The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1863-12-08
From The Asheville News.
DECISION OF CHIEF JUSTICE PEAR
SOM

had for many years been a merchant In Baltimore.
In May, 1861 his political sentiments being on
the side of the Confederate States be left Balti-
more and came to Asheviile, N. g., with inten-
ton of changing his domicil, but with the inten-
ton of staying in Ashevlle until the over,
and in the meantime of collecting securing debts
due him in this State and in Tennessee, Georgia
and South Carolina he has been the most of the
time in Asheville, where he boarded at hotel by
the month, and visited other places in the above
named States as business required; he is SO years
of age and single man.
| In October, 1868, he was ordered out to do
military service of the "home guards" by
Major j. W. Woodfn, and upon his refusing to
serve, he was arrested and sued out the writ of
habeas corpus. MIR. Winston for petitioner as
sumed the grounds
] ! The act of the Legislature is unconstitutional
for the reason, that regular army and the militia
are the only military organizations recognized By
the Constitution of the Confederate States, of
this State, and the act in question makes new
military organization, which supercedes the mill
tia and defeats aud makes of effect the power
of the Confederate States the militia.
g The petitioner being foreigner, who has not
acquired domic in this State, to subject him to
military service, would be violation of the law of
nations and international comfy, which it will not
be taken that the Legislature intended to commit.
8 The petitioner is subject of a country with
which we are at war; an "alien enemy" and is not
embraced by the act of the Legislature
I. The consttutionality of "the act in relation
to the militia aud guard for home defence" al
though presented by the facts, is question which
it is necessary to decide 10 order to dispose of
the according to the view | take of it, and l
do therefore enter upon its consideration.
II. Assuming that according to the law of ma
tons and international comfy, the subject of an
other government who IS resident, but has not
acquired domicil here, cannot be- required to do
military service liz order to repel invasion and aid
in establishing our independence, and asserting
| do fully to the position, that when the words OF
statute will admit of any other construction it
will not be taken that the Legislature intended to
violate the law of nations and of international
comfy; still there is provision, either III the
Constitution of the Confederate States or of the
State, which prohibits the Legislature from doing
so, and if words used showing clearly and I'M
equivocally that such is the intention, the law is
valid aud there is ground on which the Courts
decline to give effect to it from respect to the
law of nations. In putting construction on the
Conscri ption Acts, the general words "all white
men ,cko are residents of the Confederate States"
&c, are held not to embrace subjects of another
government who are residents but who had not &C.
qured domicil here. The statute under consid-
persons residents in this State" adds the words,
'incfuding foreigners not nnturalized acho haze
been residents in the State for 80 days." These
words clear and uneqAivecal, and as it seems
to me- admit of nosother construction than that it
was the intention of the Legislature to include
foreigners who had been residents here for 80
days, without reference to the fact of domici on
the ground that to repel invasion and prevent our
subjugation, the principle of comfy on which the
Law ofna &c haco ha q
tent disregarded; and it is the intention to re-
quire foreigners, who residents, distinguish
ed from ltlnerants or travellers, to take up arms
! and aid in our defence. So my construction is,
that Englishman or a Frenchman who had re-
sided here for 80 days would be embraced by the
act
III The petitioner is not simply foreigner
who is resident here like an Englishman or
| Frenchman, but he is ''alien enemy" here by
| the permission Of our government. Should he
bring an action, and to the plea, "aen enemy"
take issue, it would be found against him, and he
could only avoid the plea by contessing and put
ting in special replication that he is resident
here by the permission of the government. "For-
egner," the word used in the statute, in its gene
raj sense includes all persons who are not citizens
of this State the Confederate States; but in the
law books, state papers, histories, and in converse
/ tion it is commonly used to signify citizens Of
In order to designate the citizens of nation with
which there is a state Of war, the word 'enemy,
Or ''aien enemy" is appropriate. So upon the
principle of construction above referred to- which
applies with increased force 10 the case of alien
enemy, for reasons which will state / am con-
WINGED that the statute under the general word
foreigner" does not embrace an alien enemy, for
in that case 1T is not question of comfy,
but other considerations are involved, which may
deeply concern the safety Of the state, and which
force upon us different construction to avoid a
violation of the immutable principles of justice.
a soldier has to be trusted--a faithess sentinel
may sacrifice whole army; alien enemy,
acting as soldier, may desert and give informa-
ton of vital Importance. So nothing short of d.
rect words will justify the conclusion that it
the intention to make soldiers of them, and it
should only be done by voluntary enlistment, with
the express sanction of the government and full
notice of the fact. Would we trust citizen of
Massachusetts, who had resided here 80 days, as
! soder in army? in the eye of the law a
citizen of Massachusetts, and citizen Of Mary
land are on the same footing. Again, if citizen
Of Massachusetts of Maryland takes up arms
and fights in our defence, he will not, even in the
view Of the subject taken by government, be
entitled to be treated prisoner of war. The
U. States would have rig hit to deal with him as
raitor, and not citizen of a belgerent nation.
Under the general word foreigner" can it be
taken that the Legislature intended TO force
to incur the guilt of treason, where the words are
III .>f