Newspaper Page Text
aicUijrtatlf.
nmU^HKU 55mF * V. likKiii »x
JARED I. WHITAKER,
p^OrttlPTOH.
RATIO OF lOBSOBIWfWR*
Older »riiUn* rirfunulunrrt,Vi *6* a«tt»lt»*»^
nrirtl »ni f» llm UiU» »ml Wertlr P*BW lor * Muw.
Ur* lisn Ihrra mamba. Sot A>lv«il»*ra!»J»
. *»» :#«#l Adffn.aamcntt) foci longor l<«tU-*a IB***
motto*.
Daily tntrilljtihw ter ensiaontli. V * JJ
•> •• lyj “ ,„..•.)».>•>■ HW
•'^ISAteateil
J ;** f ®Jj
•* >• a •» ................ »to
.la (BtMotpihKil iraatmS ter • foiftw r*H*| Ujan
ihrc# tnuaUn. '
Dally rap IT *1 Vbr counter, |»« «o|>T> B»H
MnpcretBt w (JedaaUeni lo olnM CMtl* hfftrtJ.
Waritlj laid
g ' ti AT3UN OF ADfBRTISIflfi,
n« Pyr8qaAr««f wn tln«, cm Inmtton.. *
nj f(C .. « •• on#(Math....'
pp Hr '* “ ■* OroraoaUra............ .»#•
45 1*0
Par '* " " UhecraoBUw 194W
__ No idrarlismaenu rtMlvml for » long«r | irlod than
2w ihr« moolha.
s bKOAL ADVRUTlSSaK-TW.
Salttof J«nidtnJH«groot,br Admloliiltstori, II*
■ i«ra or Onwdljuis, are required by 'aw to b« haw oath#
grit Tuiwdiyr In Us# moovh. between »b* hoaoa of ten la
& Utc IctooooB «t>d tlirce la the afleruoea, at Hie Ooart
«•ffiii , ;fSVJlSS , ^WS?AS?S2u.
" "'soUaMtM'l” uJlf^nwBdpw^nj nut M
i aaio like manner >0 day* prealonato sale day.
(te-jcw lo debtor* and eredjtjjfcvf to **»uw notl
i abo n» UHAW » XI •£'
\ Udtloeih#! appUcaiioa *3 be ra«r tott*(M*r o
OtSLiij f« -Awe to tall hand- or Nwpoee, ouut be
pobllahed for two oostiu. > r
Gtatum for iettara at AdalaUtmyat' i w4t *■
lbip.de.. omrt br psblilhed SO <t*jrr--ter ilia*M>oo
from AdndoIrtrath'S. maxlMf #4» rtontte-tot .ftmle
• iIod from tiwdltuahlp, <0 day*.
Kolra rot feroeloeare of Urrrtfnffo moat be pa'oilrtti
• I WKinUtf lorftmr morUAe—lor eaubllahtogtOK ■>*»«»,
, far tXtpMtjxteuif HfM wtnwrta—for oeiap<4Hor -rlor
r Crcci Kxeeuit-teor A.imtrietratora, where bond'hrwbocn
at»eo by Uir ureeaaed, the fell ipaee of three raoathr.
bebldoautoa willalwayi be ootftaund aooCrdlu* In
thtie, tea legal teonirecicnl*. ujsloB olherwUo ordered
tt the .'ottomh* .
RAT FBI
... . . tt
ry fran A. Jntolalrallcp 9 9i
•• . “ easrdlaruW*.. Oft
wa. Vf to e«. * and or Mofroea ....,# 10-
D’laS'oos, ot. lo
Netleifto deb on and aredtton
Ra et of persoual prqperJy^teu deya, l equre
a.; oi tenilbr n«ffror» by laanetove. An., pr. eqr.tO 00
» » llxtj njn .-I*'. 10 00
t n.m. «cvi'ii:nu* hi# wife (In adyanot) 00
N. ft..- , rhia tehedot* ehaU *oi k, any way eecHtrt
«!M> etteUag cvalraet'. All
„ any •
f. ptranca
r riser apsalded ttma, thall
tiva et Ute period fopwbleb the
tot the year or
ozst mm
aiiperKtea r lstoa wUila oMoa erUi pteaae ad*
Strtir lirir letter! cV ;ctete«nleqt1te>3 id UrALUOaKOO.
tt' iiror« a * rj- '
J, Oll^ISTOPHKIi.
F INE Finisher, Spur Maker, .Gilder and
Burnisher, Bridge St., nosu the Bridge,
'. Atlanta, Ga. . 1 ■'
Swords of every description repaired with
neatness am) dispatch.
