In re Bryan

The question presented for the consideration of the Court is whether the courts and judges of this State have the right to issue writs of habeas corpus for the purpose of inquiring into the legality of the detention of persons held in custody by officers of the Confederate *Page 10 States as conscripts, under certain acts of the Confederate Congress. The constitutionality of those acts has never been judicially questioned in this State, so that the only inquiry is that which I have just stated. My opinion is decidedly in favor of the jurisdiction of the State courts, and I will endeavor to state, briefly, the process of reasoning by which I have been conducted to this conclusion. In the exposition of my argument, it will be more convenient for me to show what were the power and authority of the courts of this State in relation to this matter while it was a member of the United States Government; for no one contends that they have less power and authority under the Confederate Government.

After the American Revolution, North Carolina was a sovereign and independent State. In virtue of that sovereignty and independence, she was vested with many and great powers and prerogatives, and had imposed upon her many and important duties. Among these duties none was higher than that of protecting all her citizens in the full and free enjoyment of life, liberty, and private property. Fully alive to this duty, she, in the fundamental organization of her government, (29) declared "that no freeman ought to be taken, imprisoned, or deprived of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the law of the land." Declaration of Rights, sec. 12. And again: "That every freeman, restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed." Ibid. , sec. 13. To give a practical effect to these rights, courts were established and judges appointed. Had the State been powerful enough to continue to exist as an independent nation, nothing more would have been wanted to secure the protection of her citizens. But North Carolina, for causes not now necessary to be set forth, found it expedient to unite with other States similarly situated, for the purpose of forming a new and distinct government, and in doing so all these States were compelled to give up a portion of their former respective sovereignties, and to invest the newly created government with them. Hence the adoption of the Constitution of the United States, in which, after the enumeration of all the powers conferred on the General Government, it is declared that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." See amendments to Constitution, Art. X. This article was indeed unnecessary, as the General Government had no powers except what the States had granted to it, either expressly or by a necessary implication; but it was, out of abundant caution, very properly adopted. *Page 11

We are now to inquire whether the State gave up any portion of that sovereignty which was necessary to be retained for the purpose of enabling her to discharge the duty of protecting the personal liberty of her citizens.

As the courts and judges furnish the means through which that liberty is to be vindicated, let us see what authority or power has been taken from them. Alexander Hamilton, a member of the convention which framed the Constitution of the General Government, and (30) one of its ablest expounders, declared in No. 82 of the Federalist, p. 377: "That the States will retain all preexistent authorities which may not be exclusively delegated to the Federal head; and that this exclusive delegation can only exist in one of three cases: where a exclusive authority is in express terms granted to the Union; or where a particular authority is granted to the Union and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former as well as with the latter. And, under this impression, I shall lay it down as a rule that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes."

Chancellor Kent, 1 Com., 396, in remarking upon the rule as thus stated in the Federalist, says: "A concurrent jurisdiction in the State courts was admitted in all except those enumerated cases; but this doctrine was only applicable to those descriptions of causes of which the State courts had previous cognizance, and it was equally evident in relation to causes which grew out of the Constitution. Congress, in the course of legislation, might commit the decision of causes arising upon their laws to the Federal courts exclusively; but unless the State courts were expressly excluded by the acts of Congress, they would of course take concurrent cognizance of the causes to which these acts might give birth, subject to the exceptions which have been stated."

Among the causes of which the State courts had previous cognizance, none were more important than those in which they claimed the right to inquire, through the means of writs of habeas corpus , into the reasons for the imprisonment of persons alleged to be illegally restrained of their liberty. A jurisdiction so essential to the great privilege of going where one may please — a privilege which every citizen of (31) the State would wish to enjoy as freely as he did the air he breathed — the State courts would hardly have parted with except upon the most urgent necessity. As soon, then, as a citizen of the State was supposed to be illegally restrained of his liberty by an officer of the *Page 12 General Government under color of a law of Congress, we might have expected that the State courts would promptly and anxiously inquire whether they had been deprived of their jurisdiction over the matter. They would ask, had it been taken away by an exclusive authority granted in express terms to the courts of the Union?

