Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-03-18

the Court toSether ana give ltS Oplhoh upon tiis
question As early day as possible is respectfully
requested. Very respectfully
Your obi serv't
q. B. VANCE.
r
A. the recent session of the General Assembly
the Legislature, having resolved, THAT by reason
OF the acceptance by Gen. James g. Martin Aalu
tant General of North Carolina. of the Office OF brig
adler General of the army Of the Confederate States
the said office of Adjutant General was surrendered
and is declared to be vacant" And having enacted
also, that the power Of appointing to sand office Of
ydjutant General should be vested in the Governor
and his excei=ney, Gov. Vance, having indicated to
Gen Martin his purpose to proceed to- make an ap-
pontment thereto, it was insisted by Gen. Martin,
that the office was filed, and be was the proper and
i.wial incumbent thereof notwithstanding the res
eiution aforesaid by virtue of his election to said
,ce by the proceeding Legislature under the act OF
the General Assembly entitled militia Bill, chap
ter Il, ratified on the 29h day of September, 1861.
Whereupon, it was agreed by the Governor and Gen.
Martin, to request the judges of the Supreme Court
TO give their opinions upon the question whether the
Office was vacant and the Governor might lawfully
proceed to appoint thereto.
The question upon which the opinions CT the judges
are sought arises out of the following agreed facts
In the month of September, 1861, Gen. James Il.
Martin was duly elected by the Legislature, Adju-
tant General Of the State Of North Carolina in pur-
suaIce Of statute on the subject of the State Mill
tia ratified on the goth day of September, 1861,
csr;cd the Office, was qualified, and entered upon
the duties thereof and has continued since to exer
else the powers and perform the duties of the
i;eneral Martin held the rank of Captain and1}re-
vet Major in the army of the United Safes rendered
his resignation at Fort Riley, Kansas June 1st,
1861, and by the provisions of the law of the Con-
iederate States he became entitled to similar rank
IN the regular army of the Confederate States and
received and accepted the appointment therein of
captain of Artillery and at the request Of the Gov
ernor of North Carolina, was ordesed to report to
hin, for duty.
IN the Month of May, 1862, Gen. Martin accepted
the Office of Brigadier General in the Provisional
army of the Confederate States, under the following
circumstances: The appointment had been some
days rendered, but not accepted when Governor
.lalk received telegram from the President urg-
ing aim to send Gen. Martin with four regiments,
then in camp near the city Of Raleigh, and which
lad not then been mustered into the Confederate
service, to Weldon.
General Martin then had an interview with the
Governor, and it was concluded between them that
he should accept the appointment of Brigadier Cen
e cra, in order to comply with the request of the
President, but with the understanding that it was
not to vacate his Office of Adjutant General.
~
me,..s moved, Gen. Martin was ordered by General
llplmes, commanding in this department, to repair
with these reg ments to kinston, which he did
lie remained there some six weeks, ard while
tb:re, had also authority from the Governor in his
capacity Of Adjutant General to call out for active
service, the militia in the adjacent counties.
While the battles near Richmond were being
fought, Gov. Clark telegraphed the President that
lie thought Gen. Martin and his Brigade could he
spared from the State if he deemed it important to
have them and in consequence, Gen. Martin rcceiy
moad, repaird with his Brigade to Drury's Bluff, on
Ja.nes river. The battle was over before he reach
th"t point -.
few days after reaching Drury's Bluff, Gen.
Martin tentered his resignation as Brigadier General
10 the purpose Of returning to North Carolina. to
re"ume the discharge Of the duties of Adiutant Cen
erl, in person. About ten days afterwards, he was
notified of the acceptance Of his designations While
al Drurys Bluff, by the request Of Gov. Clark he
also transacted business as Adutant General Ct the
State, with the Confederate authorities in Richmond
j., upon the lnterposition of Gen. Lee, and with
tie appreciation Of Gov: Clark, and conse,: Of Gen.
h'utln, the resignation Of Gen. Martin and the &C.
c"ptahce thereof were annulled and he was reinsta
lei IN the office of Brigadler General, but has never
received any pay either Brigader General in the
Provisional army or Captain in the. Regular army
and has since remained in the City of Raleigh in
the discharge of the duties of Adjutant General ex
cept when absent. by the orders or assent of the
Governor ofthe State
ARGUMENT OF COUNSEL.
3. f. Moore, Esq, who appeared for the Attornov
General' in his absence from the City, submitted
the following argument:
According to the we'll settled rules of the common
Jaw the same person might hold so many offices as
GOQid In I,,f;rv
duties Of some might teincompatble with the DIN.
ties Of some other. In all such cases. the common
law forbade the same person to hold incombatibla
Offices, upon the clearest.pEncipe of reason name.
~, that The offices could not might not he we,
and faithfully discharged. Hence the we'll estab.
hshed maxim that the valid acceptance of one Office
BY person already holding another and incomnat;.
Bile office, vacated the former as effectually as an
actual surrender of it. Indeed it WAS reosrded .s
an abdication, and therefore, quasi resignation
Ailwardv Thatcher, 2 7. R. 81. Rex '. Trelawnv
3 Bur. 1918.
1T lsmanlfest as well from reason as from the tem
per OF these times that it was never the purnose of
the provisions IN the Constitution and laws Of Tho
State making new cases Of disqualification to abro.
gate those already existing; especially when it is
considered that tho latter were 50 because reason
reqAred it, and to no small extent it must be ad.
United taa the former are the results of the extreme
jealousies of the times
The main source of these Constitutional and Leo.
isstse provisions is to be found in the two fold mo-
tive OF preventing concentration in one person Of
Two lucrative Offices and Of excluding the influence
which the possession of one Office might exert 10
procure another. J..
The first disquali6cations in this State by reason
o. holding another office, Guperadded to those e.is.
Ting At the common law the duties Of which were
net Deemed incompatible with those Of the Office in.
Eieitsd, were nttoduced into the State Constitution
and so, and are all exclusively political. both in
their character and extent except that of section 5
which excludes defauting receivers of public money
IN Is well As out Of office from all offices during the
with the exception aforesaid, excluded hieh Officers
from the legislature and council Of. State. they
were introduced because it was deemed by the
Trainers Of the Constitution that although in Eng.
iana tas officers Of the public treasury, Of the army
ea' h''? e0apA Of State Judiciary, Secretary q