A. fthttro of pufiiic patronage respectfully
llbitei.
f eb IT—il8m
C. BOHNEFIELD’S
COFFIN SHOP,
Luokie St., near 'Walton Springe
ATLANTA, OA.
fehli4-dlm *
J. P. WOODSON,
COMMISSIOH MERCHANT,
Hnatar Bt., nrar eointr Whltehth,
Atlanta, • ■ Georgia.
S PK0UL attention given t> tale of Uannlhotared and
huuhiug Tnbaoeo. Now offering tome dnlrablt,
lot! of Tobacco for Inyeetisent,
mbll-dla J. P tyOOPaOW.
McDaniel & Strong
H >va remotel Uun' Offlee and Ralei Boomi free
(heir old Hand an "Unnter •trett,” to thl Btore
aI).inlng ft. U. Oiarbe, on
WHITEHALL STREET,
Whtre ihiy will eentlnaa to reeslv* and BILL OR
OOMSUBilyN, aU kind! of
COUNTRY PRODUCE,
AND SEHESSL HESSHANDIDE,
They wit alio eontltrae the
H I'cltou Brokerage Bosincss,”
A Icog etpcTtanee lo trade, will enable them to gin
■atlafacUvn. Tho oittai fadiitilt* afforded on goode la
Eton. Cuiilguueuta reii>tottnlly loilotted.
febttMiUei
WTEJTTEr iOONOBHN.
D. P. rESGHSON,
COMMISSION MERCHANT,
Near Dodd’i corner Whitehall St.,
ATLANTA,. • . . GEORGIA,
W IM, altead promptly and pateonally to kit order*
or coatlgmntrita fuiruitoa to l.la osre,
. O. r. FkB-,tJ<»S,
. kM-Cfrn* t ■ ... ; Atlanta, Qa._
ANDERSON & JOHNSON,
HmcaMorto Andtnon, Adair A Co,
UcBeral Commission Merchants,
(Necr Georgia ftallfoad Bank Agency,)
ATLANTA. GA.
rebB-48dt
s'* WO LITTON, r. n. ACB8T.
ISAAC LITTON & CO.,
AtTOTION
-AND-
Commission Merchants,
Atheoteum Building, up Stain.
D BOAT UR 81., . . ATLANTA, GA.
^Wjro«»U of Pry Ooodt, Greowki and prodoe*
P. H. AO 11 BY, Auctioneer.
fabJWtor
BOOTS AND SHOES.
manor t.
r d( andnttgotd vot’d
Mead i, and the
- i. »• »RSTHl
„ re*p*tIni/ Inform Uieir
^ ■.. - «• b»®H* g«te»a1ty, ihu th»» have
wia.d a Oe-Pannaialiip tor llie^urwoio ul ra laufsclur-
•#»!•,alibl»diof Itoo'iandIId.i
•’wokfnl fw paatfayoni, they bopo to merit and fii
-Uihrtrslotlral, mi,« Lpidte.“Ji b?r»l r “t.
itgikMitotore extends to IViu InJ v.dual.y.
toSL"®- itt* ‘V'te* 1 Uwo»en.l d«Ure worth
«o« ue Hbt*. wl lcft tl.ey iffer on th; avit libeul
SSUFJto* 4t ,hort ' Wdt**- th .p and
“ * '** * 0CM * ttfSE
iSrh
rcUlLOTB A RttVIl.
ENTERPRISE.
lAtfdgflfft Burnt: frame Victory,
A twin ratobtttoJ by a {0 |jur
ready to fantiibDoonnaoit n.iri:,,,,,
• mogllreproyed mflM *t ih- i rn*,!
’«w* are mudeiate a d lb# f,.. Wr(
tee. Miuplca eeitlo 4ur pirt orihi.
ton rtc-.pt tt Ui* wh pile#,.
•uv>. J b eidjvwteg Oun’eytrai*
'.toty.l'O * tf,Kewhirr>,r. n.
If. Chfli 4 00.
. GBAMJIIt TO Nil BAMGRBOUb WUJSN jKAaHOM IB bM¥h > MIIJI TO OOjKBA A
VOL. X.
ATLANTA, OfeO.
MARCH 18, ^64
■A
m. m .
Iorn M tHAJiwsix, Enrolling effloer, plftln-
Uff inerror,
w.
Jojiab L, GomtR, dcfondftnt in error.
Argument of J. H. BtROKtst, for the
plaiutiff incror.
ffabeat Corpttt, in the Snpreme Court of
.Georgia, March Term, 1804.
