Saturday, May 25, 2013

May 25, 1863 (Monday): The Desertion Issue

Judge Richmond Pearson (
Raleigh, May 25, 1863.
Honorable J. A. SEDDON,
Secretary of War, Richmond, Va.:
    SIR: Your letter of the 23rd instant, inclosing copy of one from General Lee with descriptive rolls of deserters from General Rodes' brigade, appealing to me for action in regard to the best means of arresting desertion in the army, has been received. You will see by copy of my proclamation,* that everything which it is possible for me to do has been already done. The most stringent orders have been issued to the militia to guard all fords and feries and public highways, and every imaginable step taken to insure activity and obedience. And to avoid, if possible, the danger of conflicting with the legal tribunals of that State, I have recently written to the President suggesting that he should make a requisition upon me for the milita for the purpose of arresting deserters, &c., to which letter I beg to refer you as an evidence of my great desire to put a stop to this evil. I regret, sir, that you should have deemed it necessary to adopt as an expanation of the cause for so much desertion-an idea which has its origin solely in political prejudice-the "too ready interposition of the judicial authority in these question of military obligation," and the false constructions given to the decisions of our judges in the army. That such impressions do prevail in the army I make no doubt. You are not the first authority I have had for that fact; but why it should exit and how it was first made I am unable to determine, except upon the ground that there exist among our neighbors, and even among some of our own citizens, "a too ready" disposition to believe evil of the State. When it is know that North Carolina is the only State in the Confederacy which employs her militia in the arrest of conscripts and deserters; that she has better executed the conscript law; has fuller regiments in the field that any other, and that at the two last great battles on the Rappahannock, in Decempber and in May, she furnished over one-half of the killed and wounded, it seems strange, passing stange, that an impression should prevail that desertion would receive official contenance and protection on her borders.
    The decisions of our judges have been published in all the papers of our State, and any pervarsion of their meaning must be designed and willful. Neither have our judges been "too ready" to offer them. Heavy penalties, as your know, are annexed to the refusal of a judge to grant the writ of haveas corpus, and an upright judge must deliver the law as he conceives it to be, whether it should happen to comport with the received notions of the military authorities or not. I must therefore most respectfully decline to use my influence in restaining or controlling that co-ordinate branch of the Government which intrudes upon nobody, usurps no authority, but is, on the contrary, in great danger of being overlapped and destroyed by the tendency of the times. Whilst, therefore, it is my intention to make every possible effort to sustain the common cause, it is my firm determination to sustain the judicial authorities of the land, the rights and privileges of the citizens to the utmost of my power. By the action of Congress no appreal lies from the supreme court of a State to that of the Confederate States, and the decisions of the supreme court of North Carolina when formally rendered will be binding upon all parties. I also regret to see that the impression will be made by these letters of yours and General Lee's that desertion is greater among the North Carolina troops than those of her sister States, which I have every reason to believe is not true. Yet has any other Executive been appealed to isue proclamations, and to employ the militia in arresting it? Has the "too ready interposition" of the judiciary of South Carolina and Georgia been rebuked for almost similar decisions rendered? Exuse me, sir, for writing in this strain; I feel that our exertion are scarcely appreciated properly, and I can but speak plainly when I approach the subject.
     Very respectfully, your obedient servant,

     Z. B. VANCE.

* See May 11, 1863, p. 706. 

Official Records, Series I., Vol. 51, Part 2, Page 715.

In the spring of 1863 North Carolina militia entered Yadkin County is pursuit of deserters.  In the process two militia were killed and a group of deserters arrested.  They applied to judge Richmond Pearson of the North Carolina Supreme Court for a writ of habeus corpus.  Pearson ruled that without some specific act of the Confederate Congress which imposed on the state the obligation to utilize the militia, there was no legal authority for the militia to attempt the arrest.  The men were therefore resisting an unlawful arrest and had committed no crime.  The judge ordered them released.  At the same time, Richmond and Lee were alarmed by the increase in desertions by North Carolina troops and asked Governor Vance to overrule the judiciary.  Instead, Vance asks, in conformity with Pearson's ruling, for the Confederate government to requisition the militia of the state to perform the task (thereby making it legal).  The irony is that the Confederate Government was created on the basis of states rights, yet if they exerted those rights once they seceeded they risked the destruction of their cause.

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