Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-08-31
OPINION OF JUDGE PEARSON.
HABEAs COMPREHENSIVE VS.. WHITING.

OPINION OF JUDGE PEARSON.
HABEAs COMPREHENSIVE VS.. WHITING.
In 1864 Daniel L. Russell. jr, was commissioned
Captain Go. G, Seth Regt N. 9. Troops In
February, 1854, he was sentenced by general
court martial "to be dismissed from the service,
which sentence was approved by Gen. Whlaog,
90 far as to deprive him of his commission" and
the General granted him the privilege of selecting
another company, if he desired to do so, and gave
him leave of absence for thirty days. In March,
1864, Russell was appointed county Commissioner
by tie Justices Of Brunswick county, gave bond
and catered upon the duties of the office On the
18th Of March the Governor certified that he was
county officer necessary for the proper admins.
trstion of the government of the State. Notwith-
standing his appointment and the Governors GER
,iticate, Gen Whiting claimed him as private lia'
bic to military service; whereupon he sued out a
writ Of habeas corpus, asserting his right to exsmp-
ton.
The act of Congress, 18th February, 1884, is a
general CONSUMPTION law. By the !st section, all
White men residents of the Confederate States be-
tween the ages Of II and so are consrpted for the
war The ID section has reference to men between
the ages of Is and 10 now in SERVICE and the sole
purp Jse obviously is to make distinction between
them and other conscripts By retaining them in
the ~suae regiments, 6a.ta!ions and companies to
uAica they belonged at the passage Of the act, in
stead Of having them enrolled and sent to camp of
instruction. There is nothing in the act to show
an intention to pu: them on different footing from
other conscripts in any other respect or to exclude
them from the operations of the provisions in rela.
ton to exemptions. 1t follows that the first ground
taken in the return, to wit that Russell being al
ready in service cannot he conscript and conse
qIeHtly is not embraced by the provision in rela-
tiou 10 exemptions, is untenabie. So the question
nooa sha ola ppon f Tho mint
one who is in service at the time he is elected sp
pointed State Officer member Of the Legislature,
Tor instance; or a State officer whom the Governor
may certify is necessary for the proper admnistra
ton of the State governments; l. e., Judgsof the
Supreme or Superior Court 0or as the act is worded,
these officers, although constituting Co ordinate
branch of the State government are required to
title themselves to exemption by the certificate Of
the Governor;) justice of the peace, constable
or county commissioner
be question isstated broadly in order not to raise
the issue made by the petitioner and return, to
whether Russell at the time Of his appointment
in actual military service, or only con-
s.rlctively SOL for assuming that the effect Of the
sentence Of the court martial was not to dismiss
him from the service and subject him to conscrip-
ton de moro, but simply to deprive him of his COM
miss,6n and make him private in the company
of which he had been captain, l am OF opinion that
bis appointment to the Office had the effect of ex.
empting him from military service both by force
of the Constitution and of the act of Congress- and
the certificate of the Governorn pursuance thereto
The authority of the government: to copscrpt is
derived from the power conferred on Congress to
raise and support armies )" this power from the
very nature of things is subject to the restriction,
that it shall not extend to the Governors members
Of the Legislatures, Judges or other officers neces-
saly for the proper administration of the State
government for as the Confederate government is
creature of the States is absurd to suppose that
the intention was to make grant of power which
would enable the creature to destroy its creator,
and cause the existence of the States to be de-
pc; dent on the pleasure of Congress
Apart from this, the act of Congress in general
terms exempts members of Congress, and of the
several State Legislatures and such other Confeder-
ate and State officers as the President or the Gov.
errors Of the respective States may certify to be
necessary for the proper administration of the Con-
Tolerate and State governments as the case NAV be
The province of deciding what officers are ne.
oessary for the proper administration of the State
governments, belongs to the Legislature, That
body has deemed it necessary to provide for the an
pointment and exemption of county commissioners
(act of 1864 and in compliance Herewith the Gov
ernor has certified in pursuance of the act of Con
gross, that this officer is-necessary.
Will it be. said the States must nrocpre tbe;,
Governors. members Of the I.ecisl.tures J,daa.
and other necessary oicersf from among the citizen,
who are over the age of Conservation. or At al
events those who are not already in service. ant