By acta of Congress pawed in April end
September, 1883, all while men resident* of
the Confederate State3, between. 18 and 45
yearn ot age,uot exempted from disability, or
by reason of their employment.in offices oi
government, or in certain specified pursuits,
were made subject, at the call of the .Presi
dent, to serve in the armies of the Confed
erate State* for three yet i's, or during th*
preaent war. It was provided in the same
legislation, that penon* not liable'for dnty
might be reueWod ns substitutes tor. those
who were liable, under, regulations to be
prescribed by the Sec retary of War. Regu
lations were accordingly prescribed by this
officer j and the,defendant in error, on the
37th of April, 1868, beipg at the lime a pri
vate, iu theldtbjtegimentGx Yok.put in
a anbslitnto in strict compliance with said
.rogulftiious, aud repeived a final diacbarge.
The law permitting substitution remained.in
torce. until the last day oi 1808, when Allure
8tib6t.4utloo>was prohibited. A st ill later act
.ofCongrefS, approved by the PreBldent ci^
tlie-Sih of January, 1884, declared all exemp
tions by rcasoir of substitution, at An end.—
Under this last act,and in pursuance of {gen
eral enters to carry it into offset, the defend
ant in error was enrolled to be restored to
the servicey and after hi# enrollment, he
sued out a. writ of habeas corput, contesting
tho validity of the enrollment, and demand
ing hi* discharge, on the single ground that
by Airnishipg a RUlratitnte, he acquired a
right to stand exempted until the expiration
oi his original term of enlistment To the
claim of present and continuing exemption
thus setup, tho enrolling officer,respondent
in the writ, opposed tbo said act of Oongrea,
expressly, revoking all exemptions of this
class.-' The Validity ot that net, therefore*
was tho precise question in the c.me.
Oa the hearing below,the presiding Judge
held it unconstitutional. The present writ
of efror is prosecuted to reverse that deci
sion.
Tho act 1# impugned as impairing the ob
ligation of contracts, and taking away vest-
ed rights.
Whether it bo Justly chargeable with these
effects, or either ot tbpm, depends upon two
questions, either of which being decided in
the negatlre, rescue it from the imputation.
These questions may be variously stated.
I shall present them in tho following brief
terms:
I May absolute, irrevocable exemptions
from military sorvico bo.granted by the gov
ernment to the people ?
IL Upon tho assumption that they may
.be, were such in fact granted by the allow
anco and accaptanco of substitutes t
The latter question is oao .of construction
merely, and it accords host .With the plan of
my argument, to consider it first.
, These exemptions cannot be treated by
the courts os more permanent than Con
gross intended them to he, in theootprori*
ding ior the reception of substitutes. . “Re-
pudiating,” says Judga Lumpkin, fa McZtod
tt. The 8aeannah, Albany <6 Gulf R, R. Co.‘
85 Ga. R- 445, “as l always do, the two me
thods of construing statutes, referred to by
law writers, tbo due literal and the other
liberal, I ask, as th,e only true guide, what
did thelegislaturo mean?- .For, having as
certained that, wo cannot bind them beyond
what they intended to bo bound themselves.
Otherwise, you force upon tlio public the
performance, of a contract whiuh tbey never
made." The real inquiry, therefore, upon
lhisbranc|i of the case, is, What -did Con
giess.mcan by the O.h section of tbo Act of
April 10-Jt, 1803, the only laW allowing sub
stltutcs, uud which is in then#.words: “Per
sons not liable for duty may be received as
substitutes for those who are, under regula
tions to be prescribed by tho Secretary of
War.” If recourse may bo hid to a rule of
construction as ancient, perhaps, as statute
law itself,there can be no rational doubt that
whatever else Congress may have meant by
these words, fhoy did not mean that exemp
tions should bo permanent and irrevocable.
The rule to which I refer is, that ail statutes
or whatever date, upoq the same subject
matter, are to bo construed together*, and
tho statute which I invoko as explanatory
ol tbo first, is this identical act of January
5th, 1874, putting au end to these very ex
cmptlons, That these statutes are in pari
materia, cannot bo disputed; and bolog pas
sed, not ouly by the same legislative body,
Jmt by tbo same individual mcmbeis, it is
impossible to believe that the makers of them
didnot know their own mind*: and so, the
conclusion is iotrit&ble that they did not
intend to promise fixed and immovable ex
emptions by tbo first act; unless,indeed, we
r.rc ready to conclude that they wilfully vi
olated that promire by the second. In
Bloom re, TftefilaU, 80 Ga. Bi 447, where th*
question was whether th* statutory exemp
tion of-certain firemen lroro Jury duty, was
taken away by ft. fubatquont ataiute, the
Court referred to a number of acts passed
by the lame members of the G«u«ral Asitm :
b!y who passed the act then to b* exponud-
ed, an 1 the re-u’.t wai that tin light thus
cnllrcted was thought to have the brlghuM*
of demonstration. Tbo books abound in
litnlitr instance# ul this mode ofintorpreta-
tinu; tho very muliiludo of the die* forbids
xuutUmpttooUoth.nl i
Crediting Oongrea*, then, with the intelli
gence to understand their own intention,
and with the good faith to adhere to it, there
can be no hesitation in holding that these
military exemptions were,in their origin,
considered a* revocable.
