Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-01-20
CAROLINA STANDARD
- From the Greensborough Patriot.
WTHE MATTER OF WILLIAM eWYRION

- From the Greensborough Patriot.
MTHE NATTER OF WILLIAM sWYRI0N
The petitioner, before the passage Of the cJtn.
sS6ptipn act, volunteered for The M II oompaHy
which ga ptai1 Shober was Rising in Guf1f5rd Nt
in substitute for the war, and was discharged; b.
forwards, Notwithstanding his discharge he was IN
rolled as q conscript and taken to the army in Vir
GINA where he served sixteen months; that Fall he
came home on sick furlougb, refused to return at
the expiration Of his time was arrested, and sued
outthis writ While in service, he had received pay
clothing and rations, but had not received bounty.
The enrolling officer insisted that the petitioner
ing absent from the army without leave coz ~ss
10 heard to claim discharge until hjs,ed IN Ora.
disposed OF by court martial Asse does not apply
hams case, Inmy opinicY by enlistment before
Graham entered ths e Of aee and beinp under ar.
rss, far ncm.ihtersl offence, sued but writ seek
mo - contracts of enlistment on the ground
nE<dncy. 1t was held that he could not be heard,
until the offence for which he was under arrest was
disposed Of by courtmartiaE Graham went into
service voluntarily, and was rightfully soldier
I'll the contract was avoided his offence was . col.
lateral act, having connection with the validity
OF his enlistment The petitioner was taken to the
army against his consent the matter IS he alleges
was void a6 initio," the supposed offence grows
out OF and depends on the question: whether he was
rghtfuly soldier or not and that is the point put
at issue by this, proceeding. It would be strange
the court before it can try this question: is reqqr
cd to assume in favour of the government that thE
petitioner is rghtfnlly soldier and that ground
to remand him to be tried before court martial
ZOE an act the character of which depends on that
very question: mo one shall take advantage of
his own wrong" is q maxim of law. Suppose the
Petitioner was not liable to conscption the act Of
the government was wrongful and his act in leaving
The army in order to assert his right before judi
cial tribunal of his country is UNSUITABLE; because
made necessary by the first wrongful act OF the gov
eminent. To refuse to hear him would be to enable
the government to take advantage of its own wrong
and amount to denial ofjustice: See howltwould9
work man leaves the army, comes home and ap-
peas to a court to try the question whether he Is
righully soldier not; the court refuse to hear
him, he Is sent back to the army in Virginia, tried
by court martial as a deserter, and executed to
deter others from like acts that is the end of it.
Or suppose he is punished and allowed to live he
is without remedy in the courts Of his country, be-
cause beyond the reach Of its process. Will it be
said this denial of Justice is necessary for the good
of the public service to prevent desertion? God for
bid, stat justitia ruat cgluns" let justice be done
without to consequences! The case of Dickson
is direct authority for the petitioner on this preu
nary question (salne term referred to in Guyers
case) Dickson was under thirty five years Of age,
blacksmith taken as conscript and serving in the
army when the exemption act passed served sever
al months, received bounty, pay, clothes, and "a
tons came home on furough, refused to return and
was arrested as deserter, and sued ont the writ
on the ground that he was not rightfully soldier.
On the preliminary question the two learned gentle
men who appeared for the government did not rely
on the case of Graham as applicable and the court
considered that he was not precluded from being
heard on the merits by the fact that he was absent
without leave but went into the merits, and decided
against him. have distinct recollection, although
do not remember the names of the cases that IN
looking over "Hurd on ha5eas corpus" in refer
ance to this preliminary question: he cites several
cases, in which an ale gel deserter was hearc on
the merits, taking the distinction between the CO
SEES where the enlistment is alleged tbe void as in
this case and where it is TO be voidabe as in
the case Of ssas:sh So both upon "the reason of
the Sning' and upon authority, decide the pre-
liminary question in favour of the petitioner.
On the merits, according to the decision Of the
Supreme Court in Ritters case, the petitioner was
not liable to conscription and learn the enrolarg
officer refused 10 exempt him because he had special
instructions not to regard the decisions OF the Su
preme Court, unless the party had been discharged
on writ of hcbeas corpus On the question Of pGcer
do the facts that he receives pay, clothing, raticns
and serves sixteen months make him Liable to serve
for the war He insists that the government would
thereby take advantage Of its own wrong the enroll
ing officer insists that these facts amount law to
waver of his original right growing out of the SUBJ
stituton and relies Dlcksons case. In that case
the point is not positively decided, there being an
other ground to wit, that as he was in service the
exemption act does not embrace his case. But
know the Judges were of opinion that when all of
these facts exist to wit receipt of bounty, pay,
clothing rations and service, there is waver of
right to exemption, and have accordingly, on that
ground, remanded the parties in three other cases.
But in "the matter of Fleming" who was arrest
ed as conscript and without an opportunity to
sue out writ taken to Camp Holmes, sent to Rich.
mond and then to Staunton, where he left the army
without leave, came home and was arrested as de.
serter, had Gen. Hoke notified, and it being OBJ
jected, that as he was deserter he could not be
heard until court martial had disposed of him, I
overruled the objection, for the reasons above sta
ted and on the authority of Dckson's case On the
merits it appeared he was over thirty five and the
keeper of public mill and had been refused ex
emption on the ground that he attended to sawm
as well as grst mill held that position untena
ble On the question of wayer, it appeared he had
been under military restraint for three weeks had
received rations and drilled time or two. held
there was no evidence of waver-he was obliged
to eat and forced to drill, and-it was bad enough
that he had been put in JAIL taken of, tied like
elon, and restrained of his liberty for three weeks
against law. In the matter Of Il forget tn.
name, 1.-THE petitioner was blacksmith, had beer
detailed, was afterwards taken conscript to Vr
gnia, kept there three months, most of the time il
the hospital sent home sick furlough and refused
| to return. overruled the preliminary objection
! on the merits held he was exempted according II
Guyer's case and as to waver, that the additions
circumstances of receving Clothes did not vary tn
case from that of Fleming, clothes were necessar,
and he was required to be in uniform.
/ Tn thic thoro tho additiOno1 facts nf rr
ceiving pay and serving sixteen months. As topa,
two considerations bear on the matter, soldier i
in many cases obliged to draw pay for his own com
fort and the support Of his wife and children in hi