The Hillsborough recorder. [volume] (Hillsborough, N.C.) 1820-1879, 1863-07-22

GERS he is authorized TO appoint in order
to carry them into effect. with quasi iu-
dicial po,cer, by which the enrolling officers
have jurisdiction to " hear and determine"
all questions which are necessary to be de-
cided in order to ascertain whether per-
son is liable to CONSUMPTION or is entitled
to exemption. which of course includes the
power to put a construction on the acts OF
Congress. From the decision OF the en-
rolling officer there is an appeal to the COM
mandant Of conscripts. and from his de-
cision there is an appeal to the Secretary
Of War. and possibly there is an appeal TO
the President. This grant Of judicial pow
err is deduced from the several clauses in
the ts'of Congress, by which the Secre-
tary Of War is authorized ito make rules
and regulations TO carry the acts into ef-
feet" aud from the nature Of the subject,
because without exercising judicial power
it would be impracticable 10 execute the
conscription acts, This position is not
tenable. There are three conclusive OBJ
jertions to il : lst, Congress has no power
10 make the Secretary OF War Judge, or
to authorize him To invest his subordinate
officers with judicial power, for as say in
the opinion delivered by me in the matter
Of Meroney: " Ii is true, Tor the purpose
Of CARRYING acts OF Congress into eject, the
Secretary OF War in the first place puts
construction on them, but his construction
must be Subject to The decision Il the iu-
dietary, otherwise our form Of government
Is subserted, Tie constitutional provision
By which the legislative, executive and il.
dicial departments Of The government are
separate and distinct. il violated, and
there is no check or control over tie ex-
ecutiYe.' The circumstances grbwing out
Of the subject under consideration demon.
strate the wisdom OF the framess Of The
Constitution. in adopting the principle by
which Congress has no authority TO cxer-
else judicial power or Ia confer judicial
power upon department Of the executive
branch Of the Government. The military
officers appointed TO execute the cnnscrip.
ton acts are naturally prompted TO increase
the numerical force oil the rmy. and for
this purpose 50 construe the acts as 10 en-.
brace as many persons as possible. For
this reason, and as protection To those
citizens who are not embraced by the con-
scrlption acts. The Constitution provides
third branch oflhe government in which is
contidOd the trust Of expounding The law
and putting construction upon the acts
u Congress. and il follows that Congress
has no power TO ignore The existence Of this
third branch Of the gosernment. and con
Ter 90 the Executive powers which 6elong
to the judiciary.
I'd. The intention OF Congress 10 confer
judicial power on the Secretary Of War,
and authorize him 10 establish inferior and
superior Courts with the right Of appeal 10
himself. IL such had really been the in.
tention. Il would have been expressed in
plain and direct terms, add the simple fact
that the Secretary Of War is authorized
ito prescribe rules and regulations 10 car.
~ the acts Of Congress into effect which
power he would have had almos. by neces.
sary implication. surely cannot, when cons
sidered calmly and uninfluenced by col.
lateral disturbing causes, be considered
sufficient 10 confer power on The Secre.
tary Of War totally at variance with every
principle OF our government.
5i. II the Secretary OF War and his
subordinate officers are invested with his
judicial power. 80 as TO exclude the jurls-
diction Oi The State Courts, Tor the very
same REASON il. would exclude the iuri,dic.
ton d the Courts aud Judges Of the Con.
federaie States. No provision Il made by |
which case San be taken lof review be-
fore the District Court Of the Confederate
States tom these military Judicial tr:bu. |
nas. Consequently the judicial depart |
ment OF the government. both State and
Confederate, is set aside. and the liberty
Of the citizen depends solely On the action
q The War Department and il, subordinate |
officers. Can this be so: Surely not.
Our conclusion ii that the Court has iu-
rIsdietiOn to discharge a citizen by the
writ Of haJea5 corpus, whenever Il i made |
y appear that be j. uniamfi,ily restrained
IT he liberty by an officer 81 the Coincide. |
rate States and that when a case i made |
cot. the Court is boupl TO exercise tie TO- |
rlsuictiOu which has been cOn6ded ~ 4, /