I will not assert that in no possible case
oould an interpretation of statutes deroga
tory to the good faith of the legislative pow
er, he adopted ; but there is the mostample
authority in almost every volume of Reports,
for saying, that the Judiciary will go to that -
length only when a more tendcf construc
tion j* impossible. Even when such a grave
consequence 1* in nowise involved, it is tho
constant practice of Courts to labor ear
nestly to reconcile apparent 'contradictions
statute*, so as to glite overy*aot paired b£ MeZit
ie legisiattrre a reasonable eflecN fdthcr tonm.
than declare any one of them utterly .nuaja*.
tory,and leave the others operate, unimpe
ded, inthe largest latitude their terms will
allow.' Our Jurisprudence is so “friendly to
the harmonlaing spirit, that it scats it-both
oil thebeneh and in the Jury box; the
Judges apply it in the exposition of stat
ute*, and the Jury .in '.construlng testimony.
It is too manifest to require more titan a
bare mention, that the law giving the prir.
ilege of putting ifi substitutes could have an
effect, without, construing It as placing ex.
emptions beyond the control of O-mgress.
As to the reasonableness of that." effect, I
hope to muko it clear in the sequel t or at
least’, to show that any oilier wriuld hsvr
boen quite unreasonable.
It must not be overlooked that the ledtr
of the act w hich we are endeavoring to cr n-
atrue is extremely nnrrow. The ooly pnv
ilego it offers exprtssly, Js that of having
substitutes received; It dors not say, in
terms, that they will be taken in for three
years, or for tho war, or ior any specified
period f nor even that the principals shall
enjoy any exemption at all. The senso of
Congress upon both these points is left to be
mide out by implication. In regnrd to the
first, that is, the term for which substitutes
were to be received, there are three possible
suppositions; Congress may, have meant
first, that the term should coincide with
that established by the same act for tbo nr
my generally; or, secondly, that it should
bsleft wholly indefinite; or, lastly, tpa*. it
should be fixed by the Secretary^of War. If
.is Immaterial to my argu cent which one ot
these suppositions' is adopted, as uone of
them are inconsistent with revocable ex
emption* to the principals. -1 readily admit
that ! exemptions of some kind, n rttwlth
ntending the alienee of-tha act, wbereymen-
dedto accrue to the principals; but the
question recurs, whit kindi -ausuhtte’#
conditional,revocable • r !•...M,.- -f This
question is not dono away with by showing
that the substitutes were to be taken in for
a definite timo; for they might die* or de
scre,orbe slain,or disabled, or made captives;
or the armies of the -enemy might he so
augmented as to require the last maa iu tho
Confederacy to withstand their force.
