Gatlin v. Walton, 60 N.C. 333, 1 Win. 333 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 333, 1 Win. 333

T. H. GATLIN vs. EDWARD S. WALTON.

Tfce Acts of Congress of 6tb of January and 17th of February, 1864, concerning conscription, are Constitutional and valid.

If a contract were made between the government and the conscript, by the latter furnishing a substitute under the 9th section of the Act of 16th o^ April, 1862, the government has a right to annul the contract, by virtue of the power inherent in all governments, whose organic law does not expressly deny to them that power.

But it stems no contract was made by the government with the conscript furnishing a substitute.

A writ of certiorari was sued out by Capt. Gatlin, (see the case of Walton .us.- Gatlin on the'motion dor a-cer-tiorari,) returnable immediately. ■ The writ is set out at length because the form was settled by the Court.

■The State 'of North Carolina to the Non. Richmond M. Pearson, Chief Justice of our Supreme Court, Greeting:

Whereas, in the proceedings on a writ of habeas corpus, sued out by E. Stanly Walton against T. H... Gatlin and returned before you, and in the judgment thereon, rendered by you, there is manifest error,- to the injury of the said T. H. Gatlin, Captain in the army of the Confederate’jStates of America, as he has' complained to us. These are, therefore, to command you that you send immediately into our Supreme Court, now setting at Raleigh, the record of the said writ, proceedings and judgment, certified under your hand and seal.

Witness, Edmund B. Freeman, Clerk of our said Court, at office, the second Monday in June, 1864.

Indorsed upon the writ is,

The answer of Richmond M. Pearson, Chief Justice of the Supreme Court of North Carolina, within named :

I certify to tlie Supreme Court of North Carolina the writ of habeas corpus within specified, together with the return thereto, and the proceedings had thereinbefore me, and the. opinion given by me and judgment rendered in pursuance thereto, as I am within commanded.

Witness my hand and ^eal, this 25th day of J une, 1864.

R. M. PEARSON, C. J. 8. C, [seal.] '

The writ of habeas cúrpus, the return thereto and the proceedings and judgment thereon are described in the report of the motion for a certiorari.

Bragg for Captain Gratlin

Section 9, Act of April, 1862, providés that “ persons hot liable for duty may be received as substitutes for those who aré, under such regulations as may be prescribed by the Secretary of War.”

A subsequent Act repeals the Act of April, 1862, and. declares that persons who have put in substitutes shall be liable to military duty in the.army. ■

The question before the Court turns upon the validity of this last. Act, and upon that alone.

' It is settled by this Court that, under the law allowing substitutes, the Secretary of War had no power by “ regulation” to superadd any condition, not authorized by the law, to the terms upon which a party was allowed to pub in a substitute, as, for instance, that the principal should become liable to duty whenever the substitute became liable, and so by a parity of reasoning, he nor any one else could grant any discharge, other than one warranted, by the Act. He had but a power under the Act to allow persons not liable to be received in place of those who were , liable, under such regulations as may be prescribed by him. Any absolute discharge, then, from military service, although granted in so many words, would be invalid, unless warranted by the law, and a party holding such discharge can take no benefit from it. It is insisted, however, that when a substitute has been received, pursuant to the Act, it amounted to a contract between the government and the principal to exempt him fr.om military duty for the period for which-the substitute was accepted; that the government had no right to abrogate that contract, under which the principle had vested in him a right of exemption from military service, or, at all events, that it cannot be-done without compensation. And hence, it is insisted that the Act of Congress last March is unconstitutional and void.

To authorise a Court to declare a law unconstitutional and void, it must be so, - clearly and beyond'a doubt. See U. S. Dig., sec. 1, p. 553, where cases from U. S. Supreme Courts and from State' Courts are collected ; and in this .State, Bank of Newbern vs. Taylor, 2 Murp., 266, Hoke vs. Henderson, 4 Dev., 8.

Is there ,a contract ? Because if there is none it ends the matter. To determine this question w.e must look to the Act, give it its proper interpretation and then- determine the question of contract upon the facts of this case.

"We are, in the’first place, to consider what was the intent and meaning of the law. Was it intended to be a contract between the government and its citizens, by whichb the latter were to obtain an -absolute and irrevocable discharge for three years or the war from military service, or was it an act merely for the ease and favors of those who-chose to avail themselves of it, and from which the government nether derived benefit nor expected to derive any benefit P

To suppose the first is to take it for granted that the government was indifferent to the best interest of the country; that they intended to give up beyond the power of reclamation our chief means of defending our rights and liberties, tbe right to require every man, capable of doing so, to bear arms in a war of these Herculian proportions, and in which our enemy had declared an intention to subjugate ús by superior numbers. Such legislation would have been madness ;.-jt would have been criminal. And it would be unreasonable to suppose that the law-making power intended to tie up its own hands and the hands of its successors, (if they could do so,) never mind what might be the necessities of the country, arising out of a state of war then flagrant, and which has so soon rendered necessary the service of every able-bodied man, and even boys, in the field, in the opinion of that same government, the only power having the ri'ght to judge of that necessity. That such considerations ought to be well weighed in passing upon the question O'f the true intent and meaning of the Act, see McRee vs. Wilmington and Raleigh Rail Road Company, 2 Jones, 189; State vs; Matthews, 3 Jones, 459 ; 2d Parsons on Contracts, 516, and notes f. s. g. Read what Taney says in 'g". note:

“ To establish a contract on the part of the Legislature to relinquish any of its powers, plain and unequivocal words must be used. ’ ’ State ns. Matthews, 3 Jones, 459. And I may add that such should especially be so in cases Jof vital powers — as that oí raising armies. -

Acts or grants' of a Legislature i are to be construed strictly as to public rights and not extended by construction,,8 Howard, 581; 13 How., 81 ; V- Grier, J., note f., as above in Parsons; Charles River Bridge vs. Warren Bridge, 11 Pet., 544, 548. Theseare cases of corporations, but the principle applies, and with much force, to individuals' owing public duties, as in this case.

It seems to me, therefore, that the exemption was a meré privilege for the ease and favor of the party, was so intended and so regarded by Congress and' the parties. It was no sort of benefit to tbe government. or country to receive one man in tbe place of another, supposing each to be equal in fitness, (though we know, in fact, how the thing has worked to the contrary so far as the efficiency of the army was concerned.) I know it has been urged that principals of substitutes have paid their money to procure them ; hut that is a matter which does not concern the. government and cannot affect this ‘question. It is collateral .‘to and dehors the alleged contract with the government, and is no consideration as between government and principal. The only plausible ground even of consideration as between them is that the principal furnished a substitute — a soldier to take his place — and even that is to be taken with reference to the considerations which I have stated — the rights and duties of the government as to the public defence, the existing state of war and the future necessities of the country, and the. known duties of every citizen to aid in public defence. And looking to all of these, and inasmuch as it does not clearly appear that a contract, involving such serious consequences, was intended or is borne out by the words of the Act — “ substitutes may be received ” — it seems to me very plain that the Act ought not to receive any such broad interpretation against the public; but that its lan-aage admits of a narrower one and one altogether rea'sort-,®S. and proper ; and that is that there was no contract, ^u^'at substitutes were allowed for the ease and favor on ^ 'those who put them in. I rely too, for this, upon. the opi.>n 0f Battle, J., in the matter of Bryan, habeas corpus cs,., in ^ 0ou.rt.

Bilí» ‘ng that there was 4 contract, is it of such binding e ec^ ^ the Confederate, government .as to render invali t e cv 0ongress t0 place these men in the service so, i n. f,e because of the want of power in th« government as one of limited powers, or because it violates some provision of tbe Confederate Constitution.

In 1 Peters, C. C., 322, Bvans vs. Eaton, it is said there is no provision cf the .Congress of the United States, (of which ours is almost a cofy,) forbidding the passing of a law by that government impairing the obligation of a-Contract, and none such" is implied.

I do not think this case means, nor do I intend to say, that the government possesses all the power hot prohibited to it in the Constitution. I hold precisely the reverse, that it can only exercise such powers as are expressly granted,' and such incidental powers as are necessary to carry into effect the powers granted. But the case is an authority to show that there is nothing in the Constitution, either express or implied, which forbids the exercise of the power ■.claimed for it in this case. The clause, as to contracts, relates to the States, while the Constitution is silent as to the general government.

Some speculations of Judges, relied upon heretofore in a published argument, of one of the eminent counsel on the other side, (Mr. Moore,) are to be found in 6 Crauch, 134, Fletcher vs. Peck, as to whether under our free system of government, a Legislative body can divest a vested riff* in property in one and vest it in another ? ‘Wbethfiv /-’h an act does not go to the very foundation of gm erv; "Whether -•ent, and is not inconsistent with the-fundamental prif h*e ^ freedom and good faith upon which all freo gov<''“i:nt JS founded, V. Marshall, Oh, J., and Johnson/' l5ui; 110 such decision was or could 'be made in the ca/l)e ^iem‘ The case was one of a grant of land purs''1 \act the Legislature of Georgia ; a legislative-0 ^ie£rant on the ground of fraud in the .formed 0n<' * grant to others.

These speculations relate to property vested, and the naked question, involved in them was not then presented ne- ’ cessarily, and never has, tó my knowledge, come before the Court. The Court could only take jurisdiction of matter upon the ground that the State had passed an act impairing the obligation of a contract.

But it is clear from the case that the principle, whatever it may be, was not intended to apply to cases like the present, for Judge Johnson, in his opinion, page 143, is careful to except them, and the case is an authority on our, side.

He says, in speaking of the principle :

" A contrary opinion can only be maintained upon the ground that no existing Legislature can abridge the powers oifthose which will succeed it. To a certain extent this is. certainly correct, but the distinction lies between power and interest, the right of jurisdiction and the right of soil. ”

" The right of jurisdiction is essentially connected to, or identified with national .sovereignty ; to part with it is to commit a species of political suicide. In fact, a power to produce its own annihilation, is an absurdity in terms. It is a power as utterly incommunicable to a political as to' a natural person. But it is not so with the interest or property of a nation. When these are granted, they cannot be resumed at will.”

I shall have occasion to invoke this principle hereafter, and cite other authorities to the same effect.

I will merely add on this point that the Supreme Court of the United States afterwards, in the case of Charles River Bridge vs. Warren Bridge, 11 Peters, 425, held that they could not pronounce a State law void, as against the Constitution of the United States, because such law divests vested rights, (as was then the case,) in property, unless the law had the effect to impair the obligation of a contract, the Court holding that there was no contract impaired by ' the law in' the case before them. •

■-By the Constitution, the power “ to raise and support armies,” is ghten to the Confederaté government. It is denied' to the States. The power in the general government is unlimited as to the manner or means of doing it, oras to the numbers ©r persons to be called into service. These are all matters to be determined by Congress.' Story on Constitution, abridged ed., 413, 416, (read,) Hendon, H.‘ 0., 8, (read.) Every government has a right to call out its people capable of bearing arms for its defence, Vat-tel 440 and sequel.

This power is a sovereign one. It is a vital power, and to part with it, if it can be done, would be destructive of government itself. Therefore, we say that no Congress of the Confederate States can part with' this power, or by law, deprive themselves or their successors of it, by ■ contract or otherwise. All- such laws are without validity to prevent the full exercise of a power, such as we have been speaking of, and if intended to have the effect of a contract, the contract is voider voidable, and certainly ended when such impairing act is repealed.

A Legislature cannot, by contract, divest itself of a power belonging’ to it, and which concerns the public welfare for it .to retain, East Hartford vs. Hartford Bridge, 10 How., 534-5.

A municipal corporation, the. city of New York, has-no power-by a covenant to limit'or abridge its legislative powers conferred upoon it by charter or by law, they being con-conferred for the benefit of the public, and to be used by them and their successors in authority, Presbyterian Church vs. City of New- York, 5 Cowan,. 538, Goszler vs. Corporation of Georgetown, 6 Wheat. 593, V Cowan, 58V, to 604, and following; 15 Pickering R., -252, 17th Bárbour, 436 ; 4 Texas R., 378-9. *

And these principles manifestly apply to the government of the Confederate States. It was established by the States or the people, and clothed with certain powers, as the power to raise and support armies, to, declare war, make peace, &c., all of which are for the benefit of the people, and to be used for their welfare, and cannot b§ sold or parted with by contract, so as to prevent their exercise at any time when the necessity or well being of their country require their exercise. Nor can they be ever fritted away or impaired, as in the case before us, because tó allow a partial impairing of such a power is to allow a total deprivation of it. Would Congress have the power to pass a law exempting every man from military service in the army for and during the war, who would pay a stipulated sum ? That is a much stranger case than that' before the Court. ~ And yet, I apprehend that even in such a case, the answer must ‘ be in the negative, otherwise Congress has the .power to sell itself and the country out of an army to defend the country. Such a power would be self-destructive, and an absurdity in its terms, in the language of Judge Johnson, That the government is one of limited powers, is true, but it seems to me that has nothing whatever to do with the question. It is said it has no power to violate a contract, because it is a government of limited powers ; the answer is, that it has no power to* make a contract to impair'or destroy a vital sovereign power. It is void or voidable, at the will of the Congress.

The same may be said of the power of eminent domain— the right to take private property for public uses. It cannot be parted with, and it may be used whenever the public welfare, in the opinion of our law-makers, requires its exercise. And property may be taken, either corporeal or ' incorporeal, even a franchise of a corporation, for it applies to corporations as well as individuals. And it is said that all grants from government and contracts with the citizen are made upon this implied condition, 2 Parsons Cont., 519, 523, and notes, 519, 521. I admit that in all such cases, under the Confederate Constitution, payment must be made to the owner or provision made for assessing the value and for paymen^, before the property is taken.

And if seems to be conceded by some that had Congress provided compensation to the principals of substitutes, there would be no valid objection to the law. The Constitution provides that “private property shall not be taken for public uses except on just compensation.’’ But such a provision does not reach this case. No property is taken, tangible or intangible, corporeal or incorporeal. It is a deprivation of an exemption merely, which the party claimed to have obtained, over and above the mass of his fellow-citizens, from the performance of an important' duty, which every citizen owes to his country, and which, from the very nature of things, can only be during the pleasure of his government. The government demands not Walton’s property, but himself. It wants the thews and sinews of its citizens for a great public purpose, and these cannot be valued. It is not concerned with any payment made by the principal to the substitute. That is a collateral matter," resting entirely between those parties. One man has paid a large sum, another a very smalt .one, a third nothing at all, but some friend lias taken his place. - There is no allegation or proof that any thing was paid in the'case before tbe Court. What mode of compensation then could be adopted ? None, certainly, that would bo uniform, and at the samo, time just to the parties and the government. All this ■ shows that such cases were not in contemplation of that clause of tbe Constitution relative to the taking of private property for public uses, which relates to property.that can-, itself, be used, valued and paid for, and not to political rights or dutie|. We fall into the error by confounding the powers to. raise and support armies, a sovereign power, unlimited,. with another sovereign ppwer, eminent domain, to take-private proper ty-fot public use, a limited power, that-it must be done for public use and no .other, and that it must be paid for.

That no compensation, as a condition precedent in cases like this is to be made, is, 1 think, apparent from- the authorities heretofore cited by me, touching the binding effect of such contracts.

In the case of the Presbyterian Church vs. City of New York, the corporation of the City conveyed lands in the City for the purpose of being used for a Church and Cemetery, with a covenant for quiet enjoyment, and afterwards, pursuant to a power granted by the Legislature, passed a by-law, forbidding the use of the lands as a cemetery. Théy were sued by the church for breach of covenant: held that there was not a breach of the covenant which entitled to damages, but it was a repeal of the covenant.

In G-oszler vs. Corporation of Georgetown, an ordinance liad been adopted by the City government for a level and graluation of certain streets, in which it was provided that, when made and confirmed as provided for, the level and graduation should never he. changed, hut should be binding upon the corporation and.,all other persons, and'be ever after regarded ‘in making improvements. Tliey subsequently made another ordinance, changing the level and graduation, there was no provision for damages. They were ^joined — one of the grounds urged against the exercise of the power was, that the first ordinance was in the nature, of a contract with, the property holders on the. street and could not be violated. But held that it was not binding for the reason that, assuming it tp be a contract, it would abridge the legislative power of the corporation.

I will not trouble the Court farther by tracing out the same principle in the other cases cited with the two above. Now if it were so that Walton could sue the government upon the contract, admitting there was one, I take it to be clear that he could recover no damages, either because the contract was ah initio void, or else that it was voidable at the pleasure -of the government and had been repealed by force of the subsequent statute, and that, not being entitled to damages, he is not entitled to any provision for compensation, as a condition precedent to the validity of the law.