If, for instance, it were the case of a soldier unlawfully enlisted into the army, the answer would be in the negative. They would then ask, Was it a case where a particular authority was granted to the courts of the Union, and the exercise of a like authority prohibited to the courts of the States? The answer would be still in the negative. They would then ask, Was it a case where an authority was granted to the courts of the Union, with which a similar authority in the courts of the States would be utterly incompatible? That was considered to be a debatable question, and it was debated with great zeal and ability in almost every State of the Union for many years. The result was in favor of the jurisdiction of the State courts, and was thus announced by Chancellor Kent in the first edition of his Commentaries, and was so published in each successive edition of his work until his death. (See 1 Kent's Com., 400-401.)

"In the case of Ferguson ( 9 Johns., 239 ) an application was made to the Supreme Court of New York for an allowance of a habeas corpus to bring up the party alleged to be detained in custody by an officer of the army of the United States, on the ground of being an enlisted soldier; and the allegation was that he was an infant and not duly enlisted. It was much discussed whether the State courts had concurrent jurisdiction by habeas corpus over the question of unlawful imprisonment, when that imprisonment was by an officer of the United States, by color or under pretext of authority of the United States. The Supreme (32) Court did not decide the question, and the motion was denied on other grounds, but subsequently, In re Stacy ( 10 Johns., 328 ), the same Court exercised jurisdiction in a similar case by allowing and enforcing obedience to the writ of habeas corpus . The question was, therefore, settled in favor of a concurrent jurisdiction in that case, and there has been a similar decision and practice by the courts of other States." See, also, Hurd on Habeas Corpus, Book 2, ch. 1, sec. 5, where many cases are stated which show the correctness of Chancellor Kent's assertion.

To the cases mentioned by Hurd may be added that of Mason , decided in this State, and reported 5 N.C. 336 . The question of the compatibility of the jurisdiction of the State courts with that of the courts of the United States seems thus to have been proved exclusively by long experience of their harmonious action, and the general acquiescence of the country in it. *Page 13

But it has been recently said that this is all a mistake, and that the decision of the Supreme Court of the United States in Ableman v. Booth , 21 How., 506 , is directly opposed to the supposition of a concurrent jurisdiction in the courts of the State with those of the Federal Government. With the decision of that case I entirely concur; and I think that it is clearly shown in the opinion of the Chief Justice of this Court, filed in this case, that the remarks of Taney, C. J. , in giving the opinion of the Supreme Court of the United States, cannot fairly be construed to sustain the doctrine contended for by the supporters of the exclusive jurisdiction of the Federal courts.

Another case recently decided by the Supreme Court of Alabama has also been invoked to the aid of those who opposed the concurrent jurisdiction of the State courts. The case is that of Ex parte Hill , decided at the last January term of the Court, and reported and published in pamphlet form by Mr. Shepherd, the reporter of the Court. An attentive examination of the case will show that though the decision of the Court is right, it cannot be used as an authority for the (33) purpose for which it has been cited. I will premise that the Court is composed of three judges, of whom only the Chief Justice, A. J. Walker, and Stone, judge, were present, the other judge, R. W. Walker, being detained at home by providential causes. The Court agreed in the conclusion that the judge whose action they were reviewing should not issue the writ of habeas corpus upon the petition before him. The Chief Justice put his opinion upon the ground of a want of jurisdiction in the courts of the State, but Judge Stone expressly said: "I withhold the expression of any opinion on all those cases in which the party, either by name or as one of a class or sect, stands absolutely and unconditionally exempt from conscription, without any other qualification than that he is of the given class: such, for example, as persons under the age of 18 years or over 45, officers judicial and executive of the Confederate and State Governments, etc." The judge then went on with his argument to show that the petitioner in the case before the Court was not exempt from conscription under the law of Congress. In doing so, it seems to me he, himself, as a member of the Court, was assuming a jurisdiction of the case. If he had the right to construe the act of Congress for the purpose of ascertaining that the party was not entitled to exemption, he had the same right to construe the act, if his construction led to the conclusion that the party was exempt. A power to construe the act at all involves, necessarily, a jurisdiction in the Court. If this be so, then the Court was equally divided upon the question of jurisdiction, and, therefore, there was no decision either way upon that question.