Could sue h contingencies as there hare el.u
ded tho foresight of Congress, or can this
Court ignore therti in searching alter the
true intent of the act now presented, for
construct .on ? The act was not passod in
time of peace, or to settle a peace establish-
mentj; tylt iu Vfar and for war, and when a
powerful foe, surpassing us in numerical
strength as three to one, wsa threatenlng
and'endeavoring to crush ns by more supo
rlority of snmbeis. That the crisis of the
struggle might arrive in much less timo than
three years, was apparent to all, were Con
gress alone blind to it, or with a full sense
of the terrible dangers, did they deliberate
ly strip themselves of the power to provide
the strongest army that tho country could
possibly furnish, to mbet It 1 Cau human
credulity bolieye that they were cursed with
such stupidity, Qr ruled by such telly!—
Could thoy have intended that if. tho couu-
try wero brought Into the throes of death,
thousand! of her sons sh.;uld sUud by ex
onerated of all obligation to assist her? ; -
Had the sot been pareed for a nation oyer-
stocked with armsbearing population, or
for the^exigencies of a war not'likoly to
task to!'their utmost the r«nuro«*s of the
community, the inference to bo drawn from
iu contemporary history might have !«wu
less decisive; but looking thn olrcmnstences
that have surrounded tho Confederate Btates
from the beginning ot their existence. I oth
reason and consoienoo are shoi-ked a> the
proposition that a single Citium has upon
voluntarily relieved from the first end fifth
est duty of cltixunsbip. Laws pawed iy
this same Congress provide ter gramiug ex
emptims to several other i.lassos (jcsitirs
thou who might famish substitut'd; as mu-
chanics, produo :ra of varfous articles, eni
pioyees in divers branches of business, dkc
Persons who hsvo put in substimtes can nn
more point to promise of continuous, in
defjasible 'exemption, thin can- miller^
blacksmiths; or shoemakers, miners of lead,
orlrob.or ovsrseers upon certain plantations
if it be contended that there is a difference
in favor of those who have made oontracis
on the faith of the law,and that snbitituti.-n
necessarily implies a contract between prin
cipal and Bubitilui* i I answer, firs', that
contracts are equally essentia} iu carrying
on most or ail of the avocations mentioned -,
but, secondly, this attempted dhtinction
taka* for granted the very thing in contio-
veisft for before it can appear that contracts
phraseology of the act wsa loose or ambig
uous, so that it might have misled the pub
lic, the popular construction will be uphold
in opposition to the real meaning. The
contrary is the rate, even as to ordinary
grants, but Stathtes conferring porlicolar
exemptions from general burthen* are re
garded with a Jealous eye end.strictly con
strued. Reigmukon Statutory and Cbmtitu-
t’onal Zmt r 844 “ Any ambiguity in .the
terms of a chafer shall operate against the
grahtere ; grants of exclusive privileges to
corporations or 'individuais, are to he strict-
Jy construed, and if the'terms of the con-
tract are doublfol, the doubt-must inure to
Uie item-fit of tho public” MeLtod oi. Sic.
Albany & Gulf R ! R. Cb. 25, G l R 407;
McLeod et. BvrrtugTtn 9 Ga. B. 157/ Hiirri-
hn«s. Younfftib.'850 ; Shorter e«. Smith, ib.
ol? ‘iAnd neither the right of taxation,
uorany other power of sovereignty which
the community have au interest in preserv
ing, und {minished, will beheld by the Court
to be surrendered, unless the intention to
surrender is manifested by words too plain
not to be mistaken.” QhUf Juttict Taney,
in OMo Loan, Imuranoe <* Irust .Co. tt Dj
bolt, p Hon. S. O. R„ 485. It |s clear
tbat the intention of Congress to abdicate
ail power over exemptions, as soon as
they accrued, is neither expressed in the
act, nor inferrable from;, it with such
certainty as td exolnde the courtesy hypoth
esis j^aud it is equally clear that in ihe ab
sence of a distinct negative, the power
t light, in favor ol the pubiio safety, to, bo
considered, as fcserved. If, in so many
words, Congrcss hsd; said that substitutes
should be received lor three years or during
tho’ war, and in explicit language had en
gaged the pubiio faith for the exemption of
ihe principals' throughout that period,- re
gard leas, of any and overy emergency that
. might arise, then, those who claim exemp
tion in opposition.to ihe lost expressed .will
of tho law making power,. Would at least,
have had the better .of a law to appeal to in
support of their pretensions. But aB it Is,
their claim to an immunity which runs to
the utmost limit of privilege, and I think far
beyond it, rests on implication .alone, on the
vague sense of d.few general words.
Another reason why the act ought not to
be construed as intending to grant exUtnp
lions that could not be recalled at the will
of Congress,.is the well known fact that
nothing else canbe granted ont by Govern
meat, but may; be.'afterwards resumed for
pubiio use. Lands franchises all thing#that
become the subjects of grant in tbo regular,
courao of.business, pass to the grantee af
fected with the implied condition, that in
-case of need, they shall be restored to tho
public on demand of the Legislature. Mc
Leod, os. Savannah,Albany A Outfit. R. Co.
85 Ga. R. 445. I; ft . time that when the
grantee acquires , a property in the thing
granted, of a .higher grado than an estate'at
will, ibis resumption can t&ke place only by
making just compensation to the owner.
•Now, conceding that,'these exemptions
might bo made, by legislation, a subject
matter oi fixed property, can it bo thought
that Cong’reas Intended to make thorn so iu
this instance! Can tbo.-imagination of
man concei ve of a single, reason why Con
gress shonld have desired to vest rights in
any class of citisent to an immunity from
military service In this groat war, which
granting absolute, irrevocable exemption*,
It wusl bs shown that such a law Was en-
sMed. It will not do to say tbit if t],
rights, if their value could, bo computed in
money at all, oould he divested only at a
heavy burdeu to an infant oxebequer, not
furnished, perhaps* with n.dollar of consti
tutional money. Would Congress have laid
vho foundation ot such useless expense, at a
time when all th* gold and silver iu the
Confederacy would scarcely have sufflced'to
meet it; and when the .utmost resources of
the country, in both cash and credit, Were
required to 'defray expenses that were ne
cosaary and unavoidable?
