Governor Yance having informed the Judges that the Secretary of 'War puts his objection to the release of citizens who have been arrested as conscripts by the officers of the Confederate States after they had been discharged by the State tribunals on writs of habeas corpus, upon the ground that the courts of the State had no jurisdiction over the subject; the Court directed the question to be argued as preliminary to the disposition of the many applications before it by writs of habeas corpus, and assigned a day. As the organ of the Court, I addressed a communication’ to His Excellency the President of the Confederate States, informing him of-the fact, and that the Court would be pleased to hear an argument by the Attorney General of the Confederate States or any other gentleman of the bar he might appoint for the purpose. The question has been fully argued by Mr. Moore and Mr. "Winston in support of the jurisdiction, and by *19Mr. Strong, District Attorney of the Confederate States, with whom was associated Mr. Bragg, against the j urisdictioñ.
We have devoted to the subject that temperate and mature deliberation which its great importance called for, and the Court is of opinion that it has jurisdiction and is bound to exercise it, and to discharge the .citizen whenever it appears that he is unlawfully restrained of his liberty by an officer of the Confederate States. If the restraint is lawful, the Court dismisses the application and remands the party. If, on the other hand, the restraint is unlawful, the Court discharges him. The lawfulness or unlawfulness of the restraint necessarily involves the construction of the act of Congress under which the officer justifies the arrest, and the naked question is, by whom is the act of Congress to be construed ? by the Secretary of War and the subordinate officers he appoints in order to carry the conscription acts into effect, or by the Judiciary ? or if Hhe latter, have the State courts jurisdiction over the subject? This, as was well remarked by Mr. Strong, is a dry question of Constitutional Law, and its decision should not be influenced by collateral disturbing causes.
The jurisdiction of the State courts over the subject, is settled in this State, and has .been so considered as far back as the traditions of the Bar carry us. In 1815, Judge Taylor reported in the 2d North Carolina Law Kepository, 57, Lewis’ case, decided by the Supreme Court of Massachusetts, in which the Court, upon a habeas corpus to an officer of the United States, took jurisdiction and discharged a soldier on the ground that the enlistment was not valid by the proper construction of the act of Congress. That decision was ■concurred in by the bench and bar in this State, and the jurisdiction has ever since been exercised by our courts and •Judges, and treated as “settled” until the present term of ■the Court. In Mason’s case, the jurisdiction was exercised, ■and a soldier of the United States was discharged by the Court; 1st Murphy 33.6 — (1809.) See also North Carolina Law Depository-, note. We have traditions of other cases •tried by single Judges, but no reports 'were made of them&wkey; *20About 1847, while on the Superior Court Bench, I exercised the jurisdiction, and a soldier was brought before me atSmith-ville, on a writ directed to the officer in command at Port Caswell — Capt. Childs, who afterwards so highly distinguished himself in Mexico. In the matter of Mills, who claimed exemption as a shoemaker during the past winter, in my letter to Judge Battle and Judge Manly, asking their opinion as to the construction of the conscription and exemption acts, all three of us took it for granted that the question of j urisdiction was settled, and in the opinion filed by me in that and all of the other cases which have been before me, I set forth that the power of the State Judges to put a construction upon the acts of Congress, so far as they involve the rights of the citizen, (as distinguished from mere military regulations,) is settled, andkll of the other Judges in this State, who have issued /writs of habeas corpus, have so treated it — (Judges Battle; French, Heath and Shipp.)
The question has been considered as settled in the other States, and their courts have, in many cases, assumed and exercised -the jurisdiction, and it has been conceded by the Courts' of the United States. Chancellor Bent, 1st vol. 440, referring to Stacy’s case, says: “ The question was therefore settled in favor af a concurrent jurisdiction in that case, and there has been a similar decision and practice by the Courts of other States.” In the note, many cases are referred to.— Hurd, in his treatise on Habeas Corpus, under title “ concurrent jurisdiction,” refers to aud collates a great many easfeg which fully support his conclusion: “ It may be considered settled that State Courts may grant the writ in all eases of illegal confinement under the authority of the United States.” So, if any- question can be settled by authority, the concurrent jurisdiction of the State Courts, must be treated asset-tied. It must be presumed that this long series of cases which establish the concurrent jurisdiction of the State Courts, and their power to put a construction on acts of Congress, when necessary to the decision of a case before them, is supported by the most clear and satisfactory reasoning, and it would be *21idle to attempt to add any thing to what has been said by the many able Judges who have discussed the question. I will content myself by making a few extracts from some of the opinions. Tilghman, Chief Justice, in ZocJeington,s case, Brightly’s Keports 269,(in 1818,) says: “Itis to be observed that the authority of the State Judges in cases of habeas corpus, emanates from the several States, and not from the United States. In order to destroy their jurisdiction, therefore, it is necessary to show, not that the United States have given them jurisdiction, but that Congress possesses, and have exercised the power of takiug away that jurisdiction vyhich the States have vested in their own Judges.” Southard, J., in State v. Brearly, 2 South. 555, (1819,) says: “ It will require in me a great struggle, both of feeling and judgment, before X shall be prepared to deny the jurisdiction of the State, and say that she has surrendered her independence on questions like this, and that her highest judicial tribunal, for such purposes, is incapable of inquiring into the imprisonment of her citizens, no matter how gross or illegal it may be, provided it be by the agents of the United States, and under color of their laws.” “ Have we lost the j urisdiction because we cannot construe and determine the extent and operation of acts of Congress? We are often compelled to construe them ; they aro our supreme law, when made in conformity with the constitution. Is it because the United States is a party? How does she become a party on such a question ? Is she a party for the purpose of despotism, whenever a man who holds a commission from her, shall, without legal authority, or in violation of her own statutes injure, imprison or oppress the citizen ? surely not.” In Slocumb v. Mayberry, 2d Wheat. p. 1, (1817,) Slocumb was surveyor for the port of Newport in Ehode Island, and under the directions of the collector had seized the “Yenus,” lying in that port with a cargo, ostensibly bound to some other port in the United States. Mayberry, who was the owner of the cargo, brought an action of replev-in in the State court for the restoration of the cargo. Slocumb put his defence on the ground that he was an officer of the *22United States, and the seizure of the vessel and cargo was authorized by an act of Congress, and denied the jurisdiction of the State court. The court took jurisdiction, and decided in favor of Mayberry, on the ground that the act of Congress, by its proper construction, only authorized'the seizure and detention of the vessel, and did not embrace the cargo ; consequently the officer had detained the cargo against law. Slocumb carried the case to the Supreme Court of the United States, where it was held that the State court had jurisdiction, and had put a proper construction on the act of Congress. Marshall, C. J., says; “Had this action been brought for-the vessel, instead of the cargo, the case would have been essentially different, the detention would have been by virtue of an act of Congress, and the jurisdiction of a State court could not have been sustained ; but the action being brought for the cargo, to detain which the law gave no authority, it was triable in the State court.” I cite this case, particularly, because in the action of replevin, the thing is taken out of the possession of the officer, as the person is taken out of the possession of the officer under a writ of habeas corpus’, so, it is directly in point to show that a State court has jurisdiction wherever the law gives no authority to detain the person or the thing; and, in order to decide that question, the State court has power to put a construction on the act of Congress under which the officer justifies the imprisonment or detention.
To oppose this array of authorities and reason, Mr. Strong relies on two cases: Ableman v. Booth, 21 How. 506, and uJlilVs case,” recently decided by the Supreme Court of the State of Alabama. With the decision in Ableman v. Booth, 21 Howard 506, we entirely concur, and agree with Taney, C. J., that it is “a new an d unprecedented attempt, made for the first time, .by a State court,” to assume, not merely an exclusive jurisdiction, but a jurisdiction controlling the District Court of the United States. This decision of the Supreme Court of the United States, in no wise impugns the concurrent jurisdiction of the State courts, which has been settled by the authorities *23and reasoning to which we hare referred. Two cases were presented. Booth was arrested under a warrant of the Commissioner appointed in pnl’snance to. an act of Congress in respect to fugitive slaves, under a charge of having aided in the rescue of a fugitive slave; and upon examination before the commissioner, probable cause being shown, he was committed to answer a charge of the United States for a misdemeanor, before the District Court, in the State of "Wisconsin; he gave bail for his appearance, but was afterwards surrendered by his bail, and imprisoned by the marshal; whereupon he obtained a writ of habeas corpus from a judge of the State and was discharged. After being discharged, the grand jury found a bill of indictment against him in the District Court, upon which he was tried and convicted and sentenced to pay a fine and be' imprisoned. While in prison, under sentence, he obtained a writ of habeas corpus from the Supreme Court of the State, and was discharged; whereupon the Supreme Court of the United States had the matter brought before it on a writ of error, and decided that as Booth, in the first case, was legally in custody of the marshal on a warrant of commitment to answer a charge for an indictable offence before the District Court, and in the second case, was in jail under the sentence of the District Court, the State court had no jurisdiction by habeas corpus, to take him out of the custody of the marshal, or out of jail and discharge him. This was the decision in the case, and if the language used by the Chief Justice, in delivering the opinion, is construed in reference to the facts of the case before the court, there is nothing either in the decision or the opinion, which denies the concurrent jurisdiction of the State courts. It is true the language is susceptible of a wider meaning, and may afford room for an inference that the learned Chief Justice “ goes outside of the record,” and expresses an opinion against the jurisdiction of the State courts in all cases where one is restrained of his liberty by an officer or agent of the goveyiment of the United States, although the imprisonment be unlawful, and is not authorized by the act of Con*24gress under which the officer professes to act; but, in onr opinion, snch an inference will do great injustice to that able jurist; he surely could not have intended to put “ his obiter dic-tvm” in opposition to the series of authorities above referred to, without making any allusion or reference to them, or any attempt to controvert the reasoning upon which they rest.— However this may be, the decision does not conflict with the concurrent jurisdiction of the State Courts, and the obiter dio-¡trwm, if it be one, is not entitled to the weight of an authority, and must be treated simply as the opinion of an able lawyer on a question not presented by the facts before the Court, and entitled only to that degree of consideration which its intrinsic merit will command.
