Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-10-07

WHY did Il not I'D and also the Home Guards,
if such ws their intentionP The conclusion that 1t
was n5r the intention of the Legislature that the
Evme Guards should be subject to this service ia
clear IS if the acts had contained the words
provided, however, that the Governor shall not |
have authority to require the Home Guards to ar
rest deserters and conscrpt unless it be contend
ca tnat the Governor has all power except such as
Is expressly prohibited-a position which, sup. |
pose, 70 man will venture to assume
The argument may be stated thus: The statute |
expressly authorizes the Governor to REQUIRE "the
militia, that is, the officers and men between 40
ana 80 to arrest deserters that is they form part
nao no authority to require the eohoe body of the
nome Guard to perform this duty; for, if he had
sncn authority It was vain, idle and supelauous to
a1tnorize MN expressly to require part to do that
winch ne had no authority to require OF the whole
In TINS connection the provision, section 9, The
commissions OF the officers of the militia shall be
suspended only during the period of their: service
~ Tue Home Guard has an important bearing, the
OBJECT being to preserve the organization Of ,ihe
militia and to use themto arrest deserters forwbcb
purpose the force then adequate, The fact that
alterE sras the call fog the men between 40 and 40
as consSrlpts made the force Inadequate, cannot
eual'ge the meaning and proper construction of the
stataees, . 1t an amendment was thereby made uec-
essaty, the Legislature must make it for neither
me dovernos, nor the Judges hare authority to
strain the law to meet the emergency; t
am aware OF the responsibility under which
act Jurisdiction is given to single Judge in
cation-my decision fxes the law, until it is re-
versed by the Supreme Court or amended by the
Legislature, and would not feel it to be my duty
stay the action Of the Executive except upon the
clearest conviction. - Gtts,
81 Whether in the event the Governor should call
out the Home Guard to repel raid or suppress an
| ho fho
this tour Of service which is limited three months
(sec have authority collaterally to require them
to take up deserters and conscripts who might aid
! the enemy, is question not now presented. We
are confined to the naked question, has the Govern
or authority to require the Home Guard to be called
out for the purpose of arresting deserters and
conscripts, The special order under which Maj.
Hardin acted is for this purpose alone. Tits true,
that the State was before the passage Of the acts,
invaded and the enemy was at that time and is now
within the limits Of our State; but the order does
not profess to be made for the purpose of repeing
that invasion there is no tour of duty prescribed
by the Governor not exceeding three months at any
one time" according to the provisions of the 9th
section The time is unlimited and the purpose is
declared to be, ITO arrest every deserter and
SAINT conscript within the county of Davie and de-
liver them to Col. Malett at Camp Holmes"
The suggestion that as the arrest Of deserters and
couscripts would promote the efficiency of the Con-
federate army, and thereby tend to defend the State
against invasion, the authority of the Governor
be sustained that ground, Involves latitude of
construction unsupported by any principle of law,
| and Us it seems to me, cannot impress with much
force the mind of any one who will read the two
statutes attentively and in connection He will
from the mode of defence contemplated by the Leg
islature in calling out the Home Guard for defence
against invasion and instruction, by regiments,
battaliOns and companies, on tours of duty within
the State not to exceed three months &c, that the
indirect and tar off mode of repeing the existing
invasion BY arresting deserters and conscrpts was
not in the mind of the Legislature, except when the
Governor was authorized to the militia for that
purpose which, according to the view have taken
above excludes the conclusion that the Guard fol
home defeuce-the State conscripts-were to be
used for that purpose also For if so it was surely
vain idle and superhuous to impose that service or
the militia who constituted but small part of the
Guard for home defence.
The position was taken on the argument, that thu
order under consideration clearly exceeds the Gov
ernors authority, in this: 1t requires the Guard fol
home defence to arrest and bind over to the Cour
to answer said charges those citizens who aid, bar
Dor and maintain deserters," and is therefore voit
in toto. 1t is true, citizens who aid &C. deserter
&C., although made liable to indictment by one O
the statutes referred to- cannot according to the con
stitution and laws of the land be arrested and boun
over to Court to answer the charge, by mltar
authority-that can only be done by the civil al
thority, to wit: warrant by Judge or Justice &
the Peace on probable cause shown oath, and ez
ecuted by the Sheriff or Constable So, it is clea
that part of the order is void and against law. Bu
it does not vitate the other part of the ORDER pre-
vided the Governor had authority to make it.
1t is thereupon considered by me, that Richar
NJ Austin be forthwith discharged. .--
E r. N. PEARSON,
} Oh. j. Supreme Court