dissenting.
With a full sense of the importance and delicacy of the question involved in this case, and the necessity of unanimity by the Court in its judgment, I have labored earnestly to bring my mind to the same conclusion with my associates, but with all my anxiety I have been unable to do so, and shall briefly assign the reasons for my dissent.
The applicant for discharge under the writ of habeas corpus, had been arrested, and was held in custody by the enrolling officer as being subject to the duty prescribed by an Act of Congress, entitled “An Act to further provide for the public defense,” approved 16th April, 1862. He claimed his right to a discharge on the ground that he had furnished a substitute, as he was allowed to do by that Act, and had received from the captain of the company, who had received his substitute, an absolute discharge from all further liability to military duty for three years, or during the war, the term of service prescribed by that Act. To this it was replied, on the part of the enrolling officer, that while it was true that such substitute had been furnished and received, the substitute was only thirty-seven years of age, and had himself become liable to a similar duty by the Act of Congress of 27th September, 1862, extending the provisions of the Act of April, 1862, to persons between the ages of thirty-five and forty years, and that by the latter clause of one of the regulations — No. IY, of General Order 29 — prescribed by the Secretary of War, in pursuance of the authority vested in him by the same Act allowing substitutes, and with a view to meet such, and similar cases to this, and which said regulation was in force at the time the substitute was furnished, and that as the substitute was no longer legally exempt, the applicant’s discharge was no longer valid, but that he was now, by the terms of the Act and the regulation, bound himself to fill his own unexpired term of service. The clause in the regulations of the Secretary of War relied upon to support this position is in the following words: “ Such exemption is valid only so long as the said substitute is *425legally exempt.” It is upon these facts, the application of the regulation to them, and the interpretation of the regula-' tion itself, in reference to the Act of Congress under which it was adopted, its extent, etc., that the question of the case is made — whether the applicant is entitled to a discharge or not ? The Court decides that ho is not. I maintain on the contrary that he is.
1. Because the Act not only did not clothe the Secretary of War with the power to impose such conditions or terms upon the act of substitution to the extent that is claimed for the regulation I have quoted above, but that if that regulation was intended, and does in fact extend so far, it is repugnant to the sense and spirit of the Act, and therefore void.
2. Because that clause of the regulation does not in fact extend, apply to, or control the question in this case.
The Act of Congress, of 16th April, 1862, authorizes the ’ President to call out and place in the military service of the Confederate States, for three years, unless the war shall have sooner ended, all white men, residents of the Confederate States, between the ages of eighteen and thirty-five years at the time the call or calls may be made, who are not legally exempted from military service; and the ninth section of the Act provides, “ that persons not liable for duty may be received as substitutes for those who are, under such regulations as may hepreseribed by the Secretary of War.”
The Act applies only to the citizens of the Confederate States, the duty created is a military service of three years, and the persons subjected to that duty are all white, male citizens between the ages of eighteen and thirty-five years, who are not exempt by law. The object of the Act was to raise an army adequate to the exigencies and perils of the country, then in its greatest straits, and this, it was thought, would bring into the field all the available and effective arms-bearing population of the Confederacy that could be spared from the agricultural, producing and manufacturing interests, that were as essential to a successful prosecution of the defense — the maintenance of the army in the field, and continued prosperity of the country, as the operations of the *426army. The law, although absolutely necessary, was extremely onerous, and in many cases would have operated oppressively, for between the ages of eighteen and thirty-five years there were many subject who could not leave their homes, families and pursuits without sacrifices that no government, however great its necessities, could justly require them to make, if it could possibly be avoided. To remedy such and other hardships, Congress accorded, as a part of the Act, the privilege to the subject who chose, and was able to do so, of furnishing a substitute. This privilege going along with the liability to soften its rigor, was a right in the citizen, as absolute and indubitable as the liability was imperious and necessary.
It is urged that the right to furnish substitutes was not perfect, but that it was circumscribed by the provision that they, the substitutes, might be received “ under such regulations as may be prescribed by the Secretary of War,” and that it the War Department had prescribed no regulations on the subject, no substitute could have been furnished and received, and that therefore the right or privilege of furnishing substitutes was coupled with and dependent upon whatever conditions and terms the Secretary of War might choose to impose. If this view be a correct one, then the law did not confer any right or privilege upon the citizen to furnish a substitute, but simply clothed the War Department with the power to allow or not, as it thought proper, and if so, then to hamper the privilege with such conditions or terms as to greatly impair, or altogether defeat, its benefits. I cannot force my mind to assent to such a construction, but it seems to me to be utterly at variance with the letter and spirit of the whole Act. Could Congress have delegated to the Secretary of War such extraordinary power ?
