Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-06-17
HABEAs CORPUS.
I'm THE MATTER OF MARoNEY.)

:. HABEAS CORPUS.
I'm THE MATTER OF MARoNEY.)
The facts of tnis case bring it within the decision
in ,"the matter of Irwin" That decision is put on
the ground that the Consumption Act of September,
1859, does not embrace substitutes. And SO the
questions growing out of the regulations prescribed
by the War Department "where substitute be-
comes subject to military SERVICE the exemption OF
the principal shall. expire" was not presented.
1t seems to me that any one accustomed to judicial
investigation cannot read the act and fail to come to
the conclusion that it does not embrace volunteers
and substitutes who were already bound to serve
for the war a different construction is excluded by
the words used, and is inconsistent and repugnant
to its provisions.
The President is authorized =" to caUOut and
place in military service all white men, &C." the
words call out" and "place in military ssrcics'
are not applicable to men who are already in the
military service for the war; no legislation was
necessary to make soldiers of them. If oniya part
is called for provision is made for taking those who
are between the age of So and any other age less
than 45" can this be applicable to volunteers and
substitutes? 1t is further provided that " those
called out under this act and the act to which it is
an amendment shall be first and Immediately order
ed to I'll to their maximum number the companies,
battalions, &C., from the respective States &c, the
surplus &C., This supposes that the volunteers
and substitutes composing the companies are to re-
main in the field, and the companies and battalions
are to be filled up by those who are ordered into
service under the Conscrpt Act.
Again, how can the regulation that all conscripts
to be sent to camps of instruction be applicable
to volunteers and substitutes Are they to be Ia
ken from the army and sent to camps of instruction.
Certainly not, because they are not called out and
placed in the military service under the Consumption
Acts but are bound for the war by force of the org
nal contracts of enlistments.
am informed that soon after the Consumption Act
of April regulation was made for the discharge of
all volunteers for the war who were over the age of
IS; and under it many were discharged, but the
regulation was revoked, the War Department be-
coming satisfied that the act by its true construction
did not apply to men who were bound by the terms
of enlistment to serve for the war This is the same
construction given by me to the act. Under it, all
volunteers and substitutes, whether over or under
S5 or A. are to continue in service because they
not embraced by the Consumption Acts. l can see
no reason why this construction should not be fol-
lowed to the further consequence that substitutes
are not embraced by the Consumption Acts, and do
not become subject to military service conscrpts
The fact necessary to the application of the regula
ton Of the War Department does not exist; conse-
quenty the question that may grow out Of that reg
ulation is not presented.
1t is said the arrest of Maroney was ordered in
disregard of the decision in the matter of Irwin be-
cause the Secretary of War does not consider the
construction given to the Conscripton Act of Sep
tember, a sound exposition of the Act" The
quiry naturally suggests ITSELF who made the Sec
rotary of War aJudge? He is not made so by the
Constitution. Congress has no power to make him
Judge, and has by no act sgnifed On intention to
do So 1t is true for the purpose of carrying acts of
Congress into effect the Secretary of War; in the
first place, puts construction on them, but his
construction must be subject to the judiciary, 9TH
erwse our form of government is subverted-the
Constitutional provision by which the legislative,
executive and judicial departments of the govern
ment separate and distinct violated and there
is no check or control over the executive.
According to the view taken by me it is not ne
cessary for the purpose of this case to decide upon
Secretary Of War in regard to redeng substitutes,
but as those regulations are relied on as authorizing
the arrest Of the petitioner it is proper for me to
say that many objections entitled to consideration
may be- urged to the power of the Secretary OF
War; to make the regulations in question inc
enactment under which it is assumed that the pow
er to make . regulation that Tin all cases where
substitute becomes subject to military service sne
discharge of the principal shall expire comes
within the scope Of the power confded by con.
gress, is the 9th section Of the Conscript'on aG "
April, 1852, in these words: Persons not naole
for duty NAV be received as substitutes 1ol tnose
who are, under such regulations as may % pre-
scri6ed by the Secretary Of Var 4.
The obvious construction oil TINS seo''ou s.:,S
be-substutes may DC reGessu must be an able
bodied white man. fit for military service IN tae
field The other expressed, to wit: The SUBSTITUTE
nust he a nerson who is not liable to military duty |
under the existing law, the time, place ana manner
of receiving substitutes in which IS ine!uaeo t.,e
mode-of deciding whether he an able ooa'ed Wmte
man not liable to duty, to be reguiateo ny sues
Al n
IF The regulation in question be confined to cases
vhepa the substitute being under the age OF 10 al
tauord. arrives at that age and becomes liable TO
,,.rv dutv. It accords with the provisions OF the
act BIT if it be extended to cases where the sub
sta s not at the date of the contract OF su6sttu-
ton liable y duty but is eaae f ssao'e ~
ooes bevond the provisions of the act by adding q
bird condition, and the power to do so may well be
questioned: especially where the regulation as we'll
No the act Of Congress which is supposed to give it
application sse both subsequent to the contract Of
substitution, and the discharge is absolute on its
face For illustration, suppose regulation to be
prescribed, that in all where the substitute is
killed or disabled or where he deserts the discharge
shall expire, which stand on the same footing with
the regulation that the discharge shall expire if the
substitute is made liable to duty by subsequent
act of Congress, for all add third condition to the
two imposed by the act and it may be urged against
them that the power to add other conditions than
those contained in the enactment is an act Of legis-
lation which Congress has no right to delegate to
department of the Executive branch of the govern
ment and of course an intention to do SO, can only
be inferred from plain and direct words, and the
words this instance satisfied BY the construe.
ton stated above.
The.same question of construction is presented in
the matter Of HUE, from Cabarrus couSty, under
clause in the exemption act which exeulpts all per-
sons who shall be held unfit for military service in
the field under rules to be prsscribed6y the Secretary
Of War, where the power is confined to making
rules to ascertain whether the person. is or is not