Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1863-06-05

II
The facts are, John N. irwin, being liable as
conscrpt under the act of April 1852 offered in
July 1869, one Gephart as his substitute; Gephart
was SO years of age, and in all respects fit and
sufficient substitute for the war, and was accepted
by Maj. Mallett commandant of couscrptS, who
thereupan gave Irwin an absolute discharge.
The petitioner AYERS hes advised that the conscrip-
ton acts are unconstitutional but it is not necessa
ry for the purpose of this case to decide the ques
ton.
1t Is admitted that under the regulations of the
War Department Maj Mallett had full authority to
accept substitutes and give discharges but it is
insisted that Twins discharge was afterwards by
the action of Congress rendered of no effect; for
the act September 1852, makes all persons between
the ages of 80 and 45, liable eonscripts so Gep-
hart became liable as conscript by reason whereof
he was no longer a sufficient substitute; and thus
Twins discharge had further effect. If one who
is at the time liable as conscript should be offer
ed and accepted as substitute it may be conceded
the discharge obtained in that way would be void,
because no consideration is received by the govern
ment and the officer exceeds his authority. So il
after the conscriptiOn act Of April, one who is I'M
der IS years of age is offered and accepted sub
Sttute, it may be conceded that the discharge only
be of effect until the substitute arrives at the age of
Is; for it was known to the parties that the sub
Stitute himself would become liable at that date
der law then in force, it Will DE presumed that the
that state of things and after the substitute arrives
at the age of IS, the consideration fails and the Of
6cer had no authority to grant n discharge for
longer time
But in our case, there was at the time no Law in
force under which it was known the parties that
the substitute would afterwards be himself liable
q conScrpt; on the contrary, he was in all respects
q fit and sufficient substitute for the war, and was
accepted as such, and an absolute discharge given
so'there was full consideration received by the gov
eminent, and full authority on the part Of the Off
Ger. The question is, does the subsequent action
of Congress- to wit the act of September, 1862, by
its proper construction and legal effect rcpudlate
and make void the contract and discharge?
The construction OF acts of Congress, so far rs
the rights of the citizens as distinguished from the
military regulations are concerned, is matter for
the Courts.
Whether Congress has power to pass an act ex-
presSly making liable to CONSUMPTION persons who
have heretofore furnished substitutes and received
an absolute discharge is a question not now pre-
sented, and one which l trust public necessity new
er will cause to be presented, it would violate
natural justice and shock the moral sense.
In my opinion, the act Of September 1862, by its
proper construction, does not embrace men who
were before bound as substitutes, to serve during
the war. 1t is true, the act in general words gives
the President power to cali into military service all
white men, residents, &C., between the ages of 80
and As; but this manfestly does not include men
who are already in military service for the war, for
this plain reason: there was no occasion to include
them, they were bound before; and the true mean
ing and intent of the act is 10 increase the army by
calling into service who not before liable
Suppose the act contained a provision giving a
bounty of $500 to all men called into service under
its operation, or providing that such cOnscripts
should not be ordered out of their own respective
States, would it be imagined that men who had
previously volunteered for the war, were su5Sti
tutes for the war, would De entitled to the extra
bounty, or to the special privilege of remaining in
their own States Certainly not because there
was no need of legislation in order to make SOL
diers of them.
A decent respect for our lawmakers forbds the
Court from adopting construction which leads to
the conclusion that it the intention by the use
of general words to include within the operation Of
the act, substitutes who were already bound for
the war; not for the purpose of effecting them
but for the indirect purpose of reaching parties
who had furnished substitutes, and in that was as
sorting power which is at least doubtful and GER
tainly involves Reputation, and a want of good
faith
As the CONSUMPTION act docs not include substi-
tutes the conclusion that Gephart is no longer suf
ficient substitute, and that Twins discharge is
of no other effect, fails.
1t is considered by me that John n Irwin be
forthwith discharged with liberty to go whereso.
ever he will
1t is further considered that the cost of this pro-
ceeding allowed by law be paid by James Irwin, to
be taxed by the Clerk of the Superior Court of
Rockingham county, according to the statute IN
such cases made and provided
The Clerk will file the papers in this proceeding
among the papers of his office.
r. NJ. PEARSON, Oh. j. S. G.
at Richmond Hill
April 9Th, 1863.