Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1863-10-06
.sEMI-WEEKLY STANDARD.
From the Fayetteville Observer

or to arrest conscripts or deserters."
It intended to have a full Court but neither
of the Associate Judges was present We suppose
that Judge Battle was detained at home by the re-
cent affection in his family, and that Judge Manly
has not vet recovered from his recent severe attack
of sickness.
Since the above was IN type, we have procured,
by the last mail from Raleigh, the OPINION OF inc
Chief Justice which we annex
liz THE NATTER OF AUsrS-The writ in this case was re-
t urned before me at Richmond Fill. As It Presenteda
new question desired the aid of Judge Battle
and Judge Manly the hearing and also the benefit of
argument BY counsel. For which purpose WNrs adjourn
- This nace regret that have been disappointed
II becomes my duty decide the without the pres
ence of the other Judges and without aguma nt except
by Mr. Furches aud Mr. Winston in behalf of the petition
er; so that am really not appriSed Of the ground
which the Governor tests his claim of authority.
The petitioner is exempted conscrps by reason of
substitute and is exempted FROM duty mItiaman by
force the section Othe act of the last of the
Legislature entitled can act in relation to the militia and
and guard for home defence Major Hardin sets out in
his return to the writ that he had the petitioner arrested
ande an order of the Aduant General for the purpose of
arresng conscrptS and deserters, aS said Austin
member of the Home Guard and liable TO perform said
duty" The order is in these words:
"RALEIGH, Sept. 10, 1863.
Major A. A. Hardin will Immediately call out the Home
Guard Of DAVE county, and arrest every darer re-
couscfpt within said county, and deliver them to
Col Mallet at Camp Holiness fit be necessary you
pursue said dessrerS beyond the limits Of YOUR county
Those citzeps who ad harbOr deserters will
be arrested and bound to the ssd
charges You will report to this office the in
which this order has been executed
By order of Gov VANCE,
J. H. FOoTb A. A. Gen"
The question presented by the petition and re-
turn IS of great importance. s'On the one hand, if
the. Governor is authorized to require the Home
Guard perform the service of arreStng deSertcrs
and conscrpts, it will promote the efficiency of the
Confederate army--on the other hand, it will i'm
pose on citizens who by the acts Of Congress and
the Legislature are exempted from CONSUMPTION and
militia duty, dangerous and irksome labor
The subject must be considered by Judge "as
"a dry question of Law" unaffected by collateral con-
SlderatOns growing out Of the condition of
try, and for this reason his conclusion may differ
>from that Of those who at liberty to look At it
under the bias of feeling
1t is part of the duty ola soldier Of the Confed
crate army to arrest deSerters and recusant con-
scripts. The Governor of State has certainly no
authority to require citizen, unconnected with any
military organization, to perform this part of the
duty of Confederate soldier. Whether the Gov
ernor had authority TO require a citizen belonging
10 the militia to perform this duty, is question
which has not been decided 1t may Be conceded,
that the Legislature has power to give this authori-
ty to the Governor in respect to the militia on the
ground that they were liable to be called into SER
vice OF the Confederate States, and might be re-
quTed to do part Of the duty as compensation for
not being called into service and required to do the
Whole duty Of Confederate soldier But it is
question worthy of great consideration whether the
Legislature has power to authorize the Governor to
require this duty of citizens who do not belong to
the militia, which the only military organization,
except enlisted soldiers recognized by the Consti-
tuition 1t is not necessary for the purposes of this
case to decide the question, and il is referred to
only for the sake of applying the rule, "where a
power has never been before exercised and is doubt
full the Courts will not presume that it was the in
tenon Of the Legislature to assume it but will re-
qure clear expression Of an intention to do So"
The matter then stands thus: The Governor has
no authority to require citizen who does not be-
long to the militia to perform this part of the duty
Of Confederate sodler-has the Legislature con-
ierred the authority upon him? 1t is insisted that
this done by the act Of he last session entitled
" an act IN relation to the militia and for home de-
fence; which act and the act " to punish aiders
AMI aoetors of deserters" were ratified at the same
time; 7th July 1853, and are to be construed to-
gether. so the question depends uRn the mean
lag and proper construction of these two statutes
At the meeting OF the Legislature two questions
were pending First, Congress in its wisdom hay
ing allowed substitution and many other exemp-
tons IRON the CONSUMPTION acts, was it in the DOW
er OF the President by calling upon the State for
It's quota OF militia, to subject the persons SO ex-
empted as conscrlpts to military duty as militia -
Second, had the Governor authority to rpduire the
militia to arrest conscripts and deserters from the
Confederate army? By the first section of the act
Gin relation to militia and a guard for home de-
fence, thehrst problem solved and it is enacted
that all persons exempted as conScripts shall be
likewise exempted from service as militia. By the
third section of the act to punish aiders and abet-
tors OF deSerterS it is enacted that the Governor
may require the militia to arrest deserters and con-
scripts; thus solving the second problem. bv au-
thorizng the Governor to call out the remnant OF
the militia, that IS those not exempted from militia
duty, to perform part of the duty of Confederate
soldiers, to w.t. the officers of the militia and the
men between 40 and 40 who hadnot then been called
for as conscriptS.
In order, however, to provide for home defence,
the Legislature assumed the power of making State
c0'ScrlPIeon Whether the Legislature had the
power to do So is question into which it is not
necessary to enter. The power is expressI7 assum.
ed, and 1t does not become a coordinate branch of
the state government to decide upon it. unless it
be necessary to do so in order to dispose of case
Seforeit So it may be granted that the Legislature
had power to organize for home defence a military
body composed of the remnant of the militia. the
exempts and' persons over the age, liable to militia
duty 1t is very certain that in doing So the inten
ton was to make this new body wholly distinct and
different from the militia. Persons EXEMPT from
tnIirTfa duty are rH0tuu1u new COMPANIES are FORM
different, it is new organization State conscTip
ton made for two special purposes, "to be called
out against nVasons and to suppress instructions
section 6. And special care is taken to distinguish
tins new body from militia, for otherwise thew
might, under the constitution be called for bv the
Confederate States. Upon which ground then, can
1t be insisted, that the Governor is authorized to
require this newly organized body and peculiar
state institution to perform part of the duty of
confederate soldiers? Ii is said, the authority fol-
lows as consequence of the military orpanizatid
cannot see the force of the argument In the act de-
clarlng the special purposes for which this new or
ganzaS'on is made, no such authority is expressly
gwen to the GoVernor-the power of the Legsla-
ture to confer it even if such had beer the i6ten
ton, is oy no means clear, and we are not at b
ery by implication to infer that such was the inten
tion and the act "to punish aders and abettors of
deserters" puts the matter as it seems to nae, out
OF the range of discussion, by expressly authorsing
the Governor to the militia to arrest deserters
and conscripts thereby excluding, as plainly as