Since, then, nothing vise can bo granted
but may bo resumed, It stands almost de
monstrated Jhat Congress must have in
tended these exemptions to be overthrown',
it necessary to tho pubiio good; and there is
not tho slightest ground for supposing that
their withdrawal was to be effected at any
c »st to tho pubiio. On tho.contrary, tho
rftuhns for treating them as on the footing
of mere estates at will are many, - and, i
think unanswerable. .Besides those already
anvarteJ to, a most conclusive one is found
in the nature oi the general sut jsot matter
of the act. The raising of a!mies, the desig
nation of persons to compose them, “,.hp de
fining ot exempts, and fixing tho terms and
rcriodofoxuinptlo araatl matters of po*
ritealarrangement and expediency. They
have relation alone to great pubiio object.*,
the preservation of the State, tbo enforce?
ment o f ihe laws aguin^t armed opposition,
or tho prosecution oi national rights sgeinit
foreign powers. In theao objects every ait-
teen has n common and equal interest; and
tin If suodeiii is S3 dependent on the the era-
pir-yment, at all times, ot the most advanta
geous means, that not to'observo the
lluiluations of convenience and expedi
ency iu adopting, continuing, varying or
abolishing a given policy la regard to them,
would bJ oiten to introduce a pubiio mis
chief, and in extrema oasos, to Involvo the
community iu dire calamity. It is for this
renson, in all mattera ot this nature, even
though thoy .be of vastly inferior .moment
to raising armies and providing for the com
mon defence, that the pubiio authority is
hare ban mad^ upon the faith or a'law ever presumed to retain in its hands the
power of making changes si its own will
sad pleasure. Indeed, ss we shall see un
der tbs next head, the principle gore much
.. ^.3.' ■ m P j
plenty ltd CDfiuuiiy of formtttii. '
favor of the public good, in ibicgs which sif
tosff.ct tho whole public alike, men isuvu
their rulers free to jrfoflft by trial and etjte-
klence, and to accomodate the older of aft
fairs to exigencies as they arise,—to tbocrer
shifting condition and clreumstancss of the
community. If ‘this .is requisite in locating
public buildings anp oemstarie*. in aapsrvi-
*iog efflees and strehta, In taking preran.
tiong against lira and disease, in oigtnialaig .
and training the militia, even in profound
peace, is not equally so, to aay the rery least
in creating and recruiting armies, when Wat
is flagrant and when the luvsder is moving
against every hearthstone in the land ? To
what end arc court houses located or elites
built unless they are defended f And what
are,.flye organisations but defences again#
fire, or sanitary regulations but dsbnoM
against sickness and death' ? Military dm
fence i* as general and indispensable as inf
other kind can be. „
In tha faco, of this .close, aloKHt literal
analogy, it is contended that my olamtfioa-
lion of tjbe act of April 1802 is erroneoua^
tbat instead of being lilt© the statutes ««4
ordinance* with which the precedent* I have
quoted are coucerosd^ it besra a stronger re-
semblance to the .charter of a college, and
ought therefore, in its...construction,
controlied by the great Case of Dartmout h *
College rs Woodward. 4 TTheat, 518, and the
numerous cnse3 which follow and apply that
celebrated decision. ; , -C- * .?■'
Now, between defending aoountry ani*
educating its people,* there ii one broad,
deep, easily traoed destination, which, if -
duly attended to, will make- it impossible to
respire the' two things into the same legal
elements. Education may be, and indeed'
often is,'placed partially, in some- rare in »
staqcea, perhaps, wholly under, the control*,
government; but there is no abuMute naecs.
sity. for government to interfere with* it at
nil. It may be left altogether to private
management, while in.no country on the
earth is the enro of the common defence
separated or deemed separable from the path
iio authority. Thc-Tery existence of * po
litical community, savage or civilixed, im
plies a combination for the general defence,
under tho. direction of the supreme power.
