Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1862-10-08
From the Chronicle & Sentinel


- From the Chronicle & Sentinel. -.
The Conscript Law Unconstitutional
| >. and Void.
JUDGE THOMAS DECISION.
" In ELBERT SUPERIOR COURT, |
September Term, 1862. I
James $. Lovi'gso'd, Ls u,,.o. oo,,,n.
Sidney P. Bruce. R I.
The papers in this case reveal the follow
ling facts About the last of February OF
6rss Of March last, the plaintiff enlisted as
a volunteer recruit under Lieut.. Willis, Of
the 18th Regiment, Georgia Volunteers
was examined and rejected for uusouuduess
| by Surgeon Cleckley at Augusta, Georgia,
on the l7th of March, 1862. On the 11th
of June, 1862, he applied for admission as
volunteer recruit into the 9th Georgia
Battalion at Camp Van Dorm, near Knox.
vile, Tennessee, and was again rejected for
upsounducss by Surgeons Galloway and
Bell On the 6th Of June, 1862, Colonel
Trenchard, of this county, issued an, order
appointing him Ensign Of the lS9th Dis.
trict G.. NJ, of Elbert County, and the
same day he accepted and took the oath of
office That lately the defendant enrolled
him as conscript, and on Wednesday, the
3rd instant, assumed and took control over
him, by virtue of his authority as enrolling
officer, and ordered him off to the camp of
instruction. The answer of Bruce admits
these facts to be true, aud he brings into
Court copy of the Conscript Act, and the
regulations and orders framed upon it, as
his justification producing, also, in obe,
dience to the writ, the body Of LoVinggood
Plaintiffs Council makes the following
points. -.
l. The plaintiff is a, lawfully appointed
Commissioned officer of the Georgia Mill
tia, and therefore, exempted by the order
of the Commander. 10. Chief of this State.
2. He has been twice rejected by. the
Confederate Government as. a soldier, for
unsounduess, and cannot be coerced into a
third experiment under the Conscription
Act. ,- 49,. ...s-s- ~ -
The Conscript Act is unconstitutional,
and therefore the Act itself and all regula-
tions and orders based upon it are likewise
void. ..'. s-'.. .
The first question suggested by this re-
cord is whether this court has Jurisdiction
over the questions presented and the subject
matter, to wit, the body of the plaintiff
Lovinggood. As to the question the Court
can see but little ground for doubt dshall
treat it briefly. The Constitution Of Geor-
gia declares the right of the people to ap.
peal to the courts shall never be impaired
For every right there should be provided a
remedy, and every citizen ought to obtain
justice without purchase, without denial
and without delay, couformably to the laws
Of the land Such is the language of the
Constitution Of Georgia and such her SOW
ereign commands to her courts. - :.
There is no conflict between her Consti-
tuition and the Constitution of the Confed.
crate States in any of the points involved
in this record. Her will then is that Jud.
ges shalt permit the people toappeai to the
courts and forbid them not. Shall use rem
edies to protect their rights and shall give
them justice without purchase, denial or
delay, conformably to the laws of the land.
What courts are intended here ? Obvi-
ously the Courts established by the Consti-
tuition. What remedy is brought to view
in this case? Obviously the remedy called
habeas corpus, which is the universal one
in cases where personal liberty is restricted
or taken away. For these reasons [ must
hear, determine, make judgment and en-.
force that judgment,by the power of the
Sheriff and his posse If the plaintiff were
already soldier, whether by voluntary en-.
lissment or draft, or otherwise, and peti.
toned for habeas corpus, it must be grant
ed, and it appearing to the court upon the
return that the military courts had juris-
distion over him, then he must be remand.
ed, for their judgment is the standard Of
his rights: But here the question is, shall
be become soldier and of this question
only the civil courts have jurisdiction. This
is the true distinction, and if understood
and remembered would save all conflict be,
tween the two Jurisdictions.
Coming now to the first question made
by plaintiffs counsel, that he is comulis.
stoned officer of the militia and exempt by
the Governors order. I do not question
his power to exempt his ofioers-indeed,
think it was his unavoidable duty to do so,
He is, by the Constitution, Commanderin'
Chief Of the army and navy of the State
he is charged by law with the duty of pro
tecting the State against invasion, and all
other sources of disorder and lawlessness-
in fact, with the execution of the laws
His only power to do this is the militia
nor is it true, as has been often said, thai
the Governor can get men enough over 81
years of age to be officers. He has nc
power to get officers at abby the laws o.
the State which bind the Governor as vel
as any other man, the people have the righ
to elect officers and the Governor must take
such as the people give him.
He saw fit to waive his military authori
ty over the militia below the age of thirty
five; this, it appears to me, was question
for his military discretion to decide, hold
ing himself responsible to retain force e
nough at home for domestic protection ane
the enforcement of the laws; but if he hac
permitted the officers to be taken, it woulc