I do not believe that it could. The enactment of laws, being the highest and greatest act of sovereignty, can only be done by the sovereign power of the State. A law must remain and continue in force, just as it leaves the Legislature. It stands as it issued from the hands of its creator. If it be imperfect, incomplete, or defective, by failing to provide *427for all contingencies, or in any other respect, such defect cannot be cured, altered, or amended by any subordinate creature. It requires the same power to amend, altes, abridge, or extend it in the slightest respect, that it did, in the first place, to create it; for all or any of these is legislation, and this cannot be delegated. Now, in the case before us, the subsequent extension of the provisions of this Act to persons beyond the age of thirty-five years, and to provide against the possibility of those persons to whom the Act might subsequently be extended, becoming substitutes for those who were then liable, were questions for Congress; that is, whether the Act should be extended, and, if so, whether the substitutes furnished to whom the Act might be extended, should fall within the operation of such future legislation, so as to keep the substitute in the service on his own account, and to require the principal to fill his own place, or employ a new substitute, were questions that Congress could alone consider and control; for it anticipates legislation and provides for it, against the right of the citizens. This, I hold, an agent appointed for a specific purpose, that is, to execute the will of Congress as already expressed, cannot do. To hold otherwise is to declare that the Secretary of War, appointed by Congress to execute its declared will, can determine what Congress, under the particular circumstances, ought to have done, or what Congress will do, and discharge the duties of his office accordingly, and that the rights given and the duties prescribed must not be measured and ascertained by the law, but by what the agent does and says — thus giving to his acts and declarations the force and effect of law. This, I think, is going too far. A Legislature may devise a scheme, or enact laws, and give therein a general discretion to an agent as to the prosecution of the scheme, the management of details, etc., but in all such cases, the action of such agent must conform, to the letter, to the expressed will of the Legislature. He cannot devise a new scheme — anticipate what the Legislature would do in a case not expressly provided for, nor take anything for granted, but must have a clear and unmistakeable warrant for all that he does. Concede, however, that Con*428gress could have delegated this power: did it do so? I am clear that it did not. The power is alone claimed under the last claus<j of the 9th section of the Act, already quoted, to-wit: that the substitutes may be received, “under such regulations as may be prescribed by the Secretary of War.” Suppose these words had not been added to that clause, but had been omitted by Congress, would it not have been the duty of the Secretary of War, as the head of the War Department, to have prescribed regulations for the service in respect to this subject by which it could be carried into effect, and uniformly throughout the whole service? Would it not have been his duty to prescribe regulations for the examination of the proffered substitute — to declare what should be his physical qualification, etc., so that the intention of Congress, the good of the service, and the rights of the citizen and subject should be promoted and protected? Most assuredly. The words used defining the duties of the Secretary of War would have been implied if they had not been expressly employed. They are but mere general directions to that officer to adopt such regulation as would effect the purpose of Congress, previously declared. The whole section is the same in effect as if Congress had .said: the persons upon whom this liability is imposed may be relieved therefrom by furnishing a substitute from those persons who are not liable to this law. And the Secretary of War is directed to carry out this provision by adopting such regulations as will secure the right to the subject, and at the same time protect the service from injury in receiving persons as substitutes who are incapable of performing the duties of soldiers. No new or additional powers were given to the Secretary of War, to defeat or impair the right of substitution, or thwart the declared will of Congress, but the power given was to execute that will, and this was his duty in the absence of such expression. Suppose the War Department had prescribed no regulations, would his failure to do so have defeated the right to furnish a substitute? If so, it is the first instance in my knowledge of legislation when the failure of an officer to discharge his duty has legitimately defeated the right of the citizen. The *429Courts, in such cases, upon application, have never failed to find a remedy that secured the right. But it is a simple absurdity to suppose that this officer or any other in like position would fail to discharge such a plain and imperative duty.
