Has Congress power- to aonscript citizens to serve as agriculturists, and thereby taire from the State the right to require them to perform u Home Guard ” duty ? '

The only doubt I have had is as to the fr-fc branch of the quQstidn,'i. e., can the Oonfederatfe.Sfcaton, while one part of our citizens arc put in the field to fight with muskets, put another part i.n the field to work with ploughs?

My brothers, Battle and Manly, are (dear in the opinion that-this may be done under the war power, to raise and support armies ; and, indeed, it seems in fall within the principles of the decision in Walton vs. Gatlin, 1 Winston, 318, that, in case of necessity, the power of tha-*23Confederate States is unlimited, so far as the citizens ar« concerned. It is my duty to confortado that decision.

Upon "the other branch of tie question, I have.no difficulty. It is decided in Johnson vs. Mallett (at the extra term) that tjie war power .of the Confederate States, sc far as the States are concerned,'is limited by their rights in regard to civil officers ; and the question -is narrowed -to this: is there also a limitation on the war power of the Confederate States, in regard to the rights of the States under their war power ? I think not; for the reason that the States have, by the provisions of thq Constitution, subordinated.the State war power to that'oí the Confederate States. “No State shall engage in war,- unless actually invaded, or in such imminent danger Jis will not admit of delay.” “ Congress shall have power to call forth the niil-itia, &c.f” the whole if necessary.' So th« war power of a State is secondary, and imposes no limitation on that of the Confederate States. ■ It followS th.at, although the-State may have, as in,this instance, put citizens in the' Honje Guard, such action of the State is sub--ject to the future action of the Oouiederate States,.arid the latter may rightfully take men out of the “ Home Guard ” of a State, in order to put' them in the service of the Confederate States, .under their paramount war power.-

These “agriculturists” are as fully in the service of the Confederate States, under the war power, as if they were fighting in the army. They are in the first place, conscripted for the army, then exempted for the purpose of putting them in the'service as agriculturists.- This wax done in order to give 'them an election th serve with a musket or with a plough. Rut that does' not affect the question : nor is it, in my judgment, at all varied by th# circumstance, that those having 15 slave# are exempted *24directly by the act, and others are exempted or detailed ■by the President in his discretion, under the authority ,o£ tho act. Por the point is,, they are all put in the service of the Confederate States as agriculturists, under tho war power, aud a State has no right to interfere with, or impair, the exercise of ils war power.

Whether men-are to work-themselves in order to raise provisions for tho army, or are to u manage and oversee ” IS slaves, so as to make them work for that purpose, it is clear, that in either case, their efficiency' as agriculturists for tho government, will be impaired, if they are required to do duty in the Home Guard.

I concur with Judge Hattie in.the opinion, that the petitioner is entitled to a judgment of discharge.

The question in this case is, whether' the petitioner, who is, what Is commonly called a bonded exempt, under the 1st, 21 and 3(J paragraphs of the 4fh clause of the Kith section of the act of Congress, passed in February, 1804, eau be ..nade to perform military service in the Home Guards, by force of the ¡rets of our Legislature creating that organisation.' The solution of this .question, depends upon the preliminary inquiries, first, whether the pe-petitioner was,by virtue of the act of Congress,in theservice of, and performing duty for, the Confederate government, at the time when ho was arrested by the defendant for service in the Home Guard ; and, secondly, whether Congress hod power under the Constitution^ to conscribe the petitioner for any other ■ than services of a military kind.

