¶1We affirm the proceedings of the justice, because it appears, not only that the respondent never had a commission in the army of the United Slates, but that he never acted in any manner in the office to which he bad been appointed. Whether, in all cases, a commission is necessary to entitle a person to the exemption from militia duty under our militia laws, it is unnecessary now to determine ; although in terms the exemption is confined to those who have held a commission. But when no commission is produced, we think an actual service of the officer, by virtue of a lawful appointment, can alone be equivalent to the holding of a commission.
¶2In this case, it appears, by evidence not of the highest nature, which would be the commission from the President, under the seal of the United States., that the respondent was appointed to an office in the army, that he accepted his appointment, and that he received his pay, &c., until his resignation was accepted. But it further appears, that he never left his home on public business, nor obeyed any military orders, nor did any single act in consequence of his appointment. It is enough for him, that the government of the United States have gratuitously given him his wages, without his being exonerated from those duties to the Commonwealth which his fellow-citizens are obliged to perform.