tarn/ *5ff yf^'ii^'^-'^'mo- ^ -■ '^ ' .onjsioN V OF TUE 5 ,- SUPREME COURT OF APPEALS OF VIRGRIA IVx) TU LIABILlTY/TCf JIILITAM SERVICE -ni." Ttl I- ^^ ^—X -in- THi: rillNOIPALS OF SUBSTITUTiLS, .liiAX Ol' 'iilW Vii:i^liv^/. ■.tj:;a:e RICHMOND > i ^mU%^ Tr.lx > SUPREME COURT OF APPEALS OF VIRGINIA. Or>IITIOjSr. BUR|L0UG1LS VS. PeYTOX, "l */ ■' / /a-tid \0n habeas corpus. Abrahams vs. Peyton, j The returns having been made Avithout reference to the recent act of congress suspending tlie privilege of tlic Avrit of habeas corpus, in cer- tain cases, and the respondent not asking leave to amend them, and rely upon that act ; but on the contrary, stating that he asserts no right un- der it to hold the petitioners in cuf^tody, the court does not consider it necessary to decide any question which might be raised under said act, and will proceed to consider these cases irrespective of it. Although the court has, more than once, acted upon questions arising under the acts of congress approved on tlie IGth day of April 18G2, and on the 27th day of September 1802, commonly callcd'the conscription acts, it has never until now been called on to decide upon their constitu- tional validity, that liaving been heretofore either expressly or tacitly conceded. But the question, Avhether congress had the power under the constitution to pass such acts, is noAV raised, and as it is of the highest public importance, it is proper that it should receive the most careful and deliberate examination. In deciding it, considerations of expediency and policy cannot be permitted to control our judgment. AVe must expound the constitution according to what appears to be its true meaning ; and if it be clear that no power to pass the acts in ques- tion has been conferred by it, we are bound to dechxrc them void and of no effect, however disastrous may be the consequences of our decision. It is said that congress cannot, under the grant of the power to raise armies, place by force and at their own discretion, the citizens of a state in th-c ranks of the army of the Confederate States: that a power to do so would be despotic in its nature and fur greater and more danger- ous than any possessed by the gover^jment, subjec^ii^^^ i'fdbes me personal freedom of every citizen to arbitrary discretion. And more- over, that it ^YOuld be inconsistent with the rights of the states: putting their very existence at the mercy of the confederate government. That a mere general grant of the poT\er to raise armies, without specif^ang the mode in which they are to be raised, cannot be held to confer an au- thority so repugnant to the spirit of free institutions, the principles on which our constitution rests, and the rights secured by it. The power of coercing the citizen to render military service for such time and under such circumstances as the government may think fit, is in- deed a transcendent power; but so far from being inconsistent with liberty, it is essential to its preservation, A nation cannot foresee the extent of the dangers to vrhich it may be exposed. It must, therefoi'-, grant to its government a power equal to avery possible emergency : and this can only be done by giving to it the control of its whole military strength. The danger that the power may be abused, cannot render it proper to withhold it, for it is necessary to the national life. The hazard of abuse should be guarded against by so framing the government as to render it unlikely that it will use the power oppressively. The real question for our consideration then, is not whether the power exists, but tvhere, it exists. Has it been conferred on the confederate government, or is it retained by the states ? In its effects upon the in- dividual personally, the act of compelling him to render the service, is the same whether it is performed by the state or by the confederate government. The question, as to which of them should exercise the authority, relates merely to the proper distribution of political power between the two governments. And the idea that first suggests itself is, that it ought to be placed in the hands of the one which is charged with the duty of providing for the defence of the country : for a govern- ment "from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained." The clauses of the confederate constitution, relating to the military power and its exercise, have been adopted without change from the con- stitution of the United States — the amendments to the latter being in- serted in the body of the former. Whatever therefore, throws light upon the meaning of the constitution of the United States on this point, throws equal light upon the meaning of ours. It is well known that the Union of the colonies was formed for the purpose of combined resistance t(j the oppressions of the mother coun- try. Delegates from the several colonies constituted a congress, which assumed the conduct of the war in the name and on behalf of all the colonies, which soon became the United States of America. But the congress could exercise the power of compelling citizens to serve in the army only tliroiigh the intervention of the states, by means 'of requisi- tions upon them for their respective quotas of men ; and being unable to enforce compliance with these requisitions, it was found impossible to r;iiso an army sufficient for the vigorous prosecution of the war. Tliis difficult}^, which had been so painfully felt throughout the con- test, and which indeed put to serious harvard tlie success of the cause, was one of the chief reasons urged in favor of tlie change of the form of government, effected b}'' the