Another case reported in the same pamphlet, and, I suppose, decided at the same term, shows manifestly that the Court assumed and *Page 14 exercised jurisdiction over the cause. The case is that of Ex parte Stringer . The party being in custody as a conscript, applied for a writ of habeas corpus upon the ground that he was a regular member of the "Christian Church," and had conscientious scruples against bearing arms. Stone, J. , delivered the opinion of the Court, in which it was (34) decided that the acts of Congress known as the "Conscription Laws" were constitutional, and that the petitioner did not come within any of the exemption clauses of those laws. The opinion closes thus: "As the opinion of the entire Court is not yet announced, nor indeed formed, on the broad question of the jurisdiction of the State courts in cases like the present, and as we feel no hesitation in refusing the present application on the merits, we place our refusal on the ground stated above. The prayer of the petitioner is denied."

If the Court had no jurisdiction of the cause, I should like to know how it acquired the power to decide the case upon its merits? From this examination, it is manifest, I think, that neither the Alabama case nor that of Ableman v. Booth has lessened in any sensible degree the weight of authority in favor of the concurrent jurisdiction of the State courts in cases like that now under consideration.

In closing this opinion, I will take occasion to return my thanks to the counsel on both sides for the aid which they have given to the Court by their able and well considered arguments.

Afterwards, the Court invited an argument from the bar upon this question: Whether this Court, as such, had the power to issue a writ of habeas corpus , and to determine the case in open court.

At the beginning of the term the judges requested the members of the bar to investigate the subject and give their opinions and their reasons for them pro or con , on this question: Has the Court jurisdiction to issue a writ of habeas corpus , returnable to the Court, and thereupon to inquire of the lawfulness of any restraint put on the liberty of a citizen? We have been favored with the opinions of Messrs. Moore and Winston in favor of the jurisdiction, and of Mr. Strong against it, and the subject has been fully discussed. After giving it due consideration, we are of opinion that the Court has jurisdiction. This conclusion is put on two grounds: *Page 15

1. The Court has jurisdiction by common law. The laws of our State rest for a foundation upon the common law of England. It is an admitted principle of the common law that every court of record of superior jurisdiction has power to issue the writ of habeas corpus , which is the great right for the protection of the liberties of the citizen. This "power is an incident to every superior court of record." 3 Wilson, 172 ; 3 Bac. Abr., title Habeas Corpus; notes. It arises from the obligation of the king to protect all of his subjects in the enjoyment of their right of personal liberty, and for this purpose to inquire by his courts into the condition of any of his subjects. As this duty of the king in regard to any of his subjects confers on every court of record of superior jurisdiction the power to issue the writ, as incident to its existence, it follows that the duty of the State of North Carolina in regard to its (43) citizens must confer a like power on all of its courts of record of superior jurisdiction, as incident to their existence; for surely, under our Constitution and Bill of Rights, in which is reiterated the great principle of Magna Carta , "every free man restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful, and such remedy ought not to be denied or delayed," the personal liberty of our citizens must be equally as well protected and secured as the personal liberty of the subjects of the King of England.

Our Constitution vests the legislative power in a General Assembly; the executive power in a Governor, and the supreme judicial power in a Supreme Court; so that the establishment of a Supreme Court, without any words to that effect, necessarily and as an incident to its existence, by force of the Bill of Rights, of the Constitution, and the principles of the common law, invests it with power to inquire by means of this great Writ of Right into the lawfulness of any restraint upon the liberty of a free man, and if in establishing a Supreme Court the Legislature had in express terms denied the Court the power to issue this writ and prohibited it from so doing, such prohibition would have been void and of no effect.

