39 Ala. 367 | Ala. | 1864
Tbe person in whose behalf tbe petition for habeas corpus in this case was preferred, has been enrolled as one of tbe class No. 2, under tbe act of tbe legislature of Alabama, entitled “An act to organize tbe militia of Alabama,” approved 29th August, 1863, and claims an exemption from service in that class, on tbe ground that, under tbe provisions of tbe act of tbe Confederate States congress, entitled “An act to organize forces to serve during tbe war,” approved 17th February, 1864, be is entitled to exemption from tbe Confederate service, as “tbe overseer of a plantation having fifteen able-bodied bands”; tbe proper bond having been given by Ms employer, and tbe other conditions of that act necessary to secure an exemption having been all complied with.
This exemption from militia service in class No. 2, is claimed under tbe provisions of tbe actof Alabama, approved August 29th, 1863, entitled “An act declaring who shall be exempt from militia duty in this State”,. and specially, under tbe clause in tbe 1st section of that act, which reads as follows : “All overseers who are or shall be exempted or detailed under acts of tbe Confederate congress, so long as they may be exempted or detailed as such”. — Acts of called session, 1863, p. 13.
Tbe question is one of construction; and tbe precise question is — does tbe State law just quoted, exempting “overseers,” relate to and embrace only acts of tbe Confederate congress then in existence; or, does it also relate to and include acts or laws of tbe Confederate States which might be subsequently enacted, exempting overseers.
This question is not free from difficulty, and has there
By tbe act of congress of 11 tb October, 1862, (Acts 1st session 1862, p. 79,) it was declared, tbat “to secure tbe proper police of tbe country, one person, either as agent, owner, or overseer, on each plantation on wbicb one white person is required to be kept by tbe laws or ordinances of any State, and on wbicb there is no white male adult not liable to do military service, and in States having no such law, one person as agent, owner, or overseer, on each plantation of twenty negroes, and on wbicb there is no white male adult not liable to military service”, should be “exempted from tbe military service in tbe armies of tbe Confederate States.”
This same act contains a general clause on tbe subject of exemptions, wbicb is in these words: “And such other persons as tbe president shall be satisfied, on account of justice, equity, or necessity, ought to be exempted, are hereby exempted from military service in tbe armies of tbe Confederate States.”
This law was repealed by tbe act of May 1,1863, (Acts Confederate States, 3d session, 1863, p. 158,) so far as related to tbe “twenty-negro” clauses, but left unrepealed as to all tbe rest, and tbe following enacted:
“ Sec. 2. For tbe police and management of slaves, there shall be exempted one person on each farm, or plantation, tbe sole property of a minor, a person of unsound mind, a feme sole, or a person absent from home in tbe military or naval service of tbe Confederacy, on wbicb there are twenty or more slaves: Provided, tbe person so exempted was employed and acting as an overseer previous to tbe 16th of April, 1862, and there is no white male adult on said farm, or plantation, who is not liable to military duty; wbicb fact shall be verified by tbe affidavits of said person, and two*372 respectable citizens, and shall be filed with the enrolling officer; And provided, the owner of said farm or plantation, his agent, or legal representative, shall make affidavit, and deliver the same to the enrolling officer, that after diligent effort, no overseer can be procured for such farm, or plantation, not liable to military duty; Provided further, that this clause shall not extend to any farm or plantation on which the negroes have been placed by division from any other farm or plantation since the 11th day of October, 1862 ; Provided further, that for every person exempted as aforesaid, and during the period of such exemption, there shall be paid annually into the public treasury, by the owners of such slaves, the sum of five hundred dollars.”
This last law was repealed by the act of 17th February, 1864, and a new exemption law passed, the 4th clause of the 10th section of which reads thus:
“4. There shall be exempt one person as overseer or agriculturalist on each farm or plantation, upon which there are now, and were on the first day of January last, fifteen able-bodied field hands, between the ages of sixteen and fifty, upon the following conditions:
“1. This exemption shall only be granted in cases in which there is no white male adult on the farm or plantation not liable to military service, nor unless the person claiming the exemption was on the 1st day of January, 1864, either the owner and manager, or overseer of said plantation; but in no case shall more than one person be exempted for one farm or plantation.
“2. Such person shall first execute a bond, payable to the Confederates States of America, in such form, and with such security, and in such penalty as the secretary of war may prescribe, conditioned that he will deliver to the government, at some railroad depot, or such other place or places as may be designated by the secretary of war, within twelve months next ensuing, one hundred pounds of bacon, or, at the election of the government, its equivalent in pork, and one hundred pounds of net beef (said beef to be delivered on foot), for each able-bodied slave on said farm or plantation, within the above said ages, whether said slaves work in the field or not; which said bacon or pork and*373 beef shall be paid for by tbe government at tbe prices fixed by tbe commissioners of tbe State under tbe impressment act: Provided, tliat wben tbe person thus exempted shall produce satisfactory evidence that it is impossible for him, by tbe exercise of proper diligence, to furnish the amount of meat thus contracted for, and leave an adequate supply for the subsistence of those living on said farm or plantation, the secretary of war shall direct a commutation of the same, to the extent of two-thirds thereof, in grain or other provisions, to be delivered by such persons as aforesaid at equivalent rates.
