Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1864-01-19
From the Greensborough Patriot.
M MATTEp OF WILLIAM WYRI

which Captain Shober was raising m Guiiforo, put
in substitute for the war, and was dscnarseui al
forwards notwithstanding his discharge ne was en-
rolled as a conscTipt and taken to the army IN II
GINA where he served sixteen months; that ran he
came home on sick furlough, refused to return az
the expiration of his time was arrested, and SUED
out this writ While in service, he had received pay
clothing and ratons, but had not received bounty.
The enrolling officer insisted that the petitioner DE,
ing absent from the army without leave, couiu not
be heard to claim discharge until his offence was
disposed of by court martial, and relied on IRA
hams case In nv opinion that case doeSnot apply.
Graham entered the army by enlistment before
he was twenty lone years Of age and being under ar
rest for some collateral offence, sued out writ seek
ing to avoid his contracts OF enlistment on the
ofnfancy. 1t was held that he could not De heaFu,
until the offence for which he was under arrest was
disposed of by court.msrtial Graham went INTO
service voluntarily and was rightfully soldier I'M
til the contract was avoided his offence was CO..
lateral act, having no connection with the Vahuty
of his enlistment The petitioner was taken TO the
army against his CONSENT the matter as ne alleges
was void "G6 iaitiO," the supposed offence grows
out of and depends the question, whether ne was
rghtully soldier not and that IS the point put
at issue by this proceeding. 1t would be strange
if the court before can try this question: is requr
ed to assume in favour of the government that the
petitioner is rghtfully soldier, and on that ground
to remand him to be tried before court martial
for an act the character of which depends on that
yery question: mo one shall take advantage OF
his own wrong Is maxim OF law Suppose the
petitioner was not liable to CONSUMPTION, the act oil
the government was wrongful and his act in leaving
the army in order to assert his right before judi
cal tribunal of his country is justihable; 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 how Itwould
work; man leaves the army, comes home and ap-
peals to a court to try the question whether he Is
rghtully 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 1t be
said this denial of Justice is necessary for the good
of the public service to prevent desertion? God for
bid "at justitiG TuGt c0luna" let justice be done
withoutregard to consequences The case Of Dickson
is direct authority for the petitioner on this preliml
nary question (Same term referred to in GuyeFS
Case.) Dickson was under thrty-fve years of age,
a blacksmith taken as conscript and serving in the
army when the exemption act passed; served sever
al months, received bounty, pay, clothes, and ra
tons came home on furlough refused to return and
was arrested as a deserter, and sued out the writ
on the ground that he not rightfully soldier.
Or the preliminary question the two learned gentle
men who appeared for the government did not rely
on the case of Graham applicable; and the court
considered that he 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 hdbeaS corpus" in refer
auco to this preliminary question, he cites several
cases, in which an ale ged deSerter was heard on
the merits, taking the distinction between the ca
Ses where the enlistment is alleged to be void as in
this case and where it is alleged to be vodable, in
the case of Graham. So both upon "the reason Of
the thing" and upon authority, decide the pre-
limnary 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 CONSUMPTION, and learn the enrolling
officer refused to exempt him bcrauSe he had special
instructions not to regard tue decisions of the Su
preae Court, unless The party had been discharged
on writ Of hdbedS corpus. On the question of carer
do the facts that he receives pay, clothing, ratons
and serves sixteen months make him liable to
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 IN law to
waver of his original right growing out of the SUBJ
stituton and relies DickSonS 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 q waver of a
right to exemption, and have accordingly on that
ground, remanded the parties in three other cases.
But in 1.-The matter of Fleming" who was arrest
ed as a conscript and without opportunity to
sue out writ taken to Camp Holmes, sent to Rich
mOnd and then to StauntoD, where he left the army
without leave came home and was arrested as de-
serter, had Gen. Hoke notified, and it being OBJ
ected, that as he was a deserter he could not be
heard until a court martial had disposed of him,
A. IL Al.
ted ard on the authority of Dicksons case. On the
merits, it appeared he over thirty. five and the
keeper of public mill and had been refused ex-
emption the ground that he attended to sawmill
as well as grist mill held that position untena-
bic. On the question of waver, 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 a waver-he was obliged
to eat and forced to drill, and it was bad enough,
that he had been put in JAIL taken off, tied like
ieon, and restrained of his liberty for three weeks
against law In the matter of - q forget the
name, THE petitioner was a blacksmith, had been
detailed afterwards taken a conscript to Vir-
gns, kept there three months, most Of the time in
the hospital sent home on sick furlough and refused
to return. | oVerruled the preliminary objection
on the merits held he was exempted according to
Guyer's case and to waver, that the additional
circumstances of receiving clothes, did not vary the
case from that of Fleming, clothes were qecessary
and he was required to be in uniform
In this case there the additional facts of re-
ceiving pay and serving sixteen months. As tOpay
two considerations bear on the matter soldier is
in many cases obliged to draw pay for his own CON-
fort and the support of his wife and children in his
absence. The pay is only equivalent for services
rendered. and consequently cannot be the foundation
for an implication of waver consent to serve for
the war; as to the sixteen months service 1t would
seem the government should be content with having
exacted that much out of him, and can on no prin-
cple make it the ground for forcing him to serve
during the war. The differs from that of Dick
son in this; no bounty receiUed, which is the
most material and unequivocal evidence of a waver
IL a voluntary act inconsistent and AGAINST nnn-