Again ; it is well settled that the clause of the Constitution of the United States, forbidding any State to pass laws impairing the obligation of contracts, and which is the same in ours, relates only to private property and not to public property, or - public or political rights, or duties which a citizen may have or owe his government. Marshal, C. J., Dart. Col. vs. Woodard, 4 Wheat, 629 ; 2 Par. or Const., 511. And'so I conclude that the clause, as to making compensation for private property taken for pub-licarse, .will receive a similar interpretation, and not be extended to the impairing of other great and essential powers of the government. It ought to be held to embrace only the same kind of property, property as well understood and-in the ordinary sense of the word. It. may. be said this leaves a party without remedy in many cases, and that for substitutes there are cases in which large sums were paid, and others still harder in their nature, and in which the good faith of the government was relied upon ; to exempt them. Doubtless súme f'hard cases”'may be %md; others again have but little merit. We must remember, however, that under every government there are many cases, and always will be, óf claims which parties may justly have, but yet have no remedy, save an appeal to the justice and liberality of the government, and to which, it is to be presumed, the government will promptly respond but it does not follow that the government is powerless in such cases until compensation is made or provided for.

Government- has power to make treaties with foreign nations. They are contracts. between the two nations, and sometimes between our own .people and government. Our citizens some of them may acquire rights under those treaties, or their rights may be divested — even vested interests in property. The Ashburton treaty and the treaty with France are instances. This is well settled and it is done without any provision for compensation, though no such power is expressly given in the Constitution. Again, t is well settled that Congress may annul a treaty as was done with the treaty of France in 1*798, notwithstanding it may impair or destroy the-vested rights of individuals. All this may be seen by reference to Story on Const.,, or any work upon the Constitution.

When another treaty was made with France claims for spoilations of property of the people of the United States were abandoned and yielded up, ■ in consideration, it was said, of other advantages obtained ; and yet no one doubted the power to do so, though it was insisted that there was a high moral obligation resting upon the government to indemnify the parties ; and so there may be here, but it furnishes no means for dedlaring the law void on that ground, or on the plea of a want of good faith.

■ The power to raise armies and make war is equally as great and just as are necessary to the existence of the government and the w.ell being of our people and defence of our rights and liberties, as that of making a treaty of peace- or any other kind, and by which the rested rights or property of a citizen may be yielded or transferred.

Again ; it is settled that the clause as to impairing contracts does not apply to State laws, allowing a dissolution of the contract of marriage, for cause, 2 Parsons Const., 521 ; and also that the States have the power, notwithstanding any contract, to enact general public regulations for the preservation of the public health or morals, 2 Parsons, 538; and so of lotteries and licenses to sell spirituous liquors, notwithstanding such licenses have been paid for. All cases concut that the law may be, repealed when gratuitous — most of them even when' paid for. It is hardly necessary to cite such cases, but 1 do so with the remark that if a State can exercise ■ such powers, a forteori, is this the case with the Confederate government as to which there is no prohibition, arid when legislating, as in this case, within the scope of one of its sovereign powers and upon a matter of vital importance.

Another" part of the same clause of the Constitution as that upon which I have here commented lias also been invoked against the validity of the law rendering the principals of'substitutes liable to military duty — ‘‘that no person shall be deprived of life, liberty or property without,due process of law.” These words are substantially, if not literally, taken from Magna Chati a, and have, in one shape or other, been incorporated into all the American Constitutions, Stafe and national. They seem to me to have no bearing whatever, when properly considered and interpreted, upon this case. Neither the life, the liberty or property of Walton is taken away or proposed to be taken away, by the Act of Congress.

Arbitrary trials, not before our peers, arbitrary arrests and imprisonment' without cause specified were made and special acts of attainder and forfeiture, were not .unfrequently passed without trial or any process of law. These evils were further guarded against in England by the petition of right, the great habeas corpus Act of 31st, ch. 2, and the Bill of Eights in 1689. Due process of law relates to trials in Court and before one’s peers, and is so defined by Sir Edward Coke, commenting upon this provision, See 1 Bl. Com., 44; Hoke vs. Henderson, 4 Dev., 14.

The Parliament of England having unlimitedpower passes special acts of attainder and forfeiture against individuals. It is a sort of judicial legislation, and a party against whom it is launched, does not suffer by the laio of the land or by due process of law, but by a special - law, unknown and inapplicable to the other subjects of the realm. Blackstone explains it. After saying law is a rule of conduct---a rule for all — he says':

“ A particular Act to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law, for the operation of this act is spent upon Titius only, and' has no relation to the community in general; it is rather a sentence than a law. And so in Hoke and Henderson. ■ The Act of Assembly virtually, by a judicial Act, deprived one man of office, and conferred it upon another, and hence was held unconstitutional as violating our bill of rights, which declares that, the different, departments of. the government shall be separate and distinct, and that no one shall be deprived of his property (ah office being property,) unless by the law of the land. Yet it was held that the Legislature might have abolished the' office or reduced the term for which it was held to operate perspectively.

Inorar case the privilege of exemption from military-duty was abolished, which Congress might we,ll do, when, in'their opinion, the necessities of the country demanded it.

Again : Congress is forbidden to pass any exponte foleto law, and the States are also forbidden to do so. But such laws relate to crimes.' It is well settled that Congress may pass retrospective laws, and so may the States, provided thejr do not impair the obligations of contracts, see cases 1, U. S. Dig., 551, sec. 68.

To conclude. I have found one, case, and but one, as to exemption from military duty by law, and the power of a Legislature to rpvoke such exemptions.

The case of the Commonwealth vs. Bird, 12 Mass. R., 443, (Margin.)’ It seems to me in point, and the reasons given by the Court in its opinion, one very much as I have before attempted, in part,- to urge, and which, I think, ought to govern this case. It decides that the Legislature has power to make an exemption from serving in the militia before granted, to á certain class of citizens, and to require them to do duty ; and the opinion is, to the effect that it is even go when there is an express contract, for the reason that'one set of legislators cannot control’their successors to this extent, in a' case of such vital importance to the commonwealth. Yet the Constitution of Massachusetts, (declaration of rights, paragraph 10,) contains the following :

“ Each individual of society has a right to be protected by it, in the enjoyment of his life,, liberty,-and property, according to the standing laws. He is obliged, consequently, to contribute his share to the expense of this protection ; to give his personal service, or an equivalent when necessary. But no part of the property of any individual -can, with justice, be taken from him, or applied to the public use, without his own consent or that of the representative body of the people. -In fine, the people of this commonwealth are not controllable by any other laws than those to which their Constitutional representative body have given viheir consent. And whenever the public exigences require that tbe property of any individual shall be appropriated to public uses, be shall receive a ■ reasonable compensation therefor.” Adopted in 1180.

If such then be the power of the States, then a forbori does it belong to the Confederate government, whose duty it is to raise armies for the defence of all the States- and the people against a common enemy. I may add, that the above case was decided in a time of peace, when the minds of the judges were free from all excitement or prejudice, and is to be taken as the deliberate opinion of the Supreme Court of Massachusetts, headed then by Parker, C.' J. Clarum etvenerabile nomen, in the law. i

I hlso refer the Court to a case lately decided by the Court of appeals of Yirginia, and one decidéd by the Supreme Court of Alabama, affirming both of them, the constitutionality of the law now in question before this Court.

Moore for Walton

The conscript act of April, 1862, section 9, provides “that persons not liable to military duty may be received as- substitutes- for those who are, under such rules and regulations as may be prescribed by the Secretary of War.” The time of service is three years, unless the war shall sooner end. The Secretary of War published an order that a person ihus liable to military duty, might put an able-bodied man, not liable to military duty under the act, in his place, and thereby become entitled to his discharge from the service exacted of him. Accordingly, such a substitute was put in, and the principal was discharged by the government absolutely and without condition ; for the law did not make the substitution or discharge ‘conditional to any purpose whatever.

Now, is this a contract between the government and the principal ? And, if so, can the government violate it upon necessity, even, without compensation ? If it is a contract, it is an executed one. “ A contract is*a compact between two or more parties, to do, or not to do, a particular thing. ’ ’ Ogden vs. Saunders,'12 .Wheat, 256 ; 1 Parsons const., 5, Smith on contracts, Law lib., 2 Story const., § 1376. Whether any cohtract exists, and, if so, what is - its proper interpretation, is determinable npon the principles of the common law. 2 Story, const., § 1330. '

These principles require to every contracta consideration. They do not, however, look to the question, which party has obtained the advantage in the bargain. Indeed, the contract is as obligatory without any advantage to the promiser as with it. “ The main, rule in regard to the sufficiency of the consideration,- is, that it may arise, first, by reason of a benefit resulting to thq party promising, or at his request, to a third person by the act of the promiser : secondly, on occasion of the latter sustaining any loss, or inconvenience, or subjecting himself to any charge or obligation, at the instance of the person making the promise, although such person obtain no advantage therefrom. Chit, on contr., 30 ; 1 Parsons contr., 356; Smith on contr., and cases .cited. ' .

The entire case may be briefly stated, thus :. By force of the conscript act of April, 1862, a citizen between 18 and 35 years of age,,became liable and owed to the government military service for three years; and another citizen, beyond the age of 35 years, did not become thus liable. The government} in order, to make the debt more acceptable to the military debtor, said to him, at the very moment of de-' manding the military service, “ you may be discharged of the duty exacted of. you, if you will choose to do so, by putting in your place some fit citizen of whom this military service is not required.' This proposal, however, is made of'mere favor, and without any purpose -or expectation of seeking any benefit therefrom.’/ Such is "a fair construction of the undertaking by the government in section 9.

Well, in pursuance of this declaration, or proposal, or promise, tbe military, debtor proceeded to subject bimself to tbe incofívenieneé. and charge of procuring a person who was not liable — not a military debtor — both able • and fit, and offered him in his place, and be was accepted, and the government forthwith' discharged the military debtor from the service demanded of three years.

Now, if this had been a stipulation between two citizens about a matter of money, property, or service, there would never have arisen any doubt that a contract existed; and that the debtor was fully acquitted of the whole matter demanded of him in the outset. Let us see if familiar cases of illustration in.the law do not frilly support this conclusion.

A is bound to convey to B the tract of land called “ Black Acre.” He is reluctant to do so, and therefore B, of mere i grace, says that lie will accept in lieu another tract, which is forthwith conveyed to B, who thereupon discharges A of his obligation.

Again : A owes B a debt, and A proposes to pay him with the bohd of C of the same amount, winch. proposal of mere grace, is accepted, and A is discharged.

Again : A is bound to serve B for one year in a specified calling. B gives him leave, of mere grace, to put in his place another man not bound to serve B at, all at the time. •This other man is accepted and A is discharged.

In all these cases, the substituted obligation and service are allowed ás a privilege and .of mere grace and favor ; yet the discharge is binding in every Court in the land. Take one more illustration : Suppose that by a tax law, A is taxed during three years in futuro,, nine-tenths of his income ; and the Confederate government proposes to him, of mere grace, that if he will pay down thrice seven-tenths of his annual income, estimated according to rules prescribed by the Secretary of the Treasury, be shall be discharged from all other and further tax on his estáte, and A does so. Can the government, after getting- the cash, rightfully claim to tax his income too, without restoring the cash ?

Now, in the first three illustrations none will dispute'the law as it is stated. In the fourth, I am sure that any government, even with .the power to retain the money, would be ashamed to do so ; and that any independent judiciary would decide, that it could not. Yet in the cases between individuals, there was no benefit or advantage to the prom-' iser. The substitution of one duty for another was allowed of mere favor, as was the substitution of another to the particular duty required. Of this character often are the promises made by the victors to the vanquished on laying down their arms. The surrender was the consideration, and in all ages has been deemed of the same force and virtue,, whether'the promise was made of necessity, of expediency, or of grace, which, it must be admitted, has been generally better kept when it came of. grace, because that impulse is from a generous and noble, as well as a just heart. „ ■

It is easy, if the above examples are not sufficient to enforce conviction, to present cases of illustration still more apposite. As, for instance, suppose section 9 had declared that persons not liable to military duty may be received as substitutes ; and provided, that not less than two shall be deceived for one thus liable ; or that the sumof $1,000 may be received in substitution of the three years’ service ex- •' acted by the act. Now, these offers would have been as purely of mere grace and favor, if not so liberal, as that which is actually offered. If, under-.such enactment, one person had put in two substitutes and another had paid . $1,000, would any one deny that the faith of the nation would be pledged to them, and that a contract would, arise instantly on accepting and fulfilling tbe terms proposed by tlie law ?

I have forborne to allude to the fact that Congress, at the passage of the act, was fully aware that substitution would" involve the expenditure of large sums of money ; and that the bargain between the principal and his substitute would be based upon the assumption that the substitute would'be obliged to remain in service the, entire time for which the principal would be; and that for such ‘ time the principal ■should be excused. Such was the popular belief throughout the country. The various attempts of the Secretary of War to impose, by his own orders, conditions upon the extent of the discharge, but prove his own convictions of what meaning the act of Congress generally .disseminated throughout the land. The disregard by the Courts of the unlawful conditions attempted to be annexed to the discharge allowed under substitution, had sufficiently informed Congress, in what sense people accustomed to construe laws, received the privilege of substitution. The recent act subjecting all principals, whether their substitutes be liable or not to military service, manifests an utter disregard of the confidence reposed by the constituent in the representative, and of their common understanding of the laws enacted by 'the latter for their common observance. It may be true that all this does not properly enter into the decision of the Court upon the question whether there be a contract or not. And for that specific purpose I forbear to urge it, not because it is not connected with the idea of contract, but because the contract is complete and obligatory without'it. It matters not, in law, whether the substitute took his place in the ranks through love of money or of mere affection. But truly the heavy cost, in most case's, of procuring a substitute, founded on the idea of exemption for three years, ought to have warned the • government against laying rasb bands' on ,tbe principal, and makes heartless the violation of a contract accompanied by such had faith.

Having shown that the substitution • allowed by thé act involves a contract to discharge the principal, for so long a tipae as the principal owed his own service, it remains to inquire to what extent this contract is obligatory on the government.

Every valid contract vests in the parties actual property of something of that valuej by whatever other name it may be called, a right, a privilege or a franchise. It matters not whether they adhere to the. corpus itself, of property, or attach to the person,- position or employment of men, they are all alike sacred objects of legal and constitutional protection against public. seizure, breach, impairment or destruction. Thus.if the sovereign grant land upon condition tjbat the grantee shall be subject to pay annually 25 cents per acre for tax and no more, all taxation beyond is illQgal and a breach of contract; New Jersey vs. Wilson, ’*1 Cr., 164. If A borrow money upon promise not to tax the security issued, its bonds executed for that purpose, cannot be burthened with any revenue by it, without á breach of contract.

If a banking or a railroad corporation be created with a promise to the stockholder against all tax, no imposition •can be laid without impairing the contract. State bank vs. Knoop, 16 How. 369, Woodruff vs. Tapnall, 10 How, 190, State vs. bank Capo Fear, 13, Iredell 15, Attorney General vs. bank Charlotte, 4 Xred. Eq. 28'L-

If one is let into an office during good behavior, he cannot he displaced at discretion to make way for another during the continuance, without the seizure being, illegal and a breach of contract. Hoke vs. Henderson 4, Dev. 5. If -the sovereign grant the exclusive right of fishing in a navigable river or arm of the sea,- it cannot extend tbe right of fishing in the same waters to another without a breach of contract. Town of Pawlet us. Clarke 9, Or. 92. Terr'ett vs. Taylor, 9, Or. 43. When a law is-a contract, a repeal of that law cannot take a why vested rights under it. Fletcher vs. Peck, 6 Or. 87.

Every sovereign is a moral being and may bind him'sel f within the sphere of his powers, to the same extent as may a private person within the scope of his faculties ; and each alike breaks his contract when its complete fulfillment is denied. The obligation of a sovereign unlimited in power rests on his honor. . If he be limited in power and make a contract vesting rights in the subject, it rests with the judiciary to protect such right against his encroachment.

