Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-10-07
w EEKLY STANDARD,
tRfon the Fayetteville observet.l
! 1.-THE HOME GUARD,

tRron the Fayetteville observer.l
t@sa 1.-THE HOME GUARD.
We learn that Chief Justice Pearson has decided
@Asin the matter ofAustin, from Davie County," that
q member Of the Home Guard ::ono IS not liable
to militia duty, cannot be required by the Govern
or to arrest conscripts CT deserters." Il
TWAS intended TO have full Court but neither |
of the associate Judges was present We suppose |
that Judge Battle was detained at home by the re-
cent aliction in his family, and that Judge Manly
has not yet recovered from his recent attack
of sickness. so 500 ~ %' - 3, az = !
Since the above was IN type, we have procured,
by the last mail from Raleigh the opinion Of the
Chief Justice, which we annex - l
In TIE MATTER OF AUsrINThe writ in this case was re-
turned before me at Richmond Hill. As it presented
and Judge Manly at the hearing and also the benefit Of
argument by counsel For which purpose it adjourn
I'd h to this place that have been
ence of the other Judges and without argums Mt EXCEPT
by Mr. Furches and Mr. Winston in behalf of the petition.
which the Governor rests his claim Of authority. VI
The petitioner is exempted q conscrfpt BY reason of
substitute and is exempted from duty mta.nan by
force OF the LIST section of of the session of the
Legislature entitled Gan relation to the militia and
and guard for home deencs Major Hardin sets out in
his return the writ that he had The pettiouer arrested
under order of the General for the purpose Of
arrestng conserpts aud deserers Gas said Austin was
member Of the Hame Guard and liable to perform said
duty The order Is in these words:
"RAIneH s.ptl5, 1883.
MAJOR A. A Hardin will Immediately call out the Home
Guard DaVe county and arrest every deserter or re-
cusant eonscrps within said county and dsIyer them to
Col Maett at Camp Holmes II il be necessarv yo can
pursue SAID deserters beyond the limits of your county
m czsns VINO and harbor maintain deserters will
arres'e9 ana bound over to the to answer said
charges You will report to this Office the manner in
which this order has been executed.
# q. .'. By order Of Gov. VANCE II -f1a
]. H. FoorR, A. A. Gen."
The question presented by the petitions and re
turn is of great importance. On the one hand, if
the Governor is authorized to require the Home
Guard to perform the service of arresting deserters
and conscrpts, it will promote the efficiency of the
Confederate army-on the other hand it will i'm
pose on citizens, who by the acts of Congress and
the Legislature are exempted from CONSUMPTION and
militia duty, dangerous and rksome labor
The sub ect must be considered by Judge "as
dry question Of law" unaffected by collateral con-
sderations growing out Of the condition of our coun-
try and for this reason his conclusion NAV differ
from that of those who ct liberty to look at it
under the bias of feeling.
1t is part of the duty of soldier of the Confed-
crate army to arrest deserters and recusant con-
scripts. The Governor Of State has certainly no
authority to require citizen unconnected with any
military organization, to perform this part of the
duty of q Confederate soldier. Whether the Gov
ernor had authority to require a citizen belonging
to the militia to perform this duty, is question
which has not been decided 1t may be conceded
that the Legislature has power to give this authori-
ty to the Governor in respect to the militia on the
ground that they were liable to be called into SER
vice of the Confederate States, and might be re-
qared to do part OF the duty, as compensation Tor
not being called into service and required to do the
whole duty of a Confederate soldier. But it is
question worthy of great consideration, whether the
Legislature has power to authorize the Governor to
require this duty Of citizens who do not belong to
the militia, which Is the only military organization,
except enlisted soldiers, recognized by the Consti
tuition 1t is not necessary for the purposes of this
case to decide the question: and it is referred to
only for the sake of applying the rule "where a
power has never been before exercised and is doubt
full, the Courts will not presume tina. it was the in
tentlon OF the Legislature to it. but will
quire clear expression of intention to do SOL
The matter then stands thus: The Governor has
no authority to require citizen who does not be-
long to the militia to perform this part of the duty
of Confederate soider-has the Legislature con
ferred the authority upon him? 1t is insisted thai
this is done by the act Of the last session entitled
ian act in relation to the militia and for home de
fence;" which act and the act "to punish alder
and aoettors of deserters" ratified at the SAM
time, 7th July, 1868, and are to DO construed to
gether. So the question depends upon the mean
ing and proper construction of these two statutes
At the meeting of the Legislature two questions
were pending: First, Congress in its wisdom hav
ing allowed substitution and many other exemp
tons from the CONSUMPTION acts, was it in the pow
of the President, by calling upon the State 70
its quota of militia to subject the persons so ex
empted as conscripts to military duty as militia P
Second had the Governor authority to require tn
militia to arrest conscripts and deserters from tn
Confederate army? By the first section of the &C
, sin relation to militia and guard for home dc
fence" the first problem solved and it is enace
that all persons exempted as conscripts shall b
likewise exempted from service as militia By tn
third section of the act "to punish aiders and abe
nj &c cfa5f hof tho
may require the militia to arrest deserters and cor
scripts; thus solving the second problem, by Al
thorizing the Governor to call out the remnant
the militia, that is, those not exempted from mlit
duty, to perform part of the duty of Confederat
soldiers, to wit: the officers of the militia and ii
men between 40 and 45 who had not then been calle
for as conscrpts.
In order, however, to provide for home defenc
the Legislature assumed the power of making Sta
eonseription Whether the Legislature had tt
power to do So is question into which it is n,
necessary to enter. The power is expressly assun
ed, and it does not become coordinate branch
the State government to decide upon it. unless
be necessary to do so in order to dispose of q ca
before it. So it may be granted that the Legislatu
had power to organize for home defence a milital
body composed of the remnant Of the militia, Il
exempts and persons over the age, liable to milit
duty 1t is very certain that in doing so, the int
ton was to make this new body wholly distinct or
different from the militia Persons exempt fro
militia duty are included, new companies are forr
ed, new officers appointed-in fact every thing
different it is new organization State conscri
ton made for twS special purposes. ito be CALI
out against invasons and to suppress
section 6. And special care is taken to distingu.
this new body from militia, for otherwise tn,
might, under the constitution, be called for by Il
Confederate States. Upon which ground then, ca
it be- insisted, that the Governor is authorized
require this newly organized body and psculi
State institution to perform a part of the duty
Confederate soldiers? 1t is said the authority f
lows as consequence Of the military organizato
Icannot see the force of the argument In the act
claring the special purposes for which this new
ganizatlon is made no such authority is express
given to the Governor-the power Of the Legisl
ture to confer it, even if such had been the int
H., ole md 90 We not at III