The opinion of the court was delivered by

— This is an action of trespass for property, taken on an execution signed by the defendant, as commanding'officer of the 16th regiment of Vermont militia. It rests on a case stated and agreed upon by the parties, by which it appears that the plaintiff was delinquent of duty, at the annual company training, in June, 1838. This was in a company, and in a regiment, regularly organized under the statute of 1818, and no new organization took place under the statute of 1837, until July 1838. The principal question therefore is this; was there any existing militia company in May and June 1838?

Under the act of 1818, the whole militia of Vermont was organized into divisions, brigades, regiments and companies. In 1837, an act was passed “ for regulating and governing the militia.” By the 17th section, xv chapter, of that act, all former acts regulating and governing the militia were repealed. It is now insisted that this dissolved the whole militia of the state into its primitive elements; that its whole organization absolutely and immediately ceased and it was disbanded.

As a general rule the repeal of a law puts an end to that which was created directly by the law itself. But when a matter is authorized by the law to be done, and it is done, and rights and duties of a public or private concern, are thereby created and accrue,, they are not undone nor affected by a repeal of such law. The repeal of a law under which a legal settlement has accrued does not affect such-settlement. *553The repeal of a law of conveyances does not destroy any titles obtained under it. The repeal of a law giving jurisdiction to a court does not annul its judgments or decrees." The statute of 1818, by itself, made no organization of the militia. It created no regiment or company. It authorized certain persons to make an organization. The organization then was not made by the law, but, under that law, regiments and companies were formed and they would therefore continue, notwithstanding the repeal of the law. The statute of 1837, “for regulating and governing the militia,” found an organized militia on which to operate and which it would regulate and govern until some different organization was actually perfected under such law itself. Such would be its effect, notwithstanding the repealing clause, and such, it is to be presumed, was intended to be its effect, unless the general or particular provisions of the law itself are inconsistent with this view. On examination of the statute of 1837, so far from finding its provisions inconsistent with this view, I think it obvious that it was never contemplated that the militia was to be considered as disbanded or disorganized, but that the divisions, brigades, regiments and companies retained, and were all to retain, their existence until a new arrangement was actually made under the new statute. The 2d chapter directs an organization by commissioners to be appointed by the Governor. This, until actually carried into effect, could not produce a disbanding of the militia. By the 14th section, chapter xv, this,board of commissioners are authorized to disband independent companies. This shows they were not already disbanded by law. They also had power to alter the limits of divisions, brigades, regiments and companies. But if, by the repeal, all such ceased to exist, then there would have been none to alter. All were to be made. It was further provided that if by reason of the alterations, any two officers of the same grade were thrown together, the junior became a supernumerary. This shows he was in command until rendered supernumerary by the alteration when made.

By the first proviso to that section, the board were prohibited from disbanding any company of artillery, light infantry or riflemen, who had their complement of men. Most clearly then they were not disbanded by the law, already, but still *554held and were preserved in existence, notwithstanding the repeal of the law under which they were first organized* The whole law could and well did go into operation on the existing militia until a new organization was made, under the 2d chapter, and a view of the whole statute and its particular expressions and provisions is consistent with no other hypothesis.

There is another view of this subject in confirmation of the same principle. In the constitution of the United States, article 1, section 8, in enumerating' the powers of congress, is this clause; “ to provide for organizing, arming and., disciplining the militia and governing such part as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by congress,” Here the power of organizing the militia was vested in congress. In 1792 they exercised this power by passing a law “establishing a uniform militia throughout the United • States.” This provides who shall compose the militia, how enrolled, officered and equipped,&c.; that they shall be divided into divisions, brigades, regiments and companies as the legislature shall direct. By that act the legislatures of the states were authorized to proceed and organize the militia, and it was by that act of congress the organization was created and upheld. Though the legislature might, from time to timé, new-model and recast the arrangement of the parts, yet the basis of all was the act of congress under the constitution ; and without the repeal of this act of congress, the militia, which had been organized under it, could not be disbanded. The state legislature could no more disorganize or disband the militia, which it had organized, by direction of congress, under the constitution, than the board of officers could disorganize it after having completed their duty of organization under the act of the legislature. The states, severally, cannot thus destroy this branch of the national defence, nor do we think our legislature intended or attempted so to do.

