The Hillsborough recorder. [volume] (Hillsborough, N.C.) 1820-1879, 1863-10-14

e.tuaity eACieueW " ny auouDle impiicdtl0n.
In the frst place. the act authorizes the
Governor "to call out the Home Guard
against iny.sions and 10 suppress insurrec-
tions." Why was it not added i" and to
arrest deserlers and recusaat conscripts,"
IL such was the intention That subject
was present to the minds Of thesLegisIa-.
ture. 10 the second place, the act au-
ihorizes the Governor in so many words
"to call out the militia to arrest deserters
and conscripts." Why did it not add, and
!" also the Home Guards if such was
their intentions The coaclusien that it
was mol the intention of the Legislature
that the Home Guards shsulG be subjected
to this service is as clear as IL the acts had
contained the words provided, however,
that the Governor shall not have authority
10 require the Home Guards to arrest de-
serters and conscripts," unless it be con-
tended that the Governor has all pswer ex-
cept such as is expressly prohibited-a po-
sltion which. suppose, no man will ven.
ture to assume.
The argument may be stated thus: The
statute, expressly authorizes the Governor
TO require the militia" that is. the off.
GERS and men between 40 and As, to arrest
deserlers. that is, they form part of the
Home Guard-it follnws, that the Govern
or had no authority to require the ,Ohole
body Of the Home Guard TO perform This
duty for, if he had such authority, it was
vain, idle, and superfusus TO authorize
him expressly to require part to do that
which he had authority 10 require of the
whole. In this connection the provision,
sectisn 9, "The commissions Of the off,
GERS ol the militia shall be suspended only
during the period of their service 10 the
Home Guard" has an important bearing,
the object being 10 preserve the organiZa-
fiup Of the militia and to use them to ar
rest deserters. for which purpose the force
was then adequate. The fact that, after
wards. the call for the men between 40 and
As as conscripts made the force inadequate,
cannot change the meaning and proper
construction Of the ststutes. II an amend
ment was thereby made necessary, the Le-
gislature must make il, for neither the
Governor nor the Judges have authority to
l.
am aware Of the responsibility under
which | act. Jurisdiction is given to o
single Judge in vacation--my decision FIX
es the law, until il is reversed by the Su-
preme Court, or amended by the Legisla.
| ture, and would not feel il to be my dDty
10 stay the action Of the Executive except
upon the clearest conyistion.
Whether in the event the Governor
should call out The Home Guard to repel .
raid or suppress an insurrection, he would
not, while the men were on this tour OF
service, which is limited TO three months,
(section g. have authority collateraily 10
require them to take up deserters and con-
scripts. who might aid the enemy, is a
question not now presented. We are con-
fined ,s'ihe naked question. has the Co.
werner authority 10 require the Home
Guard 10 be called out for the mere pur-
pnse of srresting deserters and conscriptsS Z
The special order under which Major Har-
bin acted is for this purpose alone. II is
true that the STATE was, before the passage
OF the acts, invaded. aud the enemy was al
that time aud ~ nuw within the limits 0l
our state ;but the order does not profess to
b. made for the purpose Of repelling that
invasion. there is no "tour of duty pre-
scriAed by the Governor not exceeding
three months at any one time," according
to the provisions Of the 9th section. The
time is unlimited and the purpose is de-
ciared 10 be, 40 arrest every deserter
and recusant conscript within the county
of Dayie and deliver them to Col. Mallett
at Camp. .Hslmes."
The suggestion that, as the arrest Of de-
seriers and conscripts would promote the
efficiency Of the Confederate army, and
thereby Tend to defend the State against
invasion, the authority OF the Governor
can be sustained on that ground, involves
latitude Of construction unsupported by
any principle Of law; and, as il seems "a
I me. cannot impress with much force the