Upon tho first inquiry, I think there oak not he a reasonable doubt. A critical examination of the 2d and 3d-parágraphs of the clause and section of the acts of Congress, to which I have referred, will show that the per-*25*onal at torsion of the bonded exempt is required in' tbe management of tbe farm, to enable him to furnisb tbe government/ with tbe amount of provisions required of him. It is inadmissible to suppose rbat- tbe government was indifferent as to tbe source from which bis quota of supplies was to be obtained Tbe government expected hinwto produce tbe grain'and meat on bis own farm, and not to purchase them from another person, Tbe exigencies óf tbe country imperatively demanded.that every man should produce what he could, and tbe spirit of tbe act of Congress, in granting exemptions to tbe owners of fifteen able,-bodied bands, and authorizing details in favor of tbe owners of a less number, evinces a clear design to stimulate production to the greatest extent. It is manifest that this policy would be thwarted, if a large -slave owner, after securing bis -exemption, should be allowed to becoma indifferent»whether be raised provisions on bis own farm, or purchased them elsewhere. Tbe requirement of a. personal supervision of bis form, is further shown by the proviso contained m'iho 6th paragraph of the clause and-" section of the act referred to,-which declares <: that all the exemptions granted aodep this act shall only continue whilst .the persons exempted arc actually engaged in tbeir respective pursuits or occupations." This proviso is evi-iently not. confined to tbe particular exemption'spoken of in the samé paragraph, for it uses tbe term £C act " 'instead of paragraph of clause, and the words. iC their respective pursuits or occupations," are clearly inapplicable, if contractors to carry the mail were ¿he only persons meant. These words necessarily embrace all the classes of exempts mentioned in the whole (i act."

A reference to the exemption act of October, 1862, ia favor of slave owners, and tbe general dissatisfactio* *26which it cawed throughout tbe country, wift prove still more fully that Congress intended, by the act of 1864, te place the bonded* exempts from military duty into the ■service of the Confederate government, as producers.

The act of October, 1862, exempted from military service in the army the owner of twenty slaves,' without regard to the age, sex or condition, “ to secure the proper police of the country.” But, notwithstanding the cause assigned for it, thfc fact of this exemption of slave owners produced, as is well known, a popular clamor against the measure, which w¿as so great, that Congress was compelled ■■to yield to it; which it did, by repealing the actf and passing the act of February, 1864. The latter act omits the odious feature in the former, and while providing for the indispensable necessity of keeping up a surveillance over slaves when owned in large numbers, made it acceptable to the country, bjt demanding a vigorous service from the owners, as producers for the government.

Tbe second inquiry is, whether Congress had power under the Constitution, to conscribe the petitioner lor any other than services .of a military kind. . That.it had, I think, there can hot be a doubt. Congress has conferred’ upon it by the Constitution of the Confederate States, the power to declaro war, and to raise and support armies. Art. 1, sec. .8, par. 11 and 12. These powers.are conferred in unlimited terms ; except that no appropriation .of mpnoy to that use shall he for a longer time than two years. Armies, when raised, must, he supported, and the power to support must be unlimited as the power to raise them. If the government have the money, or the ability to procure it, Congress may - and usually does, appropriate that to the purpose of purchasing the necessary supplies*; but if there he no money in the treasury, .and the *27government have no means of procuring a sufficient amount'of it, l can not perceive any reason why these persons who would otherwise be in the field as soldiers, may not be compelled to furnish, according to thoir respective abilities, such provisions and munitions of war, as the army may need. -This commutation of services is similar to the escuage, which, in process of time, was allowed in the feudal law., in exchange for the military services which the tenants in chivalry originally owed the lord, of whom they held their lands. 2 Black. Com., *74. But, even supposing that this commutation of services can not he compelled by Congress, there can be no objection to its being allowed to those who may prefer the service of raising provisions, to that of performing military duty in the field or garrison. , . '

Bronx the foregoing considerations, I am clearly of opinion -that the petitioner was rightfully in the service of the Confederate government.. Tliis, as it seemfs to me, must settle the question as to his liability to be'seized and carried off as a member of the. Home Guard.

The supremacy of the war .power of the Confederate, Over that of the State government, cannot ho disputed.

The personal service which the Confederate government has a right to demand, and has demanded of the petitioner, is inconsistent with that which the folate demands of him ; and, such being the case, the latter must give-way to the former. In this respect the bonded exempts differ from*all those classes of exempts, from whom the. Confederate government makes no demand ofiother kinds o? service, as,a condition of exemption from military service. All of the latter kind of exempts, the State may, at its discretion, -pass into its service in the Militia or Homo Guard organization. The Confederate government cannot ex*28empt from the service of the State, any person wbo is not called into its own service ; but every one, who is doing ■service for it, must, of necessity, be protected from being forced into an inconsistent service for the State.

