Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-04-29
Habeas Corpus in the matter Of Irvl

AAoUC"s NVIpuS In tne matter OF IrVlMs
The facts are John N. Irwin being liable as a con.
script under the act of April 1862 offered in July,
62, one Gedhart as his substitute Gedhart was
So years of uge and in all respects fit and sufficient
substitute Tor the war; and was accepted by Major
Maliett, commandant Of conscrpts, who the,eupon
gave Irwin an absolute discharge.
Inc petitioner AYERS, he is advised that the CON-
scrption acts are unconstitutional, but it il not
necessary for the purpose of this case to decide the
question. >''
1t is admitted that under the regulation Of the
war department, Maj Mallett had full authority to
accept substitutes and give discharges but it is in
ss;ea taa1 lrvns discharge was afterwards BY the
action Of Congress rendered of no effect for the act
OF october, 1862, makes all persons between the
ages o. 90 and 45 liable as conscripts. So Gsdhart
oecame iiaole, as conscript by reason whereof he
was no longer sufficient substitute. and .hus r..
WINS discharge had no further effect, IF one who
IS At the time liable as conscript should he offered
anu accepted as substitute it may be conceded
tne discharge obtained in that way would be void
because no consideration is received by the govern
ment ana the officer exceeds his authority. So II
s'er tue corscI1ptlun Of Aprii 40 ,rSs. :; -,
oer 10 years OF age is offered and accepted as sub
sttute, 1T may be conceded that the DISCHARGE nil,
oy oe OF effect until the substitute arrives at the
age Oh ls TOR as it Wac known to the parties that
tue SUBSTITUTE himself would become liable at that
under law tben in force, it will be presumed
mat the contract and discharge we're made in refsr
ehce 10 that state Of things; and after the snh.t;
tute arrives at the age of 49, the consideration Is
anu the officer had no authority to grant discharge
ter longer time ~
. But IN our case there was at the t;n,e M lou =,
.olce under which it known to the parties tb.t
ue substitute would afterwards he himself liable as
eeo"scrpt on the contrary, he was in all respects
~ ana sufficient substitute for the war. and was
aoespteo as such, and all absolute dscharps river
eo t'efe was full consideration received bv The COW
Srhment and full authority on the part of the ocsr
rue question u.s. does the subsequent action If Con
stess, 10 wit, the act Of Oct 1852, by its nroner
construction ard legal effect repudiate and ,naka
'o ~, LIE contract and discharge?
4, LIE construction of acts Of Conoresa ca g..
,r gnIs OF the citizens, as distinguished from mill
Courts 0Se''' 10 q mater for the
Whether Congress has power to u.ss an ,ct a.. -.
p'essiy making liable to conscription. persons vho
us's heretofore furnished substitutes and race;,.d
an absolute discharge, is question not now nrs'
seeea' and one which trust public necessitv nsvs-
viii cause to BE- presented as il would v;oi.ts NV.
urai justice and ahqck the moral sense. ""'-
IN my opinion the act of Oct 80, bp its prona-
eeohsifacton, does got embrace men Who vsrs IL.
r. POUND as SubstitN 'tes, to serve during he w.r
s Is rue the act ia ge 'era words gives the pres;
uaa power to call into military service all white
bnt ~. ssaoents de- betweeh the ages Of s5 and AZ.
.lrs.SHS mantestly does not include men whe are
IN military service for ts war, for this plain