If substitution be a contract, the principal has a property in it as truly as in a traet of land granted by the general government, and. that government has no more right to violate the one than to seize the other. That government is vested with the power to dispose of the public lands, is clear. Is it not equally clear that it has no power-to rescind its grant? “ A grant implies a contract by the grantor, not to re-assert the title granted. ” -Fletcher .us. Peck, 6 Cr. 87. We may say, in like manner, that a contract implies an agreement by the parties not to re-assert the right parted With by' the contract. But the Confederate government has no sovereign right to break a contract which it has a constitutional right to make. It has n© granted power to violate any constitutional engagement it. may enter into.' It exists only by virtue of powe'rs conferred on it. Its powers and its rights go hand in hand. If any nation may willfully retract its grant or violate its contract with its own subjects, it is because of its unlimited powers, and its being beyond the pale of ■ being questioned by any of its tribunals.. If the Parliament of England have the constitutional power to transfer the land of A to B, theró is no such power in any Confederate authority. It cannot be found in the charter of its creation, and if it should attempt it, the wrongful tenant could not avoid the question being presented to a court. Suck would be the case of any other tangible thing which the government might attempt-to hold by its agents. It is true that a*contract between the government and a citizen, not fully executed, could not be enforced by suit against the government, unless, by its own consent; as an agreement to pay money.' But in every instance where the courts can get jurisdiction,' they pass upon the powers assumed. In this case the body is unjustly detained in violation of a valid contract, which must remain binding, till the government shall remove its force; There is but one way to remove its force, and that is to treat' the contract as property. Its breach, if made necessary, is like taking it for. public use, and it. is .assuredly protected' under Confederate Constitu-tution, art. 1, s. 9, §®16, which declares that persons shall “be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.” So much of this provision as relates to the taking of private property for public use., is found in the Constitutions of many of the States, though not directly, in ours. Kent, commenting (2 vol. 398-9,) on this clause of the Federal Constitution and similar provisions of the State Constitutions, says, “-The Constitution of the United States and most of the States of the Union, have imposed a great and valuable check upon the exercise of legislative powers, by declaring that private property should not be taken for public use without just compensation. A proviso for compensation is a necessary attendant on the due and constitutional exercise of the power of the law giver to deprive an individual of his property without'his consent." And this principle in American constitutional jurisprudence is founded on national equity, and is laid down by jurists as an acknowledged principle of universal law.” The learned and full note to the text fully sustain» it by authorities. “ The government is bound in such cases to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss 'their claims on equal terms ; and if the government proceed without taking these steps, their officers and agents may and ought to be restrained by •injunction;” 2 Johns, Ch.Ep. 162. Henderson us. May, &c., of New Orleans, 5 Miller’s-Louis. • Eep. 416. Bonaparte vs. 0. & A. Bailroad Company, 1 Bald. C. 0. U, S. 205. Ex parte Isaacs and ex parte Cox and Hill ante, Bloodgood vs. Mohawk and Hudson Bailroad Company, 18 Wend. 9. Bogers vs. Bradshaw, 20'Johns, 135. The discharge of-the body under habeas corpus is the only way of restraining the irreparable wrong, and serves the same purpose as the injunction against tangible property, taken without just compensation. 4

It is matter of note that the dissenting opinion of Mr. Justice Campbell, in State Bank of Ohio vs. Knoop, furnishes almost the entire material, both in the cases cited and reasoning employed, for all the opinions of Judges and Courts, that substitution involves no contract with the government, and that if it do, the contract is repealable by any succeeding Congress. A brief review of the cases will dispel ull idea that they tolerate such a conclusion.

Yeaton vs. United States, 5 Or. 281, decides that, if, after suit is instituted for a penalty, but before find judgment, the penal statute is' repealed or expires, the suit abates.

In United States vs. Morris, 10 Wheat. -, 246, a vessel and cargo were declared forfeited to tbe government for breach of tbe non-intercourse law ; and a portion of tbe forfeiture, by tbe law, was given to the collector, subject to tbe power-of tbe Secretary of tbe Treasury to remit tbe forfeiture, when, in bis opinion, there was no fraud. After judgment, but before collection of the money, tbe forfeiture was remitted. Held good.

In McLane vs. United States, 6 Pet.,.404, the same point was decided.

In Maryland vs. Baltimore and Ohio Railroad Company, S How., 534, tbe case was, tbe State of Maryland passed ao law to subscribe $1,000,000 to tbe Baltimore and Ohio Railroad. Company, and provided that if the road did not pass through Washington County, tbe company should forfeit $1,000,000 to tbe State, for the use of tbe County. The company accepted the act; held that tbe law inflicted a penalty which the State could release, and that there was no contract between the Company and the County for the money.

In Phalen vs. Virginia, 8 How. 163, it was held that an aet allowing a Turnpike Company to raise money by lottery for its repair, not being used in five years after its passage, might be limited, by law, to a duration only of six years longer, .the privilege being already hull by non-user, when the limitation of further time was imposed.

In the B. and S. Railroad Company, vs. Nesbit, 10 How. 395, the case was, the charier of the Company allowed it to acquire a roadway by inquisition which, when returned and confirmed, should pass to the Company the title of the roadway land*upon payment or fender of the damages assessed.' An inquest was made and confirmed in 1836. In. 1841, the Legislature directed the Court to vacate the inquisition ; no money" having been paid nor tender made. It was heldthat the Company acquired no title to the land, nor any right to have it, and the' act did not impair any contract. '

The case of Weston vs. Charleston, 2 Pet., 449, decides that a State cannót táíx the stock of the United States.

In McCulloch vs. Maryland, 4 WÍieat. 316, it was held that a State could hot tax the operations of the bank of the United States.'

In Osborn vs. U. S. Bank, 9 Wheat., 138, the same point was decided.

The Qharles River Bridge case, 11 Pet, 420, decides that a legislative act incorporating a company with the mere privilege of building a toll bridge at a particular place, did hot involve a contract, that no other bridge should be allowed to he built which would diminish the tolls of the former. •

In Providence Bank vs. Billings, 4 Pet., 514, it was held that the simple act of creating a banking company, did not perse exempt it from taxation any more than it did land, unconditionally granted.

In Watson vs. Mercer, 8 Pet. ,88, it was held that a law, validating the deeds of femes,, covert, void because of a defective statement of her private examination did not impair a contract, but confirmed it.

Alexander vs. Duke of Wellington, 2 R. and M., 35, is cited by the learned Judge to show that “ a captor may be deprived of his share of prize money, at any time before payment.’' The case itself shows that, by long established usage confirmed by acts of parliament, the money is not the captor^, but the sovereign’s, till actually paid to-him.

These are the cases cited in the dissenting opinion to prove that the Bank of Ohio was not exempt from further taxation under the clause of its charter, taxing it‘6 per cent. on its, profits, and declaring that “ the amount so set off ■shall he in lieu of all taxes to which such company, on account of stock, would otherwise he subject.”'

That the opinion of tbe Court, and not that of the dissenting justice, would have been the opinion of the Supreme Court of this State throughout its entire existence, may be truly affirmed. Bank of Cape Fear vs. Edwards, 5 Ired., 516. Attorney General vs. Bank of Charlotte, 4 Jones, Eq., 287. Of all the cases cited not one favors the right to violate a contract, or denies the power of a 'State, through, its Legislature, to make a binding and, irrepealable.contract.

To these the Supreme Court of Virginia, in Burroughs vs. Peyton, have added a few. Goosler vs. Corporation of Georgetown, 6 Wheat., 593. The Legislature of Maryland authorised the corporation to make by-laws for graduation of the streets as it might judge necessary. It did s,o by one set of commissioners, and a subsequent set undertook, by an ordinance, to curtail the general power over graduation by declaring what should be the unalterable true graduation; held that “ the corporation'could not abridge its legislative power/'’

Butler vs. Pennsylvania, 10 How.,'416, decides that an office, both in its tenure and fees, may be changed during .an incumbency so as. to lessen the-one and shorten the other. . ' ,

United States v,y.' Oottingham, 1 Rob., Va. Rep,, 615, decides that an alien, voluntarily enlisting .in the army of the United States, is not entitled to be discharged without the consent of the government, though recruiting officers are instructed not to receive such recruits.

■ United States vs. Blackeney, 3 Gratt., 405, decides (no law forbidding it) that, the enlistment of a minor of the age for military duty is a valid contract.

Of the above cases it is declared in the first by Marshall, O. J-, delivering the opinion of the Court, that “when a government enters into a contract, there is no doubt of its power to bind itself to. any extent, not prohibited by its constitution. A corporation can make.such Contracts only as are allowed by the acts~of incorporation.”

The second denies that the acceptance of an office involves any contract whatever between the public and the incumbent ; arid certainly not in Pennsylvania as had long been settled.- • Long usage acquiesced in is a fair interpreter of the intent of parties, and so must be presumed to enter into' their actions. Tried by the rules of the common law,' prevailing in England or in this State, the acceptance-makes a perfect contract,’involving property, and, in the view of this Court, is protected by the Confederate Constitution. Bac. Abr. Office B ; 2 Pi. Com., 36 ; 3 Kent Com. Lee., ■ 52 ; Hoke vs. Henderson, 4 Dev., at lb ; Cotton vs. Ellis, 1 Jones, N. C., 545. Sere the incumbent has no right to abandon his office- at pleasure. In Pennsylvania he has. Commonwealth vs. Bacon, 6 Serg. and Bawb., 322.

The points decided in the other cases need no comment.

Finally the Court of Appeals, assuming that the legislative authority has the power to divorce married persons, draws from it an argument that Congress may annul any supposed contract of substitution. It seems to be overlooked that, in the latter, the contract^ is with the government itself; and, in the former, is betweeii two persons, towards whom the government is alike impartial. The union of the sexes produces' so many Changes affecting so- • ciety that the relation thus formed may be called a status ; and the contract to marry is but an agreement to enter into this status. So soon as this status is established it falls under the control of the public and ceases to be the creature of the parties. Neither, nor both together, are authorised’ to annul tbe status. Marriage is, therefore, correctly said .to be a contract sui generis, and unlike any other. Of course it furnishes no analogy for any other which does not introduce a status.

The contract of substitution creates no status. If it do every other contract with the government creates a status.

The case cited at the bar of Commonwealth vs. Bird, 12 Mass., decides simply that an exemption from serving in the militia may be revoked bythe Legislature.

I submit that the above authorities did not warrant the Supreme Court of .Virginia to announce — as it did — in Burroughs vs. Peyton the following position : “ We think that if Congress should attempt to make a binding and ir-repealable contract to exempt from liability to all subsequent calls for military service, those who put in substitutes during the time for which they were put in, such contract would be void, because of the want of power in Congress to make it.” ' „

Congress is vested with the power “ to raise and support armies ; ” “to borrow money, on the credit of the Confederate States to provide a navy and “to make all laws which shall be necessary and proper ” to raise armies, to borrow money or to provide a navy. The powers'to do these things are such as are needful, convenient or conducive to the end. McCulloch vs. Maryland, 4 Wheat., 423; 2 Story on Const.,.§ 123T to 1260. The means by which national exigencies are provided for, national inconveniences obviated and national prosperity promoted, are of such infinite variety, extent and complicity, that there must of necessity be great latitude of discretion in the selection and application of those means. Story at Supra, § 1250. Congress being burthened with the duty to do these things has, of course, the sole right to judge of the means proper to the end; and is restrained only in this, that it cannot assume powers expressly denied. It has the power to borrpw money upon such credit, whether of five or fifty years,' as it may please; to pledge the taxes direct or indirect, the public domain or any other thing possessed by the nation. It may now pledge the entire tax for ten years to raise fifty million dollars ; and, although the pledge should exhaust the future resources of the revenue after the borrowed money were spent, a subsequent Congress has no rightful power to resieze the security: In executing the power to raise armies it may compel the citizen by conscription or lure him by bounty. It .may excuse the citizen and tax him in order to employ foreigners. It may augment the army of this year by promising exemption for the next. If the nation should need munitions of war or food, Congress may sell exemptions to.procure them, and the contract will be binding. Congress may put men into the^my to increase its efficiency, and, for the like purpose, may take men out. If it prefer to do these things by means of a contract, contract is the proper means. If it want a naval force, arid the land service is more comfortable, it has a right to allow the exchange between the men upon terms of a shorter time in the.severer service ; or, in order to induce seamen to enter the navy, it may stipulate for exemption from all land service after a limited service on sea. In sho.rt, Congress may use any means, riot immoral nor forbidden, to execute a granted power, even to binding future Congresses. .The power to render the means irrepealable is a source of national strength, the want of it is a source of national weakness. The former is the faculty of manhood, the latter the imbecility of infancy. A power that can not bind itself is no power at all. It would be strange indeed that a nation, could sell one sinew of war to procúre a better, and could not sell (mother. If ft may buy lead with exemptions, it may buy food also. Indeed, it has made with the farmer thousands of such contracts for meat. Are not these valid ? Certainly, if they bind one of the parties they do the other. Can the citizen avoid it but by consent ? The late Congress has adjudged the consideration of such contracts sufficient. Has the ensuing Congress the power to annul them upon the ground that the last was incapable, for any cause, of exempting a citizen from military service. All exemptions from such service are founded on the idea of the public good. For this the school teacher is exempted. If/ in his case, the public good shall be deemed to be misconceived, another Congress may withdraw the exemption; but if the furnisher of ammunition, in consideration of exemption, has the best of the bargain, can the next Congress reform it ? and the succeeding one change it again ? The power to raise armies is a sovereign power, untrammelled except by the preservation of State sovereignties. The power to suppo® them is equally- sovereign and untram-melled. The means to do either are powers equally sovereign, and, if not forbidden expressly, are in the unlimited discretion of Congress. ' If it should resort to popular, rather than jusi means, it may do so without question. If it shall prefer to raise an army of volunteers, rather than draftsmen, it may do so ; and if, in order to render the volunteering mode more popular and acceptable, it should allow substitution, it may do so ; or if it should resort to the system of draft and should allow substitution, because of the well known fact that some men who might be drafted would be more useful at home than others who would escape, it may do so. It may allow of substitution on it own terms, absolutely or conditionally, and for whatsoever length of time it may please. If it say to the drafted man, you may procure a substitute, but shall be liable to draft again at pleasure,” the offer is a favor, whiph may be justly resumed at any time. If it say to him, cc the country exacts of you a service in the army of three yearB, but if you will procure a substitute, or furnish a ship for three years you shall be discharged.”. This is a promisé, an inducement to procure a substitute or ship ; and, if furnished and accepted before the proffer is withdrawn, there is a contract according to all rules adopted for interpreting the law of contracts. Here, in the language of Chief Justice Marshal, in Fletcher us. Peck, 6 Cr^, 184, is “ a law in the nature of a contract.” Of this character are all our entry laws, and the law authorising the creation of private corporations during the recess of the legislature. And of precisely the same character is the proviso in. the recent military law of Congress, which allows exemptions of persons having fifteen field hands, upon condition that they will furnish a certain quantity of meat. The proviso is, £C that any such exempt shall be entitled to a credit of 25 per cent on any amount of meat which he may deliver within three months” thereafter.. If the meat be furnished there is a closed contract with the government instanter. Can' the next Congress annul this bargain, because it was a hard one for the government ? Could it do so, even if the law had allowed a credit of 85 per cent P The argument that Congress can xbake no contract which may prove injurious to the common weal, or which another Congress may deem so, is destructive of all contracting capacity. Powers, capable of doing most good, are equally capable of doing most evil. The power to make war is able to make the most wicked of wars, and to destroy every vestige of nationality. The Congress that makes.a contract is as much to be trusted for its integrity and wisdom as the Congress which breaks it. State Bank of Ohio vs. Knoop, 21 Cont., at 191, 203 ; Ohio. Life Insurance Company ns. Debait, ib., 231 et-seg ; Mc-Culloch ns.' Maryland, 4 ib., 406. To the unanswerable force of tbe opinions of the Court in these cases,, I add that of the Court in Grooseler vs. Georgetown, “there is no doubt of the power of a government to bind itself to any extent not prohibited by its Constitution.”

If the proposition of the Supreme Court of Virginia can be so understood ds to enjoin on Congress the duty of providing compensation for its own contract, broken not capriciously, but upon ground of a high public necessity, it may be defended. But the idea of compensation is ridiculed by the counsel here for the government, while they admit that substitution created a contract with the government.

1. They maintain that the contract is not such an .obligation as isineant by the Constitution, Art. 1, s. 10, cl. 1.

2. That the compensation is incapable of being measured.

1. It is no argument to deny that the contract is of such a nature as falls under the Constitution. It is sufficient if it be such, as construed in a large sense, is property, or -an object of value to the proprietor.

The.privxlege of exemption from military service, both on land and sea, existed at common law, and is recognized as a legal right. Rex 'vs. Stubbs, Cowp., 519.' Bac Abr. Privilege A. One having the privilege of a clergyman and not bound to serve as a soldier, may obtain his writ of privilege, if interrupted. Bac. Abr. set. ,sap. 609, 611. 'Property may exist, propter ‘priviligium. It “ may subsist in the very element of fire or light, of air and of water.” If the “ lawful enjoyment of these ” be disturbed, the owner will be protected. 1 Bl. Com. 272, 2 ib. 394-’5. Dartford case, 2 Str,, 1107, 1143, 6 Mod., 140 n, a.

