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
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
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
delivered an able and elaborate opinion in the case on yesterday, discussing all the points in issue.
held that the substitution was illegal, irregular, and void; that the Lieutenant
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