Calvin Wright was, then, in June, 1838, commanding captain of the company of which the plaintiff was a member, bound to do duty. By neglect of that duty in that month, the plaintiff incurred the penalty provided for such delinquen*555cy, in the statute of 1837. That penalty, by that law, was to be enforced by a regimental court martial, and it was so done. It is now insisted that inasmuch as that regiment was not organized until July, 1838, the plaintiff could not be subject to its jurisdiction for a delinquency in June previous. It is not necessary that a court should exist at the time a cause of action accrues, in order to have jurisdiction thereof, nor that the geographical limits of such jurisdiction should have been then defined, and included the party. If a man has been visited with a duty or incurred a penalty, under the law, he is liable to the jurisdiction which then or afterwards may be created, by law, clothed with jurisdiction of the case. If a new court is created, it is no objection to its jurisdiction that the cause of action arose before the court was organized. If the geographical limits of the jurisdiction of a court be changed, it will take jurisdiction of all local causes within its new jurisdiction, though the cause of action arose previously. The plantiff had been guilty of a delinquency and incurred a penalty in June, 1838, under the law of 1837. In July, 1838, a court was organized which had jurisdiction of such penalties and over that section or limit. That court had jurisdiction of the plan tiff’s case and it is no objection that the court did not exist in June.

Judgment for defendant.

dissenting. — The reasons which induce me to entertain a different opinion from that now expressed by the court are these. I think the case is not one of that importance, either in itself, or in its bearing upon any leading principles, in the complicated system of jurisprudence, which might influence the determination of other cases, so as to require any departure from the plain and obvious track which lies open before us. Ordinarily, I do not think it safe to decide any case with a prominent view to “tramel up consequences,” and-hence I do not esteem the argument urn abinconvenienti of much force. I know that like the argumentum ad hominem, and many other of the subtleties of the ancient logicians, it has a kind of point and piquancy, which gives an air of plausibility, but, like most other refinements in learning, is fair without, but inwardly full of infirmity and imperfection. I do not pretend to deny there *556may be cases, where a court of law, in the last resort, as a kind of custos morum, or conservator Reipublicce, in order fes prevent some manifest evil, or to procure some obvious and important good, which had not been anticipated by the law-makers, and, by consequence, not sufficiently provided for or against, would be justified in a very considerabble departure from tne apparent import of a statute,- as deduced from its phraseology merely. But such cases are of rare occurrence, and of so decided a character as not to be esteemed doubtful. The great standing rule of construction, in regard to written law, and the only safe rule, for common minds at least, is to adhere to the natural import, as deduced from the whole statute according to the fair and common signification of its terms, with reference to the subject matter, in its ordinary incidents. The present is not a case of very momentous importance to the parties, even, and one whose like will probably never occur again. It is one, too, where the defendant was under no necessity of acting, but where he came forward voluntarily to exercise upon the plaintiff, then an infant, the prerogative of inflicting an amercement, a power always odious, but doubly so in a case of doubt, and where the party coming under censure may be supposed to have acted conscientiously. I do not think therefore that the court are called upon here, to seek out an unnatural ground of construction for the purpose of shielding the defendant in the exercise of what he, no doubt, considered a just exercise of legitimate authority, but which .plain, common men, I think, would have esteemed at least ■questionable.

1. Then I think the legislatures of the several states have the power to alter, or discontinue the arrangment or organization of the militia within their own limits.

It is true, that, by the constitution of the United States, Art. 1, sec. 8, congress have the power “ to provide for organizing, arming and disciplining the militia, reserving to the states, respectively, the appointment of the officers and the authority of training the mititia, according to the discipline prescribed by congress.” Now this section of the U. States’ constitution, undoubtedly gives congress the power to “ organize the militia of the several statesand when they have once assumed that province, their action upon the sub*557ject must be exclusive of any state legislation. But until that time, I apprehend, there can be very little doubt that the states have the right and must of necessity make laws uppn the subject. This subject rests upon the same basis, mainly, with other subjects of legislative power, which are reserved to congress, and which, by the United States’ supreme court, have been held to deprive the states of no legislative authority, until congress assumed to act upon those subjects. I re? fer to the subject of bankruptcy. And I should perhaps have included the subject of surrendering, to foreign states, fugitives from justice, in the same category, until the very singular decision of that subject, which took place in the United States’ supreme court, in the case of Holmes. That case, I take it, if it settles any principle, establishes the very uncourteous rule, that the power to surrender fugitives from justice to foreign states, (where they have committed the most bloody and unprovoked murders, even,J does, in fact, in the American states, exist nowhere, unless, at the time, a treaty stipulation upon that subject happens to exist between such foreign state and the United States. But that court, many years since, did decide, in relation to bankrupt laws, that the reservation to congress of the power to legislate upon the subject, deprived the states of no power to pass laws upon the same subject, until after congress had assumed that province. Sturges v. Crowningshield, 4 Wheaton, 122. 5 Cond. R. 409. Ogden v. Saunders, 12 Wheaton, 213. 6 Peters’ Cond. R. 523.