adoption of the constitution of the ■> United States. It was insisted that the government, having the power of determining on peace and war and charged Avith the duty oArovid- ing for the common defence, should be invested with power commensu- rate with that end, and that this could only be done by abandoning the system of requisitions upon the states and authorizing the federal gov- ernment to act directly upon individuals. Tliese views prevailed, the constitution being framed in accordance with them. It will be observed that a broad distinction is made in the constitution between the ^'militia" and the ^^ armies'' referred to in it: the powers conferred on congress and denied to the states, in reference to the one, being widely different from the powers conferred and denied in reference to the other. And indeed, the two words could not have been used to convey the same idea. An army is a body of men whose business is war: the militia, a body of men composed of citizens occupied ordina- rily in the. pursuits of civil life, but organized for discipline and drill, and called into the field for temporary military service when the exi- gencies of the country require it. The experience acquired during the revolutionary war had demon- strated what indeed all previous experience had taught, that however valuable a militia may be, it is unable to contend permanently and suc- cessfully with veteran troops ; and that it would be, to the last degree, unsafe to trust to it exclusively for the defence of the country. It was Avell known that a regular army wotild be absolutely indispensable in a protracted contest vrith a powerful nation. Accordingly, in spite of the jealousy, inherited from their English ancestors, against standing armies, the framers of the constitution gave to congress the power "to raise and support armies." There is certainly nothing in the terms of the grant to restrict congress to voluntary enlistments as a means of raising armies. Nor docs auj sufficient reason appear why such restriction 6 should have been imposed. The experience of the revolution had shown that it was necessary to resort to compulsion to fill the ranks of the army. This compulsion had not, it is true, been applied by the federal government; but that was because it had no power to resort to it, being confined to requisitions upon the states. The states had the power, and in compliance with the requisitions made upon them by congress, con- tinually exercised it, not for the purpose of bringing out the militia merely, but for the purpose, also, of filling the ranks of the regular anny, when voluntary enlistments fell short of the number to be furnii c Avhat number the exigencies of the country might require. 9 The objection to permitting a standing army to be kept up in time of peace was disregarded, because when it was conceded that armies were necessary to protect the country from foreign aggression, it was mani- fest that it ATOuld be unwise to withhokl the power to raise them until after hostilities had actually commenced. When it was resolved that the federal government should be entrusted with the common defence, it followed, as a corrolary, that it ought to be '-invested with all the powers requisite to a complete execution of its trust." It was wisely determined, therefore, " that there should be no limitation of that au- thority which is to provide for tlie defence and protection of the com- munity, in any matter essential to its efficacy, that is in any manner essen- tial to the format 1071, direction or support of the national forces.'' Fed., No. 23. As has been already stated, experience had shown that^the exercise of compulsion Avas necessary to raise an army of sufficient size for the ne- cessities of the country in time of war. It had been habitually applftd by the states in the war from which the country had just emerged. What then could be more natural or proper than to entrust this power to the federal government, along with the other powers confided to it ? Why should it be excepted from the grant ? Such exception would be opposed to the principle on which the grant was founded, and might, at a time of critical danger to the country, render the grant itself nugatory. The power to raise armies by conscription is less dangerous to the liberties of the people than is the power of raising them by voluntary enlistment. An improper exercise of the power of conscription could not fail to excite at once the indignant opposition of the people, while an army might be improperly increased by voluntary enlistments, without attracting much popular attention ; and one, thus raised, would, as has been shown, be made more dangerous to the rights of the states and the liberties of the people than the one raised by conscription. It is said, however, that the absence of a provision requiring the power of conscription to be exercised equally and uniformly, shows that it was never designed to be conferred upon congress ; for, without some such limitation, congress may act most unjustly and oppressively, dis- tributing the burden of raising an army unequally between the different states; and that any state is liable to have its whole arms-bearing popu- lation withdrawn from it and carried oil' to any part of the world, in the ranks of the army. To this it may be answered, that this power, like all others, is un- questionably liable to abuse, though it does not seem probable that the 10 attempt would_ever be made to abuse it in the manner suggested. The protection against its abuse in this or any other manner, is to be found in the responsibility of congress to