Our conclusion that the Supreme Court has power to issue the writ is confirmed by a consideration of the provisions of the Habeas Corpus Act, Rev. Code, ch. 55. It is taken from two English statutes, 31 Charles II. and 56 George III. We have seen that all of the Superior Courts of England had power by the common law to issue the writ, but the courts could only act in term-time , and a free man might be unlawfully imprisoned in vacation time, so the remedy would be delayed; and to provide the means of speedy inquiry into the cause of imprisonment, it is enacted by 31 Charles II. that every judge of all the courts of *Page 16 superior jurisdiction, on the application of any person imprisoned upon a criminal charge (unless after conviction), shall in the vacation time, under a penalty of £ 500, grant a writ of habeas corpus , (44) returnable without delay; and by 56 George III. it is enacted that all of the judges shall, in vacation time, under a like penalty, in the same manner grant the writ on the application of any person in person or restrained of his liberty for any cause other than a criminal charge. So in England any person, whether imprisoned on a criminal charge or restrained of his liberty for any other cause, had a right during the sitting of the courts, by application to the court, and during the vacation by application to any one of the judges, to have the cause of his being imprisoned or restrained of his liberty inquired into without delay.

Our Habeas Corpus Act, as before observed, is taken from these two English statutes, and not only gives power to, but requires, under a penalty of $2,500, any judge of the Supreme or Superior Court in the vacation time to issue the writ of habeas corpus on the application of any person imprisoned on a criminal charge or otherwise restrained of his liberty.

It is manifest that this act presupposes that both the Supreme and the Superior Courts had power in term-time to issue the writ, and the intention was to extend the remedy to the vacation. This must be a declaration by the Legislature of the fact that both the Supreme and the Superior Courts had power to issue the writ, or we must adopt the absurdity that the Legislature intended to give to a single judge in vacation a power which the Court did not possess in term-time, and we can only account for the fact that while giving this power to the judges in vacation, the Legislature did not in express words confer a like power on the courts, upon the ground that it was taken for granted that our courts, like those in England, already had the power; for under the unrestricted legislative power of the General Assembly it not only had the power, but it was its duty by the Constitution and Bill of Rights to confer this power on both the Supreme and Superior Courts, if the courts did not already possess it.

2. Suppose, for the sake of argument, it was necessary that the power should be conferred on the Supreme Court by statute: we are of (45) opinion that it is conferred by the act establishing the Court. Rev. Code, ch. 33, sec. 6. It is in these words: "The courts shall have power to hear and determine all questions of law brought before it by appeal or otherwise from a superior court of law, and to hear and determine all cases in equity brought before it by appeal or removal from a court of equity, and shall have original and exclusive jurisdiction in repealing letters patent, and shall also have power to issue writs *Page 17 of certiorari, scire facias, habeas corpus, mandamus , and all other writs which may be proper and necessary for the exercise of its jurisdiction and agreeable to the principles and usages of law."

There are several kinds of writs of habeas corpus: inferior ones, to enable the Court to exercise its jurisdiction, for instance, ad testificandum — to bring a man out of jail to be a witness; and the great Writ of Right, habeas corpus , to bring any citizen alleged to be wrongfully imprisoned or restrained of his liberty before the Court, with the cause of his arrest and detention, that the matter may be inquired of and the party set at liberty, if imprisoned against law. This proceeding is original, and in no wise connected with or dependent on any other matter over which the Court has jurisdiction.

The question is: Does the act restrict the power of the Court to writs of the inferior sort, or does it confer power to issue the great Writ of Right?

In support of the first construction, it is urged that the words, "all other writs which may be proper and necessary for the exercise of its jurisdiction," show that the writs before specified were intended to be of the same kind, and must have the effect of restricting the power of writs of the inferior sort. Several considerations are urged in reply: In strict grammatical construction, the restrictive words, "which may be proper and necessary for the exercise of its jurisdiction," refer to the last antecedent, "all other writs," so as to make the true reading (supplying the ellipsis), "and shall also have power to issue all other writs which may be proper and necessary for the exercise of its jurisdiction." (46) This further reply is made: If the intention was merely to give power to issue the inferior writs necessary to the exercise of its jurisdiction (which power every court in fact has, by implication), it was sufficient to say, "and the Court may issue all such writs as may be necessary for the exercise of its jurisdiction." Instead of this simple clause immediately following the grant of original jurisdiction to repeal letters patent, comes this formal announcement: "and shall also have power to issue writs of certiorari, scire facias, habeas corpus, mandamus." Why this formal announcement of substantive grant of power? And why are there four writs particularly named, if the object was merely to authorize the Court to issue the inferior sort of writs?

