Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1863-06-19
Judge Maerath,s necisrnn.

Judge Magrath's Decision.
WePublish below the opinion of Judge Magrath,
oil South-Carolna, in the matter of Leopold Cohn,
In which he decides where persons liable to military
duty under the conscrption acts passed by the Con-
federate Congress, have placed substitutes in the
army, such persons are not liable, after such sub
stitution, to perform further military duty. Judge
Magrath is the Confederate Judge for the District
Of South Carolina, and this opinion was delivered
in February last Judge N. has the reputation of
being learned lawyer and an able and upright
Judge. We have not heard that either the sound
pess of his opinion or his loyalty has been ques-
toned at Richmond nor have we heard of anv
conflict gotten up by Mr.. Secretary Seddon with
the Governor of South Carolina, in opposition to
this opinion Of Judge NJ Recently, Chief Justice
Pearson and other Judges in this State have made
similar decisions, and have discharged citizens un.
lawfully arrested by order of the Secretary Of War
and these decisions, by Judges in this State have
been made not only the ground of interference by
the Secretary with the rights and duties of our
Judges, but our judiciary, our Governor, and the
sovereignty of the State have been disregarded and
insulted BY the reGrrts by order of the Secretary
of citizens thus discharged
But we hate no room to-day for any extended
remarks suggested by this decision. We may recur
to the subject in our next Meanwhile we invite
the attention of our readers to the opinion which
we give below.
1t is the last clause of the following section of
G.nA-nl Order No Ga issned from the Adiutant
and Inspector Generals Office at Richmond, oa the
9Th of September last that Judge Magrath adjudi.
Gates V0id and which he declares the Secretary of
War had no power to make. This is the section
referred to;
"IL The reception Of substitutes under eighteen
years Of age is hereby prohibited The reception of
substitutes into partizan corps is prohibited as is
also the reception of substitutes into any company
not fully organized and received by the department
4 substitute becoming liable to eoRScrption renders
his principal also liable unless egeD1ptsd on Other
grOHnd&" See General Order No. 81, section IL
Important Decision,
ReenrOlling men Who 6dUe legally furnished sub.
stitutes declared to be illegal and OithOut au-
thOrity.
In the Confederate Court South Carolina District
in the matter Of Leopold CohR AagrGth Judge.
Leopold Cohn became subject to military service
urder the conscrption act of the Confederate Con-
gress, approved 14th April, 1852.
The 9th section of that act provided that persons
not liable for duty may be received as substitutes
for those who are, under such regulations as NAV
be prescribed by the Secretary of War.
The Secretary of War, by an order through the
Adutant and Inspector Generals office dated 26th
April 1852, established the regulations which
would apply to substitutes. By q compliance with
these regulations the person procuring the substi.
tute, was to be discharged when that substitute is
accepted and enrolled.
The Conscription acs, approved 18th April. 1852,
called into service white men resident of the Con-
federate States between the ages of and 36 years
at the time the call or calls may be made, who are
not legally exempted from military service.
By the amended conscription act, approved 9th
September 1852 the President is authorized to call
out and place in the military service Of the Confed-
crate States for three years unless the war should
have sooner ended all white men who are residents
Of the Confederate States, between the ages of So
and 45 years. at the tune the call or calls may be
made; and who are not at such time or times le-
gally exempted from military service. Such call or
calls to be made under the provisions and according
to the terms Of the act 10 which the act of the 9th
September, 1862, is an amendment.
Leopold Cohn, liable to service under, the act Of
the 18th April 1852, complied with the regulations
of the War Department issued by order of the Sec
rotary Of War, furnished substitute who was ac-
cepted enrolled and mustered in for three years. un
less tho war shall have been sooner ended. A dis
charge was therefore given to the said Leopold
Cohn. -.
The substitute so accepted was not subject to the
call calls which might be made under the act of
the 18th April 1862 But if not already in the
military service of the Confederate States the whole
is subject to the call calls to be made under the
act of the 9th September, 1862. 1t is claimed by
the enrolling officers under General Orders No. 81,
dated 9Th September 1862, that in consequence of
the substitute being within the class of persons up
whom the call calls under the act Of the 27th
September, 1852, is to be made, he no longer an
swers the requirements of q valid substitute; that
the discharge heretofore given to Leopold Cohn is
invalid and that he is subject to military SER
vice under the act of the 10th April, 1862. |
Congress has that large power, conveyed in the !
grant to it to raise armies and provide rules for the
government of the land and naval forces by which |
it can deal With toe question at issue, in such man
ner as it shall deem best for the public welfare
Whatever may be the effect of the order of the Sec
retary Of War, caneelng the discharge of Leopold |
Cohn, there is no doubt Of the power Of Congress !
to do so. Had Congress passed q special act con-
cerning substitutes itwas competent for that body
to repeal it. or to annul qualify the discharges
which had been obtained under it The permission |
by Congress in such cases, given to individuals to
substitute others for the performance Of the militia
~ service required of them, cannot be considered
contract between the government, which it may at
any time modify or eKtinguish. And the like pow
or is in my opinion, vested in the President of the
Confederate States. As commanderin-chief of the |
army, unless restrained by the action of Congress,
he nav uDon consideration of public neceSsitY call