the people, ensured by their short tenure of office, and in the reserved right of each state to resume the powers delegated to the confederate government whenever, in her judg- ment, they are perverted to the injury or oppression of her people. Again, it is objected that if the authority to raise armies gives to con- gress the right of compelling citizens to serve as soldiers, it embraces the whole war power, so far as relates to the raising of men, and not only renders the provision in reference to the militia superogatory, but enables congress to destroy the militia itself, by absorbing into the army all the men who compose it. And it is argued that it must therefore be inferred that the right of conscription does not exist, as it cannot be supposed that it was intended to confer power upon congress to destroy the militia of the states. It is true that the constitutioii does recognize the militia, and provide for using it, as well as regular armies, in the military service of the country, A well regulated militia was (as is stated in one of the amend- ments) regarded as necessary to the security of a free state. It was, therefore, proper that provision should bo made in the constitution for its organization, and for the authority to be exercised over it by the state governments and congress respectively. It was not probable that in the exercise of its power to raise armies congress would, under ordi- nary circumstances, material!}'- diminish the number of the militia. But it cannot be true that, with the view of preserving the militia entire, it was intended to deny to congress the right to take individuals belonging to it for the regular army. This construction would prevent congress from obtaining from its ranks not only conscripts, but volunteers also ; and as the militia embraces the whole arms-bearing population, it would render it necessary that the army should contain none but foreigners, hired for the purpose, and having no interest in common with the people of the country. No one can imagine that such was the intention of the framers of the constitution. The true interpretation of the constitution in reference to this matter would seem to be, that the power to use the whole military fores of the country was conferred upon congress, and it was left to their discretion to fix, as the varying necessities of the country might require, the rela- tive proportion of regular troops and militia to be employed in the ser- vice. If it should appear at any time to be proper to increase the army, it might be done by taking men from the militia, either as volunteers or 11 as conscripts — the action, in either case, being upon the individual citi- zen, and not upon the militia as an organized body. As it was impossi- ble to foresee how large an army the exigencies of the country might demand, the number of militiamen to be thus transferred to its ranks was wisely left to the discretion of congress. It may be difficult to say to vfhat extent congress have the right, in the exercise of this discretion, to affect the militia as an organized body. It is sufficient for the purposes of this decision to see, as we do, that neither of the acts of congress, the validity of which has been called in question, does destroy or impair the organization of the militia — con- struing them, as it is proper they should be construed, in connection with the exemption acts, which are in pari materia. It will be time enongli when a case is brought before us, in which the organization of the militia is destroyed or impaired by congress, to enquire what limits are fixed to their action in this respect. It is further objected that if congress have the right of compelling citizens to serve in their armies, the state governments are at their mercy, and exist at their will. That they may conncribe all the officers of tlie state — executive, legislative and judicial — and thus put a stop to the action of its government. Congress can have no such power over state officers. The state govern- ments are an essential part of our political system ; for upon the sepa- rate and independent sovereignty of the states, the foundation of our Confederacy rests. All powers not delegated to the Confederate States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people thereof; and the Confederate States guarantee to each state a republican form of government. It is absurd to suppose that the government ©f the Confederate States can rightfully destroy the governments of the states which created it ; and all the powers conferred on it must be understood to have been given with the limitation that in executing them, nothmg shall be done to interfere with the independent exercise of its sovereign powers by each state. Congress can have no right, therefore, to deprive a state of the services of any officer necessary to the action of its government. And the state itself is the sole judge as to the officers that are necessary for that purpose. But it is said that this is not enough to satisfy the rights and duties of a state as a sovereign. That each state has the right to command the services of all her citizens, and on the other hand is bound to afford them protection. That this right and duty arre both interfered with by 12, the exercise of the power of conscription by congress, for, by it the citizen may be drngged from his liome and forced into the army, for ser'^ice, perhaps, in a foreign land against the Avish of the state to Avhich he belongs. If, however, the power in question has been conferred upon congress by the constitution, it is a mistake to say that it can be exercised without the consent of the states. For each state, by ratifying the constitution, gave her consent. We are brought again to the inquiry — is the power granted to congress by the constitution ? 