In questions of this kind, the Court is not confined to the narrow field of the import of words, construction of sentences and rules of grammar, but may draw to its aid considerations of a more comprehensive nature, and if due weight is given to the power of the Legislature — its duty, the object in view and the nature of the subject — the conclusion is irresistible that it was the intention to give the Court power to issue the great "Writ of Right." *Page 18

The power of the Legislature in respect to the jurisdiction it was about to confer on the Supreme Court then to be established was unlimited — it had the same power to confer original as appellate jurisdiction.

It was the duty of the Legislature, under the Bill of Rights and the Constitution, to provide in the most ample manner for the protection of the liberty of "all free men." The object in establishing a Supreme Court was to provide the tribunal best calculated to secure uniformity and correctness of decision in respect to all questions involving "rights of persons" and "rights of things." This it was supposed could be accomplished by a court composed of three judges. From the nature of the subject, in actions at law and indictments where the facts must be tried by a jury, it was seen to be impracticable for the Supreme Court (47) to exercise original jurisdiction. Hence, it was deemed expedient that all actions and indictments should originate in the lower courts, where the facts can be found, so as to present to the Supreme Court only questions of law by way of appeal. In suits in equity where, although the facts are sometimes complicated, the mode of trial is by the court, it was deemed expedient that the proceedings should originate below and then be brought up by appeal or removal after being set for hearing. So, in respect to these remedies, only appellate jurisdiction is conferred.

There remained a fourth distinct and important subject of jurisdiction, to wit, the writ of habeas corpus . From its nature no complicated state of facts can be presented, so that consideration presented no objection to the grant of original jurisdiction to the Supreme Court. While, on the other hand, as all of the judges of the Supreme and Superior Courts had power to issue such writs and decide upon the lawfulness of the imprisonment, in order to prevent conflict of decision and utter confusion and chaos, and to give uniformity and correctness to decisions involving the liberty of the citizen, the necessity of conferring original jurisdiction on the Supreme Court to issue the writ and decide on the right was patent; and, if the statute in question does not confer the power, no reason can be assigned for the omission, unless it was the opinion of the Legislature that the power would attach to the Court as soon as it was established, as an incident of its existence, upon the principles of the common law and Bill of Rights.

The Legislature had full power. It was its duty; there was a patent necessity; the object in establishing the Supreme Court could not otherwise be fulfilled, and no objection to it could be suggested. It follows that the Court has the power, either on the ground that the statute confers it or the omission to do so is a legislative declaration that the Court possesses the power as incident to its existence. *Page 19

On the able argument with which we have been favored by Mr. Strong, he called attention to the fact that the act of Congress, 1789, establishing the Supreme Court of the United States, used nearly the (48) same language as the act of the Legislature establishing the Supreme Court of this State, and that in the construction of the act of Congress the Supreme Court of the United States have decided that the Court cannot issue the writ of habeas corpus except where the writ is incident to an appellate jurisdiction.

That is true, and it seems to account for the general impression which has prevailed in this State against the power of the Court. The fact that so many applications have been made to the judges for writs of habeas corpus during the last few months has directed attention to this subject; and a closer and more serious investigation than the subject had before received results in the conclusion that the Court had the power, and that the erroneous impression which had prevailed is to be ascribed to the circumstance that due weight had not been given to the difference between the two courts in regard to the sources from which jurisdiction may be derived. The Supreme Court of the United States can derive no jurisdiction from the principles of the common law. Its jurisdiction must rest solely on acts of Congress, and the power of Congress to confer jurisdiction rests on the Constitution of the United States. It can have no power except that which is conferred by the Constitution, and by it the power to establish a Supreme Court is restricted to a court of appellate jurisdiction , except in cases affecting ambassadors, etc. Art. III, sec. 2.

The very reverse of all this is the case in respect to the Supreme Court of the State. It may derive its jurisdiction from the principles of the common law. The power of the Legislature to confer jurisdiction is unlimited, and there is no reason why it should not, if deemed expedient, have established a Supreme Court with full original jurisdiction, or one with jurisdiction partly original and partly appellate.

