dissenting. Having a decided conviction to the contrary, I cannot concur in the opinion of a majority ♦f the Court. ‘
Tho'.question is, whether an exempt, who owns fifteen hands, and has g.ven bond, as required by the act of Congress of l'7th Feb.,' 18.64, 4 sess , cb. 5, sec. 10, par.'4, is bound to perforin military service in the Home Guard, organized under the act of-our Legislature of July, 1863 ?
That part of the act of Congress relating to the matter, •is found in the fourth division of the tenth section, and' consists of two paragraphs, as follows-:’
IV. There shall he exempt one person, as overresr or agriculturist, .on each farm or plantation upon which there are now, and were, upon the first day of January last, fifteen able-bodied field hands ’between the ages of sixteen and fifty, upon the following .conditions :
1. This exemption shall only be granted in cases in which there is no white male adult on the farm or plantation not liable to military service, nor unless the person «laiming the exemption was, on the first day. of January, 1864, either the owner and manager or overseer-of said *29plantation ; but in no case shall more than one person b# exempted for one farm or plantation.
2, Such person shall first execute a bond, payable t# the Confederate' States of America, in such form, „and with :;;ich security, and in such penalty, as the Secretary of War may prescribe, conditioned that he will deliver to the-— at some railroad depot, or such other place or places as may he designated by the Secretary of War, within twelve months then next ensiling, one hundred pounds of bacop, or, at the election of the government, its equivaleut in pork, and one hundred pounds of net beef (said beef tobe delivered on foot) for each able-bodied slave on the farm or plantation within "the above-said ages, whether said slaves be worked in the field or not: which said'bacon or pork, and beef shall be paid for by the government, at the prices fixed by the Commissioners of the State, under the impressment áct: Provided, that when the person thus exempted, shall produce satisfactory evidence, that it has been impossible for him by the.exeroise of proper diligence, to fiirnish the amount of meat thus contracted for, and leave an adequate supply for the subsistence of those living, on the said farm or plantation, the Secretary of War shall direct a commutation of the same, is the extent of two-thirds' thereof, -in grain or other provisions, to be delivered by such person as aforesaid; at'equivalent, rates.-
3. Such person filial! bind himself, to sell the marketable surplus of provisions and grain now on band, and, which he may raise from jear to year, while his exemption continues,* to the.government, or to the families of soldiers, at prices fixed by the Commissioners of the State, under the impressment act: Provided, that any person ex-erupted as aforesaid, shall-he entitled to a credit of twen*30ty-five per cent, on any amount'of meat wbieb lie 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 having been enrolled since the first day of February, 1864. .
In'addition to the foregoing exemptions the Secretary of War', under the direction of the President, may exempt or detail such other person ás 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, farmers or planters as lie may be satisfied will be inore useful to the'country, in the pursuits of agriculture, than in the military service: Provided-, that, such exemptions shall cease whenever the 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 he sold to the government and thu families of soldiers at prices not exceeding those fixed at the time, for like articles, by the Commissioners of the State, under tlie impressment act.”
It is plain to see that the proviso in the second paragraph, has no reference to the exempts in the first, and, therefore, has no- bearing oh the question before us. Each seems to be independent ox the’other. The firm, 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 tlie exemptions and details in any other.
*31The language of the last proviso, in its grammatical structure, is"further coulfirmatory of this idea. ‘(,P,rovi-ded, -that such exemptions shall cease,” &c. The qualifying adjective such limits the meaning, of the word exemptions to some particular class. What class? Of coitrse the lqst mentioned,'those in the paragraph, to which,the proviso is appended.
Another part of the act, which has been referred to as bearing upon our inquiry, is that found in paragraph YI of the same section, "it is in these words :
YI. That.nothing herein contained shall be construed as repealing-the act approved 14th April, 1803, entitled an act to exempt contractors for carrying the mails of the Confederate States, and the drivers of post coaches and hacks from-military service: Provided, that the exemptions granted under this act shall only continue while the persons exempted are actually engaged m their respective pursuits or occupations.”
' Here, .again, is an independent provision for exemptions. with its appropriate proviso. They belong to-each other, and have no reference to an,thing going before or after. It will be pereqived that'this part of the section declares themet theretofore exempting mail coniraetors,. and the drivers oi’ mail post coaches and hacks, shall he continued, in force, provided, that the exemptions-g'-imt-ed under this act shall only continue,” &c. Under what act? The answer is obvious — under the act of the 14th April, 1863.
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 paits, 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 further, consideration that the" language of the proviso, is inapplicable to some of the exemptions therein granted
Having cleared away these extraneous and irrelevant matters, the construction of the act in the particular^ matter now before us, will follow without difficulty. Tho sole connection of the exempt who works fifteen able-bodied hands, and who gives bond as required, with the government, is through, a contract, executory in its nature,-which gives the government no-right ®f control over ' Ms person ; but simply a right to demand the meat stipulated for, and to call 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. But I look in vain, whether in the bond, or in the act, for any obligation of personal service to the-Gonfederate States, inconsistent with his duty of service to North Carolina.
1 recognize ia the fullest sense, the war power of the Confederate Stales. There is no limit to «the demand .which that government may make for men, save necessary officers of the State government; bur, until such demand is made, rind t-sm citizen put into service, he is subject to be employed in uny-way which the‘Nam may think proper. •
If If were concede 1, that the proviso in paragraph VI of the 10th section, had reference to all the exemptions itf’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 the hands, is not»neeessarily implied. The pursuit or occu*33pation may be carried on vicariously, and, provided it bs prosecuted with tbe bands continuously,- there would be no forfeiture of tbe exemption. He might well perform, a tour of duty in the Home Guard, and still remain 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 cvvil or military department.'
There is a manifest distinction between the exempts ia the first paragraph, of 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 liable, 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 inconsistent' with service of the State in any post, civil or military ; and that- he may consequently be compelled to serve in the Home Guard.
The opinion of the .Judge below is erroneous ; his judgment is correct.