“3. Such person shall further bind himself to sell the marketable surplus of provisions and grain now on band, and which he may raise from year to year while his exemp- , tion continues, to tbe government, or to the families of soldiers, at prices fixed by the commissioners of the State under the impressment act: Provided, that any person exempted as aforesaid shall be entitled to a credit of twenty-five per cent, on any amount of meat which he may deliver within three months from tbe passage of this act: Provided further, that persons coming within the provisions of this exemption shall not be deprived of tbe benefit thereof by reason of having been enrolled since the 1st day of February, 1864.”
We come then to tbe question as to what is the true construction of our State law. A great deal has been said and written by law-writers on the rules and maxims which should govern the courts in the construction of written law. One rule laid down, and which I consider eminently sound, is, that in the construction of a constitution, or fundamental lato, more weight should be attached to the mere words, than in the construction of an ordinary statute ; because, in framing the provisions of a constitution, the lawmakers act with great care and circumspection, and every word is well sifted and settled, while in passing ordinary statutes this unfortunately i s known not to be the case, but that they are often passed without having their language carefully chosen and critically considered.
I can find nothing, which comprehends in a short space the general rules which should govern in this matter, more
“Two of these maxims (whereby to come to a reasonable construction) we will mention:
1. “That the natural import of the words of any legislative act, according to the common use of them, when applied to the subject-matter of them, is to be considered as expressing the intention of the legislature, unless the intention so resulting from the ordinary import of the words be repugnant to sound, acknowledged principles of public pol’cy.”
2. “ And if that intention be repugnant to such principles of national policy, then, the import of the words ought to be enlarged, or restrained, so that it may comport with those principles, unless the intention of the legislature be clearly repugnant to them. For, although it is not to be presumed, that a legislature will violate principles of public policy, yet, an intention of the legislature repugnant to those principles, clearly, manifestly, and constitutionally expressed, must have the force of law.”
A court which will fairly carry out these maxims I do not think can greatly err in construing a statute.
We have, first of all, then, to look to the “natural import of the words,” “ according to the common use of them.” Words, we all know, and have often reason to lament, are but imperfect vehicles of thought, although our best. A great deal must be always left to implication; because, to bring out every thought or idea with fullness would result in tedious repetitions, even in our most common communications. But, yet, when we wish to get at a full meaning, we can onfy do so properly, by resorting to natural and necessary implications.
The language of the statute of Alabama, is this: “ All overseers who are, or shall be, exempted or detañed, under acts of the Confederate congress,” &c.
Under the rules of interpretation set out above, I find no difficulty in holding, that the word “ overseers,” in our statute, is used in its common and popular signification throughout the slave States, to designate a class of men who
And, next, as to the words which follow; do they mean such “ overseers as are, or shall be, exempted” &c., under the acts of congress then in force,, or do they refer not only to such, but likewise to acts which might be subsequently enacted. The words “ shall be, ” being in the future tense, point, of course, to future action; but, does this apply to the future acts of congress which might be enacted, or only the future exemptions which might take place under the acts then in force ? That is the question.
If, now, we will take the statute of Alabama, and supply such words as are necessary to bring out its full meaning, and are, therefore, clearly implied, it will read as follows: “ All overseers who (now) are, or shall (héreafter) be, employed, or detailed, under (existing) acts of the Confederate congress, so long as they shall be exempted or detailed as such.” “ "Who are,” is in the present tense, and, fully expressed, means “ who noio are; ” “ shall bé, ” is in the future, and means “shall (hereafter) be.” “Acts,” is a noun substantive, and signifies, not acts or laws yet to be made or passed, but acts now in force; existing acts.
If this be correct, as I think it is, according to the plainest rules of grammatical analysis, then the language of the statute constrains us to hold, that exemptions under existing acts, or laws of congress, was the sole intention of the legislature; and that, where future action was contemplated, it was future exemptions under existing ads, and not future acts and exemptions under such future acts.
This view is strengthened by supplying to the same words, and under the same rules, the implications and ellipses necessary to bring out the full meaning, under the supposition that the legislature intended to have reference, not only to the acts of congress then existing, but to any acts that congress might afterwards enact on the subject.
If the law, as it then stood, did not contemplate future exemptions under existing acts, then the further implication of the word “ future,” might be justified, I admit, but not otherwise. But, it is quite manifest, that future exemptions under existing acts were contemplated. Under the act of congress of 1st May, 1863, new cases would continually arise from time to time; and besides this, the act itself required that exemptions under it should be renewed annually, since those who procured exemptions for overseers of femes sole, minors, &c., should pay annually the sum of five hundred dollars.
But it has been argued, that this interpretation cannot be justified, because the Alabama statute uses the word “acts,” in the plural number, and there was but a single act of congress then in force, under which exemptions to overseers could be granted — namely, the act of 1st May, 1863 ; and, therefore, to fulfill the intention of the legislature, the word future must be implied, before the word acts, as well as the word existing, because the legislature must have contemplated exemptions under a future act or acts, as well as future exemptions under the existing act. This
Another argument against giving to the word “ acts ” a prospective operation is this. The “ twenty-negro ” law, as it is commonly called, caused great dissatisfaction, both with the country and army. This is matter of history, and is sufficiently evinced by the prompt and almost unanimous repeal of those clauses, by the first congress which met after their passage. At the same time that congress repealed those clauses, they framed, evidently with great care, the law of 1st May, 1863, which allowed “ overseers,” under certain restrictions, to be exempted, for the benefit of certain helpless and highly meritorious classes of per-sous — namely, single women, minors, insane persons, and “persons absent from home in the military and naval service of the Confederate States,” upon the payment annually of five hundred dollars, for each overseer so exempt. This
The argument relied on to support this proposition, may be concisely stated thus: The constitution of the Confederate States, and laws made in pursuance thereof, are the supreme law of the land; and if the laws of the State, and those of the Confederate States aforesaid, come in conflict, the former, as the paramount law, must prevail; that congress has power to raise and support armies ; that the exemptions granted to overseers and agriculturalists were designed to provide support, in the way of subsistence, for the army; and that the proviso which declares “ that the exemptions granted under this act shall only continue whilst the persons exempted are actually engaged in their respective pursuits or occupations, ” must be construed to mean, that all those persons who are exempted shall continually employ their own personal skill and labor in and about the pursuits or occupations, on account of which they are exempted.
