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 SUPREME COURT OF ALABAMA. 
 
 IN "CONSCRIPT OASES’; 
 
 INVOLVING Till; QUESTION, 
 
 WHETHER STATE -COURTS AND JUDICIAL OFFICERS HAVE JURIS¬ 
 DICTION, ON habeas corpus, TO DISCHARGE CONSCRIPTS 
 FROM CUSTODY OF ENROLLING OFFICER OF 
 CONFEDERATE STATES. 
 
 I »e ported l>y 
 
 W. SHEPHERD, 
 
 REPORTER OK THE SUPREME COURT. 
 
 MONTGOMERY, ALA. 
 
 MONTGOMERY MAIL BOOK ANT) JOB OFF I Cl. 
 
 1803 . 
 
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SUPREME COURT OF ALABAMA, 
 
 JANUARY TERM, 1863. 
 
 Ex Parte HILL. 
 
 [application for prohibition to probate judge.] 
 
 1. Jurisdiction of Slate courts to discharge persons enrolled as conscripts. 
 State courts and judicial officers have no jurisdiction, on habeas corpus, to dis¬ 
 charge persons who arc in the custody of an enrolling officer of the Confederate 
 States, and who have been enrolled as conscripts, on the ground of physical 
 incapacity for military service. 
 
 2. When prohibition lies .—Where a probate judge has granted the writ of 
 habeas corpus to an enrolled conscript, whose petition shows on its face that said 
 judge has no jurisdiction to inquire into the validity of his enrollment, the writ 
 of prohibition will be awarded by the supreme court, without a previous appli¬ 
 cation to the circuit court, enjoining further proceedings by the probate judge; 
 and the application for the writ may be made by the enrolling officer who has 
 the custody of the conscript. 
 
 Application by L. H. Hill, an officer in the army of the 
 Confederate States, and the enrolling officer for the district 
 which includes the county of Montgomery, for the writ of 
 prohibition , to be directed to the probate judge of said county, 
 enjoining and restraining him from further proceedings in the 
 matter of the petitions of Asa J. Willis, E. P. Johnson, and 
 Calvin Reynolds, respectively, for the writ of habeas corpus, 
 by which said petitioners sought to obtain their discharge from 
 the custody of said enrolling officer. 
 
 P. T. Sayre, for the petitioner. 
 
 S. F. Rice, and Jno. A. Elmore, contra. 
 
 LI 54941 LAW LIBRARY 
 
4 
 
 A. J. WALKER, C. J.—Three persons, who were taken 
 and detained in custody under the conscript law by the enroll¬ 
 ing officer, severally petitioned the probate judge for writs 
 of habeas corpus, predicating their prayers for a discharge upon 
 the ground of exemption from conscription on account of 
 physical disability; and the writs were awarded by that officer. 
 The enrolling officer, contending that the judicial tribunals of 
 the State have no jurisdiction over the matter of his detention 
 of those persons as conscripts, now applies to this court for 
 writs of prohibition. Thus the duty devolves upon this court, 
 of deciding whether a State tribunal has authority to discharge 
 one who has been taken and is detained by the enrolling offi¬ 
 cer as a conscript, upon the ground of his exemption for the 
 reason above stated. 
 
 The first section of the act of congress, approved April 16th, 
 1862, authorizes the president to call out and place in the 
 service of the Confederate States men between the ages of 
 eighteen and thirty-five years, who were not legally exempted 
 from military service. The amendatory act of 27th Septem¬ 
 ber, 1862, in language similar to that employed in the original 
 law, extends the authority to men between the ages of thirty- 
 five and forty-five; and requires the president, if he should not 
 call out all the persons between the specified ages, to discrimi¬ 
 nate, by limiting his call to persons of some particular age 
 under forty-five. By an act, approved 21st April, 1862, cer¬ 
 tain descriptions of persons were exempted from enrollment 
 for service in the armies of the Confederate States. That act 
 was repealed by one adopted on the 11th October, 1862, which 
 exempts from military service in the armies of the Confeder¬ 
 ate States" various classes of persons therein described. 
 
