From the Richmond Dispatch, 8/6/1864, p.1, c4
Hustings Court – Hon. Wm. H. Lyons presiding – In this Court yesterday Judge Lyons delivered a long and very lucid and able opinion in the habeas corpus case of N. Tinsley Pate, and discharged the petitioner, holding that he was illegally detained by Captain Jenkins, a captain in the 19th regiment of Virginia militia. Looking to the many interesting questions decided by the Judge, it may be regarded as the most important case which has yet been decided with reference to the stains of “detailed conscripts.” From hearing the opinion of Judge Lyons we have been able to prepare the following synopsis of the case:
Mr. N. Tinsley Pate, a highly respected and energetic citizen of Richmond, reported himself long in the present year, and was enrolled as a conscript at Camp Lee. As he was the lessee of the largest and most important cement works in the Confederate States, he was detailed to superintend them at the instance of many of the most extensive Government contractors, canal presidents, naval officers, and engineers, his cement being indispensable to the Government.
Soon after his detail, in obedience to an order of the Governor of Virginia, he was enrolled as a private in the 19th regiment of Virginia militia, and required to perform active militia duty, much of which was incompatible with the performance of his duties as a “detailed conscript.”
Finding that he could not perform militia service and discharge his duty as a detailed solder, and believing that the Governor had no right to force a detailed soldier to do duty in the militia, Mr. Pate refused to perform militia duty, and upon one occasion, when his arrest was ordered by the captain of the militia company in which he was enrolled, he resisted the officer sent to arrest him, but was eventually arrested and charges were preferred against him, upon which a court martial, composed of militia officers was convened to try him.
To prevent a trial by a tribunal having no legal jurisdiction in his case, and to prevent an incarceration by order of officers who could not legally order his imprisonment, Mr. Pate was compelled to sue out a writ of habeas corpus, which was awarded without hesitation by Judge Lyons. Capt. Jenkins made a return to the writ to the effect that he held Mr. Pate legally, first as a private in the 19th regiment of Va. Militia; second by virtue of an agreement between the Governor of Virginia and General Kemper and the Secretary of War, by which the 19th regiment had been made, for certain purposes, a portion of the reserved force of Virginia; and third, that he was held in arrest for trial by a military court martial, convened by order of the Governor of Virginia.
Messrs. Patrick Henry Aylett and Edward Y. Cannon represented Mr. Pate, and the Attorney General of Virginia, John Randolph Tucker, appeared for Captain Jenkins. The case was argued at great length and with unusual ability, and the decision of the Judge was delayed by his absence from the city in consequence of illness in his family.
Judge Lyons decided that, as an enrolled conscript between the ages of eighteen and forty-five years, Mr. Pate had been regularly detailed by the President to perform duties and to superintend works which the evidence proved were of the greatest importance to the country, and he could not be required to perform militia service by the Governor of Virginia. He said that the duties performed by detailed men were of the highest importance, and that their enrolment for active militia duty was a palpable infringement of the right of the Confederate States to their whole time; and that to recognize any claim of a Governor of a State upon any portion of the time of a detailed man would be to disregard the paramount claim of the Confederate States, which should be most zealously guarded for many important reasons.
He also decided that the arrangement between the Governor of Virginia and the Secretary of War for the transfer of the 19th regiment to the reserved forces, even if a legal agreement, could not transfer to the reserved force a detailed conscript between the ages of 18 and 45, because the laws of the Confederate States would not permit the mustering in of men between the ages of 18 and 48 into the reserved force at all, nor could the officers of the 19th regiment of militia, between the ages of 18 and 45, hold commissions legally in the reserved force of the State.
He also decided that Mr. Pate could not be legally tried by a court-martial composed of militia officers, as he was illegally held as a private in the 19th regiment, and he directed the immediate discharge of Mr. Pate, and overruled all the points of the return. We have given a most imperfect sketch of the opinion, which, in the opinion of the bar, was one of great power and learning.
This decision will materially effect the condition of those companies of the 1st and 19th regiments, which are composed almost exclusively of detailed conscripts, who are performing duties of the most varied and important character for the Confederate States. We learn that the claim of the Governors of the States to enforce ordinary militia duty from detailed conscripts has always been denied by the Government, and that Mr. Pate’s position is precisely that of the Bureau of Conscription in its correspondence with Gov. Brown, of Georgia.