As already stated, the liability or duty, created by this Act, was a military service of three years, and the persons subjected to this liability were all the white male residents, that is, citizens or persons, who had placed themselves by their Act in that status towards the Confederate States, who were not otherwise exempt by law, between the, ages of eighteen and thirty-five years at the time the call or calls should be made by the President. This was the duty and these the persons to perform that duty. All other white male residents, that is, citizens in the sense above stated, were the persons not liable to the duty prescribed by the Act. And from these, says Congress, substitutes may be received for those who are— that is, that the persons who are not liable to the provisions of that Act may be received as substitutes for those persons who are liable to its enactments. The word substitute has but one meaning, and that is, “one person or thing which is put in the place of another person or thing to answer the same purposeand it was in this sense that it was used in this Act. Congress, then expressly declares that any person subject to the stringent provisions of this law, in order to be relieved from its operation, shall have the right to furnish in his place and to perform the same service, not apart but the whole service, that he by the law is required to perform, any other per,son capable of performing that service, that he can procure for that purpose from among those residents or citizens of the Confederate States who are not subject to the duty imposed by this Act. Now if the regulation imposed by the Secretary of War goes to the extent claimed for it — that is to exclude wholly or partially those persons, from that class from which Congress declares substitutes may be received, who may from the necessities of the country be called upon to perform military service by future legislation, then the regulation does that not only which Congress did not think necessary to enact, but it conflicts directly with the Act of *430Congress by circumscribing and narrowing the right or privilege conferred on the subject in lessening the number of persons from whom the substitutes were to be procured. In other words, Congress says to the subject, here are certain persons, any of whom, able to perform your duty, you may employ on the best terms you can as a substitute and he shall be received in your place, and on this you shall be discharged from this duty. The War Department adds, yes, you can do'so if you please, but if you do, on the happening of certain contingencies, the substitution shall be no longer valid. Thus diminishing the number of persons from whom substitutes might be received, increasing the difficulty of procuring them, and in a great measure defeating the intended benefit. To sum up the argument, Congress gave the right to the subject of the law to furnish substitutes, and specified the class of persons from whom the substitutes should be taken, and when it directed that the process should be performed under regulations to be prescribed by the Secretary of War, it was intended only that the Secretary of War should prescribe such regulations as would most effectually carry out its will and intention thus expressed, but not to impair or defeat the right given either in whole or in part, and if the regulation has this effect it is void, for the will of Congress must prevail and not that of its agent.
The other position that I take, that the regulation of the Secretary of War relied upon, does not control this case or meet the question made by the record, presents less difficulty than the one I have already discussed. That clause says, that “such exemption,” that is the exemption from the duties prescribed by that Act, obtained by one furnishing a substitute, “ is valid,” shall continue, “only so long as the said substitute is legally exempt.” Legally exempt from what? Why, clearly from the liability imposed by the Act of Congress to which the regulation had reference, and which called upon him to prescribe the regulation — the one then in force — not liabilities to be imposed by future legislation, and not then created, and such as might never exist. All acts or regulations must be construed with reference to laws in force— *431to the state of things in existence at the time of their enactment or adoption. To anticipate the future wants of the country and to provide against and for them, is the duty of Congress, not that of the Secretary of War. That Congress had done by the passage of the law then in force, which if not adequate was at least deemed to be so by Congress. This construction makes the regulation conform strictly to what the Act of Congress required, and no more, and at the same time secures to the citizens the full enjoyment of the right guaranteed by the Act. That is, the regulation so understood is in accordance with the letter and spirit of the Act. It may be asked if this be the true interpretation of the regulation, what was its object ? To this, I answer that it was intended and does apply to those substitutes who might be furnished and who at the time of being received were not subject thereto, but might subsequently fall within the operation of the Act. Thus, the Act says that all white male residents between the ages of eighteen and thirty-five years are liable to the service “except those who are exempt by law.”
General Order, No. 29, of the War Department, of which the clause under discussion is a part, specifies the persons to whom the Act referred as being exempt by law, and they are Justices of the Peace, Sheriffs, Clerks, Postmasters and their deputies, allowed by law, Masters and Commissioners of Ordinary, District and State Attorneys, etc. Now, there’was nothing in the Act or regulation to prohibit any of the persons, holding these various offices, from becoming substitutes for those who were liable; so long as they retained their official positions they were exempt and could not be enrolled, but when they ceased to hold the offices that protected them, they fell within the operation of the law, and were no longer legally exempt but were liable to enrollment. Hence it was proper and necessary that the Secretary of War should by regulation provide for such contingency, and to hold, in all cases when the substitute was furnished from this class of persons so exempt, the principal to be exempt only so long as the substitute himself be exempt from the liability of that *432Act. Another class of cases to which the regulation justly applies and which is equally palpable and obvious, is that of young men below the age of eighteen years who might be received as substitutes. So long as they are below the age of eighteen, they are not liable, but if they be taken as substitutes, and during the term of service arrive at that age, they are then fully within the provisions of the Act, no longer legally exempt, and liable to enrollment. . These are the cases that the regulation controls, and not those substitutes who have been furnished and received, that never become subject to the liability of the Act that called out the regulation, and who but for the fact of having become substitutes would have been liable to enrollment under the subsequent Act of 27th September, extending the liability imposed by the Act of April, 1862, to persons between the ages of thirty-five and forty years.