'For the reasons already indi- cated we think it clear that it is. And it was wisely granted, for the rights of the states and the liberties of the citizen can be much more effectually asserted and defended than they could possibly be if this power had bee^ withheld from congress. The objection that the states have been deprived of the power of ap- pointing the officers is founded on the mistake of regarding the forces called out as " the militia." They are not militia, but an army, created under the power given to "raise armies," — not, it is true, a standing army to be kept u]^_ in time of peace, but a provisional army, brought into the field for sei'vice during the existing war. No jDOwer is reserved to the states by the constitution to appoint officers of the army, whether it be regular or provisional. Lastly, it is objected to the acts under consideration, that congress do not themselves exercise the power of raising an army, but delegate it to the president. We do not think that they are susceptible of any snch interpretation. They delegate no authority to the president to raise an army, but merely authorize him to call out and place in the field the army raised under and by the laws. There can be no valid objection to the discretion given him to call out, from time to time, as the necessities of the country might demand, those made liable to service by the laws. It was, on the contrary, eminently proper, that as commander-in-chief he should be invested with such discretion. For the foregoing reasons we are of opinion that the act " to further provide for the public defence," approved on the 16th day of April 1862, and the act amendatory thereof, approved on the 27th day of September 1862, are clearly authorized by the constitution of the Confederate States. The next question for our consideration is, whether congress possessed the constitutional power to pass the act, approved on the 5th day of January 1864, entitled " an act to put an end to the exemption of those who have heretofore furnished substitutes." ; 13 It is insisted that the government, in permitting substitutions, entered into a contract with each individual, in whose stead a substitute was ac- cepted, that he should not (except in certain contingencies specified in the regulations made by the secretary of Avar) be required to render military service during the period of time for which the substitute w&s put in, and that the law in question is unconstitutional and void because it violates this contract. The constitution of the Confederate States provides that no state shall pass any law impairing the obligation of contracts, but does not impose any restriction upon the power of congress in this respect. It is insisted, however, that the omission to prohibit expressly the passage of such laws by congress, resulted simply from the belief that such prohibition was unnecessary, and does not authorize the inference that congress have the power to pass them ; that if any legislature can violate its contracts it is because of its unlimited powers and its being beyond the pale of being questioned in any of its tribunals; that the confederate government exists only by virtue of powers conferred on it ; and as no power has been granted it to break any engagement it may enter into, it lias no right to break a contract Avhich it has a constitu- tional right to make. On the other hand, it is said that though it be true thiit the confede- rate government has no right to exercise any power Avhich has not been granted, yet th;it if in the exercise of a granted power, a law should be passed impairing the obligations of a contract, such law will be valid and cannot be set aside by the courts. In support of this position they compare the clause of the constitu- tution, declaring that no state shall "pass any bill of attainder, c'x jjost facto law or law impairing the obligation of contracts," with the clause Avhich declares that "no bill of attainder, ex post facto law, or law deny- ing or impairing the right of property in negro slaves shall be passed" by congress. And they insist that it cannot be supposed that the Avords "or laAv impairing the obligation of contracts," Avould have been omitted from the latter clause if it had been intended that the power of congress over contracts should be as restricted as that of the states. In the view Ave take of the matter before us, it is unnecessary to decide the question as to the extent of the poAver of congress in this respect, and Ave express no opinion upon it. Substitution was permitted as an act of grace and favor on the part of the government and not as a matter of contract. The government 14 received nothing except the service of one man, in the place of another, to whose service it Avas entitled. The consideration paid by the princi- pal for the service of the substitute was a matter of private arrange- ment between them with which the government had nothing to do. It is true that, under a regulation made by the secretary of war, the substitute was not received for less than three years or the war, although the party putting him in may not have had so long to serve. And it is said that in this way the government received more than a mere equivalent for the service of the principal. The advantage gained by the govern- ment is rather seeming than substantial, for the government lias the undoubted right, on the expiration of the time for which