39 Ala. 609 | Ala. | 1865
We do not think there is any thing in the argument, urged in this case, that the State of Alabama had first availed itself of the services of the petitioner, in its militia service. Until he reached the age of seventeen, he was not liable to enrollment in the army of the Confederate States; and, hence, so far as the claims of the Confederate States were concerned, he was at liberty to enlist in the State service. When, however, he became seventeen years of age, the claim of the Confederate States attached to him as a conscript. We have heretofore held, that the conscript laws are constitutional, (Ex parte Hill, 38 Ala. 428,) and vre have also ruled, that when the lawful call of each government, Confederate and State, to perform military service, falls on the same person, the claim and call of the Confederate States must prevail over the claim and call of the State government, on the ground that the constitution of the Confederate States, and the laws made in pursuance thereof, are the supreme law of the land.—See State, ex rel. Dawson, in re Mays & Strawbridge; State, ex rel. Graham, in re Emerson, at last term. Holding that, in a case like the present, the claim of the Confederate government is paramount to that of the State, we think the circuit judge rightly refused to enlarge the petitioner on habeas corpus.
The prayer of the petitioner is refused.
