Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1863-10-06

Why did 1t not add, and " also the dome ouD
if such was their intention? The conclusion tnas
was not the intention of the Legislature tha' '!e
Home Guards should be subject to TINS SERVES 40
as clear as if the acts had contained the Worus
"proVided however that the Governor shaA not
have authority to require the Home GUARDS 70 ar
rest deserters and conscrpts unless 1t De contend
ed that the Governor has all power except sucn as
is expressly. prohibited-a position which, sup
pose TO man will venture 20 assume.
The argument NAV be stated thus: The statute
expressly authorizes the Governor to require tne
militia" that is, the officers and men between ~
and 10 to arrest deserters, that is they form part
Of the Home Guard-it follows, that the Governor
had no authority to require the aohote ooqg Oh tue
Home Guard to perform this duty; lot, II ne nau
such authority, it vain, idle ana supeIhuouS W
authorize him expressly to require part to do tnaC
which he had no authority to require of the whole
In this connection the provision, section y, "Ihe
commissions of the officers of the militia shall De
suspended only during the period OF their service
in the Home Guard" has an important bearing, the
object being to preserve the organization oil the
militia and to use them to arrest deserters Tor Wnch
purpose the force was then adequate Inc TACT that
afterwards, the call for the men between 40 and 40
as conscripts, made the force inadequate, cannot
change the meaning and proper construction OF the
statutes. If an amendment was thereby made nee
eSsary, the Legislature must make 1t; Tor neither
the Governor nor the Judges have authority 10
strain the law to meet the emergency.
l am aware of the responsibility under which
act. Jurisdiction is given to single Judge IN va
cation-my decision fixes the law, until 1t is re-
versed by the Supreme Court, or amended by the
Legislature, and would not feel it to be my duty
to stay the action of the Executive except upon the
cleaTeSt conviction.
Whether III the event the Governor should call
out the Home Guard to repel a raid or suppress an
insurrection, he would not while the men were on
this tour ofservice which is limited to three months
(Sec g. )have authority collaterally to require them
to take up deSerters and conScriptS, who might alu
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 mere purpose of arreSng descrterS and
conScripts? The special order under which MAJ.
Hardin acted is for this purpose alone. 1t IS true
that the State wa before the passage OF the acts,
invaded and the enemy was at that time anu 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- to arrest every deSerter and recu
SAINT conscript Within the county of Davie, and de-
liver them to Col Mal!ett at Camp Holmes"
The suggestion that the arrest of daserterS and
conscripts would promote the efficiency OF the COh-
against invasion, the authority of the Governor can
be sustained on that ground, involves latitude of
construction unsupported by any principle OF law,
and as it seems to me, cannot impress with much
force the mind Of any one who will read the two
statutes attentvely and in connection He will see
from the mode of defence contemplated by the Leg
iSature in calling out the Home Guard for defence
against invasion and instruction, by regiments
battahoGS and companies on tours Of daty within
CFaFa nd fAr,a 30 hat tha
indirect and ter off modeo of repclling the existing
invasion by arreStng deSertcrS and conscrptS, was
not in the mind Of the Legislature, except when the
Governor was authorized TO use the ltttid Tor that
purpose which, according to the view have taken
above, excludes the conclusion that the Guard for
home detence-the State cOnScriptS-were to be
used for that purpose Also For if So 1t was surely
vain lille and SupertuonS TO impose that service on
the militia VINO. constituted but small part OF the
Guard for home defence.
The position was taken on the argument, that the
order under consideration clearly exceeds the CIV
ernors authority in this: 1t requires the Guard for
home defence to arrest and bind over to the CoCrt
to said charges, those citizens who aid har
Dor snd maintain deSerters," and is therefore void
IN toto 1t is troe, citizens who and &c. GeSerters
&c, although made liable to indi:tmeut by one Of
the statutes referred to- cannot according to the con
stution and laws of the land be arrested and bound
over to Court, to answer the charge, by military
authOrity-that can only be done by the civil
thority, to wit: warrant by Judge Justice of
the Peace on probable cause shown On OATH and eX-
ecuted by the Sheriff or Constable So, it is clear
that part of the order is void and against law. But
it does not vtiate the other part OF the ORDER pro-
vided the Governor had authority to make it.
1t is thereupon considered by me, tina: Richard
N. Austin be forthwith discharged.
r. N. PEARSON,
Oh. J. Supreme Court.