the principal is liable, to make a new call upon him and compel him to serve so long as the necessities of the country ma}^ require. The only advantage then it can be said to have gained is that it has relieved itself from*the in- convenience of having to make a new call, as soon as it might other- wise have been required to make it, and this advantage cannot be re- garded as material. Indeed, it was found that substitution, on these terms, was so disadvantageous to the service that before the passage of the act now under consideration, one was passed prohibiting entirely all future substitution. It was originally permitted as a privilege to indi- viduals, and not from any benefit the government expected to derive from it, and it did not cease to be a privilege because of the terms im- posed as the condition of granting it. It is said, however, that where the substitute is in service at the time that the principal is again called in, the government gets the service of two men when, but for the sifb- stitution, it would have had the service of one of them only. This is an incident of the substitution which may result favorably to the gov- ernment in the case supposed ; but it is not perceived that either the principal or the substitute has a right to complain. The substitute is required to serve no longer than he has, for a consideration satisfactory to himself, agreed to serve ; and the principal has, as will be shown, re- ceived all he has a right to claim under the exemption granted him. Even if the privilege of substitution had been granted upon a valua- ble consideration paid directly to the government, congress would have a right to put an end to the exemption, granted by reason of it, when- ever in their judgment the situation of the country became such as to render it proper that the party should be again required to serve in the army. However binding the arrangement of substitution, when made^ may be % 16 upon the government, it cannot extend further than to discharge thi person putting in the substitute from the liability to which he is t subject under the existing law. No contract entered into by congress can be enforced or sustained, unless it appear that the power to make such contract has been conferred by the constitution. No power has been granted them to agree that any person liable to render military diit}'- shall be exempted, for any fixed time, from such liability, under any and every call for troops, which the necessities of the country may require to be made. The obligation of the citizen to render military service is a paramount social and political duty. It is a matter in whicli the whole body politic is interested. "The citizens have a right collectively and individually to the service of each other to avert any danger which may be menaced. The manner in which the service is to be apportioned among them, and rendered by them, is a matter for legislation." The government, as the agent and trustee of the people, is charged with the whole military strength of the nation, in order that it may be employed so as to ensure the safety of all. The power which it has to enforce the performance of the obligation to render military service, is given that it may be used, not abdicated. No right has been conferred on the government to divest itself, by contract or otherwise, of the power of employing, whenever and as the exigencies of the country may demand, the whole military strejigth that has been placed at its disposal. As the nature and extent of those exigencies cannot be foreseen, and it is impossible to say in ad- vance that the services of every citizen capable of bearing arms may not become indispensable for the defence of the country, the government has no right to enter into any contract precluding it from requiring those services if they should be needed. If there be such right, the spectacle might be presented of a nation subjugated and destroyed at a time when it had within its limits citizens amply sufficient to defend it successfully against all the assaults of its enemies, but whose services could not be commanded because, forsooth, the government had con- tracted with them that they should not be required to serve in the army. It may possibly be said that our protection against this (ganger is- to be found in the reserved concurrent power of the states to employ their military strength for the defence of the country. This may perhaps lessen our danger, but it does not meet the argument. The proposition is that the government of no nation can abdicate, or bind itself not to exercise any part of the power entrusted to it for the defence of the community. And it cannot be supposed that it was intended, under our ^^tom of government, to confer the right upon congress to strip them- .