The Athens post. [volume] (Athens, Tenn.) 1848-1917, 1863-02-20
Review of the Hon. John c.. Gaut's
Opinion in the McMillin Case.
For the PJSt.1


Than his accustomed care As Chancel-
Tor Welcker's signature is. given as n
mere matter ofform, he is not responsible
Tor the opinion, and we shall treat il as
purely the work Of Judge Gaut. Itappears
in the columns of anewspaper, thus in
viting criticism 1t merits criticism if
ever judicial action did. There is not
the semb.ance of law in it.
The following is the statement. of facts
as given by the Judge;
"Thet the said petitioner, Thomas r. MeMilliu,
VAS, on the 2 st day of January, 1862. duly and
legally appointed AID qualified as Depsty Clerk
and Master OF the Chaneery Court ut Cleveland,
Bradlc: county, Tennessee, and from that tinle
up to the time of his arrest be performed the 1a-
ties of Clerk and Master of said Court, receiving
the fees and emolumcnts Of said office; that, by
reason of his said Office, William /: Campbell,
Chairman of the County Ceert and knrolling Of
icer of said county, on the 18th day of octoher,
1862, gave the said McMillin certificate of cx-
cmption from military srEvice in the army of the
Confederate States of America, during his con-
tinuance in 6;iice as Depaty Clerk and Master as
aforesaid, which was approved by Col. Blake, at
Knoxville, the 10th December. 1862; that on
the 18th day of December. 1862 the said Nc
MILAN was arrested e conscript by order of
Maj. John tIpeH Hopkins Lieut. Col. Blake, OF
both, and the proofdid not. distinctly show which
one made the or,ler--he ordered under guard
McMillin was transferred to The defendants.
Capt Alvin Bee2sies, Company 10 avoid going to
said Jail, but under protest that he was not
'conscript and was not subject to said arrest
And this IS his statement of the law
..Thc second section Of the Exemption Law,
passed by the Confederate Congress and approved
on the 2lst day of April, 1862. eXempts all
clerks and officers of the State and Confederate
governments allowed by law" and ''all Judicial
on:a If ttts .nfn
State governments from military duty and from
enrolment under the Conscript Act of the 10th
of April, 1852 The FIRST section of the Exempt
Law fassed by the Confederate Congress and APP
proved nth Of October, 1862, exempts from mill
tary service in the army of the Confederate
States, under the law of the 9th September,
1862, extending the conScript age from eighteen
to forty five years, sthe officers, judicial and ex-
ecutive. of the Confederate and State govern
ments.' and s'atl clerks now in the offices of the
Confederate aud State governments authorized by
law, receiving salaries or fees
Wewil frs, strip the case OF the super
fuOus law.
The Exemption Act 81 Aprii Dist, 1862
was repealed October II 1862, and Judge
Gaut knew it when he penned his opin-
ion. Why does he.use law that he we'll
knew had ceased to exist for three months
before he tried the cause?
Again: Fly the act Of Sept o, 1862, all
clerks in the offices of the State govern
ments authorized 10y law receiving sala-
ries or fees" are exempt. This clause
could not apply to McMilin, for the law
gives him as n deputy neither salary or
fee. His principal hires him. and may
give him what compensation he pleases,
but he gets nothing under, and by the
law, as an officer In the act of April,
the words receiving salaries or fees" do
not occur, and they were doubtless used
i'll the act ofSeptember to exclude all but
clerks who were appointed or elected as
principal clerks. Ii the language Of the
old law had been continued in the new,
it might have strengthened somewhat
the opinion. but 1t must be a weak case
indeed, that appeals to a repealed statute
TO support it.
The only clause then by which McMil-
lin could pretend to exemption is that
which eXempts ali judicial and cXecu
tive officers OF the Confederate and State |
governments
Let us glance al the facts, The Judge |
says that McAiilIn was appointed deputy
Clerk and Master, aud he performed the
duties of Clerk and Master, receiving the
fees ana emoluments of the office. The
profession would term this language ex-
ceedingly careless roreverV lawyer knows
that deputy does not and cannot by the
law receive the fees and emoluments of
the Office" II he gets the fees of the
office, it is as wages given to him by his
employer. This language was evidently
intended to make a case under the act Of
September. of clerk .''receiving salaries
or fees" The point of failure is this
Salaries or fees in the law means ''saa-
ries or fees" allowed BIZ la,o 10 the clerk,
and in the name Of the clerk, who re-
ceives them; and 'fees and emoluments"
IN the Judges case, mean, although he
failed toso state, receiving pay Of the clerk
as his hired servant. In the Judges case
the services are rendered in the name of
the clerk, the fees are taxed in his name
and must be received and receipted for
by him. or in his name. The deputy has
nothing to do with it for himself The
deputy represents not himself, but the
clerk
The truth OF the arrest is this: On
the day that the conscripts of Bradley
county were ordered to assemble. Mai
Hopkins and Col. Blake held that McMM-
lin was subject to CONSUMPTION, and he
like other conscripts, was placed under
guard. When osby whom the order tc
confine them in jail was given, we pre-
sumo neither of the gentlemen know. If
however, the order was made by any one
We understand that McT1fll1n voluntarf{
joined Capt. Beegles' company after 1t wa
held that he was conscript If that b
so, and we believe the fact is too motor
F. Gus for denial. he could not be release
from mis- obligations as a soldier. To OF
tain such relief his enlistment must hav
been compulsory, and not voluntary.
Even the 'jaiP' order does not amount
compulsory enlistment.
The Judge, after these remarkabl
statements Of law and fact. proceeds
make his argument. He rests his cas-
upon the question: is McMiIlin cler
dc .j,re by the laws of TENNESSEE"
He shows by the Code that the cler
can appoint a deputy, who, after takin