In the opinion of Judge Marshall, Ex parte Bollman , 4 Cranch., 98, 2 Curtis, 24, a full and critical examination is made of the act of Congress, and he comes to the conclusion that by its true construction it would confer on the Supreme Court jurisdiction to issue the (49) writ of habeas corpus , but for the fact that it was to be construed in reference to the limited power of Congress. Our act, on the contrary, is to be construed in reference to the unlimited power of the Legislature, and in this view the opinion of Judge Marshall strongly supports the conclusion to which we have arrived.

Mr. Strong also cited Jones v. McLaurin , 52 N.C. 392 . That was a scire facias against bail, and the Court decide that it has not jurisdiction, because the scire facias as there used is, in effect, an action of debt, in *Page 20 respect to which the Court has only appellate jurisdiction. The question we have before us is plainly distinguishable. The habeas corpus is totally distinct in its nature from any action at law, or proceeding in the nature of an action or suit in equity, or indictment, and is put by us on grounds peculiar to itself.

Our conclusion is that the Court has power to issue writs of habeas corpus , returnable to the Court, and thereupon to inquire of and decide upon the lawfulness of any restraint put on the liberty of a citizen. This opinion does not effect the question of the jurisdiction of a State court where the arrest is justified on the authority or by color of an act of the Congress of the Confederate States. That question may be the subject of future consideration.

Afterwards, the cause was taken up on its merits.

For the reasons given by me In re Irvin and In re Meroney , I am of opinion that the petitioner is entitled to exemption. In those cases (see note * ) I considered the subject fully, (60) although I was not aided by the argument of counsel. The subject has been fully argued before the Court, and I have reviewed my opinion previously given, with an anxious wish to decide the question *Page 21 according to the proper construction of the act of Congress. The (61) argument and my consultation with Judge Battle confirm my judgment as to the correctness of the views taken by me in those cases, and I refer to the opinions filed by me as the ground of my (62) present conclusion.

* Note — IN RE IRVIN.

Petitioner discharged, with costs against the officer seizing him.

Cited: In re Bradshaw, post , 383; In re Sowers, post , 386; Walton v. Gatlin, post , 318, 323; Harkins v. Cathey , 119 N.C. 663 ; McDonald v. Morrow, ib. , 672.

Note: Judge MANLY was absent during the greater part of the term on account of sickness, and did not participate in the consideration of any of the cases of habeas corpus decided at this term.

The facts are: John N. Irvin, being liable as a conscript under the act of April, 1862, offered in July, 1862, one Gephart as his substitute. Gephart was 36 years of age, and in all respects a fit and sufficient substitute for the war, and was accepted by Major Mallett, commander of conscripts, who thereupon gave Irvin an absolute discharge.

The petitioner avers he is advised that the conscription acts are unconstitutional; but it is not necessary for the purpose of this case to decide the question.

It is admitted that, under the regulations of the War Department, Major Mallett had full authority to accept substitutes and give discharges; but it is insisted that Irvin's discharge was afterwards, by the action of Congress, rendered of no effect; for the act of September, 1862, makes all persons between the ages of 35 and 45 liable as conscripts; so Gephart became liable as a conscript, by reason whereof he was no longer a sufficient substitute; and thus Irvin's discharge had no further effect. If one who is at the time liable as a conscript should be offered and accepted as a substitute, it may be conceded the discharge obtained in that way would be void, because no consideration is received by the Government, and the officer exceeds his authority. So, if after the conscription act of April one who is under 18 years of age is offered and accepted as a substitute, it may be conceded that the discharge would only be of effect until the substitute arrives at the age of 18; for as it was known to the parties that the substitute himself would become liable at that date under a law then in force, it will be presumed that the contract and discharge were made in reference to that state of things, and after the substitute arrives at the age of 18 the consideration fails, and the officer had no authority to grant a discharge for a longer time.

But in our case there was at the time no law in force under which it was known to the parties that the substitute would afterwards be himself liable as a conscript; on the contrary, he was in all respects fit and sufficient substitute for the war, and was accepted as such, and an absolute discharge given, so there was full consideration received by the Government and full authority on the part of the officer. The question is, Does the subsequent action of Congress, to wit, the act of September, 1862, by its proper construction and legal effect, repudiate and make void the contract and discharge?