Privileges, both national and individual, have been, in' England, the constant subjects of royal usurpation and chartered protection. . Magna Gharta, passim. They are objects of special protection by our State Constitution. Decl. of Rights, sec. 3, 12, and are recognized as property or objects of value by our Courts. Bant of Newbern vs. Taylor, 2 Mur., 266. Yadkin Navigation Company vs, Benton, 2'Hawks, 13. Hoke vs. Henderson, 4 Dev., They may be taken as other private property, and in like manner, for public use, upon compensation; as the privilege or franchise of keeping a ferry may be taken for the use of a railway or bridge. Richmond Railroad Company vs. Louisa Railroad Company, 19 Const., 392.

There is little difference between franchises, liberties, and privileges. They are all equally under the protection of the Constitution and laws of England and of this country, 2 Inst., 47, 2 Bl. Com., 38. 2 Kent Com., 398~’9.‘ If interrupted, whether they concern the person or.property, they are deemed bbjects of value, and damages are awarded for the injury. 1 Oh. PL, 183. Lord Holt’s opinion. Ashby vs. White, 2 Lord Ray, 953 — ’4.

It may not be said that the difficulty of ascertaining the just compensation dispenses with attempts to adjust it. The common law, scrupulous to protect every right, however uncertain its value, knew of no such barrier, when one of the people sought in the courts of the sovereign, compensation for a contract broken by another. Will the sovereign himself stoop for protection behind it ?

, In this country, the remark of an eloquent patriot will always be true, “ Necessity has evei' been the plea of tyranny, when it would involve private rights. Here it is ■ emphatically checked by a Constitution which .demands a ‘just compensation for every invasion.’ Never here will it be able to rob the citizen, except through the violence of a lawless sword, or the decay of a patriotic judiciary."

Strong, District Attorney

It is maintained on the part of the government,

Firstly, that Congress has no power to enact a law, authorizing irrevocable "exemptions from military service.

Secondly, that admitting the power, upon a fair construction of the Act under consideration, it has not been exercised.

Firstly. It" is contended that no such power exists, because the right vested in the government, of using the military strength of the country for its preservation and defence, is a sovereign right of which it can not disrobe itself directly or indirectly ; a right which must always be ^possessed, .and of which the administration of this year can not deprive the administration of the next. A sacred trust to be exercised at all times for the benefit of .all; a right inalienable in nations as the right of self-defence in individuals, and no more to be surrendered, though for a consideration and in the form of a contract, than the right of an individual to use his arm to protect himself from the blow of the assassin ; that such a power would imply the right to commit political suicide, which is an absurdity. To this it is replied that the taxing power is also a sovereign power, and is as necessary to the existence of the government as the war making power ; that it is well settled by a great many cases that the Legislatures of the States - can make binding contracts to exempt certain property from taxation ; that from this it follows that the Confederate government can make binding contracts of exemption from military service, and that if the power exists at all, it must exist to an unlimited extent, as the Courts can not guard against an abuse of power, the grant of which is once, ' admitted. '

In this reasoning there is manifest fallacy. In the first place the exemption of specific property from taxation, is not analogous to the exemption of the person from liability to perform military duty. This last would be analogous to exempting a person from , taxation with respect to all the property he might acquire, an exclusive privilege which would be contrary to our Declaration of Eights, sec. 3, and which the Courts could not sanction. In the second place it would not follow that the Confederate government possessed the right because the States possessed it. That most important and transcendaht power, the war power, which is the very corner stone of the government, and without which it would never have been framed, has passed from each State to the Confederate States. The power of taxation in the latter being ancillary to the war power, is, therefore, of much greater .importance than in. the former, and its surrender fraught with much greater danger.- ' For a similar reason it would not follow that the Confederate government could surrender a portion of its war power, because it could surrender a portion of the taxing power. And even admitted' that it could thus disrobe itself to a limited extent, it does not follow that it could do so indefinitely, or to a degree which either certainly would, dr which might be destructive of or seriously injurious to the government. In these cases there would be an evident abuse of the power, if it existed,, and it surely cannot be Seriously contended that Congress has the constitutional power to abuse its power. Whenever such abuse of power appears upon the face of the Act itself, -or is made otherwise to appear, the Courts have the right, and it is their solemn duty to pronounce it unconstitutional. In the case of the State vs. Petway, 2 Jones, Eq., page 405, Judge Battle, in delivering the opinions of the Court, says of the taxing power, “ without it all 'political institutions would he' dissolved, the social public would he broken-up, and civilization would relapse into barbarism. No government can then divest itself altogether of a power which is essential to its existence ; it can not commit political suicide,” If then., the Legislature should enact,a law declaring that all persons, or all persons between the ages of eighteen and thirty-five years, who should pay fifty cents into the Treasury, should never again be liable to taxation, would not such a law be clearly unconstitutional and void, and would it not .be the duty of the Courts so to pronounce it ? The law now under discussion, according to the construction contended for by the counsel on the other side, places it in the power of all persons liable to military duty between the ages of eighteen and thirty-five years, some three or four hundred thousand men, to place themselves for three years, as such beyond this country’s call as if they were Englishmen or Ererifchmen, and that too, without the slightest benefit to the government, and at a time, be it remembered, when a ferocious enemy, bent upon our destruction, was declaring'that as their population was 20,000,000, and ours but 8,000,000, our subjugation and enslavement, was a mere question' of arithmetic and of time. The Court have a right to consider the history and circumstances of the country at the time of the passage, of the Act.-' Q-reenleaf on Ev., vol. 1, § 5. And considering these, can it hesitate to say, th&t according to the proposed construction, it was fraught with danger to the very existence of the government, and was, therefore, unconstitutional and void. It is the every day practice of the Courts of Equity to declare void, acts of trustees, which are abusive of their powers.

Congress has pronounced the men who' have furnished substitutes-neeessary to the salvation of the-country. All agree that the decision of .Congress as to a political fact of this kind is conclusive. The preamble to the very Aot under consideration, is in these words : “ Whereas* in. the present circumstanoes of the country, it require the aid of ALii who are able to hear arms;, therefore, &o,” Every man must feel that this is true. Háppily for the eouutry they are all now facing the enemy, save tbe few scores wbo await this decision. To them it may be owing that tbe cannon.of tbe enemy is now thundering at tbe gates of Petersburg instead of those of Raleigh, and sucb and so precarious are tbe ebb and flow of battle, and upon sucb slender threads do tbe fate of empires bang, that these men who stand in waiting here, may now be needed to stay-tbe dark tide of invasion, and save us and our bouses and our families from a huge and awful ruin.

But we believe that Congress has no right to make any contract granting an irrevocable exemption in any single instance. There is a prior contract which would thus be infringed and violated, that which exists between the. government and every citizen in it, to use tbe services of all, including him, so exempted,, for its own preservation, in order that it may perform the engagements which it has undertaken with all. Vattel, book 1, ch. 2, § IS, says : “In the act of association by virtue of which a multitude of men form together a State or , nation, each individual has entered into engagements with'all to promote the general welfare ; and all (that is, the’ State or government) have entered into engagements with .each * *- * to promote and defend him. These reciprocal engagements can not otherwise be filled than by maintaining the political association. The entire nation then is obliged to maintain that association; and as their preservation depends upon its continuance j it follows that every nation is obliged (that is, has entered, into obligation or contract) to perform the duty of self-preservation.” See too precisely the same effect the lanornate of Mr. Monroe as cited in the case of Jeffers vs. Fare 32 Geo. R. Wheaton, in his “ International Law,” book 2d, ch. 1, § 2, says: “It (self-preservation) is * * * a duty with respect to its own members, ami, the most sol-erán and important which the State owes to them.” Mr. Galhoun, in bis Discourse on Government, says: “Exigencies will arise in which the entire power and resources of the community will be needed to, defend its existence.When this is at stake every other consideration must yield to it. Self-preservation is the supreme law, as well with communities as individuals.” Burlamaqui, vol. 2, page 157, says: “ The law of God no less enjoins a whole nation to take care of their preservation than it does private men. ’ ’ See also the very able opinion of the Supreme Court of Alabama, delivered by Judge Phelan in the- recent case of Lam. Many cases can be imagined of the inability of government to divest itself of those rights which inhere in it under the title of eminent domain, and between which and that under consideration there is a strict analogy. If Congress should, for a consideration of whatever magnitude, contract in solemn form with a land-owner in the vicinity of Richmond that unde]' no circumstances should breastworks be thrown up or fortifications erected upon his land, and if it should becotne' necessary to the salvation' of the city to throw up the breastworks or erect the fortifications, will any say that such a contract should be regarded for a moment? Would it be, a contract at all ?, Again : suppose that a government should agree, with certain of its citizens living upon the border, never to cede their lands to a neighboring power or to transfer their allegiance'; that a war should aitérwards break out between the two powers, and that, in settling Upon the terms of peace, it should become necessary to disregard the agreement and cede the lands, and the same should be done by treaty. Would the treaty be void because of the agreement ? Surely not. It is well settled that a government cannot deprive itself by contract of the right to take private property for public uses, as, for instance, for the laying out of county roads, the building of canals and railroads, the establishment of ferries, &c., and for all the various other purples made necessary by the demands of commerce, and an advancing and ever varying civilization. Yet’it is gravely contended that though our Capitol were completely surrounded by, and the enemy pressing us upon every quarter ; though regiment upon regiment of our troops had been destroyed, and position after position forced until the last liad been reached, and the sluice was about to be opened, which, would pour a dark and desolating flood upon the city ; though there, were ten thousand within that city who had furnished substitutes, and the great leader should say to Congress, put these men in thc\breach and the city and the country can be saved ?, that Congress would be utterly friendless ; that their hands would be tied by this fancied contract, 'and that they must quietly await , the ruin which themselves would thus have wrought. • No greater absurdity could be conceived. And the case shows that the position assumed on the other side, is utterly at war with that great right which is ihherent in and inalienable by nations as well as individuals,-the right of self-preservation.

Let it not be said that these are extreme cases, and‘áre apt to cover error. That may be so in ordinary matters But, Constitutions of government are framed to meet and answer for all cases. Extreme cases must and will arise in the life of nations, and Constitutions must he so construed as to enable the nation to-pass safely through them, or they will miserably fail of their purpose.

As to the subject-of “Eminent Domain,” and the inability of the government to dispose of the rights which it ■ has under that title. ' See State Bank of Ohio vs. Knoop, 21, Curtis, 204 and 205, In the matter of Tate, recently before the Supreme Court of Alabama, Judge Phelan, in delivering the admirable opinion of the Court says: “Then we unquestionably entertain high attributes of sovereignty,, which do not allow of any limitations. Among these may be mentioned the righl of eminent domain. Under the-provisions of the Constitution of the Confederate States^ one limitation and one only is placed on this right. “ Private property shall not be taken for public-use without just com' pensation. Art. 1, § T, subdiv. 13. ■ With this limitation there is nothing which bears the nature of property, whether reabor personal, corporeal or incorporeal, which may not be taken and used under it for the public- good in peace, or the public defence in war. The books are full of cases, involving» the question of its nature and extentand the current of decisions is uniform and1 unbroken, that no limitation cari be placed upon it, by any power or right, private or public, but that which lias been named. It can' not- be surrendered by legislative grant, or be bargained away for a consideration under legislative contracts. Our Legislature can not vest in its grantees lands, goods or corporate franchises, so securely that a succeeding Legislature can not take them for the public use, if necessity require. *

* * ’ The doctrine has been established that this high function, of the governun-nt (Eminent Domain) is a trust, which the legislative power, so trusted, has no .capacity to give or contract away ; that the nature of the trust requires that it should be held by government, to be used,;. and that it must remain in full force to be put into exercise, .wheneVc; the public good shall require^ unembarrassed by claims of private right. See also West River Bridge vs. Ujx, 0 Howard, 501. • Charles River Bridge vs. ■Warren Bridge, 1 Í Peters, 541. Buckman vs. S. and S. R. Road 3, p. 45, 1, Snood (Tenn.;) I*T6 ; 31 Penn., 31; 14 Illinois, 3f42 Gray, (Mass.) 2; Young 'vs.'McKenzie, 3 Kirby, (Geo.). 31 ; Dyer-us. Tucealoosa Bridge "Company, 2 Porter,- 291 ;• Crosby m. Hanover, 36, N. H., 404 ; IN; H., 35; 10 N. H., 135; 7 Foster, (N. H.) 183; Luclcwhere Canal Case, 11 Leigh, 75 ; Boston Watering Company vs. Worcester Railroad Company, 23 Peck, 360 , ftogers vs. Bradshaw, 26 Johns., 742.

Now if it has been wisely determined, that one Legislature has not and can not have the power to bind succeeding Legislatures, by contract or otherwise, so as to exempt absolutely any property from, the rigljt of eminent domain, what reason can there be, on principle, in holding that.our Legislature shall have the power to bind its successors, by, irrepealable exemptions, from'’exercising that more vital and essential sovereign attribute, the right to call into the field every citizen of the State, should the public safety require it? A franchise is subject to the right of eminent domain, like all other property, by an implied condition which necessarily entered into tke contract by which it was created; and the cjtizen, in like manner, is liable to the call to military service, if her exigencies should arise, notwithstanding he fnay have been exempted ; and if he claims exemption under a legislative contract, the answer to h"s claim is', that in every such contract there is an implied condition, that any succeeding Legislature, acting in good faith, and foo\ the public safety, should have poieer to repeal-such exemption. ■

Mr. Moore admits _that the men embraced by the law /night be couscribed, but urges that the alleged contract of exemption, gave them a property of same kind, and that as private property can not he taken for public use without just compensation.” The means of ascertaining which compensation must he fixed by the law which takes the property, and as there is no such means provided in this law, it is, therefore, unconstitutional. It is difficult to understand what sort of property is here meant. ' It can not be meant a property in tbe contract, whether it operates by way of extinguishment or otherwise, because that is executed, and functus officio. It must mean, if it means anything, a property in their own services, in their own time and liberty, in the power to go where and do as they please* in other'words a 'property in themselves; or new sort of personal property it must be confessed, hitherto unknown to the books. 16th clause of section 9, article 1st, of the Confederate Constitution, which declares that “no person shall be deprived of his life, liberty or property, without due process of law,” is tautological. The word “liberty” shotild be stricken out, as that is embraced by the “property.” "What sort of property does he who furnished a substitute have in himself, which any other man does not have in himself? And who has ever heard that a conscript must receive full, compensation for his services, at their actual value to himself at home, to be fixed by a tribunal which must be erected by the Act which conscribes him ? This idea, to sustain which, the learned gentleman cited such .maxims as “a poor man’s time in his estate,” “ time is 'Imóñey,” &c., is in the language, of Judge' Blackstone, “fetched, from a considerable distance,”’ It is a shadow at which the legal mind grasps in vain. It is unsupported by reason, or by the authority of any case. We have, however, an adjudication as to the meaning of this word. The fourteenth article, of the Bill of Rights, declares that “in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.” Under this section a question arose as'to the constitutionality of the statute, which gives to a-justice of the peace, out of Court, the right to try actions of debt to a certain amount, without the intervention of a jury. Ia the case of Smith vs. Campbell, 3 Hawks, 59*7, Henderson, Judge, in delivering the opinion of the Court, says : “ A debt or duty is not property in the proper sense of the word.

* ? * A person lias an 'interest in a debt or duty, but a ‘property in a thing only, either natural or artificial. He can not give or grant a debt or duty, because it is riot property. * * * It is because this thing in action is not profit erty, that it can not be granted. *’ * * Bank notes are not the subject of laMenv, * * * and for. the same reason a person can no^have property in them, they are not the subject of property.' ’ In the case of Pippins vs. Ellinor, 12 Ired., 61, and Hurdle vs. Outlaw, 2 Jones, Eg., page 79, the opinion of Pearson, Judge, is to the same effect. A word then, which does not'embrace a debt or duty, is strained to embrace one’s personal interest in himself, or in a contract through which he derives an interest in himself ! Mr. Moore, by his admission, has yielded the case.

liven if Congress intended to authorize contracts ot exemption, it has the right to violate' them. Each State, independently of the Confederate Constitution, can pass retrospective laws, divesting vested rights and impairing the obligation of contracts. Satterlee vs. Matthewson,- 2 Peters, 380. Kent, vol. 1, page 421, in note. State Bank of Ohio us.’Knqop, 21 Howard, 204. Each State then, before its entrance into the Confederacy, had the right, as incident to and asa part of its war power, to break just stick contracts as that under consideration. Their war power having passed from each . State to the Confederate States,' modo et forma, as it existed in the States, of cause tliiapower as being incident to and parcel of it, passed with it. And as there is no clause in the Constitution restricting the power of Congress in this respect, it must possess it to the fullest extent. , ' -

2d. Admitting the power of Congress to grant irrevocable exemptions, upon a fair construction of the Act under onsideration, it is clear that it has not .'been exercised in this instance.

