The militia decision in Petersburg.
Judge Joynes, of Petersburg, on Wednesday delivered his opinion in three cases of habeas corpus, in which the petitioners asked to be discharged from the militia service by reason of having furnished substitutes in the Confederate service. In the first case, that of Charles B. Raine, he rests the claim of the petitioner to be discharged from the custody of Lieut. Col. Davenport, upon the provisions of the act of the General Assembly of Virginia, passed February 5, 1863, entitled "An act to provide for the discharge from active military service of persons who have furnished substitutes." That act (1st section) is in the following words. 1. Be it enacted by the General Assembly, That no person who has heretofore furnished, according to law, a substitute in the military service of the Confederate States, for three years of the war, shall be liable to military service under the proclamation of the Governor of the 10th of January, eighteen hundred and sixty- three, or any future proclamation calling for forces, under now existing laws, to be turned over to the service of the Confederate States, except in cases in which such substitute may be himself liable, under the laws of the Confederate States, to perform his own tour of duty; but such person shall be entitled to his discharge. The Judge gave his decision against the petitioners in all three cases. We copy the concluding portion of it: ‘ It appears, therefore, that the petitioner has been called out for local defence, and is held for that duty only. And although the militia to which the petitioner belongs has been placed under the command of General Jenkins, the Confederate officer commanding at Petersburg, he has no right to employ them, and has not attempted to employ them, and does not claim the right to employ them in any other service than that for which they were called out by the State authorities. ’ It follows from the views which have been presented that the militia to which the petitioner belongs have not been "turned over to the service of the Confederate States," in the sense of the Act of February 5. The troops called out by the proclamation of January 10, were to be turned over to the Confederate States by being mustered into their service, and thereby passing under the exclusive control of the Confederate authorities, losing the character of State militia, and becoming, for the term of their enlistment, a part of the Confederate army, for as was said by the Supreme Court in Houston vs. Moore, after a detachment of militia have been called forth and have entered into the service of the Confederate States, the authority of the General Government over such detachment is exclusive. 5 Wheaton, 17. It was to similar proclamations thereafter, calling for troops to be, in like manner, turned over to the exclusive control of the Confederate States, that the Act of February 6 alone applied. By the act of the Provisional Congress of the Confederate States, passed March 6, 1863, it is provided that the militia, when called into service under that act, or under any other act, may be compelled to serve for a term of six months after they shall be mustered into service. Thus, according to the views taken by the Supreme Court in Houston vs. Moore, it would seem that the militia, when called into the service of the Confederate States, are not regarded as entering that service, or losing their character of State militia until "mustered into service." "That," in the language of the Court in that case, "is the terminus a quo the service, the pay, and subjection to the articles of war, are to commence and continue, " pp. 17, 30. And so the act of assembly of February 10, 1862, providing for raising troops to meet the requisition on Virginia, clearly contemplated the mustering into the service of the Confederate States as the means by which the troops were to be turned over to that Government--11: The same is true of the Act providing for the transfer of the State troops to the Confederate States, passed February 18, 1863. As far as I am informed, that is the only mode recognized by law by which State troops can be turned over to the Confederate States. In the present case the militia have not been so turned over, and it does not appear that they are to be. The order to report to General Jenkins, and the command assumed by him in pursuance of it, may be accounted for by the 98th Article of War. Embarrassing questions arose during the war of 1812, as to the mode in which State troops serving with National troops shall be commanded, but I see no reason why, independent of that Article of War, the Governor might not, independent of that Article of War, put the direction of the State troops under command of a Confederate officer holding chief command in the place for whose defence those troops were called out. The supply of rations by the Confederate authorities is explained by the fact that, as these troops were called out by the Governor at the request of the President, the Confederate States would be bound to reimburse all expenses to the State, and it was thought best to advance them in the first instance. Act of Congress, April 20, 1818, (3 St. at Large, 444.) Opinion of Attorney General Gilpin, May 1, 1840. The view which I have taken of the case makes it unnecessary to consider the objection taken by the Attorney-General to my Jurisdiction, founded on the 2d section of the act of February 5, 1863. I incline to think, however, that if the proper authority fail or refuse to organize a Board of Exemption the party claiming his exemption would be entitled to have the question tried upon habeas corpus, without being obliged to await the result of a mandamus to compel the organization of a board. Something has been said in the argument about the authority for putting the militia into camp. I think it was competent to the commanding officer to order the men into camp, if, in his judgment it was necessary to proper discipline. And I may remark, that this objection confesses that the men have not been turned over to the Confederate States and incorporated into their army, for if so there is no room for doubt that their proper place is in camp. I, therefore, remand the petitioner to the custody of Col. Davenport, and adjudge him to pay the costs of the proceedings. I dismiss the writ against Gen. Jenkins, and adjudge the petitioner to pay the cost of the proceedings in that case. Common'lth for Jackson,ve,
Davenport, Habeas Corpus. Same,
es.
Jenkins. Habeas Corpus. In the argument this case was considered as standing on the same ground with Raines. But counsel were mistaken in supposing that Jackson furnished a substitute in the Confederate service. His substitute was put into the State service on the 4th April, 1862, before there was any law of Congress allowing substitutes in the Confederate service. This substitution appears from the papers to have been a good one, under the laws of Virginia, the substitute being a non-resident of the State, a native of Ireland, and never authorized. Whether this substitute satisfied the provisions of the 9th section of the Conscript act, so as to exempt the petitioner from service under that act, is a question not before me. The claim of this petitioner, therefore, does not depend upon the act of February 5, 1863. It must rest upon the 11th section of the act of February 10, 1862, under the authority of which the substitute was furnished, by which the party furnishing the substitute remains liable to "ordinary militia duty." If it were necessary to determine the effect of that reservation of service, I should hold that it embraced all the service which a militiaman can be called on by the State to render, except the service for which he furnished the substitute, which would leave the petitioner liable to the present service. But it is not necessary to decide that question, because the 7th section of the Act of March 7, 1862, under which I think the petitioner is now held, provides that no person shall be exempt from service under that Act who is not exempt from all military duties. I, therefore, remand the petitioner to the custody of Col. Davenport, and adjudge him to pay the cost of the proceedings. I dismiss the petitioner's writ against Gen. Jenkins, and adjudge him to pay the cost of the proceedings. Common'lth for Brooks
vs.
Davenport. Habeas Corpus. In this case the substitution was in the Confederate service prior to February 5th, 1863, and appears to have been "according to law." For the reasons assigned in Raine's case, except so far as they apply to the validity of the substitution, I remand the petitioner to the custody of Col. Davenport, and adjudge him to pay the cost of the proceedings. The Express says that the Second Class Militia of Petersburg have been discharged from the camp of instruction by Gen. Jenkins, they having shown a sufficient proficiency in drill. The First Class will also be discharged when they are as proficient as their more fortunate brethren.