The same remarks are applicable to the case of IIill and others, recently decided by the Supreme Court of Alabama. The petitioners claimed to be entitled to exemption by reason of bodily incapacity, but had not been held unfit for military ■service in the field by a surgeon, under the rule prescribed by the Secretary of "War. "Wo fully concur in the decision of the case before the Court; indeed, during the last Spring, I refused the application of two persons who claimed exemptions on the ground of being “unfit for military service in the field by reason of bodily incapacity,” because by the proper -construction of the exemption act, only those persons are exempted, who shall be held “unfit for military service in the field, by reason of bodily incapacity under rules to be prescribed by the Secretary of War;” and, according to these rules, it was necessary that the party should be examined by a surgeon, or board of surgeons appointed for that purpose, and the certificate of the surgeon or board of surgeons, was the only evidence of bodily incapacity that could be acted on as evidence of the fact;. so, in that case, the parties were not unlawfully restrained of their liberty, but were lawfully in custody of the officer of the Confederate States, under the authority of the acts of Congress, according to their proper construction. Consequently, that decision is not opposed to the jurisdiction of the State courts, when by the proper construe-*25fion of the acts of Congress, one who is not liable to conscription, or who is exempt, is restrained of his liberty against law. That portion of the opinion; and reasoning of the learned-Chief Justice, which is not applicable to the case, made by the facts before the Court, has received from us due consideration.
On the argument, this position was taken: Congress may authorize the President to suspend the writ of ha-beas corpus: this would not apply to the State tribunals, and if the State courts and Judges have power to issue the writ when a person is imprisoned by an officer of the Confederate State, the suspension of the writ, so far as the tribunals of the Confederate States are concerned, would be vain and nugatory. This reply answers the position: The act of Congress would specify the cases in which the writ might be suspended, or would, in general terms, authorize the President to suspend it in all cases where a person shall be imprisoned by order of the President. And, as the acts of Congress made in pursuance of the constitution, are the supreme law of the land, it follows that such an act would be as imperative on the State courts and Judges, as on the tribunals of the Confederate States.
This position was also taken : It is admitted that should a judicial tribunal of the Confederate States, by its construction of an’act of Congress, subject a citizen to imprisonment wrongfully, the State courts, having only concurrent jurisdiction, could not interfere to prevent the oppression; and, on what ground can they have any more power to prevent oppression on the part of the Executive (if we may suppose such a case) than to prevent oppression on the part of the Confederate judiciary? This reply, we think, is a conclusive answer: The judicial tribunals of the Confederate States have jurisdiction, consequently, any adjudication of those tribunals would fix the construction of the act of Congress, and the State courts could not review or reverse its decision; whereas, the executive branch of the government has no judicial power, and any construction it might give *26to an act of Congress would be the subject of review, either by the State courts or the Confederate courts; and when a citizen is unlawfully deprived of his liberty or property by an executive officer, acting under an erroneous construction of an act of Congress, the State courts may give redress, as in Slocumb v. Mayberry, sup.
This further position was taken, and seemed to be mainly relied on: By the conscription and exemption acts, Congress invests the Secretary of War, and the officers he is authorized to appoint in order to carry them into effect, with a quasi judicial poioer, by which the enrolling officers have jurisdiction to “ hear and determine ” all questions which are necessary to be decided in order to ascertain whether a person is liable to conscription, or is entitled to exemption, which of course includes the power to put a construction on the acts of Congress. Erom the decision of the enrolling officer, there is an appeal to the commandant'of conscripts, and from his decision, there is an appeal to the Secretary of War, and possibly there is an appeal to the President. This grant of judicial power is deduced from the several clauses in the acts of Congress, by which the Secretary of War is authorized “to make rules and regulations to carry the acts into effect,” aud from the nature of the subject, because without exercising judicial power, it would be impracticable to execute the conscription acts. This position is not tenable. There are three conclusive objections to it: 1st, Congress has no power to make the Secretary of War a Judge ; or to authorize him to invest his subordinate officers with judicial power, for, as I say in the opinion delivered by me, in the matter of Meronoy: “ It is true, for the purpose of carrying acts of Congress into effect, the Secretary of M ar, in the first place, puts a construction on them, but his construction must be subject to the decision of the judiciary, otherwise, our form of government is subverted, the constitutional provision by which the legislative, executive and judicial departments of the government are separate and distinct, is violated, and there is no check or control over the executive.” The circumstances growing out of the subject, *27now under consideration, demonstrate the wisdom of the framers of the constitution in adopting the principle by which Congress has no authority to exercise judicial power or to confer judicial power upon a department of the executive branch of the government. The military officers appointed to execute the conscription acts are naturally prompted to increase the numerical force of the array, and for this purpose so to construe the acts as to embrace as many persons as possible. Eor this reason, and as a protection to those citizens who are not embraced by the conscription acts, the constitution provides a third branch of the government in which is confided the trust of expounding the law and putting a construction upon the acts of Congress, and it follows that Congress has no power to ignore the existence of this third branch of the government and confer on the executive, powers which belong to the judiciary.
2d. There is no apparent intention of Congress to confer judicial power on the Secretary of War, and authorize him to establish inferior and superior courts with the right of appeal to himself. If such had really been the intention, it would have been expressed in plain and direct terms, and the simple fact that the Secretary of "War is authorized “to prescribe rules and regulations to cany the acts of Congress into effect,” which power he would have had almost by necessary implication, surely cannot, when considered calmly and uninfluenced by collateral disturbing causes, be considered sufficient to confer a power on the Secretary of War totally at variance with every principle of our government.
3d. If the Secretary of War and his subordinate officers are invested with this judicial power, so as to exclude the jurisdiction of the State courts, for the very same reason it would exclude the jurisdiction of the courts and Judges of the Confederate States. No provision is made by which a case ean be taken for review before the District Court of the Confederate States from these military judicial tribunals. Consequently, the judicial department of the government, both State and Confederate, is set aside and the liberty of the citizen depends *28solely on the action of the war department and its subordinate officers. Can. this be so ? Surely not.
Our conclusion is, that the Court has jurisdiction to discharge a citizen by the writ of halvas corpus, whenever it is made to appear that he is unlawfully restrained of his liberty by an officer of the Confederate States; and that when a case is made out, the Court is bound to exercise the jurisdiction which has been confided to it “ as a sacred trust,” and has no discretion and no right to be influenced by considerations growing out of the condition of our country, but must act with a single eye to the due administration of the law, according to the proper construction of the acts of Congress.
The question presented for the consideration of the Court is, whether the courts and Judges of this State have the right to issue writs of habeas corpus for the purpose of inqiring into the legality of the detention of persons held in custody, by officers of'the Confederate States as conscripts, under certain acts of the Confederate Congress. The constitutionality of those acts has never been judicially questioned in this State, so that the only inquiry is that which I have j ust stated. My opinion is decidedly in favor of the jurisdiction of the State courts, and I will endeavor to state, briefly, the process of reasoning, by which I have been conducted to this conclusion. In the exposition of my ai'gument, it will be more convenient for mo to show what were the power and authority of the courts of this State in relation to this matter, while it was a member of the United States government; for no one contends that they have less power and authority under the Coufederate government.
After the American Revolution, North Carolina was a sovereign and independent State. In virtue of that sovereignty and independence, she was invested with many and great powers and prerogatives, and had imposed upon her many and important duties. Among these duties none was higher than that of protecting all her citizens in the full and free enjoyment of life, liberty and private property'. Fully alive to *29this duty, she, in the fundamental organization of her government, declared “ that no freeman ought to be taken, imprisoned or deprived of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the law of the land.” Declaration of Eights, see. 12. And again : “ That every freeman, restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied or delayed.” Ibid, sec. 13. To give a practical effect to these rights, courts were established and Judges appointed. Had the State been powerful enough to continue to exist as an independent nation, nothing more would have been wanted to secure the protection of her citizens. But, North Carolina, for causes not now necessary to be set forth, found it expedient to unite with other States similarly situated, for the purpose of forming a new and distinct government, and in doing so, all these StatesWvere compelled to give up a portion of their former respective sovereignties, and to invest the newly created government with them. Hence, the adoption of the constitution of the United States, in which, after the enumeration of all the powers conferred on the General Gov-, eminent, it is declared, that “the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” See amend’ts to Con. art. 10. This article, was indeed unnecessary, as the General Government had no powers except what the States had granted to it, either expressly or by a necessary implication; but it was, out of abundant caution, very properly adopted.