It has been already observed that there was no inducement for such extraordinary legislation, in any advantage gained by the government or otherwise. The conscript between 18 and 35 was preferred to the citizen substitute outside of those ages, and it was well known from our isolated situation that but few foreignop would or could become substitutes. ■ . H

Every presumption of law is against the idea of such legislation. In the case of the State vs. Petway, -ubi supra Judge Battle, in delivering the opinion of the Court, says : “it is,now a well settled rule of construction that the grant of-privileges and exemptions to a corporation is strictly construed against the corporation and in favor of the public. Nothing passes but what is granted in clear and explicit terms. And neither the right of taxation nor any other power of sovéreignty which the community have an interest in preserving undiminished will be held'to he surrendered, unless the intention to surrender is manifested in words too pMin to be mistaken ; * * * * the-necessities of the government can not always, be foreseen. In the changesmpd chances of time and things, those who have charge « the administration may have need of oil the possible resources of the country to save it from greed disaster, if not from ruin.’’ See also Attorney . Genet- •' ■■■■<,•. the Bank of Charlotte, 4 Jones Ecp, 290; State w, Matthews, 3 Jones, 459; McRee vs. W. & W. R. R. Co., 2 Jones, 189; Charles River Bridge vs. Warren Bridge, 11 Peters, 420 ; the Richmond R. R. Co. vs. the Louisa R. R. O-.-., 18 Howard, 71 ; State Bank of Ohio vs. Knoop, 16 Howard, 369 ; Ohio Insurance and Trust Co. vs. Dehott, 16' Howard, 416 ; Billing's 'vs. the Providence Bank, 4 Peters, 561. ’ Tbe whole legislation upon the subject of alf lowing substitutes is embraced in the 9th section of the Act of Congress of the 16th of April,' 1862, which is in these words : “ Persons not liable to military service may be received as substitutes for those who are, under regulations to be prescribed by the Secretary of War.” 'Suppose, while this section was under consideration, some member, -by way of making clearer the meaning which Mr. Moore says it was their intention to express, and which they actually have expressed therein, had proposed this amendment: “fand the persons who shall so furnish substitutes shall not for the space of three years he liable to be called on to perform military duty, no matter what may be the exigencies of the country, and although their services may be absolutely necessary to preserve it from ruin.” Would any man have dared to vote for such a proposition ? If any man had voted for it, would he have dared to face his insulted country ? If Congress had passed it, would -they not have been considered as legislating in the interest of a hated foe ? And yet the gentleman gravely contends that this proposition has actually been expressed, in the little section above quoted, and that, too, in the words of Judge. Battle, “ in language too plain to be mistaken! ” Congress would have stood back aghast at such a proposition, and it can not be possible that because they failed to use words, as my lord Coke says, by way of “ exclusion of such a conclusion,”, that they are to fall through judicial interpretation into such a snare.

But why go farther than the necessity of the case demand's ? Why give to the arrangement made with the conscript, which it is insisted is a contract at least in form, any more vitality than is absolutely necessary ? Why will it not be sufficient to consider the contract as extending only to his liability under the act then in existence ? But it is'insisted by Mr. Moore that this would defeat the just expectations of those who furnished substitutes; that the government was responsible for - these expectations, and that it would therefore be an act of bad faith. This argument has no foundation' in fact. The act of conscription was passed on the 16th of April, 1862. On the 19th. day of May following, just one month and three days after-wards, and a very .little while after the, machinery for carrying out the provisions Qf the act was put in operation, a general order was passed and published, declaring that “ such exeniption is valid, only so long as the said substitute is legally exempt.” What bad faith is here? and how can the petitioner in this case complain, who furnished his substitute on the 22d day of August, more than three months afterwards ? The government was very prompt to correct this falsp expectation, a'nd in so doing but acted in that spirit which has always characterised it, and which entitles it to the gratitude of its own citizens and the admiration of mankind.

Ifowlc for Walton

By the Act of Congress, approved 21st April, 1862, it was declared “ that persons not liable for military duty may he received as substitutes for those who are, under such, regulations as may be prescribed by the Secretary of War.” By regulations subsequently adopted and published by the Secretary of War, persons furnishing substitutes not liable to military duty, who should he found upon examination to he sound and in all respects fit for military service, were, under said Act of Congress, to receive discharges from the military service of the Confederate States for three years or the war.

Tn the case now under consideration, all the requirements of the law have been complied with, and the petitioner has received a regular discharge.; hut, nothwithstánding this, he bag been arrested and is now held in custody as a con-* 'script, by virtue as it is alleged of an Act of Congress, approved Jan. 25tb, 1864, by whieb it is declared “that no person shall be exempted from military service by reason of bis having furnished a substitute,” &c.

We propose to consider the questions involved in the following order:

1st. Is there a contract between the Confederate government and the petitioner ?

2d. Being a contract, does the Act of Jan. 6th, 1864. avoid or revoke it ?

' 1st. In legal contemplation, a simple contract is “an agreement between two or more parties, upon sufficient consideration to do or not to do a particular thing.”

An analysis of it will show that it consists of four essen- • tial parts, to wit: uthe parties ; the agreement; the consideration, and the thing to be done or left undone.

It is clear that in the matter under consideration three of the essentialjpafts of a contract are- to be found, to wit: the parties, agreement and thing to be done, and if it can be established that there is a consideration the contract will be complete. It is contended, on behalf of the* government, that there is no contract, but the mere grant of an indulgence or privilege, whereby the party is for his own comfort, solely,' relieved from service.

That there was no inducement to the government to enter into such a contract; that there was no consideration of which the government received the benefit; that the services of the substitute were at the command of the government as much as those of the principal; that 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. ‘ ‘

The terms “'indulgence” and'“ privilege ” have been applied to tbe agreement in regard to the substitution, as if, by some magic effect, the matter, would be relieved from all difficulty by their adoption as a correct exposition of the transaction.

An “indulgence” is defined to be “ a favor granted.” Bov. Law. Div., 627. An illustration is given when a creditor enters into an agreement with his debtor, by which the time of payment is extended. ■. ■ .

A “privilege” is the grant of certain special prerogatives te certain persons by tire government. Thus a “ franchise ” is á certain privilege conferred by grant from the government, and vested in individuals. Ibid, 545.

Now it is clear that in the illustration given of an indulgence, “ thefavor granted ” is binding upon the grantor, provided it bo founded upon a sufficient consideration ; but is not binding unless there be a consideration. Ibid, 627.

And so when the Legislature granted certain privileges to a corporation, upon sufficient consideration, it was held by our Supreme Court, that the grant constituted a contract between the State and the corporation. Attorney Genera Í vs. Bank'of Charlotte, 4 Jones, Eg., 2945. It,.therefore, follows, that even if the Act of Congress be construed to confer upon the principal, an “indulgence” or “privilege,” yet if he has paid a sufficient consideration for that indulgence or privilege, it becomes a contract between the government arid the principal, and this breach of the subject is narrowed down to the question : has there been a sufficient consideration paid ?

A consideration is defined tc be, “some benefit to the ■party by whom the promise is m.ade, or to a third party at his instance, or some detriment sustained-at the' instance of the party promising, by the party in whose favor the promise is made.” Ibid, 278, 1 Sand. Rep., -211, b. c. t Sel. N. P., 46.

A sufficient consideration may.,, therefore, arise in either of these ways: . .

1st. If the substitution was beneficial to the government.

2d. If by the consent (see Selwyn,) of the government, a benefit was conferred upon the substitute.

3d. If the principal suffers inconvenience and loss, with the consent either express or implied'of the government.

(1) From a careful consideration of the regulations concerning the reception of substitutes, it is evident that the substitute permitted, was beneficial to the government.

Under General Order, No. 58, conscripts who were “not fit for all military duty,” but who were able to serve as nurses, &o., were enrolled. Whereas, no man was accept-' ed as a substitute, unless the proper medical officer pronounced that he was “sound, and in all respects fit for military service.”

It is well known that a strong, áble-bodied conscript was never permitted to furnish as his substitute, a sickly, unsound man, but that on the other hand, many conscripts^ whose constitutions would not bear up under the fatigue and exposure^of camp life, availed themselves of the law, and placed in the service strong, able-bodied men, fit for any and every duty.

It will not do to say that the services of the substitute were at-the command of the government as much as those of the principal, for those services were not due at the time the principal received his discharge, and the substitute stood towards the government as if there never would be any claim upon him for military service. The right of* taxation illustrates this. The State has aright to-tax a man 100 per cent, upon his property, but.if the State grants a franchise upon payment of $ 100 as a consideration, and declares that the franchise shall not be taxed, it can not afterwards revoke or tax it, although the State could have refused to have granted the franchise in the first instance, and have compelled the payment of. the $100 by adequate taxation. If it had the power, it did not Exercise it, and the reception of a part of the estate of the person, as a consideration for the favor granted, would bind 'the State, and constitute a contract between the parties. Attorney General vs. Bank' of Charlotte. Ibid. \

At the time of the passage of the conscript Vet, and for some month previously, the government had apeou raged' its citizens to furnish substitutes. In October, lijl, regulations were published by the War Department upon the subject, and under those regulations, many who wdre unable to leave their homes, sent others in their places.* ■ The government then regarded it as a contract, and as late as Nov. 3, 1862, the Adjutant General of the Confederate States, in General Order, No. 82, XI, sec. 1, directs that the discharges or exemptions given principals, should show that the furnishing of a substitute was “the consideration” upon which they were issued.

(2) (3) The principal, with the assent of the government, pays the substitute for talcing his place. Thig constitutes a consideration, whether regarded as a'benefit conferred upon the substitute, or a loss sustained by the principal. It has been said that in order that considerations of this kind may be sufficient and effectual, a request upon the part of the government must be shown. In Smith on Cont. 88, n. a., it is declared “ that when there is an.actual acceptance of the subject, matter of the contract, the assent is’complete without proof of the request. If A has contracted to build a house for B and afterwards pays C-$100 to fulfill the contract in his place, and A assents to the substitution, either .expressly or by implication, before the money is actually paid,' it is clear that A is fully discharged from his contract.,

At the common law if A owed B $100, and B owed 0 $100, and C owed A $100, by the assent of the parties, each debt would, in turn, be extinguished. The benefit conferred.upon B,*by the release of his debt due to C, was the consideration which induced A to discharge C, and'so with each of the others ; and after the assent was given, by the parties to this arrangement it is clear that the right of each to his debt is extinguished.

That, under the substitution a vested right had attached, has already been decided by our Supreme Court. In. the matter of Bryan, habeas corpus, eh. 65, his Honor, Judge Battle, says : “ The Secretary of War has no power after-wards (i. e., after the substitute) to make an order to have a retrospective operation to affect rights already attached.”

This right, which has been judicially declared to have; attached, could only have arisen under the idea ef a contract. Nor had there been no contract no right would have attached. In this decision it was held that the War Department had not the power to interfere with or restrict the rights to which the principal ” became entitled, upon obtaining his discharge, .and tlie question is reserved whether' Congress has the power to apply a remedy.

1,T. Being- a contract, does the Act «of Jan. 5th, 1864, revoke it. - .

Upon this branch of the subject we shall consider, *

1st. Whether, it this had been a State law, the Legislature of the State could have passed an act impairing the obligation of the contract ?

2d. Whether Congress has auy greater power than the State Legislature ? ‘

(1) In art. 1, sec. 10, of the Confederate States, it is declared that ifno State shall pass any law impairing the obligation of contracts.”

In considering this subject we shall assume that it has been established that a contract has been entered into between the government and the principal, by which the latter has been discharged from military service for three years or the war. ' t

It would seem to follow, from the same statement of the proposition, that, under such circumstances, no State could pass a law invalidating the contract. *

The terms of the contract are clear, and the only construction which can be placed upon it is that it was the intention of the government to give the principal a discharge from military service for three years or the war, provided the substitute'was furnished according to the regulations prescribed.

But it is contended, 1st, that Congress has no power under the Constitution to make such a contract. That various decisions of our Courts have established the doctrine ; that the Legislature cannot pass an act by which they and their successors alight thereafter be prevented from affecting the purpose for which they were enacted and formed into a government. That the right to call into service the military strength of the country, being a sacred trust, confided for the benefit of all, cannot be alienated.

The right of taxation is, to say the least of it, of as much importance to a well regulated State, as the right to raise armies. Without it no government can be sustained, and if there is afty power vested in the legislative branch of the government, which can, with any propriety, be regarded as a portion of the sovereignty of the State, and should, therefore, according 'to the argument, be unalienable, it is the right of taxation.

Yet, we find that in the caso of State Bank of Ohio vs. Knoop, 16 Bfoward, 369, the Supreme Court of the Uuited States hold, that the Legislature of a State, if not restrained by its Constitution, may make a valid and binding con-, tract, with a binding corporation in its charter, that no more than a specified amount of .taxes shall be levied on its property during a term of years, and a succeeding Legislature has no power to pass a law impairing the obligation of such contract. On page 384, it is said that £Cthe assumption that a State,.in exempting certain property from taxation, relinquishes a part of its sovereign power, is unfounded. The taxing power may select its objects of taxation, and this is regulated by the amount necessary to answer the purposes of the State. Now, the exemption of property from taxation is a question of policy and not of power.”

How will this apply to-the right to raise armies. It may select those who are to be made soldiers. It may regulate their number, by the necessity of the case, the exemptions to be ‘granted to particular persons, is a question of policy and not of person. And the conclusion follows]'that when the exemption is granted under a contract, no 'subsequent Legislature has the power to pass a law impairing its obligation.

The same principle had been previously declared in the case of “ The State of New Jersey vs. Wilson, 1 Crauch, 164, in which it was held, “ that a legislative act, declaring that certain lands which should be purchased for the Indians, should not thereafter be subject to any tax, constituted a contract which could not be rescinded by subsequent legislative act, such repealing act being void under that clause of the Constitution of the United States, which prohibits a State from passing any law impairing the obligation-of contracts.”

In the case of the-Attorney G-eneral vs. Bank of Charlotte, 4 Jones, Eq., page 253, it was held that “ an Act of the General Assembly, incorporating a bantSig company, is a ■ contract between the State and tke corporation, witbin the iirst clause of the tenth section of the first article of the Constitution of the United States, and the Legislature cannot pass any law impairing the obligation of such contract or any part thereof ? Battle, J., in delivering the opinion of the Court, says : c< When the grant of the charter is tendered by the State, and accepted by the individual, persons to whom it is offered, then the corporation springs into existence, and at-the same moment a contract arises between it and the State, which is protected by the Constitution of the United States. If the price or consideration is stated in express terms to be a certain sum, and no more, there can be no doubt that the State would be prohibited by the Constitution of the United States from demanding any thing’ more for the corporate franchise. Can it make any difference in principle, whether words excluding any addition to the price, be void or not ? When a person sa'ys that bn will take one thousand dollars for a tract of land, does be not necessarily mean that he will take that sum, and that he will not ash any more, and, if the offer is accepted, cán he demand any more ? Np one can hesitate ps to the proper answer to be given to this question, and the purchase of a franchise from the State when viewed in the light of an executed contract, is precisely analogous.” .

In our case the “franchise” of exemption has been accepted, the terms complied with, the consideration paid and it must, therefore, be viewed “ in the light of an executed contract,” £t which is protected by the Constitution of the Confederate States.”'

These cases render it clear and beyond all controversy that retrospective laws,‘which impair the obligation of a contract, if'passed by the Legislature, of a State, are uncon- ■ stitutional and therefore void.

But it has been said that contrary decisions have been made in our own State. That in the cases of State vs. Mathews, 3 Jones, 451, and McRee vs. Wilmington andR. R. R. Co., 2 Jones, 186, the doctrine has been sanctioned that the Legislature may, when the public necessity demands it, pass an act, divesting vested rights and impairig the obligation of contracts.

In the latter case the Court hold that there was no contract upon the part of the Legislature, hot to per-, mit the erection of a railroad bridge over the North East branch of the Cape Rear River. 'But. go on to say that even if there was'it would be void under our declaration of rights which declares •“ That no man, or set of men, are entitled to exclusion or separate emoluments or privileges from the community, but in consideration of public services.”

That there' was nothing in the'Original grant which would prevent the “ Legislature, in 1833, from granting to the railroad company, to construct a railroad bridge, and in doing so, to cress the South East branch of Cape Fear, and to consider the transit over the river as a part of the road.

So in the ease of the State vs. Mathews, there was no contract upon the part of the Legislature, that the Bank of Fayetteville should be allowed to issue small notes. Indeed, it is admitted throughout the whole opinipn by the course of reasoning, adopted by the Court, that if it could be established that there was any contract upon the part of the Legislature for the issuing of small notes, then that the act prohibiting their issue w.ould be void.

