The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1864-02-02
CARD FROM JUDGE BATTLE.

CARD FROM JUDGE BATTLE.
We fud the following communication from Judge
Battle in late number of the Raleigh Standard,
from which it seems that that Judge differs with
Judge Pearson in the matter of deciding some of
the habeas corpus cases: :.
- RABEAS CORPUS.
In an article which appears in the Fayetteville
Observer of Dec 2lst, 1868, signed ''Civic, there
is the following paragraph "And it is the opih-
ion of at least one of the Judges of the Supreme
Court, (upon the analogy, as L suppose, of the
principle decided in the matter of II. c. Graham,
as reported in the appendix'to Jones law, Vol. s,
No. 2, June Term 1861 that a soldier. who is
absent from his command without leave, being
subject to trial and punishment by court martial
for said offence cannot, while so absent be heard
upon an application for his discharge from service"
| believe that am the Judge to whom alluslon
is made because had so decided in more than
one case, and as l find in your paper of the 10Th
instant an opinion of Chief Justice Pearson to the
contrary, given in the of Myrick, | feel that
those who have been affected by my decision, if
not the public generally, have right to know the
reasons upon which my opinion was founded.
In Graham's case it was held by all the Judges
of, the Supreme Court that enlisted soldier
could not, either by himself or by his guardian,
be allowed to raise the question as to the invadl-
ty of his enlistment on account of his infancy and
the want of his guardians consent, while he was
under arrest for 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 .princiolc upon which the preliminary objcc-
ton was sustained, is clearly expressed in the
opinion delivered by the Chief Justice. 1t is as
follows: "If such were not the law, all 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
-dis0bedence Of orders on other violation of duty,
the safety Of the whole army has been endangered,
evade the military jurisdiction by being heard to
iapcach the validity of his enlistment%
Under an act Of the Confederate Congress, a
n1ay be made soldier by CONSUMPTION as we'll
as become one by enlistment. When conscribed,
and having acted as a soldier for months by re-
ceiving pay, &c, and obtaining furlough as such,
would not all order and discipline in the army be
subverted, if he were allowed, while deserter or
absent without leave, to raise the question as to
the legality of his CONSUMPTION ? Why should
man, claimed to be soldier ccnscript, be
placed upon better footing than one claimed as
volunteer? If the principle settled in Graham's
case is worth any thing, it appears to to be just
as applicable to the one case as the other. Both
the volunteer and the conscrpt are prim,o .fucse
soldiers, and if they desert, absent from
vice without leave they ought, in my opinion, to
be treated alike. 1t is the effect of preliminary
objection of this kind, when sustained, to prevent
an enquiry into the case upon what would other
wise be its merits, and as defaulting volunteer
ought not to be heard to impeach the validity of
his enlistment, defaultins conscrpt should not
be heard to call in question the legality of his
scripton.
But it is said that the of Dixon decided at
the last term of the Supreme Court is direct au-
thority against my position. I do not think So
because to the best of my recollection, the pren-
mary objections was not urged by the counsel Tor
the government. The plain against
the petitioner upon its merits that do not think
the Court deemed it necessary to file any other
than formal opinion At any rate, Mr..
Jones has not reported it among the other cases of
AuLeas corpus decided a. tie term; and 10 the short
reference to it made in Guyers case, there is not
single fact stated to show that the preliminary
objection could have been taken. (See Jones'
cases Of hobeos corpus at page 73.)
have thus briefly set forth the reasons upon
which my opinion in the matter under considera-
ton was formed ; and have only to add that the
case in which | made my first decision from
Moore county, and before in the month Of
July August last and as | have not been coz
WINGED of having committed any error in making
the decision, / shall feel bound to adhere to it un-
til it shall be overruled by the Supreme Court.
WILL. Fl. BATTLE.