We are now to inquire whether the State gave up any portion of that sovereignty, which was necessary to be retained for the purpose of enabling her to discharge the duty of protecting the personal liberty of her citizens.
As the courts and Judges furnish the means through -which that liberty is to be vindicated, let us see what authority or power has been taken from them. Alexander Hamilton, a *30member of the convention which formed the constitution of the General Government, and one of its ablest expounders, declared in the 82d No. of the Federalist, p.'2,11: “That the States will retain all pre-existent authorities, which may not be exclusively delegated to the Federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former as well as with the latter. And, under this impression, I shall lay it down as a rule, that the State courts will retain the j urisdiction they now have, unless it appears to be taken away in one of the enumerated modes.” Chancellor ICent, in the 1st vol. of his Com. p. 396, in remarking upon the rule as thus stated in the Federalist, says: “A concurrent jurisdiction in the State courts was admitted in all except those enumerated cases-; but this doctrine was only applicable to those descriptions of causes of which the State courts had previous cognizance, and it was equally evident in relation to causes which grew out of the constitution-. Congress, in the course of legislation, might commit the decsion of causes arising -upon their laws to the Federal courts exclusively ; but, unless the State courts were expressly excluded by the acts of Congress, they would of course, take concurrent cognizance of the causes to which these acts might give birth, subject to the exceptions which have been stated.”— Among thq causes, of which the State courts had previous •cognizance, none were more important than those in which they claimed thetright to inquire, through the means of writs •of habeas corpus, into the reasons for the imprisonment of .persons alleged to be illegally restrained of their liberty. A .jurisdiction so essential to the great privilege of going where *31one may please — a privilege which every citizen of the State •would wish to enjoy as freely as he did the air he breathed- — • the State courts would hardly have parted,, with, except upon the most urgent necessity. As soon, then, as a citizen of the State was supposed to be illegally restrained of his liberty by an officer of the General Government, under color of a law of Congress, we might have expected that the State courts would promptly and anxiously inquire whether they had been deprived of their jurisdiction over the matter. They would ask, had it been taken away by an exclusive authority, granted in express terms to the courts of the Union?
If, for instance, it wore the case of a soldier unlawfully enlisted into the army, the answer would be in the negative. They would then ask : was it a case where a particular authority was granted to the courts of the Union, and the exercise of a like authority prohibited to the courts of the States ? The answer would be still in the negative. They would then ask: was it a case where an authority was granted to the courts of the Union, with which a similar authority in the courts of the States would be utterly incompatible ? That was considered to be a debateable question, and it was debated with great zeal and ability in almost every State of the Union for many years. The result was in favor of the jurisdiction of the State courts, and was thus announced by Chancellor Kent in the 1st Ed. of his Commentaries, and was so published in each successive edition of his work until his death. (See 1 Kent’s Com. 400-401.)
“In the case of Ferguson, (9 Johns. Rep. 239,) an application was made to the Supreme Court of New York, for an allowance of a habeas corpus to bring up the party alleged -to be detained in custody by an officer of the army of the United States, on the ground of being an enlisted soldier; and the allegation was that he was an infant and not duly enlisted. It was much discussed, whether the State courts had concurrent jurisdiction by habeas corpus, over the question of unlawful imprisonment, when that imprisonment was by an officer of the United States, by color or under pretext of au*32thority of the United States. The Supreme Court did notde-cide the question, and the motion was denied on other grounds, but subsequently in the matter of Stacy, (10 Johns. 328,) the same Court exercised jurisdiction in a similar case, by allowing and enforcing obedience to the writ of habeas corpus. The question was, therefore', settled-in favor of a concurrent jurisdiction in that case, and there has been a similar decision and practice by the courts of .other States.” See also Iiurd on Habeas Corpus, Book 2, chap. 1, sec. 5, where many cases are stated, which show the correctness of Chancellor Kent’s assertion.
To the cases mentioned by Hurd may bo added that of Mason, decided in this State, and reported 1 Murph 336. The question of the compatibility of the jurisdiction of the State courts with that of the courts of the United States, seems thus to have been proved conclusively by long experience of their harmonious action, and the general acquiescence oUthe country in it.
But it has been recently said that this is all a mistake, and that the decision of the Supreme Court of the United States in the case of Ableman v. Booth, 21 How. 506, is directly opposed to the supposition of a concurrent jurisdiction in the courts of the State with those of the Federal government. With the decision of that case I entirely concur; and I think that it is clearly shown in the opinion of the Chief Justice of this Court, filed in this case, that the remarks of Ch. Justice Taney, in giving the opinion of the Supreme Court of the United States, cannot fairly be construed to sustain the doctrine contended for by the supporters of the exclusive jurisdiction of the Federal courts.
Another case recently decided by the Supreme Court of Alabama has also been invoked to the aid of those who oppose the concurrent jurisdiction of the State courts. The case is that of Esparte Mill, decided at the last January term of the Court, and reported and published in pamphlet form by Mr. Shepherd, the reporter of the Court. An attentive examination of the case will show, that though the decision of *33the Court is right, it cannot be used as an authority for the-purpose for which it has been cited. I will premise-that the Court is composed of three- Judges, of whom only the Chief' Justice, A. J. Walker, and Stone, Judge, were present, the-other Judge, E. W. Walker, being detained at home by providential causes. The Court agreed in the conclusion that the-Judge, whose action they were reviewing, should not issue the writ of hateas, corpus upon the petition before him. The Chief Justice put his opinion upon the gro-uncl of a want'of jurisdiction-in the courts of the State,, b-ut Judge Stone expressly said, “I withhold the expression of any opinion on all. those cases, in which the party, either by name, or as one of' a class or sect, stands, absolutely and unconditionally, e-xempt from conscription, without any other qualification than that he is of the given class j such, for example, as persons under the age of eighteen years or ov’er forty-five, officers judicial, and executive of the Confederate and State Government, &c.” The Judge then wont on with his argument to show that the-petitioner in the case before the- Court was not exempt from-conscription under the-law of Congress. In doing so. it seems to me, he, himself, as a member of the Court, was assuming, a jurisdiction of the case. If he had the right to construe the-act of Congress for the purpose of ascertaining that the party was not entitled to exemption, lie- had the same right to. construe the- act,.if his construction led- to the conclusion, that the-party was exempt. A power to construe the- act at all, involves, necessarily, a jurisdiction in the Court.. If this be so,, then the Court was equally divided upon the question of jurisdiction, and, therefore, there was no decision, either way upon that question. ^
Another case reported in the same pamphlet, and, I suppose, decided at the same term, shows manifestly that the Court assumed and exercised jurisdiction over the cause. The case is that of Ex parte Stringer. The party being in custody as a conscript, applied for a writ of habeas corptus upon the ground, that he was a regular member of the “ Christian Church,” and had conscientious scruples against bearing arms. *34Stone, Judge, delivered the opinion of the Court, in which it was decided that the acts of Congress, known as the “ Conscription laws,” were constitutional; and that the petitioner did not come within any of the exemption clauses of those laws. The opinion closes thus: “ As the opinion of the entire Court is not yet announced, nor indeed formed, on the broad question of the jurisdiction of the State courts in cases like the present, and as we feel no hesitation in refusing the present application on the merits, wo place our refusal on the ground stated above. The prayer of the petitioner is denied.”
If the Court had no jurisdiction of the cause, I should like to know how it acquired the power to decide the case upon its merits? From this examination, it is manifest, I think, that neither the Alabama case, nor that of Ableman v. Booth, has lessened, in any sensible degree, the weight of- authority in favor of the concurrent jurisdiction of the State courts in cases like that now under consideration.
In closing this opinion, I will take occasion to return my thanks to the counsel on both sides, for the aid which they have given to the Court by their able and well considered arguments.
Afterwards, the Court invited an argument from the bar upon this question: whether this Court, as such, had the power to issue a writ of habeas corpus, and to determine of the case in open -court.
Mr. Moore, argued in favor of the jurisdiction as follows:
There has been no ,time since the organization of Government in the State, 1666-7, when this writ, so precious to freemen, did not run among us.
1. The second charter of Charles 2nd, (1667,) (2 R. S. 4,) granted to the “ Proprietors” the power “ by Judges to award process, hold pleas, and determine all actions, suits and causes whatsover, as well criminal as civil, real, mixt, personal, •or of cmy other kind •or nature whatsoever.” The courts of England did issue writs of habeas corpus before 31 Ch. 2, and perhaps the Judges in vacation, Bac. Abr. Hab. Corp, B. 13.
