The question respecting the Militia Appeal, upon which Council were pleased to request my opinion, ought to have received an earlier answer, by my attendance on Chester Court prevented my receiving their commands until this day.

Upon considering the case stated, it appears to me that whenever the militia class is called out, and any one neglects or refuses to march, the fine is immediately incurred, and becomes due to the Commonwealth. But it being reasonable that the party should have an opportunity of being heard, this fine is not to be levied “untill five days after an appeal” is given. This appeal the Lieutenant or Sublieutenant was directed to hold “within ten and not less than five days” after the marching of the militia; and the Lieutenant is guilty of a misdemeanor if he neglects to hold it within that time. But as the words are merely directory and affirmative, and no negative words are added, I am inclined to think (upon the authority of several late cases) that the Lieutenant is not restricted to the time mentioned, and that an appeal may be legally held after the ten days are passed. In England the Statute directs the appointment of overseers to make “in Easter week or within one month after;” yet an appointment made after the month was expired has been adjudged good, because there were no negative words, and because the parish ought not to suffer from the neglect of the Justices who have the appointment. Upon the same gound an assessment made by the Commissioners in Pennsylvania, after the time mentioned in the Act, has been held to be legal. In the case before us there seems to be no reason why the sickness, absence or neglect of a Lieutenant for ten days, should deprive the people of a hearing or the Commonwealth of the fines due from delinquents. I have the honor to be, with the greatest respect, Sir, Your Excellency’s most obedient, and very humble servant,