Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1865-01-11

Opinion of Chief Justlce fearsons Dissenting
from the Opinion Of the Court In the case OF
4 Bridgman vs.. Mallett.
Z 1t is matter of regret that the Judges Of this |
Court have not been able to agree upon all Of the
questions to which the general CONSUMPTION act,
February 18th, 1864, has given rise But the
ground was untrodden. There were no cases to
guide us, and perfect concurrence Of opinion was
hardly to be expected.
So far as the opinion delivered by my brother
Battle is based on the doctrine Of necessity, "hsch
knops no law" and the principle, that In respect to
indSoiduals, the war power of Congress IS unlimited
those questions being settled by Walton VS.. Cat
lin, il is my duty to conform to that decision.
That case did not present the question whether
the war power Of Congress is also unlimited IN re-
spect to the States, which is the point" IN this
case. - 57--'.'ss-.
johnson vs. Mallett at the extra term settles the
principle, that in respect to tho States the war pow
er of Congress is limited and is subject to their re-
served right in regard to their officers and on that
ground it is decided that State officer is not liable
to CONSUMPTION.
It'll conceded that this right cannot be impaired
by the action Of Congress- and the difference Of opln-
ion is rs to the ertent of the right lst confined to
the keeping in offices persons who may be IN ONCE
at given time or does it extend to the filling Of
caeancies which from time to time may occur That
is the question
The ground on which this right is based is that
the existence of State depends having such Of
ficers necessary to administer its government
and laws. Therefore it cannot be intended that In
creating the government of the Confederate States
it was the design of the States to confer power by
which their existence would be made to depend on
the will of their creature
This is . broad ground, and it embraces as well
the right to FIJI vacancies IS the right to keep in
Office persons who may be in Office at given time
for she former right is equally as necessary to the
continued existence of State the latter and no
State can have an independent existence without
right This being so, it follows that neither part
can be impaired by the action of Congress, and it
must be conceded that the part in relation to filling
vacancies decidedly impaired if it be restricted to
the election or appointment Of men who are over
conscript age, exempt as q "matter OF grace on
the part of Congress.
Both being necessary and covered by the same
principle can see no ground to draw dividing
line between the two parts, except to "split the
| difference" between the claim of the Confederate
States and the reserved right Of the States because
Of present necessity" on the idea Of "letting
| the future take care Of ITSELF"
To meet this difficulty distinction is suggested
between the Offices named in the constitution and
offices created by the Legislature This suggestion
does not meet the difficulty. 1t was not to be ex-
| pected that an instrument like the constitution
would enumerate all of the necessary State Offices,
and therefore it consrs on the Legislature Iower to
create and fill all Offices which, in its wisdom;
| should be deemed necessary, and there can be no
substantial difference between Offices named in the
constitution and offices created under its authority
both classes of offices being necessary for the prop
er administration of the governmentsand laws of a
State in other words, to preserve its existence,
and the power conferred on Congress Is subject to
the rights Of the State in regard to both classes
Indeed it is decided by johnson " Mallett, supra,
that the part Of the right in relation to keeping per-
sons in Office embraces offices Of the latter class as
well as Offices of the former class SO the only ques
ton "open is as to that part of the right in rela
ton to filling vacancies. This suggestion. 80 faI
from disproving that part of the right yields part
Of the question and makes it more difficult to main
tain the other. To make the subject clear, take an
illustration from the operations of war, that being
the order of the day: The main work in front is
carried by johnson v. Mallett; the work on the
right is yielded by this suggestion, whereby the
work on the left becomes so exposed in front and
flank as to be no longer tenable
Again it is suggested-"T The two governments
should act in harmony and to do so, the govern
ment which first exercises power ought to be al
lowed to retain all citizens who have been taken
into its service" No one feels deeper conviction
than do, that in order to preserve harmony, each
government should be allowed the fullest exercise
Of its rightful powers. But the suggestion unde,
| q
full power of the State. and assumes the powers 0
the two governments in regard to this subject to be
concurrent This is departure from the principle
settled in johnson Y. Mallett, to wit: That the
war power of the Confederate States is susservien
to the reserved right Of the States in regard to the,
officers. In my opinion the proper way to preserve
harmony and allow "each to move in its appropr
ate sphere" is to consider Congress as having ex
ercsed its power of conscrption subject to the pre-
ferred right of the States that when 1t become:
necessary for State to exercise the preferred right
the prior action Of Congress shall give way and al
low the election of State officer to gil vacancy
to have the effect ipso aeto of terminating the con
scription of the person elected, in the same way
and on the same ground that one in the militia OF
home guard service of State as soon as he is con
scrpted passes into the service of the Confederate
States, because the war power of the State is sec
onday, and the Confederate States has the prefer
red right under its war power. (See my opinion
Wood '. Bradshaw, at this term.l This prncipl
may be illustrated by many analogies of the law
One will suffice: sister takes as heir OF he
brother afterwards another brother is born At tn
common law the estate of the sister terminates an
gives place to the right Of the brother, under tn
rule-"males are preferred to females"
The other point, as to the meaning Of the act
section 10, clause 2, is of minor importance Blu
am SO unfortunate as to differ in respect to tho
ALSO can see nothing in this clause to confne it
operation to persons who, at the date of the ac
filed the Offices of Vice President members of Cor
gress members of the Legislature and other Cor
federate and State Offices, and to exclude from il
operation all persons who may afterwards be elec,
ed to these offices, IT they are at Tho time of tsei
election, in the military ssrviee Of tho Contedera
. States. The CONSUMPTION, by the act, Februar,
1864, is general and applies veil to persons the
: in service, to keep them in during the war, as
perst ms not then in service: The exemption mus
have as broad an application as the eonscriptior
unless there be words of restriction The onl
words used are, " shall be exempted, which mean
4 ashall be relieved" from the service imposed b
, i the CONSUMPTION Such being the PLAIN meaning
the words used, it must be taken that Congress {
intended, and there is no room for construction.
/ If words at all ambiguous had been used, IL
rule of construction that the court NAV derive al