*352. Though this statute (pa'ssed in 1679) did not extend to 'the Colonies, the Colonial Legislature of 1715 (Eev. Code of 1820, c. 5, s. 3) declared in force in the colony all laws of England “ providing for the privileges of the people.” See Ired. Eev. p. 17, ch. 31. This emphatically introduced the act of 31st Charles, and thenceforth it is clear, that both ■courts, and Judges in vacation eonld issue the writ.
3. In December, 1776, the Convention which framed the State Constitution declared, among the rights of the people, “ that every freeman restrained of his liberty, is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be delayed.” Deel’n Eights, sec. 13. This language alone, would have given birth to the writ, if before that time it had been unknown. It is, however, nothing more than a declaration of the unwemitting íbice of the then well known great writ of personal liberty, and a prohibition against its suspension. The language, so far as concerns the remedy, is addressed to the judicial authorities of the State.
4. In April, 1777, the act (R. C. of 1820, ch. 115, sec. 2,) ■called the “ court law,” was enacted (or rather the previous ‘acts revised and consolidated) which, in conferring power on the Judges, declares that “ they shall have, use, exercise and enjoy the same powers and authorities, rights, privileges and pre-eminences, as were had, used, exercised and enjoyed by any former Judges of the superior courts,” ,&c. This and the 13th section of the Declaration of Eights, and the statute of 31 Charles, did most certainly secure the full benefit of the writ, both in te'rm and vacation.
5. In 1818, (Eev. Code, chapter 33, the present Supreme Court was established, with powers defined both for the Judges, and the Court. As Judges, it is provided by sec. 5, “that they, and each of them, shall have, use, exercise and enjoy the saíne powers and authorities, rights, privileges and pre-eminences,” &c., as were had, used, exercised and enjoyed by Judges of the superior courts, except that- none of them should hold a superior court. This gave them the power to *36issue writs of habeas corpus. As a court, among other powers, they were vested (section 6) with the “ power to issue writs of certiorari, scire facias, hateas corpus, mandamus, and all other writs which may be proper and necessary for the exercise of its jurisdiction and agreeable to the principles and usages of law.” No one ever doubted that before the Revi-sal of 1836, the Judges had power to issue writs.in vacation.
The quoted language of sec. 6, was evidently borrowed from sec. 14, of the Federal Judiciary act of 1789.
Under that act and up to the establishment of our Supreme Court, the .Federal Supreme Court was accustomed to issue the writs without reference to any case under its immediate jurisdiction, or which could come under it; Ex parte Boll-man, 4 Cr. at 101.
In the United States v. Hamilton, 3 Dall. 17, (1795,) the prisoner charged with treason, had been committed upon the warrant of the District Judge of Pennsylvania — the Court issued the writ and discharged him on bail.
In Ex parte Burford, 3 Cr. 448, (1806,) the prisoner had been committed to jail in the District of Columbia, in default of finding security for good behavior. He was brought up and discharged, because the warrant did not state “ some good cause certain, supported hy affidavits
In Ex parte Bollman, 4 Cr. 75, (1807) — prisoner committed upon a charge of treason ; writ issued by Supreme Court after elaborate argument, and prisoner discharged.
In Ex parte Kearney, 7 Wheat, 39, (1822,) the doctrine in Ex parte Bollman, is affirmed.
The jurisdiction is said to be appellate, because the writ supervises the commitment by an inferior tribunal — this is a refinement; Ex parte Metzger, 16 Curt. 352.
It took jurisdiction in all cases of a technical appellate character, except when the defendant was in confinement under the proceedings of a court of competent jurisdiction ; Ex parte Watkins, 3 Pet. 201.
6. Without any grant to issue the writ, the Court would have had the power from its very constitution; the dis*37trict courts, composed of three Judges, possessed it, though never specially conferred ; Eev. Code, 1820, chap. 115. The grant was made of abundant caution. The words, “ which may be proper and necessary for the exercise of its jurisdiction,” refer not to the writs named, but to the antecedent words, “ and all other writs;'' Ex parte Bollman, at 101. It is clothed with an independent power to issue writs of habeas corpus, mandamus, &a.
7. If the Court can exercise similar jurisdiction to that exercised by the Supreme Court of the United States, in United States v. Hamilton, Ex parte Burford, Ex parte Bollman, it concedes the question, and admits the power in the Court to issue in all cases of illegal confinement where no court has taken jurisdiction of the case.
Mr. Strong, District Attorney of the .Confederate States, with whom was Mr. Bragg, argued as follows:
Has the Supreme Court jurisdiction to'issue the writ of ha-beas corpus ?
The settled opinion of the profession, including the Judges of the Court itself, seems to have always been against the jurisdiction, as is shown by the fact, that no attempt has ever been made to exercise it, and that writs of the kind have been issued and acted upon by the individual judges during the session of the Court.
1st. It is contended that .the Court has this jurisdiction by the Common Law, it being “incident by that law to every Superior Court of Eecord.” This reasoning would be valid if the jurisdiction of the Court were to be determined by the Common Law. But this is not the case. The powers of all our courts depend solely upon the statute which creates them. The Common Lato itself, in this State, depends for its force upon a statute. Eev. Code, chap. 22. And the Legislature could uproot it to-morrow, and establish the code of Napoleon in its stead. There is the same kind of difference between a Court of Eecord, in England, and in this State, that there is between corporations. Trustees of Davidson College v. Chambers’ Executors, 3 Jones’ Eq. 268.
*38The clause in the bill of rights that “ every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness of such restraint, and to remove the same, if unlawful, and such remedy ought ‘not to be denied or delayed,” is certainly satisfied by the grant of power to thd eight circuit judges, both in term time and in vacation, and to the three Judges of this Court, in vacation, to issue and act upon the writ. The obligation of the State Legislature to protect the citizen in the enjoyment of the two great rights of personal security, and private property, is perfect. The obligation, as' to the third great right of personal liberty, cannot be rendered more than perfect, by the above clause of the Eill of Eights. And the establishment of a Supreme Court by the constitution, though aided by the clause in question, can no more give that court original jurisdiction to protect one of these rights by habeas corpus,■ than to protect the others by writs of re-plevin, &c.
That the Superior Courts, in term time, have the right to issue writs of habeas corpus, is manifest from the statute which confers general jurisdiction ; Rev. Code, chap. 31, sec. 17, and from sections 4 and 5 of chap. 55 of the Rev. Code.
2d, .It is contended that the jurisdiction is conferred by the statute. That portion of it, material to our enquiry, is as follows: The court shall have “ power to issue writs of cer-tiorcvri, scire facias, habeas corpus, mandamus, and all other writs which may be proper and necessary for the exercise of its jurisdiction, and agreeable to the principles and usages of law.” It is admitted that t»he easy natural construction, which the learned and unlearned would place upon this sentence, is that the writs enumerated, are only those which are ancillary to the other powers of the Court, and necessary to the exercise of its jurisdiction. For it is a settled principle, of both legal and grammatical construction, that the words, “ all other writs,” following an enumeration of particular writs mean “all other such writs.” Owen’s on Statutes, 9th Law Library 777 ; 2d Rep. 46; State v. Weaver, Busb. 13. So that the sentence may fairly be translated, “ all other writs such as *39 the above” or “all other writs which like the above, may be necessary, &c.. To this, it was objected by Mr. Moore and Mr. Winston, that no cases could be conceived in which all the enumerated writs could be used in an ancillary character, and that, therefore, they must have been intended to be used without restriction. The main .force of the argument was spent upon this point, but it fails totally. As to the first two, there is no difficulty. As to the writ of ha-beas corpus, it would certainly lie to bring up a witness to testify, where his presence would be necessary, under sec. 15, chap. 33, Rev. Code, or to bring up to answer, a defendant in a writ of capias ad satisfaciendum, issued from this Court, who had given bond for his appearance, and had been imprisoned upon process issuing from another court. As to the writ' of mandamus, when upon an appeal to this Court, the judgment is, that the peremptory writ issue, it tlien becomes necessary to the exercise of this Court’s jurisdiction, and is ancillary in its character. It may also be used to compel the the Superior Court to send up a record, or to do any other duty. Bacon’s Abridgment, Letter A, p. 419.
It is asked by the counsel, why enumerate these writs in the statute, if of a secondary character, since, in that case, they would be included in the general words, “ all writs necessary and proper to thfe exercise of its jurisdiction ”? In answer, it may be asked why insert these general words themselves, since, without them, the Court would have had the power which they profess to confer?
The construction now_ contended for, has been placed upon the act, by this Court, Jones v. McLaurin, 7 Jones 392. In that case, it was decided that a writ of scire facias would not lie against bail, because thg.t was an original proceeding, and it was not necessary to the exercise of the jurisdiction of the Court. The units enumerated in the same clause, must of course stand upon the same* footing. And, if the Court cannot, for the above reason, exercise an original jurisdiction in-issuing the writ of scire facias, it cannot, for the very same reason, do so, in 'issuing the writ of habeas corptis.