' In delivering the opinion of the Court, the present Chief Justice says: “ These' are no words of contract, and, in factj no words which, *by the utmost ingenuity and straining can be made to imply a contract on the part of the Legislature, that it will not, at any future time, regulate the currency so as to prohibit the issuing and circulation of small notes.”

Had the Legislature authorized the Bank of Fayetteville to issue small notes, and a consideration had been paid for the privilege, it is clear, from this opinion, that no subsequent Legislature could have restricted the power of the bank, or in any way impaired the obligation of the contract.

Neither,of these cases, therefore, are any authority for the position that a Legislature can impair the obligation of a contract. Neither can any such construction be put upon the case of The Charles River Bridge vs. The Warren Bridge, 11 Pet., 420, because it is expressly declared in the opinion that there is no engagement in the charter that the State would not authorize the erection of another bridge. If the Legislature had declared that passengers should no longer be permitted to cross Charles River Bridge, the act. would have impaired the obligation of the contract, and been void. But such an .act would have been no greater violation of contract than the act under consideration. It is true, the bridge was built for the purpose of allowing passengers to cross, under the charter of the Legislature, and the Legislature have no right afterwards to declare the charter inoperative and void •; but it is equally true that under the act'of Congress the substitute was furnished for the express purpose of obiaining the exemption of the principal, and any law passed by a subsequent Congress, with the .xpress intent to defeat such exemption, must, according to the principles stated, be void. It would-be like a law which'declared that Heron should not be permitted to ferry any person over North East, or that the Bank of Fay--etteville should'issue no note of any description or size, or that the Charles River Bridge should be torn down or rendered impassable.

II. It having been shown that the Legislature of a State .has no power to impair the obligation of a contract, it now remaiñs to be considered whether Congress has any such power.

It has been contended that as the Constitution of the Confedérate States does not expressly prohibit Congress from passing any such law that, therefore, Congress has the right to pass an act impairing the obligation of contracts. 'Such a construction 'is at variance with all the principles upon» which our government is founded, and such an act would be, according to the opinion of Mr. Madison, expressed in the Federalist, “ contrary to the first principles of the social compact, and to every pririciple. of sound legislation.”

If there is one political principle clearly Settled, by the uniform testimony of all our statesmen, it is that the States retained all the power of legislation which were not taken away by the Constitution, and that the general government acquired no power which was not granted to it in that instrument itself.

In Art. 1, sec. 10 of the Constitution the States assented to certain restrictions upon their powers, but in order to render it certain that/ the restrictions which they had imposed upon themselves were not .to be regarded as an enlargement of the powers of the general government, by any implication, certain of the powers were expressly granted to the general government. See'Art. 1, 'sec. 8, (Í1,) (5.) (10, (11,) (12,)" Art. 2, sec. 11, (2).

Can it be believed for a moment that the Constitution would have been ratified#>y the States if it had contained any such clause.

Its framers certainly never supposed that they were conferring upon'it power to do that which was “contrary to the first principles of the social compact, and to every principle of social legislation. A government, claiming and exercising tbe right to impair the obligation of contracts, would be regarded as beyond the pale of law and civilization. However vast its resources it would never attain respectability among nations, and “Punic Faith" would be regarded as something sacred in comparison with' its obligations.

III. There is another view to be taken of this subject:

It is not denied that the principal acquired a. “vested right ” to his exemption when he received his discharge, (see Bryan’s case,) 'and that this right was a “franchise, or in the nature of a franchise, and, therefore, the subject of property.

This béing admitted, it is clear that the act in question is void under 13 sec. 9, par. 16, of the Constitution of the Confederate States, where it is declared, “ nor shall private property be taken for public use without just compensation.” It is not denied that an act of Congress may divest right, vested by law in an individual; but, in order that this may be done, it must be shown, , ’

1st. That the effect of the law is not to impair the obligation of a contract. /

2d. Even if there is no contract that just compensation has been allowed the individual.

If the obligation of a contract is impaired, then the act, is unconstitutional and void, even if compensation be made. If it does not impair the obligation of a contract it is unconstitutional and void, unless compensation be made. Charles River Bridge vs. Warren River Bridge, 11 Peters, 577-’8.

In oné case no compensation ^as been made and the act is, therefore, void, whether there be a contract or not.

Note. — The Reporter regrets his inability to procure a note of Mr. Boy-den’s argument, who also.argued the ease for Walton.

Winston, Sr., in reply — Furnishing and receiving a substitute under the 9 th section of the Act of Congress of April, 1862; do not make a contract. That section permits suh-f stitution. It is not a request, express or implied. There is no pretence that it is an express request. It Is not one by implication, for it declares no preference for substitutes, it recites no fact from which such preference might be inferred, and no such fact is known to exist. The expense of procuring a substitute was incurred by the conscript with a view to his own benefit exclusively; uninfluenced by any other motive than relief from a greater loss and a heavy burden. He neither rendered, nor intended to render, any benefit to the government.

A loss suffered by one party is no consideration even for an éxpress promise by the other, unless the loss were incurred at the request of the promissor. 1 Sel. J N. P., 53-’4.

The'nature of the subject of the supposed'.contract requires the clearest expression of intention to give the transaction that character, and there must be a consideration ot adequate value, even supposing that a government can bind itself not to exercise its power of exacting military service from its subjects. “ To establish a contract on the part ot the Legislature.to relinquish any ofU« powers, plain and unequivocal words must be used." - Pearson, C. J., in State vs. Matthews, 3 Jones, 459.’ “ Government may, by contract for an adequate consideration, bind itself not to exercise its taxing power.” Battle, J., in State vs. Pet-way, 2 Jones Eq., 405-’6 ; Commonwealth vs. Bird, 12 Mass., R., 443.. ’

Whether the doubt, suggested by the Court in the case last cited, (as, to the power "of the Legislature of the State to bind itself not to exercise its highest function) be well founded or not, there is no question as to the effect of a written organic law ; yet constitutional restrictions on the powers of the ordinary Legislature,., in terms clearly comprehending the right of eminent domain and either abolishing it or limiting its exercise, are narrowed and modified by construction so as not to affect its existence or use. The .prohibition to the Stages not to pass laws impairing the obligation of contracts, does not limit their power to take private property for public use, though in so doing they .nullify their express contracts made upon valuable and adequate consideration. West River Bridge Company vs. Dix, 6 Howard, SOT. The 16th clause, 8th sec., Art. 1 of the Constitution of the Confederate States declares that “no person-shall be deprived of-: property without due process of law,” yet the next words are, “nor shall private property be taken for public use without just compensation,” showing the sense of the framers that no general words should' be construed to affect,an essential substantivo power of government. How then can it be supposed that Congress intended, by the Act of April, 1862, to restrict themselves i» the exercise of the still higher power of requiring military service from otir people P

Another argument against the construction contended for, is derived from the fact that the means of carrying on war are provided by successive acts., No levying of soldiers or taxes is considered a final measure. ' Every well informed person knows that every law in relation to this subjdct is. intended to provide for'the present emergency, and that future exigences will be met by calling into use what remains of the national resources.

Congress had no motive to make such a contract. By its legislative authority it could put into the army those who would be furnished as substitutes, with the exception of the very few who were foreigners, not resident. A comparison of the 9th section of this act, with the 5th section of tbe Act of 1814, session 3, ch. 10, (3d vol. ]J. S. Statutes at large, Peters,) will sbow how Congress expresses its meaning when it intends'to make a contract with persons, whereby they are to be exempted from‘military service, “ Any person, subject to militia duty, who shall furnish a recruit for the army of the United States, at his own expense, to. serve during the war, shall thereby be exempt from militia duty during the war.” Here are plain words of request addressed to the militia, to render an important service to the government, and an exemption from militia sérvice unequivocally prpmised. There was a sufficient motive, too, for the promise.. Congress wished to avoid the necessity of .resorting to conscription, and to fill the ranks of the army by voluntary enlistment; they, therefore, promise exemption from militia service.

The first three cases stated by Mr. Moore, in illustration of his position that Congress has made a contract with the petitioner, are satisfactorily answered by-saying, that in each case the person to whom the debt or duty was owing, received by force of the agreement, something- of value, which did not -belong to him, and which he could not have received otherwise than by-agreement with his debtor.. As to the fourth case, concerning the conditional remission of taxes. If the State government be meant, then the act impairing the obligation of the contract, would be void, if the clause 1, sec. 10, Art. 1, of the Confederate Constitution applies to such contracts ; if the Confederate government be meant, the question presented is the very one1 now abiding the decision of the Court.

■ If there was a contract between Walton and the government, the latter has power to annul it. •

Every government not restrained by its Constitution, or by some other government of superior authority, has power to annul its contracts of every kind.. It is unnecessary to. cite additional authorities to prove this. The case- of Owings vs'. Speed, 5 Wheat., 420, shows how plain and elementary a truth ■ that proposition was understood to be by men eminent for knowledge of public law. A government may even annul a treaty, without giving just cause of offence, when the performance of it tends to its great injury. Vattel, Bk. 2, ch. 12, sec. 160.

We have no knowledge of any' governments now- existing, or that did ever exist, except the State governments of Anglo America, which did not possess the power of annulling their contracts, and this power was taken from them, not by their own Constitutions, but by force of another government,- supreme in authority over them all. This restriction is consistent with the safety and welfare of the Ration, because the States are also deprived of the other chief attributes of sovereignty, especially of such powers as make them members of the family of nations, as the right of war and peace, of legation, of the power to regulate commerce, and, therefore, occasions do not arise for the beneficial exercise of the power in question by the States, and the necessary uses of it relate to matters within Confederate jurisdiction.

No'reas,on can be given why this incident of sovereignty should not be attributed to the Confederate ' government. It is supreme in its sphere, and that sphere includes the power of making war and peace, of making treaties, of regulating commerce, and of raising armies ; all of them, such powers as in their efficient exercise, sometimes call for the sacrifice of the private interests of individuals to the public good, especially in the shape of laws annulling contracts,. the performance of which would be injurious to the nation. The Confederate government is sometimes called one of limited powers for the purpose of distinguishing it from the State governments, and repelling its claim to incidental powers. Tbis is an inaccurate expression, wben so used— tbe State governments are governments of limited powers. Most of the chief powers are altogether taken away from them, especially those which are characteristic of independent sovereignty ; as Jus belli et pads,- Jus leggtonis, the regulation of commerce, coining of money, and both by their own Constitutions,, and the Confederate Constitution, many important restrictions are laid on their municipal legislation, and the jurisdiction of their courts much abridged. But the limitation, of sovereign power does not imply the absence of the incidents to .sovereignty; for though before the adoption 5f the Constitution of the United States, the powers of the State governments were limited by their own Constitutions, they, notwithstanding, could annul their contracts. Owings vs. Speed before cited.

The Confederate government is better described by saying it is one of enumerated powers. These powers are of ' the highest nature, and most extensive operation > some of them belonging to it exclusively, others to be exercised concurrently with the States. Whenever there is any interference between them, the State laws and authorities must give way to those of the Confederate government. Some of those powers' are unlimited, as to declare war, to make treaties ; others are limited only-by the relation between the States and the Confederacy, as' the power to raise armies is subject to the implied restriction that the officers of the State' governments can not be compelled to serve in the Confederate army. And it may be said, without rashness, that no one of its powers is so limited or restrained as to impair its efficient exercise. Add to this, that Judges appointed by the Confederate government, and responsible only to it, hold Courts in the territory of the several, States', give judgments affecting directly the lives, liberties and property of their citizens, these judgments being executed by Confederate officers, amenable for acts done in discharge of their • duties to Confederate authorities only, and that Congress have “power to mate all laws necessary and proper for carrying into execution the powers expressly granted to it, and all other powers vésted by the Constitution in the government of the Confederate States, or in any department or officer thereof," (18 clause, 8 sec., Art. 1,) the conclusion must follow that the Confederate government does possess that power to annul contracts which the common consent of nations has adjudged .to be incident to the supreme political authority.

The framers of the Confederate Constitution, iü the new matter introduced into it, have shown that they thought the power was granted as an incident, and that it ought to remain. Clause 3, sec. 9, Art. 1, in the Constitution of the United States is “ no bill of attainder, or ex post facto law, shall be passed." Clause 4, sec. 9, Art. 1 of the Confederate Constitution is in these words :• “no bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves, shall be passed. In the next section, clause 1, they provide that no State shall-pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts." The last member of that clause must have been designedly omitted in the 4th clause of the 9th section. ' •

It is contended that the Act under which Walton is detained, (5th dan., 1864,) is void, because it makes him no compensation, and, therefore, violates that part of the 16th clause of the 9th section, Art. 1, of the Constitution, which declares, that private property shall not be taken for public use without just compensation.

That provision regulates the exercise of the right of eminent domain. The eminent domain is the right of the sovereign to take every thing the citizen owns, for tbe public use. 2 Parsons on contracts, 519. It has relation to property solely and is contradistinguished from power over the person. It is an abuse of language to say, that a man’s person is his property, or that exemption from a public burden, is property. It mujst be something whioh, when taken from the owner may be used by the public. A franchise, as well as visible and tangible property, is the subject of this right, because a franchise is a part of the sovereign power in the hands of a citizen, and when he is deprived of it, it returns to the sovereign,*and is used by him as any other portion of his power. But an exemption from personal service can not exist except as it is attached to the person exempted ; when it is taken from him, it ceases to have .any existence, and, therefore, can not be used. The reason why compensation ought to be made to the owner o£properly taken for public use, is inapplicable to the exaction of personal service. The owners of ¡rroperty contribute to the ordinary wants of the government equal proportions of what they own, in the shape of taxes ; and thus, when one man’s property is taken in the exercise oi the right of eminent domain, he has contributed that much niore than his share, and ought to have compensation. But the government has a right to exact from each citizen all the personal service*he can perform, in the station assigned to him. Each man owes to the government all he can do&wkey;when he has done that,- whether it be much or little, he has but paid his debt, and, therefore, can not ask for compensation.

By this construction, the several parts of the Constitution c relating to the preservation of personal liberty, and the security of property, form a consistent whole.

By the 15th and 16th clauses of section 9, Art. 1, provision is made against the tyrannical or inadvertent abuse of power by any department of the' government, or by its officers, in arresting men, or seizing their effects, or searching their houses, or depriving them of life, liberty, or property ; and by clause 3, of section 9, Art. 1, the privilege of .the writ of habeas corpus, the effectual and adequate remedy for violations of the right to personal liberty, is'secured. To make the system complete, security was wanted against a grievance which vexed our ancestors for many ages — the abuse of the right of eminent domain.- That security is'given by the last member of the 16th clause, “private property shall not be taken for public use without just compensation ”

Battue,, J.

The writ of certiorari in this case -brings before the Court for review the judgment of his Honor, the Chief Justice, pronounced in vacation in a proceeding on a writ of habeas corpus. The facts, upon which the judgment was. rendered, are set forth in the petition of the applicant for the writ and the return of the officer, and they present the question whether the Act of the Confedérate Congress, approved the 5th day of January, 1864, and entitled “An act to put an end to the exemption from military service of those who have heretofore furnished substitutes,” is constitutional. The act is in these words :

“ Whereas, in the present circumstances of the country, it requires the aid of all who are able to bear arms-: “ The Congress of the Confederate States of America do enact, That no person shall be exempted from military service by reason of his having furnished a substitute ; but this act shall not be so construed as to affect persons who, though not liable, to render military service, nevertheless furnished substitutes.” „

The Chief Justice, in the opinion which he has filed as explanatory of the reasons upon, which his judgment was founded, has declared that the petitioner, having, under the provisions of the Act of April 16th, 1862, furnished a substitute and obtained his- discharge from military service, made a binding contract with the government, which Congress had no constitutional power to violate. The question thus presented upon the constitutionality of the Act of January, 11864, is invested with momentous importance, qnd has been argued before us with very great zeal and ..¡ability by the counsel on both sides. I have given to the arguments all the consideration in my power, and will proceed to state the conclusion at which I have arrived and the reasons which have conducted me to it. .

The governments which the emigrants from ' Great Britain established on this continent in the 16th and lfth centuries were largely embued, with the principles of the country from which they sprang. And even when, in the 18th century, they severed the bands which had conneeted them with the mother country, and' became free and independent States,-the new governments which they formed, though differing widely from the old, still retained, particularly in their Legislative bodies, many of the attributes and much of the spirit of the nation from which they emanated. The source'from which Legislative power was supposed to be derived in the nationalities of the Western continent was very different from what it was in the Eastern, but the extent of power, except in the cases of a restriction by a written constitution, varied very little in the Legislatures of the free States of America from that of the Parliament of Great Britain. It may aid us, then, in our investigations, to inquire what were the powers’of the-British Parliament, and what those of the several American States prior to the formation of the government of the United States, and subsequently of that of the Confederate States.

