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.