier."

NOTES.

EXEMPTIONS.

SECTION 4. The exemptions in this section include militia officers, who have held commissions less than five years. They have been exempted in this Commonwealth until stat. 1829, c. 115, when the repeal of certain sections of former statutes made them again liable. The legislature will consider whether or not this is expedient.

ENROLMENT.

SECT. 5. By the laws of the United States notice of enrolment must be given by a non-commissioned officer. The provisions respecting the evidence of the age of the person enrolled seem to be the only reasonable and practical construction of the present statute.

SECT. 9. The provisions respecting the manner of keeping rolls are supposed to be the proper construction of the existing law, but are more directly expressed to prevent doubt.

HOW OFFICERED.

SECT. 22, 26. By the laws of the United States, which are paramount, a brigade quarter-master is entitled to the rank of captain, and not of major as by our statute of 1809. In this statute the office of sergeant quarter-master of a regiment and sergeant major of a battalion, though existing in practice, seem not to be provided for. The last paragraph of this section respecting privileges is inserted to prevent contradiction between the laws of the United States and this chapter. For the same reasons the provisions for the appointment of the quarter-master general are continued, as is also required by the statutes of the United States.

ROSTERS' ROLLS AND RETURNS.

SECT. 32, 33 and 34. These sections are merely declaratory of the law of the United States contained in the preamble of the statute of 1809, but the matter of which is here distributed under it proper heads. The duty specified in this section in made imperative by that law.

OFFICERS, HOW QUALIFIed.

SECT. 65. By the construction usually put upon the present laws an officer is required to qualify himself, when he receives his commission. If not then done, it is apt to be neglected, and it was thought better to express it directly

DISCIPLINE, INSPECTION, TRAININGS AND REVIEWS.

SECT. 77. By the former laws all the rules and regulations for the government of the militia were required to be read on the first Tuesday in May, one third of which applied only to officers, and some of the remainder were of less importance to be known than other parts of the law. These rules and regulations have now been distributed under their proper heads throughout the chapter. It will be much more useful to select those parts for reading, which time and circumstances may render of the greatest consequence. SECT. 78. By slight changes in this section the militia system may from time to time receive all the alterations, which have ever been found necessary in practice; and the construction is such that this may be done without any variation in the other parts of the chapter. If it should be thought necessary again to require of the standing companies the same duties as from the volunteers, this may be effected by repealing the first sentence in italics. And all the duties formerly imposed by law, or any greater amount of similar services may be required of both or of the volunteers only by the alteration of the word in italics in the second sentence. No officers' drills are provided for as they have been found practically to be of little use.

SECT. 80. Arrest and detection during the time of parade is often an insufficient punishment; and a provision for bringing the offender before the civil authority, seems to be the only proper additional remedy. Declaring what the offence is, may be useful, as from hurry or ignorance the complainant may not know with what to charge him.

SECT. 81, 82. This is required by the laws of the United States, and may be inserted for information.

SECT. 83. It is supposed that this provision is substantially a compliance with the laws of the United States without incurring the danger from the distribution of ball cartridges.

SECT. 89. To cultivate military spirit and discipline in the volunteer corps, it is important that they should require of their members other duties than those required by law, and have the means of providing for their expenses. For this purpose they adopt constitutional articles as a contract among themselves, and maintain actions of assumpsit on them. The object of the last part of this section is to give them a more economical and expeditious remedy; and it is supposed that the examination and approval of their constitutions by the commander in chief will prevent abuse.

EXCUSES.

SECT. 98. It is supposed that the last part of the eleventh section of the statute 1821, c. 92, was intended to limit the operation of the decision in Commonwealth v. Smith, 11 Mass. R. 456-see also Commonwealth v. Smith, 14 Mass. R. 374.

SECT. 110. All fines formerly prosecuted by indictment only, and those prosecuted by action on the case only may, by the provisions of the preceding sections, be prosecuted either way. Commanders of regiments are also permitted to prosecute soldiers leaving the regimental parade in order to prevent the effect of combinations in companies.

SECT. 114. So much difficulty has arisen in military complaints from the difference of opinion respecting the facts necessary to be proved to support a complaint, and the evidence sufficient to prove them, as well as from want of information on this subject, that it is thought to be for the interest of all parties to remove the doubts upon these questions by statute, and this has been attempted in the preceding sections.

SECT. 104. This provision respecting hired musicians is new, but is much wanted, as the musicians at parades are now generally hired.

COURTS MARTIAL.

SECT. 124. The proceedings in courts martial and courts of inquiry have been varied only so far as to remove a few difficulties and incongruities by some further details, and to adapt them to the other parts of the chapter. No change has taken place, to which it is thought important specially to call the attention of the legislature.