#### JACOB KESLER, *vs.*JOHN M. BRAWLEY.

A eonsmpt biiweec 45 and 50 jean; o’d, surallc.} under tin- a«'t- of Ooa-gref* V?ih Frbrn..ry. 1864, is ci.ii1.icd t'o Ids discharge wb<’r> ho is 6#-, years (>!■>.

This was a writ of *certiorari*from this Court, sued out by Capt. Brawley in order to review the decision of Chief Justice Pearson on a writ of *habeas corpus*at the suit of Tobias Rosier «against John M. Brawley, a captain in the army of'the Confederate States, complaint ng of being illegally restrained of his liberty by Capt. Bran ley. It ap,-« "peared on the trial before 4 tie Chief Justice, that the petitioner had been enrolled under the act of Congress of the 17th of February, 1804. as one of the senior reserves,' he being then between the ages of 45 and 50, and that he became 50 years old on the — - of October, 1864, and he was discharged.

*Blaokmer*for the petitioner.

*Winstón,*Ér., for Brawley.

*5PHARHON, O. J.

“From and after tbe passage'of this act, all white men, residents of tbe Confederate States, between the ages of seventeen and fifty, shall be in the military service of the Confederate States for the war/' — Act ef Congress, 17th Feb., 1864, see. 1.

One of two constructions must be adopted : 1st. It applies to *individuals*who are, at the date of the passage of the act, between the ages of 17 and 50, as *dc^orijotio p&r-sonarvm,*the síantviy legal eflect, as ii the persons answering the description wore named, and puts them in the military service “for (that is, during) tbe war/’- This meaning can be given, by adding the words “who are new” so as make it read “'all white men” residents of the Confederate States *who arc. now*betwefen the ages of 17 and ‘SO shall be in the service of the Confederate States .for (that is, during) the war.,” “This act shall take effect from and after its passage.” According to this construction, all white men, who are, at the date of the passage of the act, under the age o!' fifty, would be liable to ^military service during the war, notwithstanding they afterwards arrive at that age, because they are embraced by the description,*and all white men who»are, at the date of the pa> sage of the act, under the age of 17, would not ■he liable to military service,'because thoy do not answer the description So that if this construction he adopted, and judgment is therefore rendered against the petitioner, the Courts and Judges will he' houpd, as a matter of course, upon the authority of this decision, to discharge -every one Who has been, or may be, put in the military •service, who was not, at the nassage of tlie act, 17 years .«f age.

There are two fatal objections to this construction : 1st, s* order to express the moaning it is-necessary to add *6"words which are not found in the act, and the addition of which varies the sense *materially.*-This is not authorized by any rule'of construction. 2d. According to the whole scope and tenor of the act, one of its main objects is to bring into the military. service the young men who are continuously arriving at the age *oí ¡1;*and -the purpose is not only to embrace those who are IT at the passage of the act, but. all who shall thereafter arrive at that age : which purpose-would be defeated by tlñs construction, and it can only be contended, for on the ground of an oversight or *cama omissus*in framing the act, which, in so important a matter, the Court is not at liberty to assume.

The second construction is that the section applies to a. class composed oí all white men between the ages of IT and ;}(?, without regard to the time when they may be between those age», and puis-.fchdm into military service as *a clans*f'o.i (that is, during) the war. This meaning can he given, simply by changing • the ' position of hue words “ foi? the war,” an as to make the section read, ' * for (that is, during) the war, all white men, residents of she Confederate Ebates, between the ages of IT aiyl 50, shall be in the military service of the Confederate Hiatos.' ''‘This act shall The effect from and after passage.” The Court is authorized* by a well-settled rale of construction, to change the position of words, fk e Uwarriu on Statutes.