In regard to the militia, the argument in favor of the same rule is even more conclusive than can well be adduced in regard to bankrupt laws. All the old states, (and Vermont also,) had had a regularly organized militia for many years before the adoption of the United States constitution. It cannot be well supposed that by the adoption of this constitution, it was the intention of the states perpetually to disband the militia until such time as the congress of the United States should see fit to organize them. And this, too, when the several states have the power to call out the militia to repel invasion, as well as to quell insurrection, or to enforce their own municipal laws.

The fact, too, that congress never did exercise this power, but expressly referred it to the several states, and that they *558have continued to exercise it ad libitum, is a contemporaneous exposition and a practical construction, which no court would now feel at liberty to depart from. Stuart v. Laire, 1 Cranch, 299. 1 Peters’ Cond. R. 316.

The first act of congress upon this subject, which was of any general extension, or which was not immediately repealed, was passed May 8, 1792. And that act is now in force, with very few, and no important, amendments or alterations. The first section of that statute provides, that certain persons in the several states shall be enrolled in the militia. The second section exempts certain persons from enrollment, and the third section provides “ that within one year, after the passing of this act, the militia of the several states shall be arranged into divisions, brigades, regiments, battalions and companies, as the legislature of each state shall direct.” This is all that is said upon the subject of “organization.” It is evident the term “arranged” is here used as co-extensive with organize. The whole power upon this subject is expressly referred to the state legislatures, and since that time it has been constantly exercised by those legislatures. The organization or arrangement then in force, in the several states, would continue in force until some new arrangement was made. This very point was in effect expressly decided, as now argued, by the United States court in Houston v. Moore, 5 Wheaton, 1.

The legislature of this state had passed a very voluminous statute upon that subject, March, 8, 1787, extending into the most minute details. (The system had however been adopted much earlier.) In this statute the several captains are required to enroll all persons of a given description “ within their respective beats.” The commander in chief for the time being (the Governor) is required to arrange the whole of the militia into divisions, brigades and regiments. The colonels of the several regiments were to arrange the companies.

On the 29th of October, 1793, the legislature passed a law revising the whole subject and provided “ that the Govern- or, by and with the advice of the council, shall arrange the whole of the militia into divisions and brigadesand the subordinate officers are required to complete the arrangement. And it is here expressly provided, “ that the present *559“ arrangement shall continue, as it now is, until the Govern- “ or, by and with the advice of the council, shall otherwise “order.” That system was subsequently revised, in 1797, and in 1818, in both of which revisions precisely the same provisions in regard to the arrangement, as that found in the statute of 1793, is re-enacted verbatim,. But in the revision of 1837 no provision whatever is made for continuing the former arrangement, and all former acts are expressly repealed, saving only to the officers their commissions and all penalties which had accrued. From all which I consider that the power in the state legislatures to make the arrangement or organization of the militia, in the first instance, and to alter the same, at will, is made sufficiently obvious. And if it is at their election to make and alter the organization, it cannot be doubted they may wholly discontinue the same either permanently, or until they can make a new organization. I infer this because, in the first instance, the states were under no obligation to organize the militia, that power being reserved to congress. It is true congress might leave it to them, as it did; but even then, if the states acted, the action was voluntary, on their part, and might at any time be withheld. The organization, when made, was not a national, but a state organization, else it could not be altered by the state legislature. And if it was a state institution, merely, it might be abrogated by state authority.