*40Suction 14 of the J’ndiciary Act of the United States, which 'confers jurisdiction upon the Supreme Court, is nearly identical in language with our own. That act has received the construction now insisted on. Ex parte Bollman and Swartwout, 4 Cranch 75; Ex parte Metzger, 16 Curtis 348.
If it be an absurdity, that a single judge can do in vacation what the whole court cannot do in term time, the fault is with the Legislature. But it may have been well intended that this tribunal should, during term time, be only employed with those questions, the decision of which, by an inferior tribunal, had failed to give satisfaction.
No necessary conflict of decision, will arise out of this construction. From the judgment‘of a superior court, in term time, an appeal will lie to the Supreme Court; Eev. Code, ■chap. 4, sec. 21. In the mean while, the prisoner will be in Custodia, legis, Hurd on Habeas Corpus, p. 324, and the Court may either take his recognizance for his appearance, at its next term, or before the Supreme Court, to perform the final .judgment. It is believed, upon the equity of the statute regulating appeals, above quoted, and the general principles governing the writ of recordad, that by that writ, the decisions of any judge in vacation might be brought to this Court for review. The writ was thus used in Wisconsin to bring up for review the decision of one of tile Justices of the Supreme 'Court of that State; Ableman v. Booth, 21 How. 506. But, if the evils from the conflicting decisions of the judges out of •court cannot be thus remedied in this case, neither can they in the other.
Mr. P. II. Winston, Sen’r., in favor of the jurisdiction, argued as follows:
Every Court of general jurisdiction in civil cases, has power to issue writs of habeas corpus. It belongs to the courts of Chancery, Common Fleas and Exchequer as well as the King’s Bench; Bac. Abr. Hab. Corp. B. 2; Com. Dig.; Bushel’s case, Yaughan, 155; Wood’s case, 3 Wilson, 172.
This jurisdiction is not derived by implication from 31 Car. 2, for Bushel’s case was before that statute, and in Wood’s *41 case, it is treated by the Court as inherent in every court of superior jurisdiction. It is founded on the principle of the common law, thus expressed in our State Constitution, “ Every freeman restrained of his liberty, is entitled to a remedy to enquire into the lawfulness thereof, and remove the same if unlawful, and such remedy ought not to be delayed or denied Declaration of Eights, sec. 13.
2. Our Habeas Corpus Act, Eev. Code, ch. 55, by giving power to each Judge of the Supreme and Superior Courts to issue the writ, by necessary implication gives the power to the courts. This power is assumed by section 5, to exist in the Superior Courts, either by common law or by force of that Act.
3. The power is expressly conferred by the act, creating this Court, Eev. Code, ch. 33, sec. 6. - After defining its appellate jurisdiction, the act declares that it shall have original and exclusive jnrisdictión in repealing letters patent, and shall also have power to issue writs of certiorari, scire facias, habeas corpus, mandamus, and all other writs, which may be proper and necessary for the exercise of its jurisdiction, and agreeable to the principles and usages of law.” “Habeas corpus” in this clause, means habeas corpus ad subjiciendum, &c.— This is a grant of the substantive power to issue writs of hab-eas corpus. It is associated with jurisdiction, undeniably original; (to repeal letters patent.) No case can be stated in which this writ can be needed, or useful for the exercise of its appellate jurisdiction, or its original jurisdiction in other matters. It is consistent with the grammatical construction of the sentence. The words, “ which may be proper andnecessary for the exercise of its jurisdiction,” &c., have for their antecedent “ all other writs.” This clause is a copy of the 14th section of the Judiciary Act of the United States, with the exception of a few words, which cannot'vary the construction, and in the case of Ex parte Bollman and Swartwout, 4 Cranch, 75, the Supreme Court of the United States decided that that section conferred on that Court a substantive power to issue the writ *42for the purpose of obtaining jurisdiction and exercising it in cases not otherwise within its cognisance.
Unless this construction be adopted, the citizens of this State have no such efficient remedy for unlawful restraints of their liberty, as the 13th sec. of the Declaration of Rights, makes it the duty of our Legislature to provide. A Judge out of court, has not the means of fully investigating cases or of enforcing his decisions. His judgments cannot have the requisite authority, efficacy or publicity, and the superior courts sit but twice a year for a week each time.
PeaksoN, C. J. ^ At the beginning of the term, the Judges requested the members of the bar to investigate the subject and give their opinions and their reasons for them pro or con, on this question: lias the Court jurisdiction to issue a writ of habeas corpus, returnable to the Court, and thereupon to inquire of the lawfulness of any restraint put on the liberty of a citizen. "We have'been favored with the opinions of Messrs. Moore and Winston in favor of the jurisdiction, and of Mr. Strong against it, and the subject has been fully discussed. After giving it due consideration, we are of opinion that the Court has jurisdiction.
This conclusion is put on two grounds :
1st. The Court has jurisdiction by common law. The laws of our State rest for a foundation upon the common law of England. It is an admitted principle of the common law, that every court of record of superior jurisdiction has power to issue the writ' of habeas corpus, which is the great right for the protection of .the liberties of the citizen.— This “ power is an incident to every superior court of record.” 3 Wilson, 172; 3 Bac. Abr., title Habeas Corpus; notes. It arises from the obligation of the King to protect all of his subjects in the enjoyment of their right of personal liberty, and for this purpose to inquire by his courts into the condition of any of his subjects. As this duty of the King in regard to any of his subjects, confers on every court of record of superi- or jurisdiction the power to issue the writ, as incident to its *43existence, it follows that the duty of the State of North Carolina in regard to its citizens, mnst confer a like power on all of its courts of record of superior jurisdiction, as incident to their existence ; for surely, under our Constitution and Bill of Eights, in which is reiterated the great principle of Magna Gharta, “ every free man restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to move 'the same if unlawful, and such remedy onght not to be denied or delayed.” The personal liberty of our citizens must be equally as well protected and secured as the personal liberty of the subjects of the King of England.
Our Constitution vests the legislative power in a General Assembly ; the Executive power in a Governor, and the Supreme Judicial power in a Supreme Court; so that the establishment of a Supreme Court, without any words to that effect, necessarily and as an incident to its existence by force of the Bill of Eights, of the Constitution and the principles of the common law, invests it with power to inquire by means of this great Writ of Eight into thelawfulness of any restraint upon the liberty of a free man, and if in establishing a Supreme Court, the Legislature had-in express terms denied the Court the power to issue this writ and prohibited it from so doing, such prohibition would have been void and of no effect.
Our conclusion that the Supreme Court has power to issue the writ is confirmed by a consideration of the provisions of the habeas corpus Act, Eev. Code, chap. 55. It is taken from. two English Statutes, 31 Charles II and 56 Geo. III. We have seen that all of the Superior Courts of England had power bj' the common law to issue the writ, but the coiwts could only act in term time, and a free man might be unlawfully imprisoned in vacation time, so the remedy would be delayed, and to provide the means of speedy inquiry into the cause of imprisonment, it is enacted by 31 Charles II, that every Judge of all the courts of superior jurisdiction, on the application of any person imprisoned upon a criminal charge, (unless after conviction,) shall in the vacation time, under a pen*44alty of five hundred pounds grant a writ of habeas corpus, returnable without delay, and by 56 George III it is enacted, that all of the Judges shall, in the vacation time, under a like penalty, in the same manner grant the writ on the application of any person imprisoned or restrained of his liberty for any cause other than a criminal charge. So in England any pfji’son, whether imprisoned on a criminal charge or restrained of his liberty for any other cause, had a right during the sitting of the courts, by application to the Court, and during the vacation by application to any one of the Judges, to have the cause of his being imprisoned or restrained of his liberty inquired into without delay.
Our habeas corpus Act, as before observed, is taken from these two English Statutes, and not only gives power to, but requires, under a penalty of twenty-five hundred dollars, any Judge of the Supreme or Superior Courts in the vacation time, to issue the writ of habeas corpus on the application of any person imprisoned on a criminal charge or otherwise restrained of his liberty.
It is manifest that this act pre-supposes that both the Supreme and the Superior Courts had power in term time to issue the writ, and the intention was to extend the remedy to the vacation. This must be a declaration by the Legislature of the fact that both the Supreme and the Superior Courts had power to issue the writ, or we must adopt the absurdity, that the Legislature intended to give to a single Judge in vacation,, a power which the Court did not possess in term time, an<| we can only account for the fact that while giving this power to the Judges in vacation, the Legislature did not in express words confer a like power on the courts, upon the ground that it was taken for granted that our courts, like those in England, already had the power ; for under the unrestricted legislative power of the General Assembly, it not only had the power, but it was its duty by the Constitution and Bill of Rights to confer this power on both the Supreme and Superior Courts, if the Courts did not already possess it.