^■pres of their power, and trust to the irregular, uncertain afld tardy motion of the several states to bring out the military force of the country. It may he said, also, that the case supposed is an extreme one, and that it is not at all probable that any government "would ever enter into contracts depriving itself, to any extent, of the right to exercise the powers with which it was invested. This is true. The case supposed is an extreme one, not likely to arise, even if the right in question- were possessed by governments. But it tests the principle. In determining the powers of governments we ought not only to look to what Avill proba- bly be done, but we should look also to what may possibly be done under them. No government can have the right to endanger the life of the nation it represents, by contracting that it will not exercise the powers confided to it. For a proposition so obviously true, it can hardly be necessary to cite authority ; but the authorities are ample to show that, in less important matters than that of military defence, "a legislative body cannot part with its powers, by any proceeding, so as not to be able to continue the exercise of them,"' and if any attempt be made to do so, the act is null and void. "It can and should exercise them, again and again, as often as the public interests require." "It cannot abridge its own legislative power by making permanent and irrepealable contracts in reference to matters of public interest." East Hartfoj^d vs. Hartford Bridge com- pany, 10 How. Sup. C. R. 511. Gooszler vs. The corporation of Gtcorge- toivn, 6 Wheat, 593. In the case of Ohio life insurance and trust com- pany vs. Debolt, 16 How. S. C, 426, in which the question was as to the validity of the state law, Chief Justice Taney says : "The powers of sovereignty confided to the legislative body of a state are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good, and no one legislature can, by their own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body, unless tliey are authorized to do so b}^ the constitution under which they are elected." We think, therefore, that if it appeared that congress had attempted to make a binding and irrepealable 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. But there has 17 boon no attempt to make any such contract. Exemption from futui'C liability on the part of the citizen to render military service at the call of the country, is not a subject matter of contract within the meaning of the clause of the constitution prohibiting the passage of any law im- pairing the obligation of contracts. By the term "contracts" in that clause it is not meant to include rights and interests growing out of measures of public policy. Acts in reference to such measures are to be regarded as rather in the nature of legislation than of compact, and although rights or interests may have been acquired under them, these rights and interests cannot be considered as violated by subsequent legislative changes which may destroy them. Whatever in the nature of a contract could be considered to exist, there must be implied in it a condition that the power is reserved to the legislature to change the law thereafter as the public interests may, from time to time, appear to require. In delivering tlie opinion of tlie wliole court in the case of Butler vs.- Fennsijlvania^ 10 How. Sup. Ct. R. 416, Mr. Justice Daniel says ; "The contracts designed to be protected by the tenth section of the first article of the federal constitution are contracts by which perfect rights, certain, definite, fixed rights of property are vested. These are clearly distinguishable from measures or engagements, adopted or under- taken by the body politic or state government, for the benefit of all? and from the necessity of the case, and according to universal under" standing, to be varied or discontinued as the public good may require. Accordingly, it was held in that case that an appointment to a piiblic office, which by the existing law of the state, was to be held for one year, with a fixed per diem compensation, does not amount to a con- tract by tho state thus to employ and pay the officer during the year. So that a law repealing the ftrmer Uw and directing that the office should be vacated before the expiration of a year, and in the mean- time that the officer should receive a smaller per diem compensation than he was entitled to under the first law, was held Valid. And the officer who continued to discharge the duties of the office, from the day fixed by the latter statute for the' reduction of his compensation. Until the day when the office was vacated, was held to be entitled to the reduced com- pensation only, and not to that fixed by the statute under which he re- ceived his appointment. See also East Hartford vs. Hartford Bridge, 10 IIow.. S. C. 511, end the opinion of Mr. Justice Campbell, in State bank of Ohio vs Knoop^ Ifi Howard, S. C, 405. So, divorces granted by the legislature of a state do not (according 3 18 to the preponderance of authority, and as we think, in . ccordance with sound principle,) impair the obligation of contracts ; because mar- riage, although usually denominated a contract, and certainly one in some senses, is also a status or civil relation, and therefore subject to legisla- tive control. Bishop on Marr and Div., §771 to §775. Where a proclamation ^Yas issued by the King of Great Britain, declaring that the net proceeds of all prizes taken should belong to the cap- tors ; and parties had at their peril taken a prize from the enera}^ and had incurred expenses in securing it, it was held that the crown might, if it thought proper, for reasons of state and public policy, restore the prize without the consent of the captors, and without making them compensa- tion, on the^round that the prize being the property of the crown, and the only title of the parties to it being derived from its grace and bounty, it was regarded as a condition annexed to the gift, that it might be recalled and revoked by the crown if considerations of public policy rendered it;, in its opinion, proper that it should be revoked. And this was decided not upon any peculiar doctrine of the English law or constitution, but as a general and necessary principle of public jurisprudence. Case of the JElsebee diase, 5, Rob. (Adm.) 173. This case was decided by Lord Sto- well, and is cited and commented upon with approbation by Lord Chan- cellor