Whatever else may be left out of the frame*
work ol a State, this ft universally and of
necessity embraced within it E^uesliou.
may, or may not, in some institutions, or ih
all, bocomo-a private enterprise, prosecuted,
for profit; but national defisneeis essentially
pubiio business; it cannotbecoma a private
avocation, for it is theone indftpehribieoon-
dirion upon “which tho secure pursuit ot
every private avocation depends. Whatev
er bo tho motives of those who ecgag^ln iL.
no iccounf whatever oai be taken of theft
separate iotercat or advantage. To olaas ft
with a more private oalling is to mistake th*
hcrimetor of d circle for ons of t4# radii
which it bounds and enoloses. That this
distinction, or something like it, waspfoosnj
to tho mind of the coitrl is isciiilj
Dartmouth ooilege. case is apparent Oo,
page 634, Chief Justioe Marshall adverts to
it in very plain terms! Ho says, “Ara the
trustees and professors pubiio officers, In*
vested with any portion of political power
partaking in any degree ir. the admiofttra^
tiou of civil gorornmeut, aud porfouniag
duties which flow from tho sovereign author*,
ity ? ,That education ft an objeot of nation.-,
al concern^! nd a proper subject of legisla
tion, all admit Tbat there may be an'in,
sfcitution founded by government, and phwod
onfircly' under iw immediato control, tha
officers of which would b'o publie offiosrs,
amouablo exclusively to government, non*
will dony. But is Dartmouth oollogo such
an institution? Is education altogether in.
tho hands of government? Does every
teacher oi youth become a pubiio officer, sad
do donatiobs for tha purpose of education
necessarily become pub,lie property so for
that tdio will of the legislature, not this will
of-tho donor, becomes the law of the^fooa*
tion?’ ! Tiicso questions wera all answered
iu tire negative, and hence tbo judgment
which the court felt bound to repder. But
let similar quoslion3 be propounded In re.-
gord to tho common defence, and- do«$ not
any one see at a glance, that most or all of
thorn must call fortjj tho opposite response?
The personnel of armies, from the oom*.
manding general down to tbo .hum
blest private, are pubiio agents, amer
nablo exclusively' to government, pOrtip.
ipatingin its functions, and performing du-\
lies which ilow rrom tlio sovereign author*
ity. Tlio common defence is altogether in
the baud* of government; ft placed entirely
under its immediato control; ft exclusively
a national concern. Every soldier that
draws a sword, pr pbipts a oannon, or puty
a triggor ft an instrument of his country,
acting his name and for its use and benefit,
Ha is the executioner of ift will alone; np
other will in the universe is master of hft
actions. The power over war and pesos,-
and consequently over the ooramon defends , ’
ft by v.10 Conatiration. of the .q. a vaatei^
la’ely and exclusively -in Congress U,
there.ore, It were doubtful, upon gsosrsl
pringipaft,. wliothnr odacation nacesaarUy t )
stands-to government in tbs su:n« relation
as defence does, tbft would ba daoiaiv* of
th-> question; for neither the Confederate
Govcrnnti-at by’i't9 organic law, nor iu tM
State Gr..ei-amenta by theirs, is there sri*- “
il»r con • ntration-of ail eontroPovsr ths'io- -
struction ot- youth; i nor was there; bjr' |if*
constituti.n, in that government by whioh
the chart ir. iu the Dartmouth Osiiege Safo ?
was granted, sr ten -ur*..-. ;» c*;
Ihavo a reaey admitted that sducfttidh ft 'f
Susceptible of being placed uudtr te exdu-
sive conduct of “goTerumedt Th# differ-
enoo which I wish to be rtcogoicsd and
marked in this, that While'dafiSas# by it* owe -**
nature 1s public btulness, and cannot b#
r Contiavedon SrtondT^.]
further; not only is the'power presumed to
>fae retained,- but.lt cannotbe surrendered.—
Iu Hamrick vs. Rouse, 17 Ga R ,50/-whero
-the question was os to the (filet of a stat
ute which purported to locate ft county seal
permanently at oi particular polnf, this court
said j. “We hesitate- In- saying that when
the Legislature passes an.act,-phrased aa is
the adfi of 185)1, which provides that a coun
ty scat shall be permanent at a given place,
'it means to pledge the faith of the State
tba| it shall never be removed.!' la Butler
vs Pennsylvania 10 Howard S. 0. B. 403, a
statute fixing the pay Of certain public offl-
fflctrs’was’heUl.subject tp' icgislative modi
fication, I'eiuling the term of the incum
bents, so as' to reduce their compeinsStiOD
ftoin $l to $3 per diem. In The Presbyte-
flan.Ghurcli v«. the Meyor ami Council.of
New York, 5 Oowdn 688, land had been
loosed out by the city for the site of a ebureb
and cemetery, wllff covenant bf quiet en
joy moot. Ifelore thejjxpiration of the lease
the city passed an oidipanco prohibiting the
use of .the premiecs for burying the dead.—
The Court (Savage C. J.) held ■ that the or
dinance, treated us valid, was no breach 6i
the covenant;., and it was sold, from some
ancient authorities,that whereoqp covenants
not to do « thing.winch it was lawful for
him to do, and an act. of the. legislature
comes after end .compels him to do. it, lin
ed repeals the covenant. It was sa'd also
that it makes no difference that the Govern
ment passing the act yes itsell tbo .coven
antor, sfneo iegiaiative power cannot be
abridged by contract. The ctse of Gbzylcr
V“. Georgetown, 0 WhcUt 508, is quite fts
strong; and perhaps' more directly In point.
