Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1863-09-14
The liability 90 Tsi3iIia Uuty ef Whoat
Who Save snbtitHtss IN tsr Army

science.
. The EiabilIty 90 IsiliHa Buty 81 Tho-
who aEave snbtiiHtss IN ihr Army.
From she Montgomery AdvsFtiser.I
The opinion Of Chief justice Walker, bear
ing Bpon this question is OF 20 much interest a
this tina thaI We this morning su5siita.
transcript Of the record Of ths court for any ~
msTks Of orr own. The distinction bsLwse1
the army sgd militia seems so plain that & ha
slways been a m2tter of surprise 10 Us lhRs an
dnubs shoald havs been entertained as 20 tt
I nights Of parties In such cases. The iudemen
Of the aupFems court the State vii 20 muci
20 settle question which has been the sourc
Of so much difference in the inferior courts
aHd We commend il 20 the public zs the tTU
end final exposition Of the law.
TX PARTE. ALLEE G. M'CAETS-PETITIoE FOE
DISCHARGE OK HABEAs CORPUS "A. =
[ WALEER, G J.
The President Of the Confsderata S.ssss made
/ a requisition uDol the Ezeeulivs Of tEis State
for geo Of the militia to serve within the s1ata
| for six months from tia lat Of August The
7 petitioner WIS, On the 25sb Jaly, 6rifl5d as
niliiismAn uBdor that r guisition Having bsau
I prsviously enrolled as q eonseriDt, he vas onrhe
/ 29.h January last discharged 5scauss he had
/ furnished substtats. FHs question Of the
/ ease tEus stated is, whether this dischgrre er-
eHIpts him from liability 90 serve tbs C0ufs3s-
rae States IS q mflitiamsH aul for she reasons
I which We proceed % state, We decide it ia she
I negative.
The mililsry strength Of the ConfsdsTass
States is divided into two departments ths
Aru1y proper, embracing the provisional and per
! TnaEant organization, and The militia The Er-
I my has bsen erestsd by virtue Of an Authority
Z bestowed in the Constitution, ''to Tsise and
I support armies Z" Ths Government employs
| the militia Erder the separate and tisjiut con
7 stitUtiOusl power 70 pr0vid5 for eaiiHz forth
/ the militia, 90 sxeeuts the laws Of the Ccnfss-
I ersts Ststss, Suppress iusurrections and re8ol
/ invasi0ns The seTvics Of tins citizen is these
| two different departments is exacsed By tie
authority Of distinct powers, 9rsntsd ia dis
Z -inet clauses Of the Constitution.
The Government may exercise those different
{ D0gors for dih5reat purposes, and may impose
/ upuR citizens, In The two distinct departments.
duties altogether variant ia their character aud
I objects. There is no restriction upon the en-
/ pl0yneut Of the srmy proper, eXcept, such ~
may be implied from the limited powers Of cur
I Confederate G5vornmcnt. Il may be required
% serve in "a aggressive war IN foreign c0uu-
tries, or in building Or garrig0ni8g fdTtEca-i0rs
! in times of peace, or do any Oth= 7ailtary duty
I whicH tbs Government nay legitnt impose
I The militia, however, can Re called lorth only
/ Tor the thrse purposes specified IN ths COustitu
Z ton, ot executing the laws, supDressing iusur-
( ree.i0ns, and Yepe.ing iuvssi8ns- I: may hap
pen, thst the soldier IN the army proper, snd she
mihtismsB, may be engaged III ths ssr,e seg-
vlcei bat the obligs.iers OF the former, and the
| scope Of his duties srs BY FIR tEs moTs extern
sivs, aad his services may be more usrifcus aud
I sT5ueus, more distant sad BT0sraetsd.
Tbs same ciLis4n csan0s render actual ser
I vies Simultaneously iu both the military de-
Z parsnenrs; and. therefore, the Government can
not require t. But il hss tbs c0stisai01sl au-
ihoTitT 70 exercise, ia reference % any citizen,
OF the proper esp2city ard sge either Of It's dis
t.net powers, and to require bis service in 6Lhsr
I o. i-s military departments. The t0rbearlnes
I Of the Government 20 raaeh and take suy citi-
zen, OF given class OF citizens, By tie exercise
I of the more enlarged power, cannot iu0ly au
3o1Eaaou, or commit It's faith, 20 abstain from
/ the other more restricted power Nor can the
I cessation OF tbs exercise Of the power whereby
Z the citizen is msd5 70 serve in the army proper.