The construction of acts of Congress, so far as the rights of citizens, as distinguished from the military regulations, are concerned, is matter for the courts.

Whether Congress has power to pass an act expressly making liable to conscription persons who have her to fore furnished substitutes and received an absolute discharge, is a question not now presented, and one which, I trust, public necessity never will cause to be presented, as it would violate natural justice and shock the moral sense.

In my opinion, the act of September, 1862, by its proper construction, does not embrace men who were before bound, as substitutes, to serve during the war. It is true, the act in general words gives the President power to call into military service all white men, residents, etc., between the ages of 35 and 45; but this manifestly does not include men who are already in military service for the war, for this plain reason: there was no occasion to include them — they were bound before; and the true meaning and intent of the act is to increase the army by calling into service men who were not before liable. Suppose the act contained a provision giving a bounty of $500 to all men called into service under its operation, or providing that such conscripts should not be ordered out of their own respective States, would it be imagined that men who had previously volunteered for the war, or were substitutes for the war, would be entitled to the extra bounty, or to the special privilege of remaining in their own States? Certainly not, because there was no need of legislation in order to make soldiers of them.

A decent respect for our lawmakers forbids the courts from adopting a construction which leads to the conclusion that it was the intention, by the use of general words, to include within the operation of the act substitutes who were already bound for the war not for the purpose of affecting them, but for the indirect purpose of reaching parties who had furnished substitutes, and in that way asserting a power which is at least doubtful, and certainly involves repudiation and a want of good faith.

As the conscription act does not include substitutes, the conclusion that Gephart is no longer sufficient as a substitute, and that Irvin's discharge is of no further effect, fails.

It is considered by me that John N. Irvin be forthwith discharged, with liberty to go wheresoever he will.

It is further considered that the costs of this proceeding, allowed by law, be paid by James Irvin (the officer arresting the petitioner), to be taxed by the clerk of the Superior Court of Rockingham County, according to the statute in such cases made and provided.

The clerk will file the papers in this proceeding among the papers of his office. R. M. PEARSON, Ch. J. S.C.

At Richmond Hill, 9 July, 1863 .

* IN RE MERONEY.

The facts of this case bring it within the decision In re Irvin, ante , 60. That decision is put on the ground that the conscription act of September, 1862, does not embrace substitutes; and so the questions growing out of the regulations prescribed by the War Department, "where a substitute becomes subject to military service, the exemption of the principal shall expire," was not presented.

It seems to me that any one accustomed to judicial investigation cannot read the act and fail to come to the conclusion that it does not embrace volunteers and substitutes who were already bound to serve for the war. A different construction is excluded by the words used, and is inconsistent and repugnant to its provisions.

The President is authorized "to call out and place in military service all white men, etc." The words "call out" and "place in military service" are not applicable to men who are already in the military service for the war; no legislation was necessary to make soldiers of them. If only a part is called for, provision is made for taking "those who are between the age of 35 and any other age less than 45." Can this be applicable to volunteers and substitutes? It is further provided that "those called out under this act, and the act to which it is an amendment, shall be first and immediately ordered to fill to their maximum number the companies, battalions, etc., from the respective States, etc., the surplus, etc." This supposes that the volunteers and substitutes composing the companies are to remain in the field, and the companies and battalions are to be filled up by those who are ordered into service under the conscript act.

Again, how can the regulation that all conscripts are to be sent to camps of instruction be applicable to volunteers and substitutes? Are they to be taken from the army and sent to camps of instruction? Certainly not, because they are not called out and placed in the military service under the conscription acts, but are bound for the war by the force of the original contracts of enlistment.

I am informed that, soon after the conscription act of April, a regulation was made for the discharge of all volunteers for the war who were over the age of 35; and under it many were discharged; but the regulation was revoked, the War Department becoming satisfied that the act by its true construction did not apply to men who were bound by the terms of enlistment to serve for the war. This is the same construction given by me to the act. Under it all volunteers and substitutes, whether over or under 35 or 45, are to continue in service, because they are not embraced by the conscription acts. I can see no reason why this construction should not be followed to the further consequence, that as substitutes are not embraced by the conscription acts, and do not become subject to military service as conscripts, the fact necessary to the application of the regulations of the War Department does not exist; consequently, the question that may grow out of that regulation is not presented.