I concur, therefore, in opinion with Judge Heath, that the petitioner ought to.be discharged ; 'hut. as he, in de-fere rice to some prior adjudications-of two of iris brethren, «n the benfch of the Superior'Court, made an order pro forma to reniand the petitioner, l.thiuk that order should be revorsod, with costs, and an order of dischargé entered-

dissenting. Having a decided conviction to the contrary,-! cannot.concur in the opinion of a majority the Court.

, The question is, whether an exempt, who owns fifteen hands, and has g.von bond, as required hv the act of Congress of IJth. Feb., 1864, 4 sess , oh. 5, sec, 10, par. 4, is bound to perform military service in the Home Gruard, organized under the act of óur Legislature of July, 1863 ?

That part of the act of Gongressfrolating to the matter, is found in the fourth division of the tenth section, amd consists of two paragraphs, as follows :

IV. There shall he exempt one person, as overseer or agriculturist, on each farm or plantation upon which there are now, ami were, upon the'first day’ of January last, fifteen able-bodied field bands between the ages of •sixteen and fifty, upon the following conditions :

1.a Tliis exemption shall only bo granted in eases in ■which there is no white male adult on the farm or plantation not liable to military service, nor unless the person claiming the exemption was, on the first day of January, 4864, cither the owner and manager or overseer of said *29plantation ; but in no case shall more than one person exempted for one farm or plantation.

2, Such person shall first execute a bond, • payable to the Confederate -States of America, in such form, and with inch security,, and in such penalty, as the Secretary of War may prescribe, conditioned that be will deliver to the - — -at some railroad depot,. or such other place or places as may be designated by 'the Secretary of War, within twelve months then next ensuing, one hundred pounds of bacon, or, at the election of the.government, its equivalent In pork, ami one hundred pounds of net beef (said beef to he delivered on foot) for each, able-bodied slave on the farm or plantation within the above-' said ages, whether said slaves be worked in tl^ field or not. which said bacon or pork, and be'ef shall be paid for by the government, at the. prices fixed by the Commissioners of the State, under the irnpiessment act: Provi-, ded, that when the person' thus exempted, shall produce satisfactory evidence, that it has been impossible for him by the exercise of proper diligence, to furnish the amount of ’/neat-thus contracted for, and leave an adequate supply for-the subsistence of thocse living on the said farm or plantation, the Secretary of War shall direct commutation of the same, to the extent of two-thirds - thereof).in grain or other provisions, to be delivered by such person as aforesaid, at equivalent rates.

8. Such person shall bind himself, to sell the , marketable surplus oí provisions and grain now on hand, and which he may raise from ) ear to year, -while his exemption continues, to the government, orto the families of soldiers, at prices fixed by the Commissioners of the State, under the impressment act: Provided, that any person exempted an aforesaid, shall be entitled to a credit of twen-. *30ty-five per cent, on any amount of meat which he may deliver within these months from the passage of this act: Provided, further, That persons coming within, the provisions of this act, shall not be deprived thereof by reason of havingfbeen enrolled since the first day of February, 1864. • . 1 '

In addition to the foregoing exemptions the Secretary of War, under the direction of the President, may exempt or detail such- other person as he may be satisfied ought to be exempted on account' of public necessity, and to insure the production of grain and provisions for the' army, and the families-of soldiers. He may also grant exemptions or details, on such terms as he may prescribe, to such overseers, fanners or planters as he may be satisfied wil.1 be more useful- to the country, in the pursuits of agriculture, than in the militar]' service : Provided, that such exemptions shall cease when ¡ventilo farmer, planter or overseer shall fail diligently-to employ, in good faith, his own skill, capital,-and labor, exclusively in the production of grain and provisions, to be sold tc the government and the families of soldiers at prices not exceeding those fixed at the-rime1,' for like articles, by the Commissioners of the State, under the Impressment, act,”

It is. plain to see that the proviso in tne second paragraph., has no reference, to the exempts in the first, and, therefore, has no bearing on the question bo!br<‘ us. Each seems to be -independent of the other. 'The first authorizes a class of exemptions upon conditions, and with provisos. The second adds to this class others upon other* conditions, and with one other proviso — the one in question'.

