Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1863-06-10
IN rHr xArrER or 1RyN-HAREAs CORPUS.

IN THE NATTER OF RyN-HABEAs CORPUS
The facts are, John N. Irwin, being liable as q
conscript under the act of April 1852, offered in
July 1862, one Gephart as his substitute; Gephart
| was IS years of age and in all respects tit and
sufficient substitute for the war; and was accepted
by Maj. Mallett commandant of conscripts, who
! thereupan gave Irwin an absclate discharge.
The petitioner AYERS hels advised thatthe conscrp
ton acts unconstitutional but it is not necessa
~ for the purpose of this case to decide the ques
ton.
1t is admitted that under the regulations of the
War Department Maj Mallett had full authority to
accept substitutes and give discharges; but it is
insisted that Twins discharge was afterwards by
the action OF Congress rendered of no effect; for
the act September 1862, makes allpersons between
the ages Of 50 and 49, liable conscripts, so Gep-
hart became liable as conscript by reason whereof
he was no longer sufficient substitute; and thus
Twins discharge had no further effect If one who
is at the time liable as conscript should be offer
ed and accepted substitute it may be conceded
the discharge obtained in that way would be void,
because consideration is received by the govern
ment and the officer exceeds his authority. So if |
after the CONSUMPTION act of April one who is UNI
der Is years ofage is offered and accepted as sub
stute, it may be conceded that the discharge only
DO Of effect until the substitute arrives at the age Of
49, for as it was known to tho parties that the sub
sttute himself would become liable at that date un
der law then in force it will be presumed that the
contract and discharge were made in reference to !
that state Of things and after the substitute arrives
at the age Of 49, the consideration fails and the Of
fcer had no authority to grant discharge for a
longer time.
But in our case, there was at the time no law in
force under which it was known to the parties that
the substitute would afterwards be himself liable US
conscrpt; on the contrary, he was in all respects
fit and sufficient substitute for the war; and was
accepted as such, and an absolute discharge given
so there was full consideration received by the gov
ernment and full authority the part of the off,
Ger. The question is, does the subsequent action
of Congress, to wit the act of September 1852, by
its proper construction and legal effect, repudate
and make void'the contract and discharge? =
The construction of acts of Congress, so far as
the rights Of the citizens as distinguished from the
military regulations are concerned, is matter for
the Courts
Whether Congress has power to pass an act ex-
pressly making liable to CONSUMPTION persons who
have heretofore furnished substitutes, and received
| an absolute discharge is question not now pre-
sented, and one which trust public necessity new
er will cause to be presented, it would violate
natural justice and shock the moral sense
In my opinion, the act Of September 1869, by its
proper construction, does not embrace men who
were before bound as substitutes, to serve during
the WAT 1t is true, the act in general words gives
|
white men, residents, &C., between the ages Of So
and As; but this manifestly does not include men
who are already in military service for the war, for
this plain reason: there was occasion to include
them, they were bound before and the true mean
ing and intent of the act is to increase the army by
calling into service who not before liable.
Suppose the act contained provision giving q
bounty Of $500 to all men called into service under
its operation, or providing that such conscripts
should not be ordered out of their own respective
States, would it be imagined that men who had
previously volunteered for the war; or were su5sti-
tutes for the war, would De entitled to the extra
bounty, or to the special privilege ofsfemaiuing in
their own States? Certainly not because there
was no need of legislation in order to make SOL
diers of them.
decent respect for our law makers forbids the
Court from adopting construction which leads to
the conclusion that it the intention by the use
of general words to include within the operation of
the act substitutes who were already bound for
the war; not for the purpose Of effecting them
but for the indirect purpose of reaching parties
who had furnished substitutes, and in that was as
serting power which is at least doubtful and GER
tainly involves reputation, and want of good
faith
As the CONSUMPTION act does not include substi-
tutes, the conclusion that Gephart is longer suf
fcent az a substitute, and that Twins discharge is
Of no other effect fails
~ ID Cohsioefeu ny Ine tnat Jonn IN. Twin DC
forthwith discharged with liberty to go whereso-
ever he will
1t is further considered that the cost of this pro-
ceeding allowed by law be paid by James Irwin to
betaxed by the Clerk of the Superior Court of
Rockingham county, according to the statute IN
such cases made and provided
The Clerk will file the papers in this proceeding
among the papers of his Office.
R. M. PEARSON, Oh. j. S. G.
At Richmond Ill.,
April 9Th, 1868.