In re Finley, 60 N.C. 191, 1 Win. 191 (1863)

Nov. 7, 1863 · Supreme Court of North Carolina

60 N.C. 191, 1 Win. 191

IN THE MATTER OF FINLEY.

Habeas Corpus.

The facts are : Einley is a native of Baltimore, in Maryland, and had for many years been a merchant in Baltimore. In May, 1861, his political sentiments being on the side of the Confederate States, he left Baltimore and came to Ashe-ville, North Carolina, with no intention of changing his do-micil, but with the intention of staying in Asheville until the War was over, and, in the mean tipie, of collecting or securing debts due him in this State and in Tennessee, Georgia and South Carolina : he has been, the most of the time, in Ashe-ville, where he boarded at a hotel by the month, and visited other places in the above named States as business required ; he is 36 years of age and a single man.

In October, 1863, he was ordered out to do military service as one of-the “ home guards,” by Major J. W. Woodfin, and upon his refusing to serve, he was arrested and sued out the writ of habeas corpus.

Mr. Winston, for petitioner,

assumed the grounds:

1. The act of the Legislature is unconstitutional for the reason, that a regular army and the militia are the only military organizations recognized by the Constitution of the Confederate States, or of this State, and the act, in question, makes a new military organization, which supersedes the militia and defeats and makes of no effect the power of the Confederate States over the militia.

2. The petitioner being a foreigner, who has not acquired a domicil in this State, to subject him to military service, would be a violation of the law of nations and international comity, which it will not be taken that the Legislature intended to commit.

3. The petitioner is a subject of a country with which we are at war; an “ alien enemy,” and is not embraced by the act of the Legislature.

I. The constitutionality of “ the act in relation to the militia and a guard for home defence,” although presented by the facts, is a question which it is not necessary to decide in order to dispose of the case according to the view I take of it, and I do not, therefore, enter upon its consideration.

II. Assuming that according to the law of nations and international comity, the subject of another government, who is a resident, but has not acquired a domicil here, cannot be re-’ quired todo military service, in order to repel invasion and aid in establishing our independence, and assenting as I do fully to the position, that when the words of a statute will admit of any other construction, it will not be taken that the Legislature intended to violate the law of nations and of international comity, still there i§ no provision, either in the Constitution of the Confederate States, or of the State, which prohibits the Legislature from doing so, and if words are used, showing cleaily and unequivocally that such is the intention,the law is valid, and there is no ground on which the courts can decline to give effect to it from respect to the law of nations. In putting a construction on the Conscription Acts,, the general words, “ all white men who are residents of the Confederate States,” &o., are held not to embrace subjects of another government, who are residents, but who had not acquired a domicil here. The statute under consideration, besides the general words, “all white male persons residents in this State,” adds the words, “ inel-uding foreigners not naturalized who have been residents in the State for thirty days.” These words are clear and unequivocal, and as it seems to me, admit of no other construction than that it was the intention of the Legislature to include foreigners who had been residents here for 30 days, without reference to the fact of domi-cil, on the ground, that to repel invasion and prevent our subjugation, the principle of comity, on which the law of nations is based, should be, to a certain extent, disregarded; and it is the intention to require foreigners, who are' residents, as, distinguished from itinerants or travelers, to take up arms and aid in our defence. So, my construction is, that an Englishman or a Frenchman, who had resided here for thirty days, would be embraced by the act.

NI. The petitioner is not simply a foreigner, who is a resident here, like an Englishman or Frenchman, but he is an “ alien enemy,” here by the permission of our government. Should he bring an action and to the plea, “ alien enemy,” take issue, it would be found against him, and he could only avoid the plea by confessing and putting in a special replication that he is a resident here by the permission of the government. “ Foreigner,” the word used in the statute, in its general sense, includes all persons who are not citizens of this State or the Confederate States; but in the law books, state papers, histories, and in conversation, it is commonly.used to signify citizens of other countries, neutral in their relations to us. In order to designate the citizens of a nation, with which there is a state of war, the word, “ enemy,” or “ alien enemy” is appropriate. So, upon the principle of construction above referred to, which applies with increased force in the case of an alien enemy, for reasons, which I will state, I am convinced that the statute, under the general word, “foreigner,” does not embrace an alien enemy, for, in that ease, it is not a mere question of comity, bnt other considerations are involved, which may deeply concern the safety of the State, and which force upon us a different construction, to avoid a violation-of the immutable principles of justice. A soldier has to be trusted — a faithless sentinel may sacrifice a whole army ; or an alien enemy, acting as a soldier, may desert and give information of vital importance. So, nothing short of direct words will justify the conclusion that it was the intention to make soldiers of them, and it should only be done by voluntary enlistment, with the express sanction of the government and full notice of the fact. "Would we trust a citizen of Massachusetts, who had resided here thirty days, as a soldier in our army ? In the eye of the law, a citizen of Massachusetts and a citizen of Maryland are on the same footing.— Again, if a citizen of Massachusetts or of Maryland, takes up ¡inns and fights in our defence,'ho will not, even in the view of the subject taken by our government, be entitled to be treated as,a prisoner of war. The IT, States would have a right to deal with him as a traitor, and -not a citizen of a belligerent nation. TJnder the general word, “ foreigner,” can it bo taken that the legislature intended to force a man to incur the guilt of treason, where the words are .plainly susceptible of a construction which excludes “ alien enemies ?” IJere, the rule of construction is pressed on us, not to avoid a -violation of comity, bu.t to avoid the commission of a positive wrong — a crime. Instances of the application of this rule of construction are to be met with in all of the works. A familiar one : A., haying an estate in fee simple, enfeoffs B, for life; it is taken to be for the life of B, as most beneficial to him ; but if one having an estate for his own life, enfeoffs B, for life, it shall be taken for the life of the feoffor, because if. would bo wrong to make a.11 estate for the life of B — -a forfeiture would bo incurred. In our case, the word, “foreigner.” is satisfied by confining it to the subjects of neutral nations, and cannot be taken to embrace a citizen of Maryland — an alien enemy — without forcing men to commit treason, and thereby incurring the highest forfeiture known to the law.

The petitioner stands on a different footing from a citizen of Kentucky or Missouri. Those two States are claimed by our government as belonging to the Confederate States. Their 'citizens fighting in our armies may consequently expect to be treated as prisoners of war ; but we have, as yet, no higher pretension to the State of Maryland, as being a member of t!m Confederate States, than t<> the State of Massachusetts; and for the purpose of this discussion, the citizens of Maryland and Massachusetts arc to be viewed in the same light.

If there be citizens of those States, or any of the other States which still belong to the United States, residing among us, with the permission of our government, I hoy cannot, by any. but direct and unequivocal words, be forced into our armies to .repel invasion ; and it is to be presumed that whenever their presence is supposed to endanger the public safety the permission to reside here will be withdrawn, and the gov-.erynuejit will recju.i.re them .as “ alien .enemies” to depart

It is considered by me that R. S. Finley be discharged, with leave to go wheresoever he will. The .cleric of the Su-rior Court of Buncombe comity, will-file the-papers in hi#, offico, and give copi.es.

R. M, PEARSON, .0. 3. S. ¡0.

Richuioud Hill, Nov. 7, 1863.