' The conditions and provisos in each, pertain only to the exemptions or.details therein authorized, and have nothing to do with the exemptions and details in any other. .

*31The language of the last proviso, in its grammatical .structure, is further comfirmatory of this idea. “ Provided,-that such exemptions shall cease,”,&c. The qualifying adjective such limits the meaning of the word .exemptions to some particular class. What class? *Of course the. last mentioned', those in the paragraph, to .which the proviso, is appended. ' *'

Another part of the act, which has been referred to as bearing upon óur inquiry, is that found in paragraph. VI of the same section. It is in these words :

“ VI. That nothing herein contained shall be construed as repealing the act approved 14th April, 1883, entitled an act io exempt 'contractors fo'r carrying the mails of the Confederate States, and the' drivers of post coaches and hacha from military service: Provided, that the exemptions grunted,under this net shall only continue while the persons exomplod are actually engaged in their respective pursuit:: or occupations.”

Here, agaui, is an independent provision for exemptions. v,ill- its appropriate proviso. They belong to each other, and hove, no reference-Jo anything going before or' after. It will he perceived that this part'of the-section deola.u-u ih-> iu.t- therelofore exempting mail contractors, and the dri'-x rs of mail post coaches and-hacks, shall he continued in ¡orce, £: provided, that the exemptions granted under sis. not shall-only continue,” &c. Under what act? Tne answer is obvious — under the act of the 14th April, S8G3* . ^

This construction is strengthened, and rendered certain • in my mind, by an examination of the whole structure of* the act, under consideration, by the apparent independence and completeness of most of its parts, by the consideration. that this same provision is introduced in *32another part of the act, with respect to another class of exempts, and by the farther consideration that the language of the proviso, is inapplicable to some of the exemptions therein granted.

Having cleared away these extraneons and irrelevant matters, the construction of the act in this particular matter now before us, will follow without-difficulty. The sole connection of the .exempt who works .fifteen able-bodied hands, and who give» bond as required, with the government, is through a contract, executory in its nature, which gives.the government no right «f control over his person ; but simply a right to demand the meat stipulated for, and to cal] for a sale to itself or to the families of soldiers, of all surplus marketable produce, at the valuation assessed by Commissioners. A failure to perform these obligations, will subject the obligor to an action on the bond, and damages. Rut l look in vain, whether in the bond, or in the act, for aav obligation of personal service to the Confederate States, inconsistent with his - duty of service to North Carolina.

I recognize in the fullest sense, the war power of. the Confederate States. . There is no limit to the demand which that government may make for men,* save necessa-.’t-j officers ui the State government ; but, until such demand is made.-and toe citizen put into service, lie is subject to be employed in any way which- the State sna-y think proper. . ' ,

If it, were concede 1, that the proviso in paragraph VI '©/■ t)ie 10th section, had reference to all the exemptions in the act of which it is a part, it would by no means follow, in my judgment, that it would amount to a conscription for agricultural labor. Personal service with th& hands, is not necessarily implied. The pursuit or oceu-*33pation may be carried on -vicariously, andj provided it b« prosecuted with the*hands continuously, there would be no forfeiture of the exemption. He might well perform a tour of- duty in the Home Guard, and still Temain an exempt from Confederate military service. *

He is not, according to this construction of the act, either a civil officer or a soldier on detail. He is bound by no tie of personal service, other than that of every citizen, and by consequence, may be employed by the State, in either her'civil or military-department.. '

There is a manifest distinction between the exempts in the first paragraph óf the act which I have quoted, and the detailed men authorized in the.second. The first are loosed from their obligations as conscripts, and can not be-recalled, except by a new law ; the seeond are retained, merely detailed for other duties than military, being Viable > all the while, to a revocation of their details.

My conclusion is — that the petitioner owes no personal service to the Confederate, States, which is ineonsistent with service of the State in any post, civil or military;, and that lie may consequently he compelled to serve in the Home Guard.

The opinion of the Judge below is erroneous ; his judgment is correct.