2d. Suppose, for the sake of argument, it was necessary that *45the power should be conferred on the Supreme Court by statute, we are of opinion that it is conferred by the Act estaba lishing the Court; Eev. Code, chapter 33, section 6. It is in these words : “ The courts shall have power to hear and determine all questions of law brought before it by appeal or otherwise from a superior court of law and to hear and determine all cases in equity brought before it by appeal or removal from a court of equity, and shall have original and exclusive jurisdiction in repealing letters patent, and shall also have power to issue writs of certiorari, scire facias, habeas corpus, mandamus, and all other writs which may be proper and necessary for the exercise of its jurisdiction and agreeable to the principles and usages of law.”
There are several kinds of writs of habeas corpus; inferior ones, to enable the Court to exercise its jurisdiction,, for instance, ad testificandum — to bring a man out of jail to be a witness; and the great Writ of Eight, habeas corpus to bring any citizen alleged to be wrongfully imprisoned or restrained, of his liberty, before the Court, with the cause of his arrest and detention, that the matter may be inquired of and the party set at-liberty if imprisoned against law. This proceeding is original, and in no wise connected with or dependent on any other matter over which the Court has jurisdiction.
The question is: Does the Act restrict the power of the Court to writs of the inferior sort, or' does it confer power to issue the great Writ of Eight ?
In support of the first construction, it is urged that the words, “ all other writs which may be proper and necessary for the exercise of its jurisdiction,” show that the writs before specified, were intended to be of the same kind, and must have the effect of restricting the power to writs of the inferior sort. Several considerations are urged in reply : In strict grammatical construction, the restrictive words, “ which may be proper and necessary for the exercise of its jurisdiction,” refer to the last antecedent “ all other writs f so as to make the true reading (supplying the elipsis,) “ and shall also have *46power to issue all other writs which maybe proper and necessary for the exercise of its jurisdiction.” This further reply is made : If the intention was merely to give power to issue the inferior writs necessary to the exercise of its jurisdiction, (which power every court in fact has, by implication,) it Was sufficient to say, “ and the Court may issue all such writs as majr be necessary for the exercise of its jurisdiction.” Instead of this simple clause immediately following the grant of original jurisdiction to repeal letters patent, comes this formal commencement: “ and shall also ham power to issue Writs of certiorari, scire facias, habeas corpus, mandamus.” Why this formal announcement of substantive grant of power? And why are there four writs particularly named, if the object was merely to authorize the Court to issue the inferior sort of writs ?
In questions of this kind, the Court is not confined to the narrow field of the import of words, construction of sentences and rules of grammar, but may draw to its aid considerations of a more comprehensive nature, and if due weight is given to the power of the Legislature — its duty — the object in view and the nature of the subject — the conclusion is irresistible, that it was the,intention to give the Court power to issue the great “ Writ of Right?
The power of the Legislature in respect to the j urisdietion it was about to confer on the Supreme Court then to be established, was unlimited — it had. the same power to confer original as appellate jurisdiction.
It was the duty of the Legislature under the Bill of Bights, arid the Constitution, to provide in the most ample manner for the protection of the liberty of “all free men.” The object in establishing a Supreme Court, was to provide the tribunal best calculated to secure uniformitj and Correctness of decision in respect to all questions involving “ rights of person ” and “ rights of things.” This it was supposed could be accomplished by a Court composed of thr'ee judges. Eroul the ‘nature of the subject, in actions at 1'aW, and indictments where the facts must be tried by a j ary, it Was seen to be impracti*47cable for the Supreme Court to exercise original jurisdiction-. Hence, it was deemed expedient-, that all actions and indict* ments should originate in the lower courts, where the facts can be found so as to present to the Supreme Court only ques* tions of law by way of appeal: In suits in equity where, ah though the-facts are sometimes complicated-, the mode of trial is by the court, it was deemed expedient that the proceedings should originate below and then be brought up by appeal or removal after being set for hearing. So, in respect to these remedies only appellate jurisdiction is conferred.
There remained a fourth distinct and important subject of jurisdiction, to wit: the writ of habeas corpus. From its nature, no complicated state of facts can be presented > so that consideration presented no objection to the grant of original jurisdiction to the Supreme Court. 'While on the other hand, as all of the Judges of the Supreme and Superi- or Courts had power to issue such writs and decide upon the lawfulness of the imprisonment, in order to prevent conflict of decision and utter confusion and chaos, and to give uniformity and correctness to decisions involving the liberty of the citizen, the necessity of conferring original jurisdiction on the Supreme Court to issue the writ, and decide on the right, was patent; and, if the statute in question does not confer the power, no reason can be assigned for the omission : unless it was the opinion of the Legislature that the power would attach to the Court as soon as it was established, as an incident of its existence, upon the principles of the Common Law and Bill of Eights.
The Legislature had full power. It was its duty — there was a patent necessity — the object in establishing the Supreme Court could not otherwise be fulfilled, and no objection to it could be suggested. It follows that the Court has the power, either on the ground that the statute confers it, or the omis* sion to do so is a legislative declaration that the Court possesses the power as incident to its existence.
On the able argument with which we have been favored by Mr. Strong, he called attention to the fact that the act of *48Congress, 1789, establishing the Supremo Court of the United States, used nearly the same language as the act of the Legislature establishing the Supreme Court of this State, and that in the construction of the act of Congress, the Supreme Court of the United States have decided that the Court cannot issue the writ of habeas corpus , except whore the writ is incident to an appellate j urisdiction.
That is true, and it seems to account for the general impression which has prevailed in this State against the power of the Court. The fact that so many applications have been made to the Judges for writs of habeas corpus, during the last few months, has directed attention to this subject, and a closer and more serious investigation than the subject had before received, results in the conclusion that the Court has the power, and that the erroneous impression which had prevailed, is to be ascribed to the circumstance that due weight had not been given to the difference between the two Courts in regard to the sources from which jurisdiction may be derived. The Supreme Court of the United States can derive no jurisdiction from the principles of the Common Law. Its jurisdic-' tion must rest solely on acts of Congress, and the power of Congress to confer jurisdiction rests on the constitution of the United States. It can have no power except that which is conferred by the constitution,'and by it the power to establish a Supreme Court, is restricted to a court of appellate jurisdiction, except in cases affecting embassadors, &c., art. 3, sec; 2.
The very reverse of all this is the case in respect to the Supreme Court of the State. It may derive its jurisdiction from the principles of the Common Law. The power of the Legislature to confer jurisdiction is unlimited, and there is no reason why it should not, if deemed expedient, have established a Supreme Court with full original jurisdiction, or one with jurisdiction partly original and partly appellate.
In the opinion of Judge Marshall, Ex parte Bollman, 4th Cranch 98, 2 Curtis 24, a full and critical examination is made of the act of Congress, and he comes to the conclu*49sion, that by its true construction it would confer on the Supreme Court jurisdiction to issue the writ of habeas corpus, but for the fact that it was to be construed in reference to the limited power of Congress. Our act, on the contrary, is to be construed in reference to. the unlimited power of the Legislature, and in this view the opinion of Judge Marshall strongly supports the conclusion, to which we have arrived.
Mr. Strong also cited the case of Jones v. McLaurin, 7 Jones, 392. That was a scire facias against bail, and the Court decide that it has not jurisdiction,, because-.the scire fa-cias, as there used is, in effect, an action- of debt, in respect to which the Court has only appellate j.urisdi©ti.0B. The question we have before us is plainly distinquishable-. The habeas corpus, is totally distinct in its nature from any action at law, or proceeding in the nature- of ap action, or suit in. equity, or indictment, and is put by us on grounds peculiar to itself.
Our conclusion is, that the Court has power to issue writs of habeas corpus, returnable to the Court, and thereupon to inquire of and. decide upon the lawfulness of any restraint put on the liberty of a citizen. Tiffs, opinion does not affect the question of the-jurisdiction of a State court- where the arrest is justified on. the authority, or by color, of an act of the Congress of the Confederate States.. That question, may be the-subject of future consideration.
Afterwards, the cause-was taken up on its merits.
Mr. Moore, with- whom was Henry G. Jones, for the petitioner, argued as follows r
1. In the view of able lawyers, the- substitution involves a contract with the Government ~ they maintain that the provision that substitutes, not liable for duty,, might be received for such as were, with a knowledge hjt the law-maker, that the substitution would be attended with heavy sacrifice of money, is equivalent to a declaration by the Government, that those who would buy substitutes should be discharged from services for such time as the substitute should be put in. *50Did not the Government intend to pledge its faith to this extent, or allow it to be so understood ? It is certain that many arts were resorted to to make the law less distasteful, as may be seen in sections 1, 4, 6, 7, 8, 9, 13. Government, under the orders it established, was a great gainer by substitution. It took under order 58, all conscripts, though “ not fit for all military duty,” that were able to serve for nursing and similar duties: maimed men were .taken; but none such were allowed to become substitutes — none, unless they were “sound and in all respects fit for military service.” The fact is notorious, that a sound man is never wittingly exchanged for a worse one, though liable to duty : the bargain is always the other way — this practice of considering every man, not bedridden, fit for service, has driven thousands of invalids to resort to substitution to save themselves from death by the hardships of the service. But it is said that Congress could have intended no such bargain, because it was expected that from the boasts of the enemy, the country would need every available man. This was not the expectation — neither the press nor public councils held oút any such idea. We were constantly told that peace was but two or three months ahead; and the law itself stopping short by ten years of the ordinary military age, ignores any such idea. It is yet five years short of the allowed extent. It was at least reasonable for him who was invited to the privilege of putting in a substitute, to expect that, if the age of conscription were extended, those who were neither in the service, nor had hired substitutes, would be first called. It had been mere mockery to allow so short a respite to the conscript after prescribing to him that his substitute must be put in (and of course be paid) for three years or the war. Did not good faith require of the Government some distinct expression if such had not been its meaning.
