IN SENATE, April 4, 1833. REPORT Of the Adjutant-General, on the bill for the relief of Gilbert D. Dillon, referred to him by the Senate. SIR STATE OF NEW-YORK. ADJUTANT-GENERAL'S OFFICE, } I have the honor here with to transmit a report on the subject of the bill for the relief of Gilbert D. Dillon. LEVI HUBBELL. Hon. JOHN TRACY, President of the Senate. [Senate, No. 101.] REPORT. STATE OF NEW-YORK. ADJUTANT-GENERAL'S OFFICE, The Adjutant-General, to whom was referred the bill for the relief of Gilbert D. Dillon, with the documents relating thereto, RESPECTFULLY REPORTS: That the petitioner applies for a remuneration for personal injuries sustained while in the discharge of military services for the State. The claim is founded upon the peculiar nature of those services. The petitioner was a lieutenant of a company of artillery at Kingston, in the county of Ulster, on and before the 15th day of February, 1828. On that day he was engaged, together with his company, in firing a gun half-hourly during the day, in pursuance of a general order of the commander in chief, in relation to the funeral obsequies of De Witt Clinton. The said order was issued at the recommendation of the Legislature; and a copy of the same is hereunto attached. While thus employed in discharging the gun, it accidentally burst, and a part of its contents were lodged in the body of the petitioner. The injury sustained thereby, subjected him to a long and painful confinement, to great pecuniary expense, and to the strong probability, for several weeks, of losing his life. His right arm remains yet subject to stiffness; and his right hand is nearly useless. It does not appear that the accident was occasioned by neglect or carelessness on the part of the petitioner. These are the principal facts on which the application rests. To grant the prayer of the petition, would doubtless be a grateful duty, should it be found consonant to the general principles of established and safe legislation, It seems to have been a principle heretofore settled, that for accidents happening during the performance of the ordinary militia service, prescribed and required by law, no compensation will be afforded by the State. The able report of the committee of the Senate, in the matter of Adonijah Carter (vide Senate Journal of 1827, page 48,) is here referred to, as furnishing a full and conclusive argument on this subject. The service in which Carter was engaged, was the regular militia duty, to which every "able bodied free white male citizen" in this State is liable. That "service," say the committee, "is a tax imposed upon individuals in consideration of the protection which is afforded them by the government; and in this respect it is difficult to distinguish it from highway or any other species of taxation." This principle is admitted to its fullest extent. The enjoyment of the privileges and immunities of citizenship, creates the duty of bearing certain public burdens, which devolve equally upon every individual, and the nature and extent of which are defined by law. The enjoyment of the one is a fair equivalent for sustaining the other; and the acceptance of the equivalent gives the right of enforcing the duty. Against accidents happening during the performance of such duties, the State is not bound to ensure the individual, because he has been paid beforehand for incurring the hazard. It is the equivalent which in these cases excludes the claim. Others have alleged, that as the equivalent is uniform and the duty universal, the cases would be too numerous for the ability of the treasury to bear, and that therefore public policy requires their entire rejection. Such it is believed, is not the case of the present petitioner. The oc The service assigned to him was special in its nature. casion which required it was one of an extraordinary character. Its performance was not compulsory by law, but it was rendered at the request of the State. The extent of the service was limited, being confined by the general order, to "officers in commission," to "each company of artillery throughout the State having a field piece," and to the "military of the city and county of Albany and its vicinity." It is difficult to discover any equivalent bestowed by the government upon the individuals here designated, in preference to others, as a remuneration for this additional public duty. The partiality of its operation precludes the idea that this duty may be classed among the general "military services" before described. Another consideration effectually distinguishes the present case from those before contemplated. 'Military service is a tax imposed upon the individual," not by the State, but by the general government. The act of Congress, of the 8th of May, 1792, provides that "each and every free able bodied white male citizen of the respective States, resident therein, who is or shall be of the age of 18 years, and under the age of 45 years, shall severally and respectively be enrolled in the militia, &c." From this common source flow all the laws of the several States. for organising, enrolling and disciplining the militia, and for imposing military burdens upon the people. It will not be contended that the special services enjoined by the general order of the commander in chief, in relation to the obsequies of De Witt Clinton, were embraced under this general law. The object to be attained by their discharge, was in no way connected with the general government. Recommended by the State Legislature, ordered by the State Executive, relating to a citizen of the State, they were performed in obedience to the authority of the State, and to no other. Under this view of the facts of the case, it is conceived that the petition of Gilbert D. Dillon presents a claim distinctly differing from those heretofore presented; a claim involving different principles, resting upon no former precedent, and appealing strongly to the justice of the State. By granting the relief desired, the Legislature will establish no dangerous rule for the control of future times. Extremely rare, will be the recurrence of events like that which occasioned the present injury. The State can have few occasions to honor, in a similar manner, her illustrious dead. I would therefore, respectfully recommend the passage of a bill granting to the petitioner ample, but reasonable relief. All which is respectfully submitted. LEVI HUBBELL, Adj. Gen. |