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1864.

January

agreed to serve; and the principal has received all he Term. has a right to claim under the exemption granted him. Burroughs But even if the permission granted by Congress to inPeyton. dividuals to put in substitutes could be held to amount Abrahams to a "contract" by which Congress was irrevocably

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bound, what would be the true interpretation of such contract? The well established rule of construction is that all grants of privileges and exemptions from general burdens 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 River Bridge v. Warren Bridge, 11 Pet. R. 420; The Richmond R. R. Co. v. The Louisa R. R. Co., 13 How. U. S. R. 71; State Bank of Ohio v. Knoop, 16 How. U. S. R. 369; The Ohio Life Insurance and Trust Co. v. Debolt, Id. 416. It would be especially improper to infer, in the absence of the most distinct indication of intention, that Congress designed 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 persons not liable for duty may be received as substitutes for those who are, under such regulations as may be prescribed 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 created by the act. On the contrary, the language 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 lia

1864. January Term.

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Peyton.

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bility, 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 Burroughs of 27th September, 1862, the privilege of substitution was also extended to those then made liable, by the pro- Abrahams vision 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 the 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, we find that nothing more was ever given than a simple discharge from the army. Again, whatever might be the power of Congress, no one can pretend that the Secretary of War had any right, without express authority of law, to make a contract for exemption which would relieve the party from liability under any call for service that might be made by Congress during the time for which 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 beyond the limits within which it was confined under it.

The nature of the transaction, the terms of the act, and the regulations and practice under it, all show that, according to the true intent and meaning of the parties, the person furnishing a substitute was to be relieved

1864. January

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from the liability then resting on him, under existing Term. laws, to render military service, and from that only. Burroughs There is nothing to show that it was designed to exempt Peyton. him from any service which the future wants of the Abrahams country might make it proper for Congress to require of him. He may, it is true, have entertained the belief that the necessities of the country would not be such as to require another call to be made upon him; and so have hoped and expected that, by putting in the substitute, he would in fact be relieved from the performance of military service during the time for which he was put in. The disappointment of these hopes and expectations can give him no right to complain. If he has sustained loss, it is damnum absque injuria. The government 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 became 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, "Whereas, in the present circumstances of the country, it requires the aid of all who are able tó bear arms"; thus showing, on its face, that, but for the pressing necessity of the country, the exemption would not have been taken away. It would be beyond the jurisdiction of this court to enquire whether Congress was 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 exemptions are taken away. It is said that the privilege of exemption is a valuable 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 public concern, as to which Congress could not, if they would, make any valid contract which would entitle the party to compensation; and further, 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 which, by the contract itself, ac-. cording 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 put in his substitute under the law of this State, passed on the 10th day of February, 1862, stands on a different footing, as to this matter, from those who have put in substitutes. under the act of Congress.

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 provisions. We consider it unnecessary to enter upon an examination of this question; because, supposing him to have acted in strict conformity with the requirements of that law, and to have become entitled to a discharge from service, in accordance with its provisions, we do not think that he occupies a better position than those do who put in substitutes and obtained their discharge under the law of Congress. The law of the State, like the law of Congress, exempted only from the then existing VOL. XVI.-35

1864. January Term.

Burroughs

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Peyton.

Abrahams

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1864. January

Term.

liability to render military service, and did not (as it could not properly) undertake to exempt from future Burroughs liability, if the necessities of the country should make Peyton. a further call necessary. The act of Congress of 16th Abrahams April, 1862, operated upon all white men who were

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residents of the Confederate States, between the specified ages, and not legally exempted, whether they were in or out of the army. Those in the army, however they had been put there-whether under requisitions upon the States, or as volunteers turned over by State authority, or in any other manner-became liable to service under the act of Congress, 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 enjoy the benefit of the substitution in like manner as if it had been effected under the orders of the Secretary of War, or the act of Congress; and this right has always been recognized and allowed by the Confederate government. But they have no claim to stand on any higher ground than those who put in substitutes under Confederate authority.

We are of the opinion, therefore, that each of the petitioners is liable to render military service, and must be remanded to the custody of the respondent.

The motion to discharge the petitioners overruled, and they remanded to the custody of the officer.

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