The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1863-12-29
From the Fayetteville Observer.
HAREAs CORPUS.

I have the profoundest respee, tor v hat 10 known
among US as the Ci.h Law Amid the rigor and
hardship of military rQe, it is refreshing, cheering,
to know that we have still the light but impene.
trabe shield OF the civil authority TO protect our
liberties our lives aud our property, Lsvenerate
the Aucient Common Law. Administered in its
purity it furnishes tho fullest immunties and
most perfect guarantees TO Liberty which a nation
can possible enjoy Incident to the vast but har-
.monious machinery of the Common Law is the
Great Writ oil Habsas Corpus Gun, CAUSE, which
gives to every citizen restrained of his liberty the
right to have the ''cause of his caption and deten-
ton" duly passed upon by officer of an in
dependent, and, rejoice. to believe We have
in North Caroliaa, an incorruptbe Judiciary.
Before the passage Of the Conscription Laws
this Writ seldom used among Us, and its ma
,ture and incidents hnt little known to the public,
and indeed, | may say, but imperfecty understood
by the profession. Since the passage Of those
laws however, it has been much resorted to for
the purpose of deciding doubtful questions of liza
bilisy to the military service, and whilst its in
this respect has demonstrated it's priceless virtue,
and riam 2bantly vindcatcd its claims to the mag
nifcept title of .The Buwark of Liberty" it has
also been attended with many frauds and imposi.
lions and much injustice to the Government. l
would not be- understood as attaching any CON-
plicity crimnality to our Judges. Far from it.
l feel lofty pride 10 the conscious belief that
But owing the fact that these frequent.
ly heard upon porte allegations and proof, with
specially interested to cross-examlne wit
.nesses, dlsprOve untrue Statements or disclose
teria facts designedly withheld, it could not be
otherwise than that injustice should be done, des-
pte the honest efforts of the Judges to do the
most impartial justice 60 all concerned. To pre-
such frauds and injustice, Judge Battle has
rdopued the wise expedient upon granting the
WrITs Of Tefp hA hock to he to
whence they came, for evidence to be taken before
the clerk Of Court of Record with due notice to
the county enrolling officer to attend, that he may
cross examine the witnesses, adduce original testi-
.Gciy Tor the Government, 60. The wisdom Of
this is shown by the fact that in nine cases
out Of ten, the officer to HON the writ is directed
militia officer, the friend Of the Sarty arrested
(the arrest being made at the solicitation of the
pettioncr,) and not uofrequcptly, it is said, paid
to aid in procuring his discharge more perfect
contriVaDce for cheating and imposing upon a
Judge could not we'll be conceived of, and yet he,
in the utmost innoceDcy, may suppose, ii is but
natural he should, that the officer against whom
the grave charge of having made the Illegal arrest
is alleged, would be interested in ustifyiny rather
than condemning his own official conduct But
far from this being so. in very many of the
which / have seen, the officers return contained q
~gratuitous, unqualified and sworn endorsement of
the allegations of the petition. AS one of the
leading species Of frauds practced at least in
county in the State. sofd'eJs from, the ARMY aoho
hare, dee" an seO'ce, n'ony Of them for two gears
Or mare, are sets"g II upon ~rtts IF Hobeos
COrpus, Ly scorrs. And yet it the opinion Of
our ST. prcme Court, and so far as | am informed
all our Judges CONCUR in the opinion, that a soldier
who has been the ARMY aud received pay, boun-
~, &c, IS moi entitled to be discharged upon Ha-
oess Corpus even where they have furnished sub
at'tutes. And it is the opinion OF at last one Of
the Judges Of the Supreme Court (upon the anal
oey, as / suppose, Of the principle decided sin the
matter OF H. u. Graham, reported in the ap-
pendix to Jones' Law, vol. VIII No 2, June
Term, 1861 that soldier who is absent from hia
command without leave, being subject to trial and
punishment by Court Martial for said offence,
cannot, while so dissent, be heard upon an app.
cation Tor his discharge from service. How then
do deserters from the army and soldiers absent
without leave--who have received paw bounty,
&c-get' off Oh writs of H abeas Corpus! Simply
by alleging facts which, if true, and they had new
, er been in the army, would have entitled them
to exemption under the acts Of Congress, and, by
T tho aid of their friends the officers who have
them in nominal custody, withholding or denying
/ Ibe other material facts.
+ INDUSTRIOUS as this may appear in the eyes Of
those who regard jtstice as tle true limit of pro-
tesslonal effort, especially where the independence
! OF the country is the issue, yet believe do not
hazard the truth when assert, that perhaps half,
at least one third, of the soldiers who have return
ed within the last few months to a certain locality,
with or without leave, have been discharged by
the use of similar unworthy means.
Nov the fact that the bounty Estate bounty to
. conscnpts as well as vounteers-the former not
being entitled to Confederate bounty,) is due and
payable to the soldier instoati that he is mus
tered into service, and the fact that he has right
TO draw clothing at the commencement of his term
of service, and the further fact that Muster and
Pay Rolls are regularly made out every two mouths,
aud payments made thereafter as practical.
bic, ought certainly to raise reaso.able presump
ton that any soldier who has been ia service for
however short time, has received either pay
bounty or clothing; and the safest way eS repelling
this presumption would be to require the affidavit
or certificate of the commanding officer of his COM
pany. And here again is seen the wisdom Of the
dcpinion beld by at least ono of our Judges as
anbove stated; that soldier who belongs to an or
Eplganizcd command ought not to be heard upon an
application for discharge through writ of Habcas
CORPUS, unless the writ is served upon bis COM
1manding officer For though be may have fur
snished substitute for the war, he may have sub.
1sequently veluntarially enlisted, received paw,
Ebouuty, &c, and na enc may know these facts ex:
scept an officer OF member of his company.
The set formula for the returp of militia officers
pfo writs of Habeas Corpus is of such an equivoca
Eature that II does not show, even in we'll known
bases, that the applicant had ever been in the ar
G. Inv heinz ahout ffilous. al obaa;.~oo e. ~ -