Brougham, in the case of Alexander vs. The Duke of Welling- ton, 2 Russ. and Myl. 35. So, where a seizure was made by a revenue officer, under a promise contained in a law of the United States that on conviction he should share the forfeiture, and a condemnation was regularly had, adjudging the forfeiture to have been incurred, it was held that a discharge of the forfeiture by the secretary of the treasury, without making compensa- tion to the revenue officer, who had incurred trouble and expense in making the seizure and procuring the condemnation, was no violation of vested rights or impairment of the obligation of a contract within the meaning of the constitutional inhibition. United States vs. Morris, 10 Wheaton, 246. See also the cases of State bank of Ohio vs. Knoop, 16 How., S. C. R., 369, and the Ohio-life insurance and trust company vs. Debolt, 16 How., S. C. R., 416, and especially the opinions of Justices Campbell, Catron and Daniel in those cases. For the marked distinction between an engagement to render military service and a contract, the cases of the United States vs. Cottingham, 1 Rob. Va., R., 615, and United States vs. Blackeny, 3 Gratt., 405,- decided by our own court, may be referred to. 19 To borrow the language of Mr. Justice Campbell, in the case of the State bank of Ohio vs. Knoop, and apply it to the cases before us : "A plain distinction exists between statutes which create hopes and expectations and those which form contracts." Congress allow exemp- tions from military service to those who have furnished substitutes, "on existing considerations of policy, without annexing restraints on their will, or abdicating their prerogative, and consequently are free to modify, alter or repeal them." Whatever, therefore, may have been the expectation, at the time, in reference to the extent of the exemption obtained by putting in a sub- stitute, there was clearly no '-contract," the obligation of which has been impaired, and no vested right which has been violated, by the pas- sage of the law putting " an end to the exemption from military service of those who have heretofore furnished substitutes." But if all this were otherwise, and the permission granted by congress ifeo individuals to put in substitutes, could be held to amount to a con- tract by which congress was irrevocably bound, what would be the tr»e interpretation of that contract ? The well estabhshed rule of construction, is that all grants of privi- leges and exemptions from general burthens, are to be construed liberally in favor of the public, and strictly as against the grantee. Whatever is not plainly expressed and unequivocally granted, is to be taken to have been withheld. Charles Reives Bridge vs. AVarren Bridge, 11 Pet. 420. The Rich. R. R. Co. vs. The Louisa R. R. Co., 18 How. S. C. R. 71. State Bank of Ohio vs. Knoop, 16 How. S. C. R. 369. Ohio Ins. Co. vs. Debolt, 16 How. S. C. R. 416. It would be especially improper to infer, in the absence of the most distinct indication of intention, that congress intended in any grant to go further than the constitution allows them to go. But it is not necessary to apply a strict rule of construction. No fair interpretation of the law can make it a grant of exemption from liability to service, under laws which might thereafter be passed, as the necessities of the country might from time to time require. The 9th section of the act of 16th April 1862, provides " that per- soBs not liable for duty may be received as substitutes for those who are, under such regulations as may be pr^^ribed by the secretary of war." This is the whole provision on the subject. There is not one word to show that it was intended to extend the exemption from liability, by reason of having furnished substitutes, to any liability other than that 20 created by the act. On tlie contrary, the langij/»gc is, "persons not liable for duty may be received as substitutes for those who are. What duty and liability are referred to ? The duty and liability, of course, imposed by the law, of which this section forms a part, and no other. When the liability was extended to other persons by the amendatory act of 27th September 1862, the privilege of substitution was also ex- tended to those then made liable, by the provision that nothing therein .contained should be understood as repealing or modifying any part of -the act of 16th April 1862, except so far as was therein expressly stated. Nor is there anything in the regulations made by the secretary of war, under the authority conferred on him by these acts, from which it can be inferred that the exemption could be made to extend to any liability other than that created by tlie acts themselves. If it had been supposed that those furnishing substitutes were to be relieved from liability to future calls, during the period of time for which the substitute was furnished, an exemption paper so stating, in express terms, would have been given. Instead of such a paper, Ave find that nothing more was ever given than a simple discharge from the armjr. Again, wj^atev^r may be the power of congress, no one can pretend that the secretary of war iiad any right, without express authority of law, to make a contract for exemption, whicli would relieve the party from liability under any call for service that might be made by congress during the time for v/hich the secretary's' exemption lasted. Now, the law permitting substitution merely gave the sanction of congress to a practice which had previously prevailed under orders of the secretary. It made no change in that practice, and there is nothing to show that it