The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1863-08-21

CHE Militia Decision in Petersburg.

Inlge Jovnes, of Petersburg, on Wed
,esiay delivered his opinion in 'thre,
r,se, Of hajeas corpus, in which the peti
,;one,s asked to be discharged from tn,
Militia service by reason of having fur
ushed substitutes in the Confederate ser
,;ee In the first case, that Of Charles
Raine. he rests the claim Of the peti
toner 10 lie discharged from the custody
If Lieut.. Col. Davenport, upon the pro
,s,ons of the act Of the General Assem-
lly of Virginia, passed February 5, 1868
eiiitlel An act to provide Tor the dis
..harge from active military service of per
IONS who have furnished substitutes ,
That act llst section) is in the following
words
Es L tnaeted By tie General Asst1att,'
4 Ihs; 40 person VINO has heretofore furnished
iacorAng TO law, Il substitute in the miiitar,
service III the Confederate States; for tire.
wears or the war, shall 5e liable 10 miltar,
service under the proclamation Of the Gov
ernof of the lolh Of January, eighteen hun
dfcd and sixty three, or any future proclama
,iop calling for forces, under now existing
Laws, 10 he turned owe! to the service Of the
Confederate States, except in cases in which
such substitute may be himself liable, under
the laws of the Confederate States, TO per
form his own tour ot dutyS but such person
shall hc entitled to his discharge.
The Judge gave his decision against
the petitioners in all three cases We
c5py the concluding portion Of it.
It appears, therefore, that the petitioner
.is been called ont for local defence, and is
held fof that duty only. And although the
hlitiil TO which the petitioner belongs has
been placed under the command OF General
irni.ins, the Confederate officer command
~ Al Peiersbnrg, he has no right 10 employ
Them, aud has not attempted to employ
them, and does not claim the right 10 en-
Ilpy them III any other service than that for
4 ehlcb they were called out by the State a,,-
lhoIlcs
II follows from the views which have been
ldc,entcd that the militia to which the pet
iiInef hciougs have not been turned over
IL the service of the Confederate States -
Ia the sense OF the Act of February 5. The
troops called out by the proclamation of
January 10, were TO be TUNED oyeI TO the
Confederate states by being mustered into
q tn,il service, and thereby passing under the
r,tils i've control Oi the Confederate autholi-
t.r.. losing the character of State militia,
/ md becoming, Ion The term oi their enlist
mtii pat ot the Confederate amy, tur as
W. said iy the Supicme Court ia Houston
! More after detachment oi militi, have
le,H catled forth and have entered into the
i slyIce oi the Confederate s aics, the sti-
4 iholity ui The General Government over
\ 81 II detachment is exclusive. , Wheaton,
j, ii Was 10 similar proc ahations there
4 .lt"f, calling tor troops TO be- in like lnau-
NJ, lu,ned oyei tc the eXclu i've control OF
the Confederate States, that the Act OF Feb
lhhg /, alone applied
~ The act of the Provisional Congress OF
the Confederate States, passed March u, 1868,
II IS provided that the militia, when called
nio service under that act, OF under any
othci act. may be Compelled to serve for
team OF six months after they shall be mus
tered into service Thus, according to the
i views taken by the Supreme Court in Hous-
Ion gS Moore, ii would seem that the militia,
Shrn called into the service OF the Conied
cate states, are not regarded rs entering
Hat service, or losing their character oi
Stlie militia until mustered into service"
THAT, III the language oi the Court in that
'ae, us the terminus Il gro the service, the
| lrly, and auhjection 10 tue articles OF war,
a!t 10 commence and continue" PIP. II, 80.
Aud so the act OF assembly of February
to. 1859, providing tor raising troops to
ntcl the reqaisiiion on Virginia, clearly
4 contemplated the mastering into the ser
means BY which the troops were to be turn
ad over to that Governmeut-s II The same
Is huc OF the Act providing for the transfer
oi the S,al troops 10 the Confederate States,
passed February Is, 1868 As far Us l am in
iotnicd that is the ouly mode recognized by
JtS ~ which State troops can be turned
over IL The Confederate States.
Ia the prrsent case the militia have not
4 been 80 ;arncd over, and il does not appear
4 Il tu44N Ia h,s t.p a fA
General Jenkin9, aud the command assumed
! gy him III pursuance oi it, may be accounted
l1r BY the 9sth Article OF War Embarrass-
ing questions arose during the war OF 1872,
az to The mode in which State troops serving
Etlh National troops shall be compounded,
hal lsee no reason why, independent of that
Article ot War the Governor might not, in
dependent OF that Atiicle Of War, pnt the
direction OF the State troops under command
oi Confederate officer holding chief com
mand In the place for whose defence those
troops were called out.
The supply OF raiions by the Confederate
authorities is explained by the fact that, rs
these troops We're called ont 10y the Governor
al The request of the President, the Contete-
fate States would be bound TO reimburse all
Expenses to the State and il was thought
best to advance them iii the first instance
Act OF Congress, April 70, 1918, 6 ST. at
+"SSi fff OpIfilon oi ATTORNEY ucncfal
Oilpin, May L, lsi0
ine view which have taken Of tifrsssses
makes 1t unnecessary TO consider the office.
Hon taken by the Attorney -t3caeyaf 10 my
jurisdiction, founded on the 2d section OF the
tt OF February s. 1853. 1 incline to think,
however, tliai Il TIE proper authority fail or
aiSe to organize a Board of Exemption the
pitl elainlns his exemption would he enti-
ied TO nave the question tried upon ha6eas
Hp,S, Without t,eing obliged to await Inc
tauii oi mAndanas to compel the ofgani-
Aslioh of a board
ooineftiin2 has been said in the argument
tnoe4 ts,e Authority ior putting the militia
'n'e ealap. think it was competent to the
oaiaa.nssiiig officer to order the men into
'dip u. IN his Judgment, it was necessary to
roper discipline. And may remark, that
HlS objection eonfesses that the ncn have
nt mol been turned over to the Confederate
.'"es and incorporated into their army, for
30 There Is NJ room for doubt that their
proper place is in camp
= therefore, remand the petitioner to the
'9'oay of Col Davenport, and adlu.tge him
10 pa, tae costa OF the proceedings.
ul.hiss the writ against Gen. Jenkins,
,n "a aalsAigs the petitioner to pay the cost Of
'he proceedings in that case
s"mmcnlth for Jackson,
Davenport,
Same,
1.ar,n. Is Hateas corpus
III The argument fhia eas.a wAa ca,e i.tarad