To all the propositions above I am ready to assent, except the last; and as that is the crowning one of the series, if that will not hold good, the whole must fail; and to the last I object, because it puts a construction on the language of the act which I do not think it was intended to bear. I will proceed to give my reasons. .
First. Such a construction would make exemptions under the act, in reality details, and would destroy the distinction, which is a very broad and material one, between exemptions and details. This distinction is one fully recognized and established on many grounds. In the first place, it arises naturally out of the words themselves, and the things which they clearly import. An “ exempt ”. is' one who is “free from any charge, burden, or duty” ; “not liable to,” &c. A detail,' on the contrary, is one who belongs to the army, but is only detached, or set apart, for the time, to some particular duty or service, and who is liable, at any time, to be recalled to his place in the ranks. This distinction is
The construction put upon that act by the officers of the Confederate States having charge of the matter, and who can hardly be supposed to have any leaning against their own government, makes the same distinction. In the instructions put forth by the “ bureau of conscription ” at Bichmond, of March 16th, 1864, intended to inform the “commandants of conscripts” what interpretation it .was proper to put upon that act, we find these words:
(Article) “ 6. Persons and classes enumerated in 1st, 2d, 3d, 4th, 5th, and 6th articles of section 10, except those referred to in the latter clause of the 4th article of said 10th section of the act of congress recited, shall be exempted. All other persons referred to in said act shall be detailed.”
It is needless to pursue this topic. The words themselves, by common usage, and the interpretation put upon the act by the Confederate States government itself, import a clear distinction; and if congress had designed that overseers and agriculturalists should not be exempted, but only detailed, they would have used the word that would have aptly expressed that meaning. As they have not done so, but have used a well-defined word of a different meaning, it does violence to the word they did use, to say it was meant to signify something else.
This view is strengthened by considering that, at the time congress passed this law, the terms exempt and ex* emption had undergone much discussion, and had been the subject of judicial construction. In this State, the case of Ex parte McCants, (1 Ala. Sel. Cases, p. 715,) had been decided, and was generally known, in which it was held that a person who had been discharged or exempted from Confederate States service, by furnishing a substitute, was.
But great stress is laid on tbe proviso to tbe 6tb article of section 10. I venture bere tbe opinion, tbat tbe construction of tbe statute would bave been the same, without tbe proviso, as with it. It is nothing more than tbe expression of what was clearly implied, if it bad never been added. In fact, tbe first exemption act passed by congress — tbat of April 21st, 1862, (see Acts of 1862, p. 51,) had no such proviso; and yet there can be but little doubt, that if tbe persons exempted by tbat act bad not continued “actually engaged in tbe pursuits and occupations on account of which they were exempted,” their exemptions would bave ceased and become null. Tbe true interpretation of tbat act would require, that where an exemption was granted to a person because be filled a certain status, or description, not feignedly or prelendedly, but actually and really, such person would be held bound to continue actually and' really, or bona fide, to mantain tbe status or character on account of which tbe exemption was granted, and, if be voluntarily abandoned, or renounced it, or mala fide made a sham, and a pretense of being what be really was not, bis right to an exemption, according to , tbe true intent and meaning of tbat -law, would cease and become forfeit. This was tbe law without any such proviso, and I cannot think tbe proviso, which was added to tbe subsequent exemption acts, namely, tbat of October 11, 1862, and tbat of February 17, 1864, (which is in tbe same identical words in both acts,) was designed to do anything more than to give greater fullness to tbe law, by making tbat express which was before only implied. And, to any argument which may be urged, tbat this proviso was added to the act of 17th February, 1864, because tbat act required tbe producers of meat and grain to give bond, &e., and this proviso was intended to fortify those provisions of tbe law, and make them effectual; it may be answered, tbat tbe act of 11th October, 1862, which contains no such provisions, contains, nevertheless, tbe very same proviso.
There need be no such great alarm about the supervision of the labor of the country. If the holy cause of liberty requires it, many more farms and plantations can be pretty well managed, as thousands now are, where their brave owners have either laid down their lives, or stand ready to do so in the rants of their country, without the supervision of able-bodied men. The heroic women, with their barefooted boys and girls, the old men, the convalescent or disabled soldiers, and though last, by no means least, the experienced and faithful negro, will do the business. The want of subsistence, from the beginning of this gigantic struggle for all that men hold dear, up to this time, though sometimes, and in some places, pressing, has never been half so pressing as the want of able-bodied men to recruit the ranks of our noble and devoted armies.
Upon the whole, then, I conclude, that the construction put upon the act of February 17th, 1864, • and especially the proviso to the 6th clause of the 10th section, by which the persons declared to be exempted under that act, are .held to be details, or in the nature of details, is not the proper construction; but that, on the contrary, such persons are exempts proper, that is, persons for the time “free,” or “not liable to” conscription, and as such liable to serve in the State militia.
If this be true, it is needless to argue formally against the apprehension, that as soon as the State takes them as militia-men, the Confederate States may retake them as conscripts, on the ground that they had forfeited their right to exemption. If a man is set free from the lawful dominion of the Confederate States, for a day, or an hour, and the State enrols him as her soldier, there is no power on earth that can lawfully take him from her ranks, or divest him of that character, without her consent, unless State sovereignty is an idle word. Under the construction
When this case was tried below, the party was discharged by the chancellor from the control of the State militia officer, upon the ground that, upon the case made before him, it did not appear that he had then been either “bonded, exempted, or detailed”. Nothing was decided in regard to the true meaning of the act, but only that, under the formalities required, no right of exemption, even saying that such might afterwards accrue, had then been consummated. When the case was brought up, the parties, in order to get a decision upon the merits, put the record, by agreement, in such a shape as to authorize and call for such a decision. From the statement of' facts agreed upon, it appears that application for an exemption for said Mays as overseer, was made by Mr. Eellows, as administrator of an estate, sometime in May, 1864, and bond given with “approved security, and in such amount as was required by the proper enrolling officer”; and that “he had done every thing on his part required by such act, and the regulations made to carry out the same, to entitle him to such exemption.” It is further stated, that in the case of Strawbridge the bacon required by the act had already been furnished. It is then stated, that up to the date of the hearing, 6th August, 1864, no certificate of exemption had been issued to the parties, but only “thirty day furloughs” by the Confederate States enrolling officer for Dallas county.
The Confederate States statute requires, that persons making application for these exemptions, in addition to some other less important conditions, shall “execute a bond to the Confederate States, in such form, and with such security, and in such penalty, as the secretary of war may prescribe” &c. Among the orders and regulations under this act from the “bureau of conscription” — a branch of the war department — to the “commandants of conscripts” in the several States, it is prescribed, that applicants shall execute bonds — -the form of which is given — to be taken by the enrolling officer of the county, in which the applicant resides, by and with the advice of the “county board”, as to
Why so great a delay was allowed to intervene, after the bond had been executed, and all other things done, which were necessary under the law to entitle the party to his exemption, without the issue of the certificate of exemption, is' not shown. All such formalities are required to be done within a reasonable time, where no time is prescribed; and if not so done, and the rights of a party himself, or of third persons, or of the State are to be affected, what ought to be done, will be considered as done. With the long interval from May to August, more than reasonable time had elapsed for the issue of the certificate; and as no reason is assigned why it did not issue, we must hold the party to be entitled to his exemption, so far as this question is involved, without it. The facts stated show a clear right to an exemption, and a right cannot be defeated, because the formal evidence of that right is unreasonably delayed, or even withheld altogether. The certificate is not the exemption, but only the evidence of it; and if the right to an exemption has been acquired according to the statute, that right will be upheld, either at the instance of the party himself, or any other having rights connected with and dependent upon it. The principles settled in the case of Marbury v. Madison, (1 Cranch 137,) go to this extent. See, also, Billy v. The State, 2 Nott & McCord, 356.
The decision of the chancellor is reversed, the writ of habeas corpus dismissed, and the party declared liable to the lawful control of the State militia officer.
The two cases rest upon precisely the same state of facts, and were argued together; and this opinion and decision is intended to cover both.
It is contended that agriculturalists, exempted from the military service of the Confed
It is attempted to rest this argument upon tbe principle, which was first declared in tbe memorable case of McCulloch v. Maryland, (4 Wheaton,) in which tbe supreme court of tbe United States denied tbe authority of a State to tax tbe United States bank. Tbe opinion in tbat case certainly contains passages, which, detached from tbe context, import an utter abnegation of tbe State authority over any instru-mentused by tbe general government to execute its delegated powers. Tbe same remark may be made in reference to tbe opinion in tbe case of Osborne v. United States Bank, (9 Wheaton,) where tbe doctrine of McCulloch v. Maryland was reviewed and re-affirmed; and in tbe case of Weston v. City Council of Charleston, (2 Peters,) which denies tbe power of a State to tax United States stock issued for loans to tbat government; and in tbe case of Dobbins v. Comm'rs, (16 Peters,) which places tbe offices of the United States officers beyond tbe reach of State taxation. These decisions all relate to agencies or instruments created by tbe government of tbe United States, and not to persons or property remaining within tbe jurisdiction of a State, and protected by its laws and government; and I am not inclined to think it was designed to give tbe principle a larger extent. In my opinion, it was not intended to assert in those cases an incapacity of tbe States to exert their atttributes of sovereignty in reference to any other instruments, than tbe institutions or agencies created by tbe general government for the execution of its powers; and this, I believe, a careful examination of tbe entire opinions in reference to tbe point involved will demonstrate. But I will not enlarge on this point, as it may be yielded without affecting tbe result.
Tbe act of congress, in consideration of a contract to sell and deliver a prescribed amount of meat on certain terms, and to sell tbe surplus products of tbe plantation to tbe government, or to soldiers’ families, on certain terms, provides an exemption for agriculturalists on plantations with fifteen able-bodied bands, and limits tbe exemption by tbe duration of their employment in tbe specified agricultural pursuit. Tbe whole scope and scheme of tbe act manifest tbe purpose to obtain an application of tbe skill and industry of tbe exempted agriculturalist to tbe production and supply of provisions, by directing tbe labor of slaves in tbe cultivation and harvesting of crops, and tbe rearing and saving of beef and pork. To the accomplishment of this purpose, tbe slaves, stock, and plantation, are as indispensable, as the supervising agriculturalist; and tbe design of tbe law would be as completely defeated by any interference with them, as with tbe agriculturalists themselves. Tbe slaves, and tbe land they cultivate, and tbe cattle used in cultivating it, are means used by tbe government to produce provisions for the support of its army, if tbe exempted owners and overseers are.
Tbe argument, tben, which applies to this case tbe principle above stated, takes all tbe exempted agriculturalists, tbe plantations, negroes, and stock, and places them together beyond tbe area of State sovereignty and jurisdiction. Tbe State, in tbe exercise of its governmental power, has no
I deny that the agriculturalists, who are exempted, are instruments employed by the government for the execution of its power to support armies. They have merely contracted to supply certain articles, which it was contemplated would be produced by the plantations. They are in no wise agents, or servants, or officers of the government. They labor for themselves, merely stipulating to sell on certain terms. They may violate their stipulations, and incur the penalty of a suit for damages, and of a revocation of their exemptions. The provisions, when made, do not belong to the government, until they are delivered, and the government is not even bound to take them. There is simply a contract, that it may accept them at its option; and the agriculturalists, after enjoying the exemption, may withhold them, or otherwise dispose of them, and drive the
Beally, the instrument, or means, which the government,, under the act of congress, employs to procure a supply of provisions, is the contract with the agriculturalists. It exacts-no service from them. ' They voluntarily accede to a proposition made through the act of congress, and, in doing so,, become parties to a contract. This contract is the means-used by the government. The skill, industry, and property of the agriculturalists, are the means which he uses to execute the contract on his part.
To enable the agriculturalist to execute the contract, the' government exempts him from its military serviceand, as-a guaranty for its performance, the law prescribes a forfeiture of the exemption as a penalty for abandoning the-agricultural occupation. This does not change the status of the party into the position of a mere instrument or agency of the government. - It is simply a cumulation of securities for the performance of the contract, and a provision for the determination of the exemption, when the reason for it ceases.
It is said, that the imposition of militia duty by the State causes an abandonment of the occupation, for a time at least, which involves a ■ breach of the contract, and a
But is it true, that the employment by the State, in its militia, of those citizens who have been exempted by the Confederate States, terminates the exemption ? The Confederate States, as a body, has the power of making contracts within the sphere of its constitutional authority.—U. S. v. Tingey, 5 Peters, 128; U. S. v. Lane, 3 McLean, 865. “When that government resorts to contracts, as a means of executing its powers, it must be understood to enter into them with reference to the existing laws, and to the powers of the State government, within whose jurisdiction they may be made. Thus far, no distinction can be drawn between the general government and a natural person. The laws of the State, and the principles which govern the relation of the citizen to the State, silently incorporate themselves into contracts. Upon this doctrine, a covenant for the quiet enjoyment of land for a term of years is not broken, if the land be taken by the State for public use. Bailey v. Miltenberger, 31 Penn. St. 37. So, although the contract of the exempted agriculturalist may*require the devotion of all his time to his occupation, yet this must be understood in reference to the claim of the State to his services in the militia, and in tbe various capacities in which the-State has a right to command the services of its citizens. I think it is well settled, that the contracts of the government are, with certain exceptions pertaining to the remedy, to be interpreted and controlled by the laws which govern the contracts of natural persons.—United States v. Canal Bank, 3 Story, 79; United States v. Bank of Metropolis, 15 Peters, 392; Cotton v. United States, 11 How. 229; Story on the Const. § 1330. The contract of the agriculturalist must be understood to have been entered into in reference
I cannot think that tbe mere making of a contract by the general government with a citizen of a state, tbe performance of which might require all bis time, can absolve him from tbe duties of citizenship; and in this I am supported, not only by the reasoning which I have adduced, but by tbe decision of tbe supreme court of Massachusetts in tbe case of Melcher v. City of Boston, 9 Metcalf, 73.
I next proceed to consider tbe argument, that tbe exempted owners and overseers are freed from military duty by our State legislation. On tbe 29th August, 1863, it was enacted by tbe legislature, that “ all overseers, who are, or shall be, detailed under acts of the Confederate congress, so long as they shall be exempted or detailed as such,” shall be exempt from service in tbe militia in this State. Overseers, in our slaveholding states, compose an industrial class, well defined, and distinctly ieeogniiied. In tbe popular acception of tbe term, overseers, as- a class, are persons who superintend and manage the slaves of others," and direct their labors; and are contra-distinct from owners, who manage their own slaves. In this sense, the term is used in the statutes and judical decisions of this State, and in tbe acts of congress.—Code, part 1, title 13, chap. 4, art. 1; Gilliam v. Senter, 9 Ala. 395; Martin v. Everett, 21 Ala. 375; Acts of Congress of 11th October, ’62, and 17th February, ’64.
No other persons than such as belong to this distinct class of overseers can be exempted from military duty, under tbe laws of Alabama. Tbe act of congress of 17th February, 1864, provides for tbe exemption, upon tbe giving of a prescribed bond, of tbe “owner, and manager, or overseer,” of fifteen able-bodied bands between sixteen and fifty years of age. If, then, tbe act of tbe legislature of 29th August, 1863, applies to exemptions under acts of congress passed after its adoption, and relieves from militia
On tbe 29th August, 1863, when tbe Alabama exemption law was .adopted, there were two acts of congress, under which exemptions of overseers might bave been bad. Tbe act of congress of 11th October, 1862, after exempting from mibtary service sundry classes, proceeds as follows : “ And sucb other persons, as tbe president shall be satisfied, on account of justice, equity, or necessity, ought to be exempted, are hereby exempted from military service in tbe armies of tbe Confederate States.” Although a part of this act of 11th October, 1862, was repealed by tbe later act of May 1st, 1863, yet tbe clause above quoted was permitted to remain, and was in force when tbe Alabama exemption act of 29th August, 1863, was passed. On May 1st, 1863, an act of congress was adopted, which allowed an exemption to overseers on tbe plantations of minors, lunatics, femes sole, and persons absent in tbe military or naval service, where there were twenty slaves. Tbe clause of tbe act of congress of 11th October, 1862, above quoted, and tbe act of May 1st, 1863, above noticed, are tbe laws of tbe Confederate States, under which an exemption of overseers from tbe military service of tbe Confederate States might bave been bad on tbe 29th August, 1863, when tbe Alabama law prescribing tbe exemptions from militia duty was passed. Under tbe former of those acts of congress, no exemption of an overseer could be bad, unless tbe presence of peculiar circumstances of “justice, equity, or necessity,” demanded it, and procured tbe grant of it by tbe president. Under tbe latter of those laws, no person was exempted, except tbe overseers of persons wbo, by reason of infancy, sex, insanity, or absence in tbe mib-
I think, when the Alabama legislature, on the 29th August, 1863, declared an exemption in favor of “ all overseers, who are, or shall be, exempted or detailed under acts of the Confederate congress, so long as they may be exempted or detailed as such,” it had reference to the two acts of congress above noticed, under which alone, at that time, exemptions of overseers from the military service of the Confederate States could be obtained. The act, in my opinion, meant to exempt “ all overseers, who are, or shall be, exempted or detailed under the [existing] acts of the Confederate congress.”
Of all persons engaged in agriculture, the only persons specifically exempted were overseers. The only justification for this partial legislation is restricted to overseers of persons incompetent to manage their slaves, and to such as might, from justice or necessity, be exempted by the president. If the legislation of the State be referred to' the same acts of congress, it has the same reason and justification to support it. It is to be presumed, that the act of congress exempting overseers of minors, femes sole, lunatics, and persons absent in the military or naval service, under which the great mass of exemptions of overseers was made, was especially in the view of the legislature ; and if the State law be understood to refer especially to that act, it has a substantial justification. But, if it be understood that the legislature have committed themselves to the exemption of a selected class engaged in agriculture, to the exclusion of all others, without any qualification or restric
Tbe act of tbe legislature, being construed to apply to overseers wbo might be exempted under subsequent acts of congress, involves a surrender of tbe legislative discretion as to a matter of tbe highest importance. It is certainly tbe province of tbe legislature to say, wbo shall be exempt from militia service; but, if they have exempted all overseers wbo might by any subsequent act of congress be exempted from tbe Confederate service, they have substituted tbe will and discretion of a future congress for their own, upon tbe question as to what overseers should be free from militia service. They have, in effect, delegated their power, quoad hoc, to tbe congress of tbe Confederate States; and this delegation would be tbe more unreasonable, because tbe congress would not act in reference to tbo interests of tbe State, and its legislation with a view to tbo interests of tbe Confederate States would be made to govern an important legislative policy of tbe State.
My conclusion from what I have said- is, that a construction of tbe act of tbe legislature which would make an exemption under a subsequent law of overseers from service in tbe army of tbe Confederate States, control and measure tbe exemptions under tbe State law from militia duty, would lead to unreasonable and unjust results, and would involve tbe abandonment of that discretion and judgment upon a question of important State policy, which it is tbe province of tbe legislature to exercise. At this point I invoke certain rules of construction as guides which are to be followed in tbe interpretation of statutes. “Such a construction ought to be put upon a statute as may best answer tbe intention tbe makers bad in view.”—Tonnelle v.
If tbe State law be allowed to effect an exemption from militia service of all overseers, to whom an exemption should be granted by a subsequent congress, we have an unreasonable result, a bestowment of tbe favor of exemption altogether partial as between classes similarly situated, and not probably intended by tbe legislature; and we have an unreasonable surrender of tbe legislative power of tbe State to determine what overseers shall be exempt. Tbe appbcation of tbe rules above laid down, against such an construction, is obvious and conclusive, if tbis be a case for construction at all. If a statute be plain and unambiguous in its terms, tbe judicial duty is to follow it, without regard to its reasonableness or consequences. But tbe law wbicb we are examining is not of that character. I here reproduce so much of its words as are necessary to tbe comprehension of tbe argument, as follows : “All overseers, who are, or shall be, exempted or detañed under acts of
It is said, however, that the State law employs the plural, “acts,” when there was but one existing act of congress .under which exemptions could be made. This is a mistake. Besides the act of May 1st, 1863, there was, as we have seen, an unrepealed clause of the act of congress of October 11th, 1862, under which exemptions of overseers might have been granted, when our militia law was passed on the 29th August, 1863.
But it is also said, that the law of militia exemption relates also to detailed overseers; that there was no act of congress authorizing the detail of overseers; and that the legislature must have contemplated future acts of congress, because it could only be by a future .act that a class of detailed overseers could be produced. Details and exemptions are distinguishable terms. Details are men in the army of the government, who, remaining in the army, are •assigned temporarily to some duty. Exempts are out of the army, and free from liability to service in it. Detailed men, being in the army of the Confederate States, could not owe service in the militia, and the State could not treat them as militia-men. Therefore, the exemption in our militia law is a mere supererogation. It is an exemption from the militia of men who do not, and cannot, belong to the militia. The use of the word “detailed” in' the law is probably attributable to a confounding of the two words,
I am constrained by the reasons adduced above to hold, that the exemption of overseers from militia duty is limited to those overseers who were exempted from service in the army of the Confederate States, by acts of congress then in force, and does not apply to those who have been exempted under subsequent acts.
It is shown in this case, that the applicant had done everything required to be done by him in order to consummate the exemption, and that some four or five months had elapsed. The record is entirely silent, as to the approval of the bond. I think, after the lapse of so long a time, and in the absence of all proof to the contrary, we must presume that the bond was approved. "What would be my decision, if it appeared that the bond had not been approved, it is not necessary now to inquire. Presuming the bond to have been approved, the petitioner must be regarded as exempt from the military service of the Confederate States, and liable to militia duty; and such is the opinion of the majority of the court. Judgment conformable to that opinion must be rendered.
The constitution of the Confederate States (article I, section 8, subdivision 16) empowers congress “to provide for organizing, arming, and disciplining the militia,” &c. Subdivision 15 confers on congress the power “ to provide for calling forth the militia, to execute the laws of the Confederate States, suppress insurrections, and repel invasions.” Subdivision 12 gives power “ to raise and support armies.”
The constitution of the State of Alabama, under the title “ militia,” contains the following provisions: “ Sec. 1. The general assembly shall provide by law for organizing and
In the case of Ex parte McCants, (in MSS.,) I briefly stated what I conceive to be the true definition of the term militia, as found in the 16th clause of the 8th section of the 1st article of the Confederate constitution. “ It does not mean that body of men, organized under State authority, who are known as State militia.” It cannot speak of an organization already formed, for the clause expressly confers on congress power to provide for organizing them. It would be nonsense to speak of organizing a body of men already organized. It means the arms-bearing population— those capable of bearing arms — in their unorganized state. These the constitution makes provision for “organizing, arming, and disciplining.”
The congress of the Confederate States is also empowered to raise armies. — Subd. 12. The persons out of whom congress may raise armies, and who under the authority of that legislative body may be organized, armed and disciplined as militia-men, are the identical persons who make up the citizens of the several States composing the Confederacy.
In like manner, section one of the State constitution, under the title “ militia,” must refer to the same unorganized arms-bearing population; for it confers the power to “ provide for organizing and disciplining the militia of this State.” Each constitution confers the power of calling forth the militia ; the Confederate constitution, when it may be necessary to execute the laws of the Confederate States, to suppress insurrections, and to repel invasions ; the State constitution, “ to execute the laws of the State, to suppress insurrections, and repel invasions.” The powers conferred by the Confederate constitution are to be exercised by the president of the Confederate States; while those conferred by the State constitution are to be exercised by the governor of the State. In cases of resistance to the execution of the laws, of insurrection, or of invasion, the executive of each government is the sole judge of the exi-
It being thus shown that the Confederate government has unlimited power over the arms-bearing population, in raising armies, or in calling out the militia under the Confederate constitution; and the State government has like unlimited power to call out the militia under the State constitution, it is within the range of possibility that each government may claim the military services of one and the same person at the same time. No one person can, at (he same time, perform active military service for both gov! rnments. His whole time and energies being employed in tie one service, he has none to devote to the other. In such case, the question arises, which government has the paramount claim ? The constitution of the Confederate States (article 6, § 3) answers the question. Its language is: “This constitution, and the laws of the Confederate States made in pursuance thereof, * * * shall be the supreme Jaw of the land.” The laws of congress for raising an army, and the laws for organizing the militia, and giving authority to call them out, to execute the laws of the Confederate States, suppress insurrections, and repel invasions,” are made in pursuance of the constitution of the Confederate States, and are therefore the supreme law of the land. The State law, though constitutional, if it cannot have operation without coming in collision with the act of congress thus constitutionally enacted, must, for the time, yield the- precedence to this supreme law. Such the constitution expressly declares, and we must all obey.—See Houston v. Moore, supra.
To apply these principles: Persons employed in government service, or detailed in government employ, while so employed, are not subject to militia duty at tbe cab of tbe State; but persons who are exempt from Confederate service, either absolutely, or upon a simple commutation, are bable to State mibtia service.
Tbe exact question in these cases arises under tbe 4th subdivision or article of tbe 10th section of tbe act of congress, approved February 17th, 1864, “to .organize forces to serve during tbe war.” It provides, tbat “ there sbab be exempt one person as overseer or agriculturahst, on each farm or plantation, upon which there are now, and were on tbe first day of January last, fifteen able-bodied field bands, between tbe ages of sixteen and fifty, upon tbe fobowing conditions:
“1. Tbis exemption sbab only be granted in cases in which*402 there is no white male adult on the farm or plantation not liable to military service, nor unless the persoD claiming the exemption was, on the 1st day of January, 1864, either the owner and manager, or overseer of said plantation; but in no case shall more than one person be exempted for one farm or plantation. .
“2. Such person shall first execute a bond, payable to the Confederates States of America, in such form, and with such security, and in such penalty as the secretary of war may prescribe, conditioned that he will deliver to the government, at some railroad depot, or such other place or places as may be designated by the secretary of war, within twelve months next ensuing, one hundred pounds of bacon, or, at the election of the government, its equivalent in pork, and one hundred pounds of net beef (said beef to be delivered on foot), for each able-bodied slave on said farm or plantation, within the above said ages, whether said slaves work in the field or not; which said bacon or pork and beef shall be paid for by the government at the prices fixed by the commissioners of the State under the impressment act: Provided, that when the person thus exempted shall produce satisfactory evidence that it has been impossible for him, by the exercise of proper diligence, to furnish the amount of meat thus contracted for, and leave an adequate supply for the subsistence of those living on said farm or plantation, the secretary of war shall direct a commutation of the same, to the extent of two-thirds thereof, in grain or other provisions, to be delivered by such persons as aforesaid at equivalent rates.
“3. Such person shall further bind himself to sell the marketable surplus of provisions and grain now on hand, and which he may raise from year to year while his exemption continues, to the government, or to the families of soldiers, at prices fixed by the commissioners of the State under the impressment act.”
Said article or subdivision contains other provisions in regard to the bond; but they are not material to the consideration of the question before us.
Looking alone to the provisions of the act of congress, copied above, it is impossible to resist the conclusion, that
But we are not left to conjecture, or doubtful construction, in ascertaining tbe aim and object of congress. 'The bond, when entered into, becomes alike tbe contract of tbe Confederate government, and of tbe makers of tbe bond. Each has a clear right to stand on tbe terms of bis contract; and especially can tbe sureties claim that their principal shall not be molested, hindered, or obstructed, in an honest and faithful effort to comply with tbe obligations of bis bond. He (tbe principal) binds himself to deliver to tbe government two hundred pounds of meat, for each band employed; and tbe sureties are bable for damages, if be fail to do so. Tbe Confederate government can do no act which will binder or obstruct tbe bonded agriculturalist in tbe performance of bis contract; and if it does so, it thereby
But the argument is much stronger than this. The act of congress under which the overseer or agriculturalist, with his sureties, enters into bond, secures to him the right of showing, by “satisfactory evidence, that it has been impossible for him, by the exercise of proper diligence, to furnish the amount of meat thus contracted for, and leave an adequate supply for the subsistence of those living
But the following view of this question is conclusive. If these applicants are exempt from military service in the armies of the Confederate States, they are exempt as overseers or agriculturalists under the 4th article of the 10th section of the act of congress, approved February 17th,
. If it be urged, in answer to tbis view, tbat tbe overseer or agriculturabst, though absent from home in tbe performance of militia service, is still “actuaby engaged” in bis pursuit or occupation, within tbe meaning of tbe act of congress; the answer is, first, tbat such is not tbe meaning of tbe word actually. It means in fact — really—in truth. In legal parlance, tbe word actually is used as tbe antithesis of tbe word constructively. We speak of actual possession-— pedis possessio — and constructive possession. Actual possession is where tbe thing is in tbe immediate occupancy of tbe party; constructive possession is where one claims
Besides, the language of the proviso is, “that the exemptions granted shall only continue while the persons exempted are actually engaged,” &o. It does not say, while the slaves in his employ are actually engaged. ' Exemption is a personal privilege, conferred, not in consideration of the ownership of the slaves, as I have heretofore shown, but in consideration of the meat to be furnished, the employment of fifteen or more able-bodied field hands in the production of grain and provisions, to be sold at prices fixed by the commissioners for the State, and in the fact that the person exempted, the overseer or agriculturalist, is to be and remain actually engaged in his pursuit or occupation.
Again, if overseers and agriculturalists, who are taken from home and placed in the State militia service, are still actually engaged in the pursuit or occupation an account of which they procured their exemptions, because their hands are still thus employed; then it follows that no bonded overseer or agriculturalist is bound to remain on his plantation, provided his hands continued to labor on the plantation. On this hypothesis, the overseer or agriculturalist might be absent from the Confederate States on business or pleasure, and the terms of the exemption would not be violated, or the privilege forfeited. Those who contend that the person exempted, though absent from the plantation on militia duty, for a period no matter how long, are still actually engaged in the pursuit or occupation of overseer or agriculturalist, are forced to admit this. Can this be the meaning of the act of congress ?
The second paragraph of the 4th article or subdivision of the 10th section of the act approved February 17th, 1864, authorizes the secretary of war, under the direction of the president, “to grant exemptions or details, on such terms as he may prescribe, to such overseers, farmers, or planters, as he may be satisfied would be more useful to the country in the pursuits of agriculture than in the mili
I hold that the provisions of the act of February 17th, 1864, which relate to overseersand agriculturalists, although they style it an exemption, clog it with terms and conditions which impart to it more the character of a detail than an exemption; and that bonded overseers and agriculturalists are not subject to militia duty at the call of the State. This view of the question renders it unnecessary that I should inquire whether the petitioners, Mays and Strawbridge, are to be regarded as merely furloughed soldiers in the service of the Confederate States, or as bonded overseers under the 4th subdivision of the 10th section of the act of congress. In either case, they are, in my opinion, not subject to State militia service, and were properly discharged. I need not inquire the meaning of our own act, which exempts from militia service, called the second class, “all overseers who are, or shall be, exempted or detailed under acts of the Confederate congress, so long as they may be exempted or detañed as such.”