was designed to extend the exemption, by reason of substitution, be- yond the limits within which it was confined under it. The nature of the transaction, the terms of the act, and the regu- lations and practice under it, all show that, a,ccording to the true intent and meaning of the parties, the persons furnishing a substi- tute Avas to'be relieved from the liability then resting on hiui, under ex- isting laAvs, to render military service, and from_ that only. There is nothing to show that it was designed to exempt him from any service which the future wants of the country might make it proper for congress to require of him. He may, it is true, have entertained the belief tUat the necessities of the country v/^kl not be such as to require another call to be made upon him, and S(^ave hoped and expected that by put- tinj; in the substitute, he would in f ict be relicvfed from the iV^rformance of military service during the time for which ho was piit in. Tlie dis- 21 appointment of these hopes and expectations can give him no right to comphain. If he has sustained loss, it is damnum abeque injuria. The govern- ment has been guilty of no breach of faith ; for, if the transaction be called a contract, he has had the benefit of all that he contracted for, namely, exemption from service until the situation of" the country be- came such as to make it necessary that he should again be called upon to take part in its defence. The act putting an end to the exemption from military service of those who have furnished substitutes, commences with the recital, that " -whereas, in the present circumstances of the country, it requires the aid of all -who are able to bear arms," thus showing, on its face, that but for the pressing necessity of the country, the exemption Avould not have been taken away. It would be beyond the jurisdiction of the court to en([uire whether congress were right or wrong in supposing such necessity to exist. Of its existence, congress, to whose discretion it is confided to provide means adequate to the defence of the country, have the exclusive right to judge. But it is objected that the law is unconstitutional and void, because it makes no provision for compensating those whose exemption is taken away. It is said that the privilege of exemption is a vnJuable right, and if the public necessity requires that the citizen should be deprived of it, it can be taken only upon making to him a just compensation. We have seen that the transaction is one relating to a matter of pub- lic concern, as to Avhich congress could not, if they would, make any valid contract which would entitle the party to compensation; and fur- ther, that they have not attempted to make any such contract. It has also been shown, that even if the transaction could be regarded as a contract, the government has fully complied with its engagement, and has deprived the party of no right ; for the condition has happened, upon the happening of Avhich by the contract itself, according to its true interpretation, the exemption was to cease. If there should be any case presenting an equitable ground for relief or indemnity, it is a matter of which the courts can take no cognizance. The only remaining question is, whether the petitioner Burroughs, who claims to have *pu^i^ his su^^tute^ uj^dor Ihe law of the state, passed on the 10th day or l^ebruarJIpfG^, ^|fflds on a diiferent footing as to this matter, from those who have put m substitutes under the act oi concrcss. ■ v\ » 22 It has been very much disputed, in the argument of the case, whether he did really put in a substitute under the state law, in such a way as to entitle himself to a discharge from service according to its provi- sions. We consider it unnecessary to enter upon an examination fof this question,' because, s'upposing him to have acted in strict conformity with the requirements of that law, and to have become entitled to a dis- charge from service according to its provisions, we do not think that he occupies a better position than those do who put in substitutes and ob- tained their discharge under the law of congress. Tlie law of the state, like the law of congress, exempted only from the then existing liability to render military service, and did not (as it could not properly) under- take to exempt from future liability, if the necessities of the country should make a further call necessary. The act of congress of 16th April 1862, operated upon all white men Avho Avere residents of the Confederate States, betM'een the specified ages, and not legally exempted, whether they were in or out of the army. Those in the array, however they had been put there, whether under re- quisitions upon the states, or as volunteers turned over by state authority, or in any other manner, became liable to service under the act of con- gress, which superseded all previous laws and all calls that had been made for troops. Those who had put in substitutes under state authority, had a right to expect to enjoy the benefit of it, in like manner as if the substitution had been eff'ected under the orders of the secretary of war, or the act of congress, and this right has always been recognized and allowed by the confe'derate government. But they have no claim to stand on any higher ground than those Avho put in substitutes under confederate au- thority. We are of the opinion, therefore, that boih of the petitioners are liable to render military service, and must be remanded to the custody of the officer. A cop}^ — Teste : M. T. Starke, Clerk of the supreme court of appeals of Virginia, at Richmond. V_ Hollinger Corp. pH 8.5