It is suggested that if such had been its purpose, Congress was incompetent to pledge the national faith for its sanction, and that a succeeding Congress might in good faith annul the bargain. If Congress may make war, it may certainly, with* *51in the scope of its powers, determine the mode of raising armies. It may enlist upon what bounty, whether in money or privileges, it may please. It may borrow money and pledge the entire revenue to fill the treasury. It may procure the services of the citizen for two .years by agreeing to discharge him for the third. It may grant or withhold supplies both of men and'money. In a word, it can stop a war — and it is no answer that another Congress would not be bound, because of the disastrous consequences of the acts of the previous one. A nation’s faith is, to a great extent, its wealth; and it will be worthless, if, after pledging it, the public authority shall violate it, because the bargain is hard. Such a nation could not be trusted in war. Its soldiers taken in battle would be put to the sword, because it kept no faith. I admit a difference in a bargain between a nation and its citizens, and a bargain between two nations. The former may be violated if necessary in a very urgent case, upon making compensation; the latter must be submitted to, if fairly made. But no people could either love or respect its rulers who should lure them to action by promises and break them without Over-whelmning necessity, or liberal compensation.
2. But if there be no contract, only those who, when the calls are made, are not “ legally exempted from military service,” can be called into service. Now, who, on 27th September, 1862, and before the passage of the act of that date, were “ legally exempted ?” To'determine this question, wemust look to previous legislation.' The act of 16 th April, 1862, sec. 9, exempted all conscripts between 18 and 35 years of age, who might put in substitutes “ not liable for duty,” under that 'act. The act of 21st April, 1862, exempted (among other persons) mail carriers and ferrymen. Though exempted by different ■enactments, the exemption of each was secured by law^-and neither of the persons, thus exempted, could be put into service so long as this legal right of exemption continued. On this footing, they stood alike on 27th September, 1862, when the second conscript act was passed, which subjects to conscription all persons between 35 and 45 years of age, who are *52not at the times of the calls for them- “ legally exempted from military service.” It is certain that the mail carrier and ferryman did. not become liable-to be conscripted under this act. The only reason why they did not, is because they were “-legally exempted from military service” under a law still in force. This being granted, how then does the person who-had put in a substitute become liable?’ The law of 27th Sept. 1862, which extended the age to 45 years, and did but amend the law of April, 1862, which had given exemption on putting in- a substitute, did' not profess to take away any pri vilege of those who, before-that time, had been exempted by law. Now, if the mail carrier and ferryman, between those ages, were still excused, ir wa3 because they had been legally exempted by an act which had not been repealed ; and in like manner had been exempted, the principal putting in a substitute,, by virtue also of an ae-t which had not been repealed. In a word, did the act of September 2.7, intend to look to the then status, of those who had been “ legally exempted,” or to some now status introduced in the act ? The only term used concerning exemption evidently has reference to an existing status, and not to- one then- introduced.— In regard to mail carriers and ferrymen, it is manifest that the act designed to look to a 'previously created status / and by what rule of legal interpretation can we exclude other persons having a like- previously created legal exemption, unless some other words may be found indicating that purpose ? There are none.
3. But it is said, that though such he the proper interpretation of the act per se, yet the Secretary at War is authorised to regulate substitution as he may deem advisable panel I am referred to section 9, of the conscript act of 16th April, wherein it is provided " that persons not liable to duty, may be received as substitutes for those who are, under such regulations as may be prescribed by the Secretary of War.” On the 19th May, 1862, the Secretary published certain regulations, (General orders No. 37,) among which, by paragraph 4, it is provided, that the exemption gained by putting in a sub*53stitute shall be “ valid only so long as the said substitute is legally exempted.” I have'endeavored to show that the exemption, by the act, is for three years or the war, without reference to the time when, if out of service, the substitute would become liable. It is contended, that however right, abstractedly considered, this interpretation may be, yet, the Secretary is invested with a power over substitution, which enables him, by regulations, to modify the legal interpretation, •of the act itself, and that he may shorten or prolong the time ■of .exemption -by substitution. If so, then he is invested with a vigorous faculty of legislation indeed. A faculty tomate a regulation inconsistent with the very law which empowers him to regulate! The right in time of war to -substitute another in the place qf the drafted soldier has been known to, and exercised by, okr people at all times; and when it was provided that “ persons not liable to duty may be received as substitutes,” it was intended to confer a privilege on the conscript, and not to allow to the Secretary of War a pure discretion to receive or not, as he might please. Under the clause, he is Immd to receive in substitution “ persons not liable for duty,” and the only -discretion conferred on him, is to regulate the mode and manner by which they shall be received. He has no power to allow-one substitute for a month, another for a year, and third, for the war. When substitutes are received, they are to b a full substitutes, and are to occupy the entire place of the principal. The Secretary cannot halve the substitution. There has been, heretofore, no such substitution, though, at all times, it is necessary to ascertain his fitness, and regulate the mode of receiving the substitute. The law, itself, selects th-ose who are fit for substitutes, by declaring that they are “persons not liable to duty,” and, submits to the Secretary only the power to provide for the mode and manner of receiving them into the service. It may be regarded as quite clear, that the act did contemplate as fit substitutes all such as were citizens or domiciled residents, and were able to bear the fatigues of war, and who might lawfully volunteer in the .service. And it is equally clear, that while the persons *54are suck as are “notliable to duty,” they must,in the nature of things, be fit for duty. It is asked, why is not the principal also discharged when a minor under 18 is the substitute ? I think there is a manifest difference in the cases. I do not place it on the recent regulations of the Secretary of "War.— In the first place, at the time of the passage of the conscript act, it was an army regulation that persons under the age of eighteen, were not receivable into the army as recruits; (see Army Regulations of Confederate States, sec. 1299, and Act of Congress 6th March, 1861.) This was an old regulation of the United States, and became that of the. Confederate States, at the first Congress. It is a fair inference that such persons were deemed legally unfit, both separately, and as a class, for any military service. Such persons, besides being unfit, by reason of their tender years, had no disposition of their own time — they were bound to serve their fathers till they might be required to serve their country. In the next place, as the act of April makes all perspus conscrips as they shall arrive to the age of eighteen years and subject to the call of the President as they come to that age, they have no right to evade that service by previously undertaking a service for an individual, inconsistent with this foreordained public duty, nor had any person a right, for his own benefit, to contract with them so as to produce that result in the face of a known law. The minor coming to the age of eighteen is quasi under the law prospectively. But there was- no law which affected the man over thirty-five — nothing less than a new law could affect him ; and his rights and duties could not be predicated on a law which might or might not be made.
Mr. Strong, with whom was Mr. Bragg, eontra, argued as follows:
Is a conscript under the Act of Congress of April 16th, A. D, 1862, who was discharged upon furnishing a substitute, between the ages of thirty-five and forty, made-liable to military duty by virtue of the second conscription act of September 27th, 1862? It is maintained by the Government, that be does thus become liable. The transaction is no contract, *55but the mere grant of an indulgence, whereby the party is, for his own comfort solely, relieved from a hard service. — - There was no possible inducement to the G-overnment for such, a contract — no consideration. The services of the substitute were at the command of the Government, as much as those of the principal; and Congress by taking.primarily the principal, showed its preference for hiña as a soldier, and for the substitute as a citizen. So, there was a positive disadvantage to the Government. The labor lost and money spent in procuring the substitute, were not at the request of the Government, and can, therefore, furnish no consideration for a contract.
It cannot be supposed that Congress intended, without procuring thereby the very slightest advantage to the Government, to place it in the power of all men between the ages of eighteen and thirty-five years, to put themselves beyond the reach of their country’s call, durvng the war; at a time too, when the enemy were declaring that our subjugation was a simple question of arithmetic, and depended upon the^process of giving man for man, to death, or more if necessary, till our last man was gone. Such legislation would have been an act of madness unparalleled in the annals of time!
Congress had no power, under the constitution, to make such a contract. The right to call into service the military strength of the country, being a sacred trust, confided for the benefit of all, earmot he alienated ! If so, one Congress could place it out of the power of a succeeding Congress to raise an army, and thereby that clause of the Constitution, giving' Congress the power to raise armies be defeated. Cong”ess cannot place, or allow to be placed, the whole fighting population, on the footing (for this purpose at least) of foreigners.