The power and jurisdiction of Parliament (says Mr. Jus-tóos Blackstoae, quoting from Sir' Edward Coke,) are so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. It hath sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing;, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, -military, maritime or criminal. * ■ * * . It can, in short, do everything that is not naturally impossible, áhd,'therefore, some have not scrupled to call its power, by a figure rather too bold, the “ omnipotence of Parliament.” In the exercise of these vast powers,.we know that the Parliament claimed and acted upon the privilege of violating contracts, and of taking away vested rights, when it was deemed that the good of the country required it. An interesting instance of the latter kind is seen in the statute of 9 and 10 Vio., ch. 54, which opened the Court of Common Pleas to the practice of the bar generally. Prior to the year 1834, the Sergeants at Law had had from time immemorial the exclusive privilege of practising, pleading and audience in that, Court, but in that year his Majesty, King William 4th, issued a warrant under his sigu manual to the Judges of the Court, commanding them to open it to all the other, members of the Bar.' The Judges did so, and the Sergeants, after acquiescing in the change for a few years, brought the matter to the'attentiou oí'the Court, and questioned the authority of the CroXvn. to take from them a valúable exclusive privilege, which, from the very origin of the Court, had been vested in them. After a solemn argument, the Court decided against the power of the Crown tq do what the warrant had commanded, but admitted that it might be done by Parliament, (see 3*7 Eng.,C. L. Rep., 338 and 362 ;) and it being a reform which ’the best, inter- ■ ests of the country demanded, it was accomplished, by the statute to which we have referred. £t is but justice to the legislators of Great Britain to say, that though they possess, this transcendent power, and have sometimes abused it, they have, in the main, been very solicitous tp secure intact private rights, and to preserve inviolate the public faith.

We come now to the Legislatures of the American States, after they had gained their independence. When estab-tablished by the’ people of their respective States, these bodies were invested at once with supreme Legislative power, except in the particulars in which the people themselves, assembled in Convention, had restricted them by written Constitutions. See Hoke vs. Henderson, 4 Dev., Report 1. Among the powers which they claimed and exercised, was that of resuming granted lands, and of otherwise interfering with the obligations of executed and executory contracts. This is proved both by the political and judicial records of the country. The case of Owings vs. Speed, 5 Wheat., Rep. 520, (4 Curtis, 628,) isa striking case directly in point. The facts are not stated by the Reporter, but from the opinion of the Supreme Court, as delivered by Chief Justice Marshall, the case will be seen as follows ': The suit was brought in the Circuit Court of the United States for the District of Kentucky, to recover a lot of land lying in Bardstown. The plaintiff claimed under a patent issued by the Commonwealth # Virginia in 1780, A part of the same land was afterwards, in 1788, granted by the Legislature of Virginia to other persons, and the defendant claimed under them. A verdict and judgment were rendered for the latter, upon the ground that when the act in question was passed, the Constitution of the United States had not been adopted, therefore, the prohibition upon the State to pass laws violative of contracts contained in that Constitution did not apply. Here there was a case where a parcel of land vested in one person by a patent, which was an executed, contract, was taken from him and granted to another by the Legislature of the same State that liad issued the patent, and yet it was sustained by the highesst Court in the United States, affirming a judgment, not of one of the State Courts, but of a District Court of. the United States. That was one mode in which the obligation of a contract was violated. Another very common one was seen in the passage of laws by which “ worthless lands and other property of no value to the creditor were made a tender in payment of debts ; and the time of payment stipulated in the contract was extended.” See Sturgis vs. Crowninshield, 4 Wheat., Rep. 122, (5 Curtis, 371.) These instances, show conclusively that the Legislatures of the different States, prior tó the adoption of the Federal Constitution, claimed the power to violaté - contracts whenever, in their estimation, the good of the State .required, and the Courts felt constrained to sanction their acts'by adjudications in favor of them. '

Let us now see what powers were vested in the Congress of the United States. The Federal government was established by the people of the several States “ in order to form a more perfect Union, establish justice, insure domestic tr'anquility, provide for the common defence, promote the general welfare, and secura1 the blessings of liberty to themselves and their posterity.® 'To. accomplish these all important objects, each State surrendered a portion of its sovereignty, and vested it in the new government. The attributes of sovereignty thus given up were those which concerned the foreign relations of the government. Thus, we -find among the enumerated powers of the Federal Constitution the great ones to lay and collect taxes, to borroAv money, to regulate commerce, to declare and conduct a war, and to raise and “support armies' and navies. These powers were' essentially and absolutely necessary to enable the United States to take and maintain its stand among the nations of the world. By looking at the Constitution, it will be seen that the powers are given with very few express restrictions, and with none implied except what are necessary to the continued existence of the State governments. Where-it is said that thp Federal government is one of limited powers, it is not to be understood as true in the sense that all its powers, as for instance the great powers of war and peace, of taxation and the regulation of commerce, are limited, • but that the number of powers granted is limited. The proper expression, then, is that it is a government of enumerated powers, rather than that of one of limited powers. The truth Of this as to the power of regulating- commerce is admirably demonstrated in the able and interesting exposition of the nature and extent thereof contained in the opinions of the Judges in the great ease of Gibbons v. Ogden, 9 Wheat. Rep. 1, (6 Curtis 1 ;) and as to the power of taxation, in the opinion of Chief Justice Marshall in the leading case of McCulloch vs. State of Maryland, 4 Wheat. Rep., 316, (4 Curtis, 415.) But it is the war power of the Federal government which my argument requires me more particularly to consider. It is contained in the Constitution of the United States, Art.', 1, see. 10, pars. Mh 11, 12, 13, 14, 15 and 17. This power is given in the most unlimited terms, "the only restriction upon it being that, in raising and supporting armies, “ no appropriation of. money to that use shall be for a longer term than two years.” (See paragraph II of the a?tide anj section referred, to above.) The first duty of a nation is that of self-preservation, and to that end “ it has a right to every thing necessary for its preservation.” Vattela Law of Nations, book 1, ch. 2, see. 16 and 18. Tbe framers of the Federal Constitution, being men no less distinguished for a profound knowledge of the principles of 'government than for patriotism, knew this and acted accordingly. They were master-workmen, and in the edifice of government which thoy erected, they took especial care that those for whose use it was intended should have ample means to protect it. lienee we find in the 23d No. of the Federalist, Mr. Hamilton declaring that c- the authorities essential to the care of the common defence are these: to raise armies, to build and equip fleets, to prescribe rules for the government oi both, to direct their operations, to provide lor their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of tire means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. * * * * This is one of those truth which, to a correct and unprejudiced -mind, carries its own evidence along Avith it,_and may ho obscured, hut cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are uni-vorsal — the mean* ought to tie proportioned to the end; the persons, from whose ag.mcy the attainment of any end is expected, ought to posse. s the 'meoits by which it is to be attained.” To the samo eilcct speakes Mr, Madison in the 41st number of ike same work : CiXs thepoAver of declaring war necessary No man will answer this question in the negative. H'would he superfluous, therefore, to enter into a proof of the affirmative. * * * * * * * Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defence. But was it necessary to give an indefinite rowER of raising TROOPS, as avoII as providing fleotV,' and of maintaining both in peace as well as in war? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer, indeed, seems to be so obvious and conclusive, as scarcely to justify such a discussion in anyplace. With'wl,.,; color of propriety could the force necessaryd'or defence bo limited by those who cannot limit the force of offence ?. If a Federal Constitution could restrain the ambition, or set bounds to the exertions of all other nations, then indeed might it prudently restrain the discretion of its .own governim-ni, and sot bounds to the exertions for its own safety.”

The views of these eminent statesmen and patriots, as to ■the unlimited extent of the war power conferred by the Eederal. Constitution upon the government of the United States, have never been called in question. An inspection of the Constitution of the Confederate States will show that the'same unlimited war power lias been conferred, and in almost the same terms, upon the Confederate government.. Thus, in Art. 1, sec. 8, it iff declared that “ the Congress shall have power (par. 11) to declare war, grant letters of inar;que and reprisal, and make rules concerning captures on laud and-water, (par.. 12) to raise and support armies', but no appropriation of money to that nap shall be for a longer term than two years, (par. 13) to provide and maintain a na.vy, (par. 14) to make rules for the gowrinpent and regulation'of the land and naval forces, (par. 15) to provide-for calling forth the militia to execute the laws of the Confederate States, suppress insurrections and repel invasions, (par. 16) to provide for organizing, arming and disciplining the militia, and for governing such part of I them as may be employed in the service of the Confederate 1 {States, reserving to the States respectively ‘ the appoint--, jment of the officers, and the authority of training the mili-reia according to the discipline prescribed by Congress, (par. 18) and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the Confederate States, or in any department or officer thereof.”

A government, thus invested with the unlimited sovereign power of declaring war, and raising and supporting armies, and possessing also the scarcely less restricted sovereign powers of taxation, of borrowing money; and of regulating commerce, (see Constitution of the Confederate States, Art. 1, sec. 8, par 1, l and 3,) must have attached to it the right, of eminent domain ; for this right is an essen - tial and inalienable attribute of sovereignty. It is so essential and so inalienable that the several States retained it as connected with their respective remaining sovereignties, notwithstanding the. great powers which they surrendered to the general government, and notwithstanding they had ■also surrendered the power of passing any “law impairing the obligation of contracts.” See Raleigh and Gaston R. R. Co. vs. Davis, 2 Dev. and Bat., Rep. 451; State vs. Glen, 7 Jones' Rep. 321. This right of eminent domain is the.right which belongs to the society, or to the sovereign, of disposing, in ease of necessity, and for the public safety, of all the wealth contained in the State. ' It is evident that this right is, in certain cases, necessary io him who govern,s, and consequently is apart of the empire or sovereign power, and ought to be placed in the number of the prerogatives of majesty. When, therefore, the people confer the empire on any one, they at the same time invest him with the eminent' domain, unless it he expressly reserved.” See Vattell's Law of Nations, Book 1, Ch. 20, sec. 244. The Con derate government must also possess, as an inseparable incident of its sovereign power to declare war and io raise -armie»; the right to command the cervices of all its citizens capable of bearing arms. Cí Every citizen (says. Vattell, boob 3, ch. 2, sec. 8,) is bound to serve and defend the State as far as he is capable. Society cannot otherwise be maintained; and this concurrence for the common de-fence is one of the principal objects of every political association. Every man capable of carrying arms should take them up at the first order of him trim lias (he power of ma-' kink war.'” Other writers on government, id great eminence, have laid down the same doctrine. 3ue t.he.aufchorities referred to in the case of Ex.parte. Tate, decided by the Supreme Court of Alabama at its last January Term.

As the Confederate government possessed the undoubted right of eminent dovmvn, those who framed its Constitution deemed it proper u >t to restrict the exercise of it, for that, would . have been highly impolitic, hut to regulate ii by declaring that private property shall not he taken for public use without just compensation. (See Constitution, Art. 1, sec. 9, par. lf>.) ¿hit there is no restriction nor regulation whatever in the Constitution on the power of the govv eminent to command the services of all its ams-bearitig population, unless It be deemed such that, for (he raising and supporting of armies, there shall be no no appropriation of money for a longer term than two years. (See .Mr. Madison's article on this subjo ¡ in the 41st number of the Federalist.)

If 1 have succeeded in showing, as 1 think 1 have, that the Confederate government possesses the right of eminent domain, and has also the power of commanding the services in its army of all its eitize capable oi'bearing arms, .1 am prepared to .-rove that Congress had the constitutional power, by the act of the 5th of January, 18(54, to call into the military service of the country' the petitioner, Walton, notwithstanding he had previously furnished a substitute. The only obstacle in the way of my argument is the assumption, made by 'those who oppose it, that Walton,,by procuring and putting into the army a substitute, as he. was authorized to do by the Act of April 16th, 1862, made a contract with the government, which the legislative department of that government has no power to violate. Admitting, under a protestation, that a contract was made between Walton and the government, and further, that the effect .of the Act of April 16th, 1862, was not merely to grant an exemption as a matter of grace and favor, yet I insist that the government had’ the power, whenever the necessities of the country should require, to annul and disregard it. Let us see what is the nature of the right or interest which Walton acquired by virtue of his supposed contract.. Was it property/or something in the nature of property, or a mere personal privilege. ' If it were none of these, I am at a loss to imagine what it was. The counsel for the petitioner say that it was property, a thing of value. Suppose it. was, then the government had an undoubted right to take it upon making just*compcnsation to the owner, as has alrea’dy been dearly dciyonstiated. Hut it can not he regarded as property in the sense in which that term is used in the Constitution. It can not he taken ” from the owrfer. ,Tt can not bo liable to the payment of his debts ; and yet it. is a well oeiabliahed.prineiple oflaw that a man can not own property, in the proper sense' of that term, of .any kind, real or personal, in possession, in expectancy or in action, legal or equitable, which can not, in some way, or in some Court, be made available by his creditors for the satisfaction of their demands. Craves vs. Dolphin, 1 Simee, Rep., 66; Piercy vs. Roberts, 1 Myine and Keen, Rep., 4; Snowden vs. Doles, 7 Sim. Rep. 524; Mebane vs. Mebane, 4 Ired. Eq. Rep., 131; Hough vs. Cross, 4 Jones, Eq. Rep., 295. It seems tome to be certain then that Walton's exemption from military service was not “ property ” which could bé taken from him for public use, and, not being such, there was no obligation on the government to make compensation. As Walton’s exemption from military service was not property in the sense oí the Constitution, it must be regarded as a mere personal privilege, and as such it may be a thing of value. Still it was liable to the control of the government by virtue of its right of eminent domain, or its power to command the services of all the arms-bearing population of the country. It can not possibly escape the operation of one or the other of these two great prerogatives of government. Had it fallen under the first, then a just compensation would have been due to the owner ; but being under the second, the Constitution makes no such provision in his favor. It resembles, in the respect of being personal and inalienable, the right which a person may have in an office, and it is clearly established that when the necessities or the'good of the country require it, the office may be abolished, though tho effect of it will be that the officer will be deprived of tho emoluments .without any claim to compensation on that account. Hoke vs. Henderson, 4 Dev., 1; Butler vs. Pennsylvania, 10 How. Rep., 416. The necessities of a nation, as of an individual, have laws of their own, and that is the true meaning of the celebrated maxim, that “ necessity has no law.” It has a law, but it is the law of exception. Thou shalt not kill,” is an injunction of the law, divine and human. Thou mayest kill in necessary defence' of thine ■ own life, is a precept of the same law, of no less force than the other.

I have considered this case without adverting to the fact that Walton does not allege in his' petition that he paid any money or other valuable consideration to his substitute to induce him to become such. If he were entitled to ‘any compensation, then, it would be difficult to ascertain the quantum. But the- view which I have taken of the case, renders it unnecessary for me to 'say any more on the subject. I have alluded to it only for the purpose of showing that I -had not overlooked the allegations of the petition.

Having, as I hope, vindicated successfully the 'power of Congress to revoke whatever right or privilege Walton had acquired by his supposed contract with the government made under the sanction of April 16th, 1862, I will endeavor to show what was the true nature of the contract, if contract it were. Parties who enter-into a contract, necessarily do so with reference to the existing law. If they use terms apparently absolute, but to which the law annexes a condition, such condition will of course be implied. The distinction mentioned in the books between express and implicit conditions, and express and Implied contracts, is founded upon this principle. So if one of the parties to the contract possesses the power (which under certain circumstances it will be its duty ío exeren-m) to annul, the other party must necessarily be supposed, to eater into the’ contract with the understanding that it m iy, under such circumstances, he annulled. The party having the power to annul must be taken to have reserved it, whether it be expressed in tire terms of the contract or not, and the other party must bo taken to have tacitly acquiesced in such reservation. Government is the only party which can have the right to annul a contract to which it is a party ; and when the exigency arises which [requires] the avoidanee-when it may bo that the very salvation of the nation depends upon such avoidance- — the' government would be faithless to the great .trust confided to it if it did not proceed fearlessly to the fulfillment of its duty. He who contracts witl) the government, then, cannot complain that the' government avails itself of its power to put an end to the contract in virtue of the condition impliedly annexed to it.

