Substitutes in the Army
--
Important Habeas Corpus Cate.--An interesting and important
habeas, corpus case was tried before
Judge Marshall, in the Circuit Court of
Lynchburg, last week.
We find the following particulars in the
Republican;
The petitioner,
Philip T. Withers, a citizen of
Lynchburg, having been arrested by the enrolling officer,
Major Charles S. Peyton, as a conscript, claimed his exemption on the ground of having furnished a substitute in Co. it, 11th Va, regiment.
The paper produced to establish the claim to substitution was signed by
Sparrell L. Weight, 2d
Lt. commanding Co. H, 11th Va. regiment, and approved by
Kirk Otey,
Major commanding 11th Va, regiment.
In the return to the writ,
Major Peyton alleged that the whole transaction was irregular, illegal, fraudulent and void, and in accordance with the laws and orders on the subject of substitution.--That
Sparrell B. Wright, who signed the said paper as
2d Lieut. commanding, and
Major Otey, who signed as
Major commanding the 11th Va. regiment, were not with their commands at the time of signing the same, but were in the city of
Lynchburg, and their commands were with the army of the Potomac.
more than one hundred miles distant; and that neither the said
Withers nor said
Farley, the alleged substitute, were ever with or in any sense members of Co. H, 11th Va. regiment; that the said substitute should have been carried either to the regiment or to a camp of instruction, and there mustered in, and that neither said
Wright nor said
Otey had any right or authority to receive substitutes in service.
A good deal of testimony was introduced in support of the allegations of the return, showing that both
Wright and
Otey were in
Lynchburg at the time of signing the paper and receiving the substitute, and that no such substitute as
Wm. Farley, mentioned in the discharge, had ever been on daily with the company.
Testimony was also introduced to establish the genuineness of the paper upon which the discharge was claimed.
A paper was also Introduced, signed by
Major Otey, purporting to be a descriptive list of said
Farley, and a receipt for him from
Col. J. C. Shields, Commandant of Conscripts.
The case was fully heard as an important one upon which a large number of others of a similar character depend, and ably argued for two days by
James Garland,
Robert Whitehead, and
E. D. Christian, Esqs., for the petitioner, and M. II.
Opink for the
Government.
Judge Marshall delivered an able and elaborate opinion in the case on yesterday, discussing all the points in issue.
The
Judge held that the substitution was illegal, irregular, and void; that the
Lieutenant and
Major signing were not in command at the time of signing, and, under the laws and regulations, had no authority to receive substitutes in the army; that the principal should have carried his substitute to the regiment, if he was a member of the company; and, if not a member of the company, he should have carried him to a camp of instruction, as prescribed by the orders of the
Adjutant and
Inspector General of the C. S. Army; that the descriptive list signed by
Major Otey was inconsistent with the first paper upon which the petitioner claimed his discharge, and that no such man was receipted for by
Major Otey, was ever in the possession or under the control of
Col. J. C. Shields, and that the petitioner having failed to show that he had ever furnished a substitute who was at any time on duty with the company, or to bring himself within the equity of the law, must be remanded to the custody of the enrolling officer for service in the army, which was accordingly done.
The decision is an important one, effecting many others of a similar character.
We understand that
Lieut. Wright gave a large number of such discharges for substitution.
An appeal has been taken by the counsel for
Mr. Withers.