 The two acts of 16th April and 27th September impose 
 upon the authority to conscribe a restriction to persons not 
 legally exempted. The persons exempt are not described by 
 name, but by classes, defined by reference to bodily or mental 
 incapacity, to the incumbency of certain offices, the practice 
 of certain useful arts, the profession of some specified religious 
 
5 
 
 creeds, and other distinguishing peculiarities. As the authority 
 to conscribe does not extend to the individuals who compose 
 those classes, it can only be exercised by ascertaining the 
 persons to whom the peculiarities distinguishing the different 
 classes pertain. The ascertainment of the legal subjects of 
 conscription is an unavoidable step in the proceeding. Inquiry 
 and decision, upon this point, are necessarily involved in the 
 exercise of the president’s power to conscribe all within the 
 prescribed ages, “ who are not legally exempted from military 
 service.” 
 
 The selection from the community at large of the subjects 
 of conscription, involving inquiry and decision as to the status 
 of every man, was obviously susceptible of accomplishment 
 by the executive department of the government, only through 
 the agency of officers, clothed with the requisite authority. 
 Congress therefore has authorized the appointment of such 
 officers. By the third section of the act of 16th April, 1862, 
 the president is empowered to appoint officers, charged with 
 the duty of enrolling conscripts, “ in accordance with rules and 
 regulations to be prescribed by him.” A later act, approved 8th 
 ■October, 1862, directs, that enrollments shall be made under 
 instructions from the war department , and reported by the 
 enrolling officer. Furthermore, an act, approved October 11th, 
 1862, authorizes the assignment of one or more surgeons to 
 the duty of examining those enrolled ; and declares, that th# 
 decision of such surgeon or surgeons, “ under regulations to be. 
 established by the secretary of vmv ”, as to physical and mental 
 capacity, shall be final. 
 
 The employment of appropriate officers to execute the con¬ 
 script law, is thus clearly authorized. Every act of conscrip¬ 
 tion by such officers must be done pursuant to a decision based 
 upon an inquiry, in which the hearing and weighing of evi¬ 
 dence must often, if not always, be necessary. Without an 
 inquiry and judgment as to the liability to conscription, no 
 enrollment could be made, because it could not otherwise be 
 determined who were subject to conscription. This authority 
 
 ZLA QS 'l 
 
6 
 
 to inquire and decide is not, however, left to implication from 
 the nature of the act. There is an express authority to 
 decide upon the question of exemption on account of mental 
 or physical incapacity, and the decision of the tribunal desig¬ 
 nated is made final. The existence of such authority is clearly 
 indicated in the phraseology of the law, declaring, that “ all 
 persons who shall he held wifit for military service in the field, 
 by reason of bodily or mental incapacity, under the rules to 
 be prescribed by the secretary of war,” shall be exempt. 
 The holding or deciding persons to be unfit for military service, 
 under rules prescribed by the secretary* of war, must be by 
 the officers appointed to execute the law. The authority to 
 hear evidence and decide, is a plain inference from the provis¬ 
 ion in the act of 11th October, 1862, that the claim of certain 
 classes of artisans is to be supported by affidavit, which shall 
 only be primatfacie evidence of the facts stated. Further¬ 
 more, the general idea, that the power of investigation and 
 decision is a part of the authority to be exercised by the 
 respective officers, is very clearly brought to view in the clause 
 of the same act, which requires the secretary of war, upon 
 evidence, to judge whether the exempted artisans have, by 
 their conduct, forfeited the privilege. It must be noted, too, 
 that the duties of the officers are to be discharged under rules 
 and regulations to be prescribed by the secretary of war. 
 
 •Surely, these rides and regulations are not contemplated to be 
 merely the guides of the subordinate officers, in performing 
 the acts of writing down the names of the conscripts, and 
 taking charge of them. They ivere designed to control and 
 direct them in the higher, more important, and more difficult 
 office of inquiring and judging as to the liability to conscrip¬ 
 tion. The execution of the law is utterly impracticable, if 
 there be no authority to ascertain and judge who are the legal 
 subjects of conscription. With the utmost confidence, I assert 
 the proposition, that the officers employed in the execution of 
 the law are clothed with authority to judge what persons fall 
 within its operation. The exercise of this authority is an 
 
7 
 
 official duty, to be performed under the guidance of rules pre¬ 
 scribed by the secretary of war. 
 