But it is argued, and this argument was pressed upon the Court with great earnestness and ability, that the practical effect of the rule, I insist to be the proper one, is to deprive the country of the benefit of an effective soldier in every instance when such a substitute has been received, and gives it nothing in exchange for such loss; that the success of our arms may and will be materially affected by thus keeping out of the service such a large class of the very best material of the land, and that therefore it is not to be supposed that either Congress in passing the law, or the Secretary of War in prescribing regulations, could have intended to frame and allow a system that would in its results prove so disastrous. If it be conceded that the rule would prove mischievous, or has done so, it is neither certain or reliable to argue, therefrom, that it was not intended, because Congress and the Secretary of War might, and probably did, fail to foresee or apprehend such a result. In the history of human legislation it is extremely rare to find the identical results produced that were intended, and nothing more. Sometimes it fails to accomplish anything, sometimes the opposite, and again the greatest mischief, when nothing but good "was intended. It is impossible for any Legislature to foresee the whole practi*433cal operation and effects of any scheme or system it puts in motion, and by restrictions and provisions provide for every thing, so that it shall go out from their hands perfect and complete in all its details, working exactly to the purposes intended, and to none other, like a well executed piece of machinery in the hands of skilful artizans; but like human nature itself, the scheme, while the main great purpose will perhaps be accomplished, as has been done in this case, may in some point or other be defective, which will take time and experience to remedy. We can not judge of such defects as things that the Legislature must have foreseen and intended or not, as we wish to construe, but we must judge the Act as we find it. If, however, I have stated correctly, in the preceding part of these remarks, the object of the law and the intention of Congress in its passage, no such difficulty could have been foreseen or anticipated, nor if foreseen, would the plan have been changed. Indeed, such objection could not have occurred, for the policy of the Act was to get all the young and effective arms-bearing population, leaving the balance of the men of the Confederacy to raise and furnish provision and material for those in the field and at home, so that if one was taken out of the army by furnishing a substitute, he filled the place of the substitute at home, and perhaps to a better purpose, in raising supplies, etc. What the Government lost one way it thus gained in another. I have given this position more attention than it deserved, because it was about the only view presented in opposition to my construction of the Act and the regulation. There is absolutely nothing in the position for a defect or supposed defect that can not be cured or avoided by the supposition that the Legislature could not have been guilty of so much folly, or have made such an oversight. The argument is but an attempt to warp the Act from its plain intent and meaning, as gathered from the words employed, and its whole bearing upon the plea of the necessities of the country — a plea so often pressed, but never yet legitimately obtaining a status in the Courts. It is an argument in fact rather against the policy of substitution contained in the Act, to support which the *434regulation of a subordinate, which must be in conformity to it, is invoked and perverted.
None of the remarks I have made are intended to reflect on the law or the Congress .which passed it; on the contrary, I am convinced, after the most careful consideration of it and the various points made upon it, that the law was conceived and executed with wisdom and sagacity, that it contains no defect in the particular under discussion, and less than most Acts, especially for one having such an extensive operation, of such vast importance, and one that has accomplished so much practical good.
It is indeed to be regretted that this question was ever made or insisted upon by the War Department, for all those who, construing the law and the regulation as I do, furnished substitutes like the present applicant, out of that class of persons to whom the Act was extended, can but feel that they have been cruelly oppressed by the Government in breaking up and defeating a contract made by them upon its most deliberate consent. They must feel that the Government in this has violated its plighted faith — a thing much more injurious than the loss of a few soldiers frota the army.
To conclude this opinion, already too long, the decision of this question must depend upon the construction which the Court may give to the regulation of the Secretary of War, taken in connection with the Act of April, 1862. The construction I give is consistent with the regulation, with the Act, with the rights, interests and good faith of the Government, and the rights of the citizen, while the construction of the Court is virtually inconsistent with all.