'Indeed, this chango in the position of words in this instance, is only 5>r th<> purpose of making Urn sense dearer. For if persons are conscripted *os a class,*it folio',vs, of c'ourse, that they cease io be liable when they pass out of the ohi:1 a and •bi-coni' liable when they enter ike class. ‘When no timo is fixed at which they are tó be between the ages designated, the conscription is necessarily asa class,; the distinction being, when a time is fixed the con*7scription is as *individuals, descriptio persondrum.*Whea no time is fixed, tbe conscription is as a class.. Here tbe time is fixed ; so tbe conscription is as a class, and that consequence follows without reference to the position of the words “for (that is, durini;) the war,” although it maltes the sense clearer to put the #ords at the beginning of the section, instead of at the end. “ For the war ” is evidently used .in the sense of “ during the war,” and conceding that the conscription is by a das'?, if the words “ for (that is, during) the war ” had been placed at the ' beginning of the section, the fact that'a “ senior reserve ” would not be liable after arriving at the age of fifty, is too plain for discussion and it would be .strange if the result can-he different from the circumstance, that the words “for (that‘is, during) the war ’’-happen to he at the end of the section. These words have no reference-to the*time*of service-; that is fixed by conscripting *as a, class.*and the words are manifestly used to enact that the intended conscription of *all*between the ages of ií and 50-should continue, or be in force, during the war. ■

According to this consfcruption, all persons under the age of seventeen, for the time to come, on arriving at that age, enter into the class, and-are' liable to military service ; and-all persons under the ago of fifty, from time to “time, on arriving at that age,' pass out of the class, and are no longer liable to military service : the rule working both ways, unless some prov:sion be made to the contrary.

It 'may be objected to this construction, that it lets out of the military service all who arrive at the age of fifty. The reply is, there.is nothing iiV'the-,-act tending to show that, it was not the intention. fcodet men,'whig $fiero over forty-five when conscripted, *go*out,of .the sqryjiie on.arriving at the age.of fifty ; and tlíbfé¿4s reáfeotl^'a-í suppose such *8was the intention, on the idea that heads of families, after arriving at the age of fifty, would be of more use to the country at. home, than if they are kept in the military service as *senior reserves.*But assume this not to be *no,*and that this construction also supposes a *casus omis-sus*— howdpes it compare with the *casus omissus*implied by the first construction *? This*lets out of the *senior reserves*’a few old men, comparatively speaking,; while *that*fails to take in a large body of young men, who are looked to as the main resource of the country for future military operations' in the *regular army!*By reference to the census statistics, the number of young men arriving at the age of seventeen ill the course of a year, in proportion to old men arriving at the age of fifty, is 'about fifteen to cue. From this it may be seen hów much the public service will lose by adopting the first construction and rejecting the second : and of course if a *casus omissus*is to be implied in both constructions, that should be supposed which is of least consequence, and is the most likely to have occurred. The Court is of opinion that the second is the proper construction.

A perusal of the whole act, will tend to support this construction. Mr. Winston, Vho argued for the government, referred to the 5th' section as tending to support the first construction. It seems to us that this section sustains the conclusion to which we have arrived. The provision, that persons failing to enrol themselves at the time required *“*shall be placed in the service in the field, *for the war,*in the same manner as though they were between the ages of eighteen and forty-five,” is imposed as a penalty on such as arc recusant; in respect to whom, the term of service is fixed, and excludes the idea of 'a general liability of all to *serve for the ivar.*- The sugges-*9lion of tbe learned counsel, that the proviso in tbis sea-tioti, that the persons mentioned shall constitute a reserve for State defence, &c., should be modified by adding the words, “ except those who fail to enrol themselves,” has nothing to support it. " . *

Oifr conclusion is aho strengthened by referente to the other conscription acts. The act of April, 1862, conscripts, as a *doss,*those between the ages of 18 and 35, for three years, or the war. 'The-act of September, 1862, conscripts, *as. a*class, for three years or thb war, and the effect .of *passing out of this class,*to relieve from further liability to service, is prevented by a proviso, *u when once enrolled all persons, between the ages-of*18 *and*45 *shall serve the fvtt time.**This proviso was necessary to show am intention fhajfc, although the conscri ption was as a - class,, still, in respect to persons who should, after being enrolled, arrive at the age of forty-five, it was deemed important to recain them in service for the full time. The act’under consideration in like manner conscripts-for (that is, during) the war, as a class, those between, the ages- of 1Í -and 50. There is no proviso to continue in the service' those whn arrive'at the age of fifty and pass out of the class. -Whether a proviso to prevent this effect was left oiit on purpose, because it was not deemed expedient to keep senior reserves in service after they became fifty years of age, or was an oversight, wo have no means of deciding. Our duty is to expound the law according to the sense of the words used by the law-makers ; and, in the absence of a proviso to the contrary, it follows, of course, that when a £t senior reserve ” arrives at the age of fifty, he passes out -of the class, and is no longer liable to military service.

