30G 



ANNUAL REGISTER, 1813. 



Term of Service of Militia Stibsli- 



tutes. — Opinion of the Attorney 



and Solicitor- General. 

 (Copy.) Lincoln's-Inn, 



Jan. 13, 1813. 



My Lord ; — We had the honour 

 to receive your lordship's letter, 

 dated 12th January, 1813, trans- 

 mitting to us a petition addressed 

 to his royal highness the Prince 

 Regent, by several persons serving 

 as substitutes in the Royal Perth- 

 shire Militia, claiming a right to 

 their discharge at the expiration of 

 five, or at the most ten years' ser- 

 vice, and desiring that we would 

 take the same into immediate con- 

 sideration, and report to your 

 lordship, for his royal nigh- 

 ness's information, our opinion 

 thereon. 



We have accordingly attentively 

 considered the contents of this pe- 

 tition, and the statute of 42 Geo. III. 

 chap. 91, therein referred to, and 

 particularly the several sections 

 which the petitioners appear to re- 

 ly upon in support of their claim 

 of a limitation of their service to a 

 period of five years, or at most of 

 ten years : and we are very clearly 

 of opinion, that the claim of these 

 petitioners is totally groundless, 

 and cannot be complied with, with- 

 out a direct breach of the positive 

 provisions of the act of parliament. 

 The misapprehension on this sub- 

 ject seems to have arisen from not 

 adverting to the clear line of dis- 

 tinction drawn by the act between 

 the ballotted man who serves by 

 compulsion, and the substitute who 

 serves by his own engagement, and 

 receives a considerable bounty, the 

 period of service for the ballotted 

 man being expressly fixed by the 



35th section of the act, and the 

 terms of the oath which he is re- 

 quired to take, to the space of five 

 years ; whereas by the section im- 

 mediately following (the 36th), the 

 period of service prescribed for the ' , 

 substitute is '• the space of five I 

 years, and also for such further 

 time as the Militia shall remain 

 embodied, if, within the space of 

 five years, his Majesty shall order 

 and direct (as it is notorious he 

 has done) the Militia, for which 

 such man is enrolled, to be drawn 

 out and embodied," agreeable to 

 which a form of oath is given, to 

 be taken by the substitute, different 

 from that of the ballotted man, by 

 which he engages to serve in the 

 Militia during the term of five 

 years, or for such further term as 

 the Militia shall remain embodied, 

 if within the space of five years 

 his Majesty shall order the Militia 

 to be drawn out and embodied, 

 unless he should be sooner dis- 

 charged. 



To construe this section as li- 

 miting the service of the substi- 

 tute, when the Militia is embo- 

 died, to the same period as the 

 service of the ballotted man, would 

 be to reject all the words in the 

 36th section, and of the oath 

 which follows it, extending the 

 service conditionally to a further 

 period, and to affix the same mean- 

 ing to both the 35th and 36th sec- 

 tions, which are thus pointedly 

 contrasted with each other as to 

 their different objects. The other 

 construction of the 36th section 

 aimed at by the petitioners, by 

 which the limitation of ten years 

 is supposed to be given to the sub- 

 stitute's period of service, is aaat- 

 tempt to introduce a new term 



