Loring, J.,
dissenting:
I dissent from the opinion read. The 5th section of the statute of 1856 extends the provisions of the act of 1855, not to those who " have served" merely, which would embrace all who were in the field, but to those only who have served as ' volunteers." This word volunteers must have some meaning, and the same meaning as in the act of 1855 and preceding acts on the same subject; and I think in all the statutes of the United States, from the act of 1792 for the organization of the militia, the word "volunteers" means an organized body of men, and just as much so as "regulars," "rangers," and "militia," with which it is used. To all of these equally the statutes attribute " officers, non-commissioned officers, musicians, and privates," and "regiments," "battalions," "company," and "detachment," which all imply and require organization. And the act of 1856 and the preceding acts measure the service from the time " when any company, battalion, or regiment, in an organized form, marched," &c.; and I do not know of any statutes of the United States which contemplate the calling of the militia, or any part of it, or State troops of any sort, into the military service of the United States, except as organized bodies of men.
Then the evidence shows that General Garland's requisition,upon the governor of New Mexico was for six companies for six months ; that these companies were furnished, and were duly,mustered into the service of the United States. Thus the requisition was fulfilled by these six companies, and these were legally - called into the military service of the United States, and no other persons were. One of these companies was "the New Mexico mounted volunteers," hut the petitioner was not a member of that company. Lieutenant Hovey, in his affidavit produced by the petitioner, states that the claimant's services were accepted for the fight and expedition in conformity to previous instructions from Colonel T. T. Fontleroy, United States army, commanding troops in the field in 1855, and that "he was under and subject to my immediate command during the fight and expedition ; that his name was not enrolled, hut that his services wore accepted, as the command was very small." But how the militia or troops of a State or Territory shall be called into the military service of the United States is fixed by law, and cannot be departed from by the authority of Oolonel Fontleroy or Lieutenant Hovey ; and their acceptance of the petitioner's services did not make him a member of thé New Mexican mounted volunteers, or one of the force fulfilling the requisition of General Garland.
There is a great difference between organized bodies of militia or State troops, called according to law into the military service of the United States for a stated term of service and subjected to the rules and articles of war, and individuals who go into a battle oran expedition at their own pleasure, to serve as long as they please and no longer; and I think it is only the former and not the latter who are termed " volunteers" in the statutes of the United States, that word denoting only a part of the militia of a State having under its laws an independent military organization.
For the reasons stated I think the petitioner was not within the statutes under which he claims.