There is ho efrror in' the judgment 'below.

Batttle, J.,

concurring, there was judgment for the pe-' titioner.

*10Manly, J.j

dissenting. Not concurriug in the opinion of a majority of the Court, I will state briefly the reasons of my n op-concurrence.

The military bill of February, 1884, under which the service of the petitioner is claimed, prescribes the term of service *“for the war ”*too plainly and positively to adtnit of abridgment by implications in favor of any persons embraced within its provisions.

The part of the bill directly'bearing upon the question is the first section, and is m the following words : “That from and after the' passage of this, act all white men, residents of the Confederate States, between the ages of 17 and SO, shall be in the military service of the Confederate States, 'or the war.”

Hero, manifestly, all persons, between the ages of 17 and §0 are declared to belong to the military forces'of the country, for the war. That the Congress in this conscription of persons was regarding them as a class seems to be probable. A proper *exegesis*of the, statute, according to the view which I take of it, .requires this concession. But it Socs not follow that a continuous application, of the law to the class would enlarge- or let out any one embraced within its folds. The obligation to service under it is not during their continuance in the class, but *during the war.*

A prescribed ago is.an anomalous ami novel limitation to military service ; for a term of years, for the war, or for an expedition, is more usual and convenient. In our country, where there is no provision for keeping a register of births, and where, consequently, these records are .very irregularly kept, and in most cases soon lost or destroyed, there is no iact more liable, to controversy, and which may be. affected by a greater,variety of proof, iban the age of a person. How are questions of age to be determined ? *11It will not do to make thorn depend upon the allegations .of soldiers or the will of the commanders; and it follows that some tribunal must be established and set daily to adjudicate cases as they arise. In the beginning, when enrolling liien for service, where tune and opportunity are afforded for investigation, questions of age are found sufficiently vexatious and troublesome. In the* midst of campaigns, "such, investigations would be utterly impracticable. •

■ My inference is, that-Congress could not have intended to prescribe such a limit to the service of the senior reserves/and I think it did not. *

T'h.e true and reasonable interpretation of the law, then, is, that it places in the military service of the Confederate States, all persons within the prescribed'ages *foi the war.*There is no other interpetration which will give the ordinary signification to the words used. And, as the intention of this, sis well as all other laws on the subject, is to raise an army for full and complete service in the. field, it is believed to be within the purview of the law, that from time to. time, as - the junior reserves,arrive at the ago of 18, they may bo eonscribed for general service. When ouco so conscripted and claused, there is.no provision of the law, and no rule of rhe military .-service, I take it, whereby they become entitled at any time to be subordinated or discharged, except for disability. .

The fifth section of the bill (iTth February) has been referred to as throwing some light on the question before us. I perceive hut little in it to aid us. It seems to he an instance, not unfrequeutly occurring in legislation, whole a proviso is made to emasculate completely the section or part of the law to which it is appended. This is all. . •

*12In the law of the 10th April, 1862, .authorizing the President to call into service person,s between the ages of 18 and 35, it is • provided, that the President may call those thereafter arriving at 18, and when called, all should serve their full term. The two acts, that of April, 1802, and the one now before us, have accomplished, in my judgment, the same objects, by different words. The same necessities were upon the country, and it is proper to presume that similar provisions of law were intended to be made to meet them. The two laws'were probably constructed by different .minds, and hence the..difference of language. The intent seems to have been the same,.and the comprehensive and forcible words used in the act of February last, sufficiently declare such intent.

The words, *for the war,*or any similar words in any other connexion in the section, might be of ambiguous import. But .in *the connection in which they 'stand,*they prescribe á *term of service,*as already stated,- too plainly, to bo mistaken, and which I do not'feel, at liberty to abridge, from anything which I find of apparent'ineoiasis-tency in the law, or from any considerations of public .policy.

My opinion is, that the petitioner-is rightfully under the control of the military authorities, and is not entitled to he discharged.