Swindle v. Brooks

Lyon, J. The applicant, Henry A. Swindle, previously to the 4th of July 1862, was a private in “ The Liberty Guards,” a compiany in the military service of the Confederate States, and on that day pint into that compiany and the military service as a substitute for himself, one Jacob B. Moody, who was received as such, and the applicant discharged from duty and further service in the’ army of the Confederate States. After the passage of the act of the Confederate Congress of 5th January 1864, putting an end to exemptions heretofore granted on account of substitution, the applicant, solely to avoid conscription into a compiany or service more objectionable to him, volunteered as a private in compiany E., 20th Battalion of the Confederate army, commanded by Lieut. Col. Millen, and became thereby a regularly enlisted member of that compiany, having complied with the law allowing those who had furnished substitutes to volunteer by the 1st of February 1864, as apipears by the certificate of John O. Perry, sub-enroling officer of Liberty county. Perry, the sub-enroling officer, acting under verbal orders from the district enroling officer, subsequently demanded of Lieut. Brooks, of company E., 20th Battalion, the surrender of the applicant to him as enrolling officer, on the ground, that he had not passed through the camp of instruction in compliance with General Orders No. 3, regulating the mode of piutting into the military service those who had furnished substitutes, etc., and this demand had been refused, whereupon, the apiplicant, Swindle, sued out this writ of habeas corpus, and upion the hearing of the facts, insisted upon his discharge. 1st. That as he had furnished a substitute in compliance with the provisions of the conscript act of ■-3 862, and been discharged from all further military service in the army of the Confederate States, that any attempt to conscribe [72] him now, under the act of Congress, of January 5th, 1864, was illegal. 2d. That he was entitled to his discharge from the custody of the commanding officer of company E., 20th Battalion, because he had volunteered into that service solely under the advice and belief at the time, that if he did not, he would be subject to conscription; which was a misapprehension of fact and of his rights and therefore void. The right to a discharge, on the first ground, involves the constitutionality of the act of Congress of January 5th, 1864, entitledAn act to put an end to the exemption from military service of those who have heretofore furnished substitutesf and as that question has been already heard and determined, affirmatively, in Darly and Fitzgerald vs. Harris, tried at Macon, in March last, it must bo, so far as this Court is concerned, at least, as res adjudieata. The second ground depended altogether on the first; because, if the applicant was liable to conscription under this act, in case he did not avail himself of the right to volunteer, as he undoubted was, his enlistment was not made under any misapprehension of fact or of his right, but was valid and binding on him, and so wo hold.