These considerations have led me to the conclusion that Congress had the constitutional power to pass the act o^the 5th of January, 1864, and that, in doing so, it did not violate its faith with the principals of .substitutes by calling them again into the military service of' the country. In coming to this conclusion, I have not availed myself of the authority of adjudication made by the highest tribunals iu several of our sister States ; yet I think I might rightfully have done so. The law of Congress was intended to operate in each and ail of the Confederate States. It Would be unequal and therefore unjust that ft should take effect iu some of the States,and not in others. The State Courts have, upon writs of habeas corpus, taken concurrent jurisdiction with those of the Confederate States, to decide upon the constitutionality of the acts of Congress, called the conscription acts, and with rospect to them there ought to be as much uniformity of decision as is practicable. • Impressed witb this consideration, and knowing that the constitutionality of the act of the 5th of January, -1864, had been heretofore sustained by the» Supreme Court of Appeals of Virginia, in the ease of Burroughs vs. Peyton, by the Supreme Court of Georgia in the ease of Fitzgerald* and others, and by the Supreme Court of Alabama in the casi? ex parte Tate, I should have been reluctant to have concurred in Making a different decision. The judgment of his Honor, the Chief Justice, rendered in- vocation, was given before either of the adjudications, to which I have referred, was made known, and. of course he could not have been influenced by ihat weight of authority, which would now, were my convictions different from what they are, press upon me.

As my brother Manly concurs in the conclusion at which I have arrived in this case, the judgment, given by the Chief Justice in vacation, must be reversed with costs, and the petitioner, Edward S. Walton, be surrendered to the custody of the defendant, T. H. G-atlin.

Manly, J.

The great importance of the subject, and the disquietude which it has caused in the public mind, in luce me to add to the reasons of my brother Battle, such as oc-cqr to me for the judgment we give. I shall do so briefly.

All contracts or engagements on tire part of government, with individual citizens, must, from the paramount nature of its duties to the public, be subject to conditions. Public necessities may arise which will require a modification or revisal of the policy out of which such contracts spring, and it will become the duty of the sovereign power to provide for-such necessities by all means and at every hazard. Wherefore, if it be conceded that ^substitution, under the Act of the 16th of April, 3862, was a contract in the sense contended for, dispensing the conscript from further military service during the war,,it was, nevertheless, a contract, subject to the condition of which I speak. From the nature of the case the government, under its high responsibilities, must judge when this necessity comes ; and Cou-gress has accordingly declared in the preamble to the Act of tlfe 5th of January, 1864, in obedience to which the petitioner was conscribod a second time, that it bad come. “Whereas,’’ it says, “under the present circumstances of the country, it requires the aid of all who are able to bear arms.”

If any evidence were proper or needful to confirm the truth of the view taken by Congress, a survey of the situation at that time would convince any unprejudiced mind. A large portion of our States was occupied by a foreign foe. The invasion was established by a power stronger in all military appointments than ours, having an overwhelming population more numerous in the proportion of five to one, and large armies were mustered and marched'into, the, country by every open avenue to pillage and waste the land and to subjugate its inhabitants. Surely the time bad come, if such a time can come, when the government had a right to call upon every ma.n to aid in its defence.

Authorities are abundant. as to the rights and duties of the war power’in such an emergency. Vattel, Burlamaqui,, "Wheaton and Calhoun have been referred to and are believed to be full and explicit upon the point that exigencies’ may, and will most probably, arise in the history of every community, in which its entire resources in men and money may be needed to defend its existence ; and that, in such case, it is’ the right and duty of the war power to call them into action. Every other consideration yields to self-preservation — the supreme law. Vattel, booh 3, ch. 2 ; Burlamaqui Nat. and Pol. Law, vol. 2, p, 151; Wheat. International Law, p. §5 Calhoun’s Discourse on Government, p. 10.

Whatever restraints may be imposed in the Constitution; upon the government of the Confederate States in other respects, it is clear, in respect to the making of war, maintaining armies and providing for the public defence, that they are unfettered. -Of these matters that government has sole charge, and it constitutes one of those high attributes of powjcr, upon the proper exercise of which its very existence depends. It can not he abdicated, contracted away or encumbered, hut should he kept as a trust to be used for the public safety when there is need for it, unembarrassed by claims of private right. The power of the government over persons, like that which it possesses over property in the right of eminent domain, is to employ every man, as well as every dollar if need be, in defence. The government is but the representative of the people, and it is, therefore, in substance, the right which the people have to call upon one another fbr aid.

These* principles are reasonable, consist with natural law, and with the law T>f the land, and should be present in the minds of all citizens making contracts among themselves or with the government. They are binding upon all, and need never therefore be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control as conditions inherent and paramount, whenever a necessity for their execution shall occur.

When Congress therefore calls upon a citizen who, under ordinary circumstances’-would'be exempt, for military service in this emergency, to speak of it as a violation of con-trae'', seems to me to be a misuse of word a it is a. condition of the contract not arising out,of its literal terms, but superinduced by tbe pre-existing .and higher authority of the' laws of nature, of nations, and of the community to which the parties-belong.

The principle here asserted, has been rarely discussed, or suppos-d io have'any bearing upon the practical aifairs of mankind, because the occasions have been raro in the history of the world, which called for its practical application.

• ¡Subject to this intrinsic condition which attaches itself to every contract, Í think they are binding alike between individuals, and between government mid individuals. Government can.not be constrained by legal process to execute its contracts with individuals, but their ■fulfillment is nevertheless enjoined by tbe immutable laws' of right and natural justice, which-even governments arc not at liberty to disobey. ' ,

There is no article in tbe Constitution of tbe Confederate States which forbids the Congress to pass an Act impairing the obligation of contracts, and the Courts could not, 1 take it, declare such an Act inoperative.' There is nothing in the organic law to prevent them from violating theij- own contracts, but faith and honor, a sense of justice and of their own interests, which they can not be supposed to want, and which constitutes for them their rule of action.

1 have considered the case thus far, upon the hypothesis that a contract was intended, between the government and the conscript. I will now proceed to enquire whether that hypothesis he true.

It should he remembered that the petitioner was eonscribed under the Act of April, 1862, put in a substitute, as allowed to do by the 9th section of that Act, and was discharged. He was again conscrihed under the Act, of January-, 1864,, sued out the writ of habeas corpus y now under review, and was discharged by the judicial officer before whom he was taken.- • '

The act under which the second enrollment was made, is the well known act of the 5th of January, 1864, the preamble of which has been already quoted. No point has been made upon the constitutionality of conscription -generally, but resistance is made to the act of ’64, upon the ground that the furnishing a substitute under the Act of 1862, and his consequent discharge was n contract of discharge for the war.

The clause of the Act allowing substitutes, is in the following words : ” persons hot liable To duty may be received as substitutes for'those who are, under such regulations as the Secretory of War may prescribe," (8th section Act of April, 1862.) This is the charter of powers under which the enrolling officer acted in receiving substitutes ; and the question is, did it authorize, in any sense, a contract on-behalf of the government ?

No regulation of the Secretary of War, or special language in th.e certificate of discharge, is believed to effect the question! None has been called to our attention. Indeed, with respect-to both, I suppose the true enquiry would 'be, what was authorized by the law ? Hid it authorize an irrevocable exemption ? The entire power of the officer, I take it, would be to declare the conscript exempt under the clause of the Act in question, according to its true intent and meaning. To this test, the acts of all ministerial officers should be brought. Within the pale of the law they are valid and binding : without, they have no efficacy;

There have been many definitions of a contract. The one which seems.to be fullest and most approved, and which has been elsewhere adopted in discussing this subject, is u an agreement ’upon sufficient consideration to do, or not to do, a particular thing, between parties able to contract willing to, contract, and actually contracting. " The distinction noticed hy Judge Campbell, in his opinion in the case of the State Bank of Ohio vs. Knoop, si muid be kept in mind, between statutes which create hopes, expectations faculties and conditions, and those which form contracts. The ilfch section of the Act of 1802 authorized the condition of exemption upon certain terms (the putting in of a substitute) and may have raised expectations that thin condition would be allowed to continue through the term of service for which the enrollment was made. But it by no means follows that there was an engagement of the Government to this effect. Jt may he conceded that it was the wish and purpose of the conscript to make a eontuact, that it was indeed his understanding and intention; hut' this is not conclusivo ; mutuality of intention or assent is of the essence' of a contract. Light may he thrown upon the question whether there was a contracting on the part of the government by turning to the condition of affairs at the time this act of 1862 was passed, and hy a consideration of the object it was intended to occomplish.. The States were at that time pressed by a'foe with superior forces and munitions of war, threatening by overwhelming numbers to surround and crush them as ■ it were in the folds of a serpent. To meet this state of things the law was enacted. The Confederate government must have been greatly in need of soldiers, and had in prospect an absolute want of the whole available physical force at their command fop de-fence. Is it probable the States would at such a time have intended by contract to strip themselves of any part of their powets, and thus diminish their ability to make successful their defence.

' Let it he remembered that the government bad the absolute power to enrol the citizens for military duty, limited only by the exclusion of State officers, that it had actually resorted to the compulsory enrollment of a class .of which the petitioner was one. A service was thus demanded of him which he owed, and from which he had no escape as a matter of right. Why áhould the government make any contract with him dispensing him irrevocably from duty, and weakening and fettering its military power ? For, it is .easy to demonstrate the principles of substitution,' viewed as an irrevocable contract, must diminish the force of the. nation, cannot augment it.

' When 'tlie legislative department seeks to enlist individual citizens in an enterprise promising public good, and enacts a law granting franchises and privileges to those ■who will associate' and contribute the necessary capital, and citizens actually embark in' the • enterprise, it is properly regarded ás a contract executed. In such cases it is manifestly the interest of the legislative body to hind the State to the extent indicated in the Act, in order to secure favor from those who owe them.nothing of the sort, time, labor, money andBkill. It is not so in the case of the conscript. The Legislature lias unlimited authority. to, use his personal service. It has but to command, and he must obey.

If in a law exacting such service, there be embodied a privilege of exemption, which can not, by any possibility,, promote, and must probably retard the end proposed, the reason for construing statutes into contracts, utterly fails. In the one instance the government descends from its high position, and says to the citizens, here is an object to be accomplished which will benefit the whole people, but which it is proper should be effected by private enterprise : if you will undertake it, I will grant you privileges which will render the doing of it more profitable and easy. In the other, from its eminence of power, it says to them, the country is invaded, the national existence is menaced, you all owe military service — I hid you to the field. The one is the language of contract “ du ut facias,’' the'Other, that of command, sic volo, sicjvheo. No degree of clemency with which the Legislature may choose to temper the exercise of prerogative, can transmute either command into eon tract, or its accompanying privilege, into vested right. There might he a contract between the principle and Ids substitute, hut with that the government had nothing to do, except to acquiesce in the same, and accept'the one man it stead of the other. The transaction between them xna.v posset-* the elements of a contract, but not so as between' tfie government and the principal. Where is the consideration, for-mstauev, upon which it is based ? The'government p-ts nothing; one man is hut substituted for another. There is no damage or inconvenience wronght to the prime}!;!. Upon his motion he puts in a substitute, which he pref-ns, to doing personal service. No outlay of money is made at government request. The conscript is accommodated. The government gets no advantage, subjects no one to Inconvenience.- There is, therefore, not the semblance of'» cor-sideration moving between the Confederate States and the conscript. Indeed it'requires more ingenuity than I possess to perceive-any one of the elements which constitute a contract in these substitute transactions. Other exemptions from military duty are allowed by the' same acts of Congress, conceded to be revocable, which appear to me on principle no less binding than that of substitution ; for instance, the exemptions of persons engaged in manufactures and in the mechanic arts. These cases are quite as strong as those of exempts by substitution. In the former ’case the parties submit to sacrifices from which the government as well as citizens derive advantage ; but in the latter there is no advantage accruing to government. I confess myself iuchpable of appreciating the logic, which makes one of these exemptions revocable at will,' ^et throws around the other all the sanctity of inviolable compact.

Indeed, I discern in neither an intention, on the part of Congress, to bind the public irrevocably -; but in both the announcement of a policy, which might last for a longer or shorter period, but determinable at the will of the Legislature,.

Looking at this 9th section of the Act ,of 1862 it will be found there, is no specified term of substitution or exemption, no declaration of legal consequences to ensue, nothing which savours of abdication or suspension of the power confessedly possessed by Congress over the Conscript, and which It- was the express object, of the ¿-etto exert. The language of the clatise is permissive and not mandatory, as in the other clauses, and the inference is that exemption by grace only was intended, to continue at the will of the Legislature. This will might? reasonably be expeeiel to prolong the exemption whilst, and only whilst, in the opinion of the Legislature, it should be compatible with the safety of the country. Parties might fairlv hope that, wither? a change in the necessities of the States, they would not be again called upon to do military duty; but the Congress represents in this exercise of power a sovereign, and as such conscripted a portion of its citizens for military duty, upon the then existing considerations of policy, without annexing! restraints on its will or abdicating its prerogative ; and, consequently, was free to modify, alter or repeal the requisition at. will.'

No engagement of an explicit or direct nature, on the ;part of the government, is pretended. The engagement •contended,for is at best deduced from substitution by way of inference. This is against established laws of interpretation. Government is held to part with its powers only by express grant, never by implication. Charles River Bridge vs. Warren Bridge, 11 Peters, 548; Parsons on Contracts, 511; McRee vs. Wilmington R. R. Co., 2 Jones, 109.

The direct authority referred to in the argument, Commonwealth vs. Bird, 12 Mass., 442, was a case of military exemption. In a statute requiring certain extra military duties it was stipulated that those who performed them for the space of live years should be exempt from further military service for life. Bird had confessedly put himself in a condition to claim'this exemption, and was in fact exempt for some years ; but the exeinjrtion was afterwards revoked by statute, and the revocation was held to be legal.

We have been asri-ded. in our consideration of the subject before us, by eases of a like nature in the States of Virginia, Georgia, and Alabama, which seem to have been well considered. These eases decide the Acts of April and September, 1862, and also the Act of January, 1864, to be constitutional and valid.

They arc entitled, I think, to much weight, and serve to confirm and strengthen the conclusion to which this Court bascóme. Burrows and Abrams Sup.. Court of Virginia. Fitzgerald, Daley, and Coben, in Georgia and Tate, in Alabama at Summer Sessions, 1864,

Reviewing then, and condensing what has been said, I am of opinion 1st, that Congress, in the exercise of the war power, can not grant permanent and-irrevocable exemptions upon any terms whatever, and viewing such exemptions in the light of. contracts, they must be subject to the condition, that if the public necessity require', they may be revoked, and that each successive-'Congress must judge of the necessity. •

2d. That the act of Congress of January, 1864,' declared such a necessity thqn to exist, and therefore, the revocation by that act of exemptions by substitution was valid and legal.

'3rd. That the 9th section of the Act of April, 1862, did not authorize exemptions as matters of contract on the part of the government, but as matters of grace and favor ; and that the policy off that act in this particular, was subject to modification or repeal at all times at the will of the legislative body

4. In conformity with.these principles, I am of opinion that the Act of Congress of January 5th, 18G4, declaring that “ no person shall be exempt from military service by reason of bis having furnished a substitute,” and the act of February 17th, 1864,■ which repeals all previous exemptions,'both have the effect of repealing so much of the Act of April 16th, 1862, as allows an exemption to any one furnishing a substitute, and are constitutional and valid. And the petitioner in this case, notwithstanding he had furnished; a substitute, is now liable to military service, agreeably to the provisions of said Acts of January 5th, and February 17th, 1864. •

The decision below, discliargiag the prisonei, is reversed, and he is recommitted to the casto ly of Captain Gatlin.

PbaRSON, C. J.,

dissenting — After a full argument at the bar ; after reading attentively the opinions filed in the Courts of Virginia, Georgia, and Alabama, and after a free discussion with my brothers Battle and Manly, the conviction that there is no error in the judgment rendered by me at Salisbury, is unchanged. On the contrary, it is firmer, because I have now heard all that can be said, and am satisfied that the reasoning set out in the opinion filed in support of that judgment, has not been, and can not be, answered. I adopt i,t as my opinion in this case- (See that opinion in ex parte Walton in the appendix.)

. In regard to the decisions in the States referred to, being made post litem, motam, they are not entitled to the weight of authority, and should only receive the consideration due to the reasoning offered in their support; and I must be allowed to protest against the position, that the action of the Courts*of other States, can have any legitimate bearing on the action of this Court. When North Carolina was called on to decide the great question of withdrawing from the Union, the action of the other States was a matter relevant to the question, because it was a political one ; bat ours is a question of law, the principles of which are fixed, and should not be influenced by collateral circumstances.

My brothers Battle and Manly - have put the decision on the only ground which is unanswerable, “ necessity knows no law;” for if the Courts assume that the government may act on that principle, there is no longer room for argument. We may put aside the u books” and indulgo ike hope, that when peace again smiles on cur cdiratry, ¡aw will resume its sway. “ Inter arma,,, leges silent.'’