Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1865-01-10

It 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. pa 's
So far as the opinion delivered by my brother
Battle is based on the doctrine of necessity, which
knoaos no d" and the principle that in respect to
individuals, the power of Congress is unlimited
those questions being settled by Walton vs. Cat
In, it 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. -7 .... .r
johnson VS.. Mallett at the extra term settles the
principle, that in respect to 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 net liable
| to CONSUMPTION. --..
1t is conceded that this right cannot be impaired
by the action Of Congress- and the difference of opin
ion is as to the ertsnt of the right Is confined to
the Keeping in offices persons who may be in Office
at given time or does it extend to the filling Of
Uacancie8 which from time to time may occurl That
| is the question.
The ground on which this right is based is that
the existence of State depends on having such Of
tcers as are 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 fill vacancies as the zrght 10 !seGP IL
ollice persons who may be in office at given time
for she former right is equally as necessary to the
continued existence of Statsas the latter: and no
State can have an Independent existence without
BOTH In fact they are but parts of one and the same
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 matter of grace" on
the part of Congress-
Both being necessary and covered by the same
principle, L 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 a present necessity" on the idea of "letting
the future take care ofitselE"
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 confers the Legislature power 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 creaed under its authority
both classes of offices being necessary for the prop
er administration of the government and 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 v. Malett, supra,
that the part OF the right in relation to keeping
sons in office, embraces offices of the latter class as
well as Offices of the former class so tine only ques-
ton open is as to that part of the right in rela
ton to filling vacancies. This suggestion, so far
from disproving that part of the right yields part
of the question and makes itnore difficult to main
tain the other. To make the subject clear take an
illustration from the operationNof war, that being
the order of the day: The main work in front is
carried by johnson " Mallett; the work on the
right is yielded by this suggestion, whereby the
work on the left becomes so exposed in front and
flank IS to be no longer teneble.
| Again it 10 sussoat Cd 4Ahe t-so governments
should act in harmony; and TO do so, the govern
ment which first exercises q 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 righttul powers. But the suggestion under
consideration nterferes with the exercise of right
full power of the State, and assumes the powers OF
the two governments in regard to this subject to be
concurrent This is departure from the principle
settled in johnson v. Mallett to witt That the
power of the Confederate States is subservient
to the reserved right Of the States in regard to their
officers. In my opinion the proper way to preserve
harmony and allow leach to move in its appr0pri.
ate sphere" is to consider Congress as having ex.
ercised its power of conscription subject TO tie pre-
ferred right of the States that when 1t becomes
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 fill vacancy
to have the effect ipso acto of terminating the
scription of the person elected, in the same way
and on the same ground that one in the militia or
home guard service of State soon as he is con-
scrpted passes into the service of the Confederate
States because the war power of the State is Sec
ondarY, and the ConfederateiStateS has the prefer
red right under its war power. (See my opinion,
Wood v. Bradshaw, at this term.) This principle
may be illustrated by many analogies of the law.
One will suffice: "A sister takes as heir Of her
another brother is born. At the
common law the estate of the sister terminates and
gives place to the right of the brother, under the
rule-"males are preferred to females"
The other point, to the meaning of the act,
section 10, clause 2, is of minor importance But
am so unfortunate as to differ in respect to that
also. can see nothing in this clause to confine its
operation to persons who, at the date of the act
filled the offices of Vice President, members of Con-
gress, members of the Legislature and other Con
federate and State offices, and to exclude from its
operation all persons who may afterwards be elect
ed to these Offices, If they are at the time of THEN
election in the military service of the Confederate
States The CONSUMPTION, by the act February
1864 is general, and applies as we'll to persons then
in service, to keep them in during the war, as tC
persi ms not then in service. The exemption must
have as broad an application the CONSUMPTION,
unless there be words of restriction. The only
words used are, shall be exempted" which means
"shall be relieved" from the service imposed BY
the CONSUMPTION Such being the PLAIN meaning o
the words used, it must be taken that Congress 81
intended, and there is no room for construction.
If words at all ambiguous had been used, thu
rule of construction that the court NAV derive aid
from other statutes in pGri matsri0, or from the
preamble to former statute, made for the specia
plrpose of justifying act, which, to many seemed
to be in violation of a contract might have beer
applicable and on the other hand it might hav
been relevant to have made the suggestions: tina
the exemption in regard to Satetofice was mean
to extend to persons in the army elected to fill va