The Hillsborough recorder. [volume] (Hillsborough, N.C.) 1820-1879, 1863-06-17

mcns becOmtng Satished that tue ast W w
true construction did not apply to men
who were bound by the terms OF enlistment
70 serve for the war. This is the same
construction given by me to the act. Under
at. all volunteers and substitutes, whether
ever or under IS or As, are to continue IN
service because they are not embraced by
the CONSUMPTION Acts. | can see no rea-
son why this construction should not be
fellaSed to the further consequence that as
Substitutes are not embraced by the Con-
\ scription Acts, and do not become subject
10 military service as censcripts. The fact
necessary to the application of the regula-
item OF the War Department does aot exist;
consequently the question that may grow
out of that regulation is not presented.
II is said the arrest Of Aaroney was orr
dered in disregard Of che decision In the
matter of Irwin, because the Secretary 81
War does aot consider the construction
given to the CONSUMPTION Act OF Septem.-
Der "a sound exposition Of The Act" the
inquiry naturally suggests itself, who made
the Secretary of War Judge! He is not
made so by the Constitution-Cangress
has no power to make him.a Judge, and has
by no act signi6ed an intention 70 DO so.
It is true for the purpose Of carrying acts Of
Congress into effect The Secretary of War.
in the first place. puts a construction on
them. bat mis- construction musI be subject
10 the Judiciary, otherwise eur form OF go
yernment is subyerted-the Constitutional
provision BY which the legislative. execu-
tive and judicial departments Of the go.
yernment are separate and distinct. is slo-
lated, and there is no check or control over
the executive.
According to the view taken BY me it Is
no. necessary, for the purpose Of this case,
to decide upon the legal effect Of the regu-
lations prescribed BY the Secretary of War
in regard to receiving substitutes, but as
those regulations are relied on as authsrz-
ing the arrest Of the petitioner. il is proper
for me to say that many objections entitled
to consideration mRy be urged TO the pow
er of the Secretary Of War. to make the
regulations in question. The enactment
under which il is assumed that the power
TO make a regulation that !" in all cases
itary service, the discharge Of the princi>
pal shall expire" comes within the scope
Of the power confded BY Congress. is the
9th section of the CoRscriptiOn Act Of A.
priI. 1862, in these words: Persons mol
liable for duty may be received -as svbsii-
tutes fer those who are under such reguia.
lions as may be prescribed By The Secretary
efWm."
The obvious construction Of this section
seems 10 be-substiutes may be received
oniwo conditions, one implied, 10 sit: The
substitute must be an able bodied white
man, fit for military service 10 the 6eld.
The other expressed, TO wit: The subsii-
inte must. be person who i nut Liable 10
military duty under The existing Iau, The
time, place and manner Of rseGVing subsfi-
tutes, in which is included the mode Of de-
Gliding whether he is an able bodied white
man tot liable TO duty 10 be regulated by
rules prescribed by the Secretary Of Wa.
1.-THE regulation in question be conin.
ed 10 cases where the substitute being IN
der the age Of rs, afterwards arrives al thai
age ard becomes liable TO military duiY, il
accord. with the provisions Of the act
But II il be extended to, cases where DIX
substitute i not at the date Of the contrac
IT substitution liable to Duty, but is after
wards made liable By subsequent act o
Congress, il departs from. and goes beyon,
he provisions of the act BY adding a third
condition, and the power % Do - may vel
be questioned; especially. where the regu
lation as well as the act Of Congress wltcl
is supposed to give II application are bot
subsequent to the contract IT substitution
and the discharge is absolute on its face
For illustration, suppose aregu-atipn 70 b,
prescribed that in all cases where the sub.
stitute is killed or disabled. OF where b,
deserts, the discharge shall expire. which
stand on the same footing, with the reguil
ion that the discharge shall expire II III,
substitute is made liable 10 duty by sub.
sequent act Of Congress. for al aid /
third condition 10 The tso impose,l by tn,
act, and il may be urged against them tina
The power 70 add o.hef conditions thar
those contained in The enactment il an dc
nj lguIkfdfiOtf tyg (, 4, par.rass Ia a - Y.,,h