It is said the arrest of Meroney was ordered in disregard of the decision In re Irvin , because the Secretary of War does not consider the construction given to the conscription act of September "a sound exposition of the act." The inquiry naturally suggests itself, Who made the Secretary of War a judge? He is not made so by the Constitution; Congress has no power to make him a judge, and has, by no act, signified an intention to do so. It is true, for the purpose of carrying acts of Congress into effect, the Secretary of War, in the first place, puts a construction on them, but his construction must be subject to the judiciary; otherwise, our form of government is subverted — the constitutional provision by which the legislative, executive, and judicial departments of the Government are separate and distinct is violated, and there is no check or control over the executive.

According to the view taken by me, it is not necessary, for the purpose of this case, to decide upon the legal effect of the regulations prescribed by the Secretary of War in regard to receiving substitutes; but as those regulations are relied on as authorizing the arrest of the petitioner, it is proper for me to say that many objections entitled to consideration may be urged to the power of the Secretary of War to make the regulations in question. The enactment under which it is assumed that the power to make a regulation that "in all cases where a substitute becomes subject to military service the discharge of the principal shall expire," comes within the scope of the power confided by Congress, in section 8 of the conscription act April, 1862, in these words: Persons not liable for duty may be received as substitutes for those who are, under such regulations as may be prescribed by the Secretary of War .

The obvious construction of this section seems to be: substitutes may be received on two conditions, one implied, to wit, the substitute must be an able-bodied white man, fit for military service in the field; the other expressed, to wit, the substitute must be a person who is not liable to military duty under the existing law; the time, place, and manner of receiving substitutes , in which is included the mode of deciding whether he is an able-bodied white man not liable to duty, to be regulated by rules prescribed by the Secretary of War.

If the regulation in question be confined to cases where the substitute, being under the age of 18, afterwards arrives at that age and becomes liable to military duty, it accords with the provision of the act. But if it be extended to cases where the substitute is not at the date of the contract of substitution liable to duty, but is afterwards made liable by a subsequent act of Congress, it departs from and goes beyond the provisions of the act by adding a third condition, and the power to do so may well be questioned; especially where the regulation as well as the act of Congress which is supposed to give it application are both subsequent to the contract of substitution and the discharge is absolute on its face. For illustration, suppose a regulation to be prescribed that in all cases where the substitute is killed or disabled, or where he deserts, the discharge shall expire, which stand on the same footing with the regulation that the discharge shall expire if the substitute is made liable to duty by a subsequent act of Congress, for all add a third condition to the two imposed by the act, and it may be urged against them that the power to add other conditions than those contained in the enactment is an act of legislation which Congress has no right to delegate to a department of the executive branch of the Government, and of course an intention to do so can only be inferred from plain and direct words, and the words, in this instance, are satisfied by the construction stated above.

The same question of construction is presented In re Huie , from Cabarrus County, under a clause in the exemption act which exempts all persons who shall be held unfit for military service in the field under rules to be prescribed by the Secretary of War , where the power is confined to making rules to ascertain whether the person is or is not fit for military service in the field, and it is decided that the act does not confer power to prescribe a rule under which a citizen may be taken as a conscript, although held unfit for military service in the field, on the ground that he may answer some purpose in the hospitals, etc. These instances tend to show the wisdom of the constitution in not confiding legislative, judicial, and executive powers to any one department.

I am of opinion that the petitioner is entitled to exemption.

Therefore, it is considered by me that P. P. Meroney be forthwith discharged, with leave to go wherever he will. It is further considered that the costs of this proceeding, allowed by law, to be taxed by the clerk of the Superior Court of Rowan County, according to the act of the General Assembly, be paid by Jesse McLean (the enrolling officer).

The clerk will file the papers in this proceeding among the papers in his office and give copies. R. M. PEARSON, Ch. J. S.C.

At Richmond Hill, 4 July, 1863 .

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