Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-01-27

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! HABEAS CORPUS.

: l.
. In an article which appears in the Fayetteville 4
O6seruer of Dec 2lst 1853, signed 81 Crvie there
is the following paragrap A And it is the opinion
OF at least one of the Judges Of the Supreme Court
upon the analogy, as suppose Of the principle
decided in the matter Of b. G. Graham as reported
in the appendix to Jones' Law, Vol 6, mo. Q, June
Term, 1861 that soldier who is absent from his
command without leave, being suhect,to trial and
punishment by court martial for sid offence, can
not, while so absent, be heard upon an application
for bis discharge from service" ! believe that |
am the Judge to whom allusion is made, because
had so decided in more than one case, and as find
IN your paper Of the 10Th instant, an opinion of
Chief Justice Pearson to the contrary, given in the
case OF .Ayrick. feel that those rho have been
affected by my decision, if not the public generally
have right to know the reasons upon which my:
opinion was founded
In Grahams case it was held by all the Judges
OF the Supreme Court that enlisted soldier could
not either by himself by his guardian be allow.
ed 70 raise the question az to the invadity Of his
enlistment On account Of his infancy aud the want
OF his guardians consent while he was under arrest
Tor breach of military duty; and the Judges, for
this reason, declined to give or even to intimate
opinion upon the merits of the case. The principle
upon which the preliminary objection was sustain.
ed, is clearly expressed in the opinion delivered by
the Chief Justice 1t is as follows: If such.were
not the law,o order and discipline in the army
would be subverted Would it be tolerated, that
one should insinuate himself into the condition of
soldier, and when by the disobedence Of orders
or other violation of duty, the safety of the whole
army has been endangered, evade the military ,js-
rsdiction by being heard to impeach the validity
of his enlistment r
Under an act OF tho Confederate Congress, a man
may be matis soldier by CONSUMPTION as well as
become one by enlistment When conserlbed, and
having acted as . soldier for months by receiving
pay, &c, and obtaining farlough as SUCH would
not all order aud discipline in the army be snbvert.
ed, if he were allowed, while dessrter or absent
without leave to raise the question - to the legsi
ty of his conscriptisn Why should man, claimed
to be soldier as conscripf be placed upon bet
ter footing than ope claimed as q volunteer? If
the principle SETTLED In Graham,s case is worth any
thing, it appears TO me to be Just applicable to
the one Case as the other. Both the volunteer and
the conscrpt are prsmG tacie soldiers, and if they
desert, are absent from service without leave,
they ought, in my opinion, to be treated alike, It
is the effect Of preliminary objection Of this kind,
when sustained to prevent an enquiry into the case
upon v6at Would otherwise be its merits and as q
.defaulting volunteer ought not TO be heard to i'm
peach the validity Of his enlistment, so dcfaulting
conscript should not be heard to call in question
the legality Of his conscriptien,
But it is said that the Of Dixon decided at the
lastte of the Supreme Court is direct authority
against my position. do no. think so, because to
the best o. my recollection, the preliminary obec-
ton was not urged by the counsel for the govern
ment The case was so plain against the petitioner
upon its merits that do not think the Court deem
ed it necessary to file any other than mere formal
opinion. At any rate, Mr.. Jones has not reported
it among the other.cases of haJeas corpus decided
at the term; and in the short reference to it Mae
in Guyers case, there is not single fact stated to-
show that the preliminary objection could hsve been
taken. See Jones' cases Of habsas corpus at page7s
have thus briefly set forth the reasons upon
which my opinion in the matter under considers
ton was formed; and have only,to add that the
case in which made my first decision was. from
Moore county, and was before me in the month of
July or August last, and as / have not been con.
WINGED Of having committed any error. in making
the decision, 1 shall feel bound to adhere to it IN.
til it shall be overruled by the Supreme Court
WILL: H. BATTLE.