Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1863-10-15
From the Fayetteville Observer.

OF the Honr Guar d. aoho IS liable 10 militia duty,
be aired bv the Governor to arrest c"nscrps or de-
1t was Intended have foil Court, bot neither of the
Associate Judges present. We suppose that Judg
Battle was detained henae by the recent slctien in bis
family Jud2e Manly bas net yet reeove red
Since the abov, was ia type. have procu by the
last mail from Raleigh the opinion OF the Chief Justice
| In THE AFTER CT AusrIN.-The writ in this was
returned before at Richmond HILL - it presented
nav ouestion desired the aid of Judge Battle
Judge Manly at the hearing and also the benefit of
men by For which purpnse adjourrei to
this place. regret that have been disappointed. 1t be-
comes my duty without the
the other judges and without argument EXCEPT by Mr.
Fu ches and hr. WiGstcn in behalf of the petitioner sc
really epprised of the ground on which the
Governor ests his claim Of authority.
substitute and is exempted from duty militia man by
force section Of the of the last session of tbs
guard home defence Major Hardin sets ont 10 his
the whit that he had the petitioner arrested os-
order of the Adutan General for the purpose ct
resting conserpts and dese1tefs, as said Austin was
member OF the Home Guard and liable to perform said
dnty." The order is in these words:
Major A A. Hardin will imme dia.ely call out Home
Guard Of Dave county, and deserter
conscrpt within said county, and deliver them to Col
said deserers beyond the limits Of county Those
who aid harbor mantaia deserters will be ar
rested and bound over to the eoars to ans said
der has been executed.
]. 81. FooTz, A Cen"
The question presented by the petition aud return OF
importance
horzed to require the Home Guard TO perform the service
arresting dsSerters and conscrpts, will promote the
efficiency Of the Confedeats sImyon the other hand It
the Legislature exempted from consumption and militia
duty dangerous and rksome labor.
The subject must be considered by Judge dry
question Of law, unaffected by collateral eratons
reason conclusion may differ from that of those who
liberty to look at und4r the bias of feeling.
1t part of the duty of soldier of the Confederate ar
my deserters and recrsan eoDsclips The Gov
Of State has certainly authority to require cl-
this part Of the duy Of CoHedera sodier Wheth-
the Governor had au hery to requires citizen beon
has not been decided It may be conceded that the Lee
gature has to give this authority to the Governor
bic to be called service Confederate States and
might required TO do part Of the duty, eompensa
the whole duty Confederate soldier. But it qaes
tion worthy of great whether the Legislature
eff citiz not belong the militia which is the
only 1 Il Is sn neoessy Fer feH So
poses of this decide the question: and it ID referred
to only for tbs sake OF appl; me rule where power
been before csed and doubtful the Courts
will presume that it the intention of the Legsa.
atsae it, but iii require clear expression Of en-
intention to do sO.'
The matter stauls thus The Governor has au-
thorty to qnire citizen who does not e to the mi
itia perform this part of the duty of Comic derae sol
dieY-has the Leg Stature conferred the authority him.
1t that this done by the act the ast
entitled act in 1elaOn to the militia and Ter home
fence -; which the to punish aiders
tofs If were ratified at tie sane time IN july
1865, and to be construed together so the question
depends upon the meaning aud proper
At meeting the Leg sature questions pen
ding FIRST in its wisdom having allowed bs
tuition at many other exemptions the consumption
acts the power tho President by calling upon
the State for it, quota Of militia TO subject the
exempted as conscrps to military militia Second
had the Governor authority require the militia
censcrp ard deserters from the o&ederat' army? BY
for home Geence, the first problem solved and
enacted that all persons exempted copscripts shall be
likewise mpted militia BY the third
enacted that the Gov may require the mill la
deserters and cooscpts thus solving the
problem by authorizing Governor thu
of the militia this is, those not exempted from militia
duty perform the duty OF Confederate soldiers
to wit the officers OF the militia aud the between 40
and As who had not then been called for couscrpts
In order however, provide for ,me detence the LIE
gsature assumed the power of making State Upton
Whether the Legislature had the power to do ques
tcn into which is not Necessary to enter The t
expressly assumed, and it does not become ordinate
branch of the State decide up it, unless
be necessary to do in order to dispose of be-
fore it. So it may be granted that the had
erto organize for home defence military body composed
OF the remnant OF he militia tue exemps aud persons over
the age liable militia duty 1t is very certain that in
the intention was to make this body wholly dis
tipct and different from the militia. Persons exempt from
militia DUTY included companies are formed,
omcers appointou-ln acs every ming dneien,, " IN
new organzatsna state conscrptlon made TOR two spe
cal purposes Ito be called cut against nvasions and to
suppress insurrecOns;" section 8 And specia!
taken distinguish ths bo iy from militia fer other
they might, undtr the constitution, &c called for by
be that the Governor is authorized to require this
newly organized body and peculiar State rutien to
CT the duty Confederate IL Is
the authority allows as consequence OF the military or
ganzaon cannot the force OF the argument. In the
ganization made authority expressly given
the horthe power OF the Legislature to confer it.
if such had been the Intention by no mea:s CLEAR
and liberty by implication to inter that
such the ntenon and the act ito punish aiders
abettors of desertss puts the matter me-
out of rapgs OF discussion, by expressly autorzlrq
the Governor the militia deserters ard
SCRIPTS thereby excluding plainly words could do
any authority require SUCH service tits osanza
tonthe State conscrpts, Home Guard, E1presso untus
e1cSlo aeruS is we'll established rule OF construction
which the eeurs liberty disregard, its
soundness, the object ascertain the intention of
the Legislature and neither to fall slort OF it beyond
IT, is fully illustrated by this case So The
lied confirming the horty OF the Govern actual
exclude it by double Implication In tie first Pace,
the act author the Cove nsr to call out the Home
Guard against nvaaors and suppress insurrec
Why was it not add land to arrest deserors and
SAINT conscrpts such was the Intention That subject
present the minds Of the Legislature. In the
place. the act author the Governor IN many words
Ito call out the militia arrest desertels aud couscrips
Why did it add and ktso the Homo Guards, If such
their intention Z he fusion that it not the in
tention OF the Legislature that the Home Guards should be
ed words "providad ever that the shall
not have authority0 require tN Home GuGrS to arrest
Governor has all power except such essy prOhb
tted-a position which, suppose, will venture to
assume.
The argument may be stated thus The statute express
ly authorizes the Governor require the militia, that
the officers and between 40 and As to arrest deser
ers that IS, they form part of the Home Guardit fol-
lows that the Governor had authority require the
chole body OF the Home Guard perform this duty ii
he had saeh authority vain, idle and superuaus
authorize him expressly to require do that which
he had ne authority to require OF the whole In this
officers Of the militia shall be suspended emily during the
period OF their service in the Home Guard has i'm
porant bearing The object being to preserve the organ
lzatlon OF the militia and to them to dessr
tsrs, Tor which purpose the force then aie4uate-
The fact that, Afterwards the call men between
BOT change the meaning proper construction of the
statutes an amendment was thereby made cessary,