Mr. Moore contended, that from this conclusion, it would follow, that Congress would have no right to pledge the future revenue of the country so as to bind its successors. The’ eases are not analogous. It would be an analogous case should Congress attempt to make a contract with the citizen, *56that if he would pay a -certain tax now, he should never after-wards be taxed at all.
He contended, that it would also follow that no binding ■contract could be made that an army in the power of its adversary shonld fight no more during the war, and that it might, therefore, have to be cut to pieces. The difference in the two cases is, that under the -war-making power, as interpreted by all writers upon international law, all contracts with the enemy, respecting the conduct of the war, are within the scope of "the powers of the Government. The point here, is, that fhe contract is not within that scope.
It was further contended, that it would follow that Congress and the people could not stop this war. This is too clear a non sequibu/r to require any reply.
Whatever the name or nature of the arrangement with the principal, a sense -of respect for Congress forces''us to the conclusion that this condition was’implied to wit: that the substitute should fill the place of his principal, and thus relieve him, till his own services became necessary, at which time he must take his own place, and the principal his. That his services have thus become necessary, is shown by the act of the :27th -of September, 1862.
It is admitted, and is considered settled, that the principal does become liable when his minor substitute reaches the age ■of eighteen years. Yet, no consideration affects this case, which does not equally affect the other. In this, it is urged that the principal acted in view of the liability of his substitute, under the act of Congress, upon reaching the said age of eighteen. In the other, it may be equally well urged that he acted in view -of the liability of his substitute, under the constitution, a yet higher law, upon an expression to that effect of the legislative will. How is it probable that the minor of sixteen years, would become liable? Was it not, under all ■the circumstances, equally probable, that he of thirty-six .years, would also become liable ? What then, is the differ-ence between him of sixteen, and him of thirty-six?
It is objected in this ca^e, that it would be absurd to sup*57pose that Congress intended the President “ to call ofit and place in the military service,” those who had been already called out, and were already in service. Is the supposition any the less absurd when applied to the youth, who, upon reaching eighteen, is already in the service. It is apparent from sections one, three and thirteen, of the act of April 16th, that Congress, intended the language above quoted to apply' to and embrace those already in the service — and that too, for a period longer than twelve months. The second sentence of the first section of the act, referring to the words above quoted, is as follows: “All of the persons aforesaid, who are now in the armies of the Confederacy, and whose term of service will empire before the end of the loarf &c., showing that some were intended to be embraced whose term of service would not expire before the end of the war. If persons already in service are embraced in the act of April, they must be also in that of September, since their language is identical.
It was objected further, that it could not have been intended to send soldiers already in service to camps of instruction, and to use them for filling to the maximum other companies aud regiments. But these provisions only apply to those who are to be enrolled, and those onl/y are to be enrolled who have-not been in service; see sections 4-and 6 ofthe act of'April 13th, and the act of October 8th, 1862, establishing camps of instruction.
It is objected further, that* if any bounty or privilege had been given to those- called out under this act, no one would suppose, for a moment, that the substitute of thirty-six would be entitled to them ? "Why then suppose that the substitute of sixteen would be, on reaching eighteen ? But, even admitting that they were embraced in the act, and had been so expressly declared, they would not be entitled to the bounty or privilege, because not within the spirit of that portion of the act, giving them.
It is argued that the regulation of the "War Department directing soldiers in the service, over thirty-five years of age not to be discharged, is founded upon the view that they are not era-*58braced within the body of the act. This is an error. It was founded upon that portion of the act which relates to this special subject matter: “All persons * * * over the age of thirty-five, who are now enrolled, &c., in regiments, &c., hereafter to be re-organized, &c., shall be required ” to remain in service for ninety days, implying that at the end of that time they are to be discharged; act of 16th of April, sec. 1. Paragraph 4, general orders for 1862, No: 37, dated May 19th, respecting substitutes, is as follows: “ the exemption is valid only so long as the substitute is legally exempt;” that is, so long as he would, in his own place and right, have been exempt, had he not become a substitute, because he ceases to be exempt at ones, as occupying- the place of another. This' order applies to the case before us, in which the discharge was given, in July, 1862, and is expressed to be in accordance with “tiie regulations on the subject.” This regulation, then, is as much a part of the discharge as if it had been written out in full therein. An admission that the regulation being matter of legislation is void,'would not vary this conclusion. The principle would be" same as if the discharge had been for a specific time, say six months, and in neither case, could the party get more than was promised him, and than he agreed to receive!
It is urged that the Secretary of War can only make regulations as to the time,’manner, &c., of receiving substitutes— that the regulation in question, is a matter of legislation, and, conflicting with that provision of the constitution which declares that the .Legislative, Executive and Judicial Departments shall be kept distinct, is void. But, supp'ose that Congress had, iiself, regulated the time, manner, &c., of receiving substituios, would not that have been matter of legislation ? And -would it be any the less so, because it was done through its agent, the Secretary of War? 'In this view, all the regu-tions on the subject, are void, and so no one is entitled to discharge. But, that the Judicial, and Legislative, and Executive powers (of course) may be exercised by the same subordinate agents, see Thompson v. Floyd, 2 Jones’ Rep. 313.
*59Upon any other construction than the one contended for by the Government, Congress, in passing the second act of conscription, legislated in the darle, as to how many they were calling into service; a conclusion forbidden by a proper respect for that enlightened body.
PeaksoN, C. J. For the reasons given by me in the matter of Irvin and in the matter of Meroney, I am of opinion that the petitioner is entitled to exemption. In those cases, (see noto*) I considered the subject fully, although I was not aid*60ed by the argument of counsel. The subject has been fully argued before the Court, and'I have reviewed my opinion previously given, with an anxious wish to decide the question *61according to. the proper construction of the act of Congress. The argument and my consultation'with Judge Battle, confirms my judgment as to the correctness of the views taken-*62by me iu those cases, and I refer to the opinions filed by me as the ground of my present conclusion.
*63Battle, J. My opinion concurs with that of the Chief Justice, that a person liable to military service as a conscript under the act of April, 1862, and' who, by virtue of the 9th section of that act,.regularly procured a discharge by furnishing a proper substitute, cannot be again enrolled as a conscript under the amendatory act of September, 1862, though such substitute majr have been, /when received, between the ages of thirty-five and forty-five years.
Cases like the present, have been so often and so recently decided in the same way by different Judges, and the reasons upon which the decisions were founded, have become so generally known through the medium of the newspapers, that it is unnecessary for me to do more than to state briefly my conclusions on the subject.
Persons between the ages of eighteen and thirty-five years, *64who have furnished substitutes, are .certainly not within the meaning of the Act of September, 1862, because that act is a call, in express terms, for persons between thirty-five and forty-five years of age. Yolunteers and substitutes between the latter ages are not embraced, because, being already in the military service, they cannot, with any sort of propriety of language, be said to be called out and placed in that service, nor can it, for a moment, be believed that such volunteer&and substitutes were intended to be taken-from the companies'and regiments of which they were already members and sent off to fill up other “ companies, battallions, squadrons and regiments.” Not being liable to be ealled into service under this act, the substitutes cannot be taken away from their principals by force of the act, so as to leave the latter liable again under the act of April, 1862, as having no person substituted and serving in their stead. If such principals can be made liable, then, it must be on account of some condition, either expressed or implied, contained in the discharges. The only pre*65tense for an express condition is a recital in tbeir discharges, that they are given under the orders and regulations of the War Department. The regulations of that department, made at the time when the discharges were granted, were, that the substitute should not be liable to military duty, and should be found, upon an examination by a surgeon or assistant surgeon of the army, to be sound, and in all respects fit for military service ; see Grneral Order, No. 29. The Secretary of War had no power afterwards to make an- order to have a retrospective operation to affect rights already attached. The Legislature may pass retrospective laws, but it is very certain that no other department of the government can. I conclude, then, that the, discharges were not subject to any express condition of the kind, contended for.
Neither can any such condition be implied. If any can be implied, it can only be upon the ground that the conditional event was in the contemplation of the- parties at the time the discharge was given. When- the act of April, 1862, gave to conscripts the right to employ, as substitutes, persons not liable under that act to perform military duty, could it have been contemplated by the parties, that the substitutes were to be taken away by another act of Congress, to be passed in a few months afterwards ?' Such a contingency was not so probable as that the substitute might desert,, or die of disease, or be killed in battle, and yet no person contends that these contingencies should be regarded as conditions implied in the discharges. The truth is, it was a- casus omissus, for which Congress neglected to provide, and it is too late for the War Department to attempt to remedy the mischief, by assuming to legislate under the name of regulations.
Whether Congress has the power to apply a remedy, and whether it is expedient for it to exercise that power, if it has it, is a question which it is-not my province to decide. I have' discharged the only duty which devolved on me in- this case, when I say, I think that-the petitioner is entitled to his discharge.
Pee CuRiam, Petitioner discharged with costs against the officer seizing him.