If then the state legislature had the power to discontinue the organization of the militia, they must do it by an act of legislation, for by that was it created. But could it be necessary that it should be done by any positive exertion of poioer ? It was only by force of an act of the state legislature that it was from day to day upheld. When that force was removed, it must fall of itself. It was but a consequence or incident depending for its life upon the statute, merely, and when the fountain was dried up3 the stream must fail. To argue the contrary would confouud all our notions of cause and effect, and render the most uniform experience of no value. It would be to make the branches of the tree live and flourish, when the trunk had been removed. For it cannot be argued, with the least propriety, that the organization of the militia is a thing apart *560from the authority which upholds the system itself. When all laws upon that subject are repealed, all relations created by them must cease to exist as effectually as if the laws had never existed.

Could it be said, with any propriety, that the rules of this court were of any force, or that the clerk of this court had any authority, when every legal provision, by which the court itself was created, had ceased to exist ? What would be the condition of an auditor appointed by this or any other court, when the court itself was abolished ? I take it, that man would be considered a bold man, who should argue that the force of the rules of court, or the authority of the clerk or auditor, remained the same after the court was abolished, as before. .

2. I come, then, to my second proposition, which is, that if the legislature had the power to discontinue the organization, they need only repeal the statute by which it was created and upheld, in order to effect that object. This they have done.

3. I think the legislature intended to discontine the old organization and to leave the militia of the state wholly unorganized, until it could be organized in the ¡manner pointed out by the new statute, passed November 1, 1837, which came in force January 1, 1838.

1. The second chapter of that statute is entitled “ organization.” By this chapter it is made the duty of the Govern- or to “ organize” the militia of this state in the manner pointed out. Now we do not ordinarily speak of organizing what is already in an organized state, but of reorganizing or organizing anew. We apply the term organize to that which is in an inorganic or unorganized state.

2. It is provided that this organization shall take place on or before the first day of May following, which wouldbe long before any training of the militia would occur; and as soon as, in this nothern climate, any military expedition could be set on foot against us so as to require their aid to repel invasion, which was the most remote of all possible contingencies ; and if their aid had actually been required during the inclemencies of the winter for that or any other purpose, the governor, under the provisions of the law, could have effected the organization of the entire force in a very few days at most. So that this argument, ab inconvenienti, which al*561ways sounds well, and is easily got up, is, in the present case, as usual, of very little weight.

3. It is evident that the law of 1837 was intended to be an entire system by itself, and did require, and was intended to apply exclusively to another organization, else the provision of the former acts, in regard to keeping the old organization until a new one could be effected > and whieh had been kept along through three successive revisions, from 1793, until 1837, almost half a century, would not now, for the first time, have been omitted.

4. It is said the new law applied immediately to the old organization, and thus the former officers were continued in their command, even before any other organization. This course of argument is indeed the only one which will justify the amercement in the present case. It would seem not a little singular, when in this same statute an express provision is made, reserving to the officers their commissions, if, at the same time, the legislature intended, not only to preserve to the officers their commissions, but their command, that an express provision should have been deemed neeessary to effect the first object, and the latter, which would be far more important, and infinitely more questionable, should have been left wholly to inference and presumption.

5. There is an express provision in the statute of 1837, that the organization required to be effected, shall be published with the act, as an appendix thereto, and be forthwith circulated among the militia, thereby showing as conclusively as any thing, short of an express provision, that it was intended the statute and the organization should take effect together, and the one not operate until the other was completed, .or, at least, that the operation of each should be co-extensive with the other.

In short, it is evident the new system was never intended to apply to the old organization, and in compelling this application, we are, I think, providing for a state of circumstances which the legislature did not anticipate.

The argument attempted to be deduced from the provision of the statute of 1837, that the committee might disband independent companies, is easily answered, by supposing the. legislature, out of over caution, and to prevent all controver*562sy on the subject, and as these companies were voluntary associations and might claim special privileges on that ground, introduced this provision.

In conclusion, I-think, therefore, that the fact, whether the plaintiff belonged to captain Wright’s company, or captain Wright’s company to the defendant’s regiment, or whether in fact, the defendant, or captain Wright, should have any command, and if so, what command, was not determined at the time the plaintiff was required to train ; and that the amercement was an arbitrary act of power, without right, and the defendant liable in trespass for the consequences.

As this case has been twice argued, and at different times, before every member of the court, three of whom, including the chief justice, who is now absent, having come to the conclusion that the judgment below should be reversed,judge Bennett wishes me to say it is on that ground he consented to have the case decided, as it has been; although at both arguments, he has felt compelled to concur in the views which I have myself expressed. I myself, too, think, under the present state of the opinion. of the different members of the court, that the parties should not be put to the expense of another argument.