 A State judge, in discharging one taken as a conscript, upon 
 the ground that he was not legally liable to conscription, would 
 supervise and control an officer of the Confederate States, in 
 the performance of an official duty, and in the exercise of a 
 legal authority. He would, furthermore, annul the decision 
 which such officer was authorized to make, and abrogate the 
 enrollment based upon that decision. The decision of the 
 question of amenability to conscription is within the scope of 
 the authority exercised. An incorrect decision would be an 
 erroneous exercise of a subsisting authority— not a mere usur¬ 
 pation. The officer is perfectly within the limit of his author¬ 
 ity, when he investigates and decides : and, though he may 
 err, he is not an usurper. Neither the absolute invalidity of 
 the conscription, nor a liability in trespass, would result from 
 an incorrect decision.—Duckworth v. Johnson, 7 Ala. 578 ; 
 Savaeool v. Dough tod; 5 Wend. 170 ; Easton v. Calender, 
 11 ib. 90. 
 
 The principle is illustrated in the case of a justice: erring 
 in the exercise of his authority to commit offenders ; and of 
 assessors, who incorrectly decide that a given person belongs 
 to a class liable to be taxed. The levy of a fieri facias by a 
 marshal of the Confederate States, upon property not belong¬ 
 ing to the defendant, does not present an analogous question. 
 He is simply authorized by the process to do a particular 
 thing. He is not called upon by the law to decide any thing. 
 He has none of the attributes of a tribunal armed with authority 
 to investigate and decide questions. His judgment, of course, 
 he exercises, in determining whether the property upon which 
 he levies belongs to the defendant ; but, upon a principle of 
 public policy, he decides at liis own peril. The exercise of 
 his judgment is for his own protection, and not by authority 
 of law. His process authorizes him to levy upon the defend¬ 
 ant’s property—not to adjudge the question of the title to 
 property. - It neither requires him to construe a law, nor to 
 
8 
 
 decide upon evidence as to the cases that come within its ope* 
 ration. The law under which he acts, and which governs him, 
 unlike that, under which the enrolling officer acts, has not 
 deemed it necessary to bestow authority for an investigation 
 and 5 -judicial decision, preliminary to his action; but, in 
 requiring him to act at his own personal peril, has expressly 
 repudiated such an idea. No act of congress prescribing a 
 marshal’s authority, nor any construction thereof, can be drawn 
 in question in a suit against him for the levy of process against. 
 :ne, upon the property of another. The simple inquiry, in 
 such a suit, would be, whether the particular chattel, under 
 ;he general law governing property, belonged to the one per- 
 .-on or the other; while at every step in the cases now before 
 is, the court must expound the act of congress marking out 
 :he authority of the officer. The decisions, therefore, as to 
 die power of the State courts over the United States marshals, 
 erring in the execution of their process, have no bearing upon 
 the question before us. The same distinction applies to an 
 irrest of one person, by virtue of process against another. 
 Uruen v. Ogden, 6 Hals. 370 ; Dunn v. Vail, 7 Mar. La. 416; 
 Slocum v. Mayberry, 2 Wheaton, 1 . 
 
 The officer charged with the execution of the conscript law, 
 not only has authority to investigate and decide, but he is 
 required to do so according to regulations prescribed by the 
 secretary of war. The question of these cases, then, is nar¬ 
 rowed down to this : can a State judge, by writ of habeas 
 corpus , supervise, control, and annul the act of officers of the 
 Confederate States, done in the exercise of authority given by 
 the law of that government, and required to be done under 
 regulations prescribed by the secretary of war ? 
 
 It is proper to approach the interesting question above 
 stated, by an observation in reference to the relation existing 
 between the government of the Confederacy and the govