State ex rel. Dawson , 39 Ala. 367 ( 1864 )

PHELAN, J.

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 therefore engaged our anxious attention. The majority of the court are of opinion, tbat tbe provisions of tbat act were not intended to relate to or include acts of congress wbicb might be subsequently enacted, but only those then in existence. Before we can come to just conclusions on this question, it is necessary to take a view of tbe legislation both of congress and our State legislature, on tbe subject of exemptions of this class.

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 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 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 concisely and clearly stated, than tbe response of Farsons, O. J., and the other judges, to the Massachusetts legislature, 7th Mass. It. 523.

“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 ■have the management of slaves on a plantation or elsewhere, as the agent or employee of the owner; and to distinguish them from the class of owners. It has become with ns a technical word, and, as such, was used in the statute. And our statute, in this use of the word, only followed and adopted the word as used in the act of congress of 1st May, 1863, which had then lately been passed.

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.

The law would then read thus: “ All overseers who (now) are, or shall (hereafter) be, exempted or detailed under (existing and future) acts of congress,” &c. Here it will be observed, the word future, has to be supplied in addition to the word existing. But existing is a just and necessary ellipsis that must be supplied, to give to the word “acts” its precise and proper meaning, and is, therefore, clearly implied. But, with the word future, such is not the case. It is not necessarily implied, but is arbitrarily introduced, and gives to the word acts a new and more extended meaning than the word, as it stands in the sentence, can fairly and properly import. It is another qualifying adjective, not necessary to the full legitimate meaning of the word acts; for all acts are, properly speaking, existing acts; and gives to that word another, and a different meaning. The laws of sound grammatical construction will not justify this. Ellipses can only be supplied by such implications as are necessary to bring out the full meaning of a sentence, but not to extend or contract its proper signification. .

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 argument would have force, if it were not founded upon a misapprehension of the facts of the case. The law of 1st May, 1863, was not the only act of tbe Confederate States congress then existing, under which overseers might be exempted. In the act of congress of 11th October, 1882, there was this clause, standing in juxtaposition with the “twenty negro” clauses of that act: “And such other persons as the president shall be satisfied, on account of justice, equity, and necessity, ought to be exempted, are hereby exempted from the military service of the Confederate States.” Now, the act of 1st May, 1863, while it repeals the “ twenty-negro ” clauses of that act, left unrepealed, and in full force, the clause I have just quoted, and this clause was an existing law when our act of 29th August, 1863, was passed; and the only question to be considered is, whether, under this clause, “overseers” could be exempted by the president. This seems to me too manifest to admit of doubt. Even with the act of 1st May in full force, cases would probably arise of plantations having less than “ twenty slaves, ” where this general clause would have to be invoked for the exemption of “ overseers, ” on the general grounds of equity and necessity; and we have a right to suppose that this was one reason, with others, why it was allowed to stand, when the “ twenty-negro” clause, as a policy, was abandoned.

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 law, although allowing exemption to overseers, was received, I think, by the country generally, with satisfaction, because it was, in fact, a needful provision for classes of persons, necessarily quite few in number, and either helpless, or highly meritorious; while, at the same time, the production of subsistence was promoted by it. This, and the unre-pealed clause of the act of 11th October, 1862, above quoted, were the Confederate laws which authorized the exemption of “overseers,” at the time the “act to organize the militia of Alabama,” and the “ act to exempt from militia duty,” in connection with the same, were passed by the legislature of Alabama, 29th August, 1868. Under this state of the case, there is every reason to think, that the legislature, in passing its exemption law of August 29, 1863, meant only to respond to the recent action of the congress, in relation to overseers; and that there is no reason to believe they designed to go further; and especially, that they did not design, by the use of the words' “overseers that are, or shall be, exempted or detailed under acts of the Confederate congress,” to invite, by prospective legislation on the part of the State, a return to that policy of general exemption for overseers (and others having the management of slaves) which congress and the country had just repudiated; which the construction-contended for would certainly accomplish. But, the ill consequences of such a construction would not stop at this; for the exemption act, if that construction be put upon it, would provide exemptions for all the overseers that congress might subsequently exempt, but would leave owners and small proprietors, who could not engage overseers, without such exemptions. This would be a species of partiality and favoritism, for which there could be no.adequate motive; and that consideration, of itself, goes far to repel a construction which would lead to it,"and to give strength to the other arguments in favor of a different construction. On the whole, then, I am of opinion that the act of 29th August,. 1863, does not look to prospective legislation, and that exemptions granted to overseers under the subsequent act of February 17th, 1864, do not come within its provisions.

But it is insisted, that all overseers and agriculturalists, where bond has been given pursuant to the act of congress of 17th February, 1864, and the other conditions of that statute complied with, are exempt from service in the State militia, irrespective of the exemption law of the State.

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 made by tbe law itself, which uses the two words obviously for different purposes. In the 1st, 2d, 3d, 4th, 5th, and 6th articles of section 10, of the act of 17th February 1864, the word exempt only is used, except in the last clause of the 4th article, where the words are “exempt or detail,” and in the 11th section of the same act, the word detail only is used, showing that the law-makers themselves had a distinct perception of the different signification of the two words.

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. still liable to service in tbe State militia. "With that decision before the country, it is not improbable that congress preferred to grant exemptions, rather than to authorize details, for the very reason that exempts would be liable to service in the militia of the States, and details would not; for we must presume that the members of congress did not wish to leave their respective States wholly destitute of a State military force; and as the ages of conscription were becoming so greatly extended, that this was likely to happen, unless the exempts, as a class, were expected and intended to be hable to militia duty at the call of the States. The exempts under the act of 17th February, 1864, taken together, constitute a numerous body of men. It includes, among others, the whole body of the civil officers of the State, ministers of religion, physicians, one editor of each newspaper, and a certain number of printers, one apothecary for each drug-store, all presidents and teachers of colleges, academies, and schools of two years standing, &c. Now, in granting exemptions to those just named, and looking at the decision in the case of McCants, (supra), is it reasonable to hold that the congress of the Confederate States designed, that they should be exempt from militia service to the State, should the State see proper to meet emergencies to require their services, simply because they were exempt from Confederate service? The State of Alabama, by her act of December 6,1862, (Acts of 1862, p. 63,) had made all her justices of the peace and constables, and notaries public, within the conscript ages, liable to Confederate service, by making them subject to militia duty; and surely congress could not design to make those of that class exempt again from militia duty, by declaring them exempt from Confederate service. And^there, could be no more reason for doing so in the other cases above mentioned ; for what special care or concern can or ought the Confederate States to have for the interests of religion, or education, or the sick in Alabama, that Alabama herself ought not to be expected to have in a much greater degree? It is plain, I think, that it was the general expectation and design of congress, that the States should look to the exempts from conscription to help form a State militia, likely, tmder tbe circumstances, to be too few any way; and tbat tbe list of exempts. was allowed to embrace so large a number of persons, at a time wben tbe demand for conscripts was so pressing, in some degree under tbat influence.

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.

Particular stress is laid on tbe words “actually engaged”; and it is insisted, tbat this condition connot be fulfilled by the exempt, if he is made.to serve in the State militia; that “actually” means personally or corporeally engaged; that it is the proper antithesis of the word constructively, and, therefore, the Confederate States intended to secure the entire personal or corporeal services of its exempts, and that any interruption by the State of that continued personal service would be inconsistent with the design of the Confederate law. These words, taken in their common acceptation, will not, I conceive, admit of such a construction. In law, it is true, the words. actual and constructive are the anthithesis of each other, when used in reference to treasons, notices, possessions, frauds, and in some other cases. But here they are lato terms — terms of art. This is not the manner in which the words of a statute are to be taken, unless that is evidently intended; which is not the case here. These words must be taken, according to all the authorities, and the leading maxim of Chief Justice Parsons, supra, in their' “natural import — according to the common use of them”. And what is the natural import of “actually engaged”, according to the common use of them ? "When ¡ve say in common parlance of a man, that he is “actually engaged” in farming, or planting, does it necessarily imply that he must give his constant personal supervision to his farm or plantation ? Does it mean anything more than that such a man has a farm or plantation in active operation, on his own account, whether he conducts its daily affairs through an overseer, or in person. The words embrace both cases. And so of many, if not most other pursuits and occupations. The words “actually engaged”, in common parlance, mean “really, or truly engaged” — engaged “in fact”, and, according to the same law of common use, are the opposite or antithesis of “seemingly”, or pretendedly”, or “feignedly engaged”. In the common acceptation of the words, the same "man may be “actually engaged” in two or more pursuits, or occupations, at the same time. We have numerous instances in our country where the same man is, at the same time, a merchant and a planter, a physician and a planter, a lawyer, or a judge, and- a planter. In fact, it is a common thing for men of good property to combine the business of planting with some other pursuit or occupation. Many men do not stop at two, but unite in themselves three or four, in all of which, according to common parlance, they are actually engaged.

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 of the exemption laws lately announced from the war department, there is not the slightest reason to apprehend that any such attémpt will be made.

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 tbe sufficiency of the security. “Such bonds, after due execution, shall be transmitted to the commandant of conscripts.” Upon being informed by the commandant that the bond is approved, the county enrolling officer is to grant a certificate of exemption for twelve months to the applicant.

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.

A. J. WALKER, C. J.

It is contended that agriculturalists, exempted from the military service of the Confederate States by tbe 4tb article of tbe lOtb section of tbe act of congress of 17tb February, 1864, are free from babibty to militia duty, without tbe aid of any exempting State legislation. Tbe outline of tbe argument is, tbat congress bas the power to support its army; tbat, as a means of accompbsbing tbat purpose, it employs tbe agency of those agriculturalists; tbat tbe State, by subjecting them to militia service, interferes with and impedes tbe general government, in tbe exercise of a means to execute a constitutional power, and tbat this tbe State bas no right to do.

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.

Let us, tben, consider tbe question presented, upon tbe supposition, tbat tbe instruments or means employed by tbe Confederate States are, upon tbe principle declared by tbe supreme court, exempt from tbe State authority. It will be material to inquire into tbe full scope and effect of tbe proposition, if it embraces tbe exempted agricuturalists. It must be observed, tbat tbe principle, where it operates, places beyond tbe sovereignty of tbe State instruments employed by tbe general government to execute its powers. Chief-Justice Marshall says, tbat tbe sovereignty of a State does not extend to those means which are employed by congress to carry into execution powers conferred upon tbat body.—McCulloch v. Maryland, supra, pp. 429-430; Weston v. City Council, supra, p. 467.

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 right to impose upon agriculturalists the performance of jury or patrol duty, or militia service; nor can it tax the property, or impress it for public use. The principle is inexorable, and, where it applies, does not admit of the slightest interference by the State. Upon the argument made, a law of congress, placing'the entire male agricultural population, not in the army, under such bonds as are prescribed in the act of 17th February, 18B4, would annihilate the State government, by depriving it of the means necessary to the performance of its functions. Teeming with a negro population, it would have no militia, with which to suppress insurrections. "With a constitution cherishing trial by jury, it would be unable to find jurors to try questions of fact. And wickedness would set its laws at defiance, because it would have no military force to aid in executing them. It is permissible to invoke this extreme case, as the test of an argument, which touches the relations of the general government with the states, and which ought not to be maintained, unless it can stand through all the vicissitudes of the future. But it is not an extreme case. If the argument be true which places the class in question beyond the sovereignty of the State, there are probably, even now, localities in which it would be difficult to procure competent juries, or a militia force to execute the law and suppress insurrection.

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 government to its action for breach of the contract. It depends upon tbe wishes of the government, and the fidelity of the agriculturalists to their contract, whether any of the products of the plantations go to the support of the army. These owners of slaves are no more agents, servants, or instruments of the government, than private individuals are of private persons to whom they have contracted to sell the products of their plantations on specified terms. If they are the instruments through which the government executes its powers, and therefore beyond State authority, then so is every man who has a contract with it. There is no case or principle, in my opinion, which goes thus far. On the contrary, the supreme court of the United States, in McCulloch v. Maryland, expressly disclaim all intention to deny the authority of a State to tax a bank within the jurisdiction of the State, which, under a contract with the general government, might perform its fiscal operations for it.

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 forfeiture of tbe exemption. It is argued, that the State cannot claim the service of its militia-man, because, if it does, the Confederate government will subject him to its military service, and therefore he must be exempt from militia duty. This argument is indefensible. It maintains a claim to exemption from militia duty, not because the man is in the military service of the Confederate States, but because he will be put into it if required to do military duty.

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 to bis liability to render military service to tbe State; and if tbe government of tbe Confederate States should carry out tbe true spirit of tbe contract, it would not claim a forfeiture of tbe exemption in consequence of tbe diversion from tbe agricultural occupation to perform militia duty at tbe call of tbe State in tbe case of an invasion.

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 duty overseers wbo are exempted from tbe military service of tbe Confederate States under sucb acts, we bave tbe strange and unreasonable result, that tbe overseer of fifteen bands is exempted from mibtary service, while tbe like immunity is denied to one wbo as owner and manager discharges tbe same duty, and occupies tbe same position in contributing to tbe production of an adequate supply of provisions. A construction of tbe statute leading to sucb a result ought to be avoided, if it can be done consistently with tbe rules of interpretation.

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-tary or naval service, were regarded as incapable o£ managing twenty slaves; and for the exemption the price of five hundred dollars was exacted. To the extent to which overseers might have been exempted under those acts of congress, there was an evident propriety, and an obvious justice, as well as good policy, in distinguishing among agriculturalists, and selecting the overseers for exemption. The process of exemption under those acts of congress was probably in operation — certainly capable of operation — when the Alabama act of militia exemption was passed. Men had then been exempted -under those acts, and might still be exempted.

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 restriction excusing or justifying tbe discrimination, it becomes a piece of odious class legislation, utterly indefensible. If tbe legislature intended to exempt from militia duty all overseers wbo might by subsequent acts of congress be exempted from tbe military service of tbe Confederate States, it bas done tbe very absurd and odious thing of saying that, if tbe Confederate States shall exempt from its service all agriculturalists of certain description, tbe State will select from those agriculturabsts tbe overseers, and vouchsafe to them alone an exemption from its service.

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. Hall, 4 Coms. 140. And in language used by tbis court many years ago, “tbe inartificial manner in wbicb many of our statutes are framed, tbe inaptness of expressions frequently used, and tbe want of perspicuity and precision not unfrequently met witb, often require tbe court to look less at tbe letter or words of the statute, than at tbe context, tbe subject-matter, tbe consequences and effects, and tbe reason and spirit of tbe law, in endeavoring to arrive at tbe will of tbe law-giver.”—Thompson v. State, 20 Ala. 54. Constructions which lead to absurd or unreasonable results are to be avoided.-Sprowl v. Lawrence, 33 Ala. 674. Lastly, “statutes wbicb strip tbe government of any portion of its prerogative, or give exemption from a general burden, should receive a strict interpretation.—Academy of Fine Arts v. Philadelphia County, 22 Penn. St. R. 496. And so strict is tbe rule, wbicb inclines against constructions that yield any of tbe powers of government, that an eminent judge in Pennsylvania remarked, in reference to charters of corporations, by wbicb tbe State disarms itself of any of its powers, that “in tbe construction of a charter, to be in doubt is to be resolved; and every resolution wbicb springs from doubt, is against tbe corporation.”—Pennsylvania R. R. Co. v. Canal Commissioners, 21 Penn. St. R. 9.

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 tbe Confederate congress.” I have shown that there were subsisting acts of congress, under which overseers might be exempted at the date of the State law, and also that overseers might be afterwards exempted under the subsisting acts of congress. The supposition that the legislature referred to exemptions under existing acts of congress, harmonizes with the feature, that the law should embrace overseers afterwards exempted. The law is simply silent upon the question, whether the acts of congress meant were existing acts, or subsisting and future acts. Consistently with the words of the statute it may be either way. Here, then, is a case of such uncertainty and ambiguity as demands judicial construction; and the application of the rules which I have invoked, leads me to regard the law as relating alone to existing acts of congress.

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, “exempted and detailed,” which, however strange it may be, seems to have become quite common, and to have crept into print; and may even be found in joint resolutions in relation to the increase of the army of the Confederate States, passed by the legislature on the 29th August, 1863. The word “detailed,” in our statute, is, therefore, simply supererogatory, and has no effect in any way, and can exercise no control over the construction of the law.

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.

STONE, J.

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 disciplining the militia of this State.” “ Sec. 8. The governor shall have power to call forth the militia, to execute the laws of the State, to suppress, insurrections, and repel invasions.”

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-gencj which renders a call upon the militia necessary, and of the number of 'militia-men necessary to meet the exigency ; and one government cannot be dependent on the oiher for the exercise of this power and discretion, nor accountable to it for the manner of their exercise. Within the bounds of the militia organization which each govern-? ment has prescribed, each executive has full power of determining to what extent it may be necessary to call out the militia, to execute the laws, suppress insurrection, or to repel invasion.—See Ex parte Hill, 38 Ala. 429, 458. See, also, for an elaborate discussion of this doctrine, Houston v. Moore, 5 Wheat. 1, 50-1-2. Under the operation of this principle, it may happen that most, or all, of the arms-bearing population, may be called into the service.

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.

Tbe constitution of tbe Confederate States confers on congress tbe same power to support armies, as it does to raise armies; and in tbis grant of power there is necessarily implied tbe power to employ tbe means tbat may be necessary and proper to carry tbis granted power into effect.—See Ex parte Hill, supra. Tbe army cannot be supported, if tbe whole male population be abstracted from industrial pursuits. To support tbe army, then, it is necessary and proper tbat tbe agricultural and mechanic interests be fostered and strengthened. Tbe army must be fed and clothed, or it cannot fight tbe battles of tbe country. There can, then, be no doubt, tbat tbe Confederate government may detail, or otherwise employ, any portion of tbe arms-bearing population, whose services may be necessary to tbe support of tbe army. Persons thus detailed or employed owe, and are performing, service to tbe Confederate States, constitutionally exacted; and cannot be lawfully hindered in tbe performance of such service, by tbe exercise of tbe right in tbe State to call out tbe mibtia. But mere exemptions from military service by tbe Confederate States, or those exemptions which are purchased and paid for at a stipulated price, if there be nothing more in tbe transaction, have in them none of tbe properties of a detail, and do not come within tbis rule.

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 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 tbe exemption was granted, not as a boon to tbe overseer or agriculturalist, but in promotion of tbe policy of tbe government, to secure support to tbe army, and to tbe •families of soldiers. No matter bow many slaves there may be on tbe plantation, there is no exemption, either to tbe owner or overseer, if there be on tbe plantation a white male adult not liable to military service; and even then tbe exemption is withheld, unless tbe person who asks it was tbe oivner and manager, or overseer of said plantation, on the first day of January, 1864. Skill,.and fitness for tbe management of slaves, and development of tbe agricultural resources of tbe country, were tbe ends aimed at; and these ends were proposed to be accomplished, not simply, or even mainly, for tbe benefit of tbe country generally, but for tbe purpose of feeding tbe army and tbe families of soldiers. Two hundred pounds of meat to be furnished to tbe government, for each able-bodied band between tbe ages of sixteen and fifty, and tbe marketable surplus of grain and provisions on tbe plantation, or to be produced, sold to tbe government, or to soldiers’ families; and all this at prices fixed by commissioners. These provisions clearly prove, that tbe control and profitable employment of tbe slave-labor of tbe country were tbe objects of tbe enactment; and that this (labor should be made tributary to tbe prosecution of tbe giant war in which we now are engaged.

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 absolves both principal and sureties in the bond, at their option, from their obligation to perform. The very words and policy of the act of congress furnish unmistakable evidence that the personal presence and supervision of a skillful owner or overseer are necessary to the successful prosecution of the planting interest; and if the Confederate government, by its act, violates the contract, and takes away the owner or overseer, the contract is broken on one side, and this excuses a breach on the other. Now, if the Confederate government, having the constitutional right to the services of each able-bodied citizen in the field as a soldier, or to aid in the support of the army, has lawfully, and for a consideration, parted with the first of these rights to carry out the second, and bound itself not to molest or disturb a particular citizen in his accustomed pursuit; can it be possible that the State government can claim the services of such citizen, and thus deprive the Confederate government of the benefits to accrue from the bond, or deprive the citizen of his own liberty, skill, and energy, so necessary to the performance of his contract? Can it be that there rests at one and the same time, and on one and the same citizen, the duty to the Confederate government of giving his personal attention and skill to the production of grain and provisions on his plantation, and to the State government of serving in its militia away from his plantation ? No man can serve two masters; and, in the case supposed, which master can assert the paramount claim ? “ The laws of the Confederate States made in pursuance [of the Confederate constitution] shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” — Constitution Conf. States, Art. 6, § 3.

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 on said farm or plantation,” &c.; and tbns obtain a commutation of tbe same, to the extent of two-thirds thereof, in grain or other provisions. The stipulation clearly proves, that the Confederate government contracts for “proper diligence” on the part of the overseer or agriculturalist, in the production of the stipulated quantity of meat; and if the maker of the bond, after employing proper diligence, can show that it was impossible for him to produce and furnish the amount contracted for, then all the obligors have the clear right to insist on the stipulation securing to them the right to commute. Now, if the overseer or agriculturalist has not given his attention and skill to the management of the plantation, 'then it is not possible for him to show, “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.” Hence, he can not claim the privilege of commuting as to the two-thirds, unless the act of the State can absolve the makers of the bond from their lawful contract with the Confederate government, to furnish provisions for the support of its armies. The act of congress being constitutional, and being the supreme law of the land, of course State legislation can not overrule it. As the State, then, can not absolve the maker of the bond from his liability to the Confederate government, the advocates] of the theory I am combating are driven to the other horn of the dilemma — namely, that though thepower andright of the Confederate government to impose on the citizens the burdens specified in the bond, can not be gainsaid; and though the State can not absolve the makers from the penalty of their bond; yet the State, by its direct interference, can deprive the citizen of the power of performing his contract, and can take away from him one of the most valuable rights secured to him under the bond — the right, in a certain contingency, to commute as to two-thirds of the meat.

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, 1864, baying complied witb tbe terms of tbe act by giving bond. In tbe same act of congress — tbat of February 17tb, 1864 — is tbe following proviso, being tbe last clause of tbe lOtb section of tbat act: “ Provided, tbat tbe exemptions granted under tbis act shall only continue whilst tbe persons exempted are actually engaged in their respective pursuits or occupations.” Tbis clause, in terms, embraces all exemptions granted by and under tbe act approved February 17th, 1864. Now, if tbe overseer or agriculturalist, thus exempted, becomes thereby bable to tbe performance of militia service, and is taken as a State militia-man, and placed in tbe service, be immediately forfeits bis exemption from service in tbe • armies of tbe Confederate States, because be ceases to be “actually engaged” in tbe “pursuit or occupation,” on account of which be obtained bis exemption. He must then be taken from tbe militia of tbe State, and placed in tbe army of tbe Confederate States. Tbe argument is, then, reduced to this: Tbe overseer or agriculturabst is bable to militia-service, only because be is actuaby engaged in bis particular pursuit or occupation, and therefore exempt from service in tbe Confederate army. When, however, tbe State asserts tbis right to place such overseer or agriculturist in its-militia service, it thereby forfeits its right to bis service -r for tbe overseer or agriculturabst loses bis exemption from Confederate military service, by ceasing to be “ actually engaged ” in bis pursuit or occupation; and by tbe same act, ceases to be liable to militia service. To state such a proposition, is to demonstrate its absurdity.

. 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 to hold by virtue of some title, without having the actual occupancy; as, when the owner of a lot of land, regularly laid out, is in possession of any part, he is considered constructively in possession of the whole.—Hubbard v. Austin, 11 Verm. 129.

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 military service.” This clause was inserted to allow, in the discretion of the executive government, the exemption or detail of overseers or agriculturalists, who had under their control a force less than fifteen able-bodied field hands. Under this clause, many persons having less than fifteen hands have been exempted from service in the armies of the Confederate States. This class is clearly exempt from militia service, for the act declares the exemption shall cease, “whenever the farmer, planter or overseer shall fail diligently to employ, in good faith, his own skill, capital and labor exclusively in the production of grain and provisions to be sold to the government,” &c. Now, can it be supposed that the Confederate government intended to appropriate exclusively to the support of its armies, and the families of soldiers, the skill, capital, and labor of these small farmers, planters, and overseers, while it left free to other uses the skill, labor and experience of the overseers or agriculturalists on the the larger plantations, from which it must derive the chief support of its armies ?

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.”