Tbo corporotion of Georgetown had, by
ordinance, established tbe'level and gradua
lion of certain streets; and ihe aamo ordi
nance declared that: the'graduation thus es
tabUsbed should ho binding upon the corpo
ration and ail persons whatsoever, and b<>
forevi r after regarded in making improve-,
menu upon those streets, Subsequently
Gosy ler,who hod adjusted his improvoments
to oue of tho^raded streets while this ordi
nance was . in force, applied for. an injunc
tion lo restrain fhqcorporation from alter
ing the level of sdd street In. pursunnce ol
a later ordinance. His bill was dismissed
upon tho ground that the power remained
with tlio corporation to .modify; tike levoi of,
the streets at pleasure; notwithstanding its
promise not to do so. Chief Justice Mar
shall, it Is true,expressed himself wltU much
caution in deciding this case, but illustrating
what was said by what was done, we are
left ib iio doubt as to hls-realopinion,which
so far as appoara, was concurred in by b)!
his associates. Several later cases in the
same court recognize this adjudication
law, among ihem Baft Haitlord vs. Hart
ford Bridge IQ Howard 535.
' This court, in Bloom vs. the State, 80 Go.
R 448, held that exomptioneof firemen from
jury duty inijht be revoked; that tbo obai-
ters givingiltd cjcamptjphs were not con
tracts, flud mightho repeiiled.' The judg
ment, I grant, was put mofo directly on
another ground; but these questions wore
• discussed by *nblo counsel, wero fully
embraced -in the reebrd; ahd whether
needlessly or not,- wero • decided by the
Court, The Legislature of- tho State, enter*
talking, the saino’ view of subject^passed an
not at tho last session, taking away all such
exemptions The $«se which in Its
facts approximates more dosuly to tbo
present lliuu any other I hav* been able to
find, is that of Ihe Commmoealtft vs. Bird J2
'Mass ’4-fil. The ir (Xoiftptioh from, militia
duty was promised by Statute to all citizens
who might serve as officers ol tlip militia-fur
■a given,period. Bird performed the condi
tion, and subsequently the -Sale pas»ed an
other Statute wblob, lii the Opinion of the
Court, deprived hini of bis exemption. This
statute was enforced; and tlio principle de
cided, ss embodied in the head note of tbo
cise, vsffig ttiat, “The legislature ha* power
to revoke au exemption from serving In the
militia, before granted to a certain cln9a of -
cllia^a, and to require thunl to do military
duty." .
All the cases wliie.i» 1 tuve Just cited! rest
ultimately op ibo doqtrine that, bn lugkla'.
live autjteilty. in dc-ftyiog wi-h rnatiers o;
political regntaii'in and expediency, must
be cpiwhlered as retaining the right of mxtj
floations at-ploasure. In one of tho cases, at
least, a purpose of suspending this right was
manifested by the very letter of the act; but
the court would not permit the purpose to
to take effect, even whon thus clearly'ex.
pr4rs«l. Them is no pretence that the aoi
tv.- are now oonstdering. Ittterally- deciarej
such a purpose on tbo pari of Congress; and
if the authorities I havo quoted be applica
ble to this act, the construction wbioU*’it
must receive ;1» placed beyond question.—
The application of these authorities depends
I grant, upon whether raising armissf.ir the
common defence, bo a thing of the same
c 1ass witii fov-u mg cQuri houses, fixiug tho
conipensHiion of pubic offioers, guarding
the public healib, gre.duailng the streets <.i
cities, protectfng towns agnitiw coidl-igration
and organizing tho mllitin. Why Is it th»t
in mattera of political reguiatlou, thcUw is
rclmtant io construo Into contract, tiwns-
actions, which, If taklog.placo with the same
formalities iti tho ordinary' affairs of life,,,
would be socnusirui'd without hesitation!
I have already given the chief reason but
many covr repeat in a different form;—it is
because, in such matters, now mdst balefi
lor both caily wisdom and late,—for expsri
meat, Improvement and progress. Tbit is
demanded both by the magnitude and ■•rev-
it? of the Interests at stake, and by'*'