I bind h rot 20 exercise the Other pOwCc Uf caiE
ing forth tbs sans citizen as q miitisusn. % 90
I the particular dIty specidsi 10 the Constitution
Z A discharge rom the operation Of oue govern
m81-s. power canuot De discharge from sa-
I Cfas- Differing In the extent q the obligation
I imposed.
Neither the iniautjoa Of The government 20
discharge fTor1 militia duty, ugT j7- desire a h1
citizen 20 be 50 discharged, czu be inferred l-0u
! the grsut1g Of a discharge when ASKED fre-n
I The army proper Guided BY considerations OF
I c!cm5ney or public policy, the government may
: yield 20 solicitations for discharges from the or
I my proper, sU deius conditions anon which
/ they might be granted, for the reason, that, ir
/ an emergency, the services Of the discharged
soldier msy stll be made available f0r l7ca, de-
( t5usa, the suppression Of social disturbance.
/ and tbe enforcement Of the lswsi end thg citi-
+ zen may well be supposed 60 have rscOncIled
/ hrs sense of patriotism With the aes Of lssvIcZ
7 tins army, by .He reflection That be coalf SSH
serve he country as 3 militAmau. 1t cHnuot,
I therefore, be successfully cluteu3ed thar the
I discharge was contemplated. either By the gov
I e-nmsGt CT by the citizen, IS sn euanciBs-irn
/ from the restricted and spsci6c duties which
/ may be devylved upon ths militia A dischs-ga
I from O. g army proper sAsns can hsVs no gfsct
I upon the obligation TO render service as a part
/ Of ths militia.
/ Il may be sail. thst tie petitioners discharge
( wss not simply from the army ss coasgrips
I but las general and comprehensive dlschsTgs
fOm the military service OF the C0uts3ersta
{ S.stes; aud that Therefore, the argument which
Es hsVe made has 10 Application to the ease
J The dschsTgs granted under the authority o
the 9th section Of the sst Of Congress approved
Apgd 16.h, 1862 That act simply provides
"ihst persons not liable FOR duty may b. re-
Z ceived as substitutes for those who are, un3el
I Secretary Of War" Interpreting the transsc
/ ton between 5he Government sud the pstii1uer
Ia 5he light OF the act, It amounts only 30 ibis
Z thst the petitioner, By virtue Of tks law, owing
I service IN the army proper, tenders = 1sn 60
I render II in bis plsee; t5s Government sCcsptl
hin, relieves the petitioner from that particular
I service, aad RENTS him b his original stafzy
He is discharged only from the service which
another renders in his place. The G5vsrnmoa,
I exampts from no duty except thss which aueth-
[ er 0lBds himself 20 render as 8 substitute, Il
discharges trsu duty in th8 army proper which
the law authorized it TO exact, and not from tds
I militia service, in which be hsd no substitute
Whenever only a BostiOu of those within she
militia age are placed in the army proper, the sub
stitUtes will be found 10 consist, to a large az
isng, OF msa bslongjRg to the militia The bis
/ tory OF the war now pending viii show maay
instances Of the substitution Of miitianeu. /
the psdtioHsr's claim TO exemption Is well fluu
ded, whensvsr substitute and she principal b.
l8ng % the mihtis, Two msa ars lost 30 the mli
TIA service; the principal, because be bss sub
sijtUte in tho aJny, aud tho substitute, bsesuss
he is IN iaet ia tie army. IF ths Government
we're 70 take one half Of ths militia as cjuseripts
and they we're 70 smploy the other half IS sub
stitutss, there woull, upon the argumeat for Pc
.ii0uer, be no militia Notwithstanding hale @
them Wsre at home following their accustomed
avosstiJns. Tbs argumsnt lssds TO the absur5
aud shocking conclusion, that simple law, cE
tsudinE the privilege Of substitution 90 fhs peo
pie, had converted al those who might, BY Jh.
ai3 Of friendship or money, procure substitutes
into a privileged class, free from TIE constisH
tional Obligation to serve in the militia, eyer
though every sthsr person belonging to thaS arm
Of the public service was in the army. Such a,
argument canusg hs sound.
is is confronted that be who has furnished
su u5sttuts is eOnstrueti5s!y in the army pe5Dsi
and that he cannot be required 10 render the ia
compatible service Of the miltiBnau IN eal
tain cases, the Law from given premises infer
facts, Wisnout any regard TO .heir sctuAk ezis.
soce These facts are called constructive Tau
! we have in the law constructive fraud, con
strusive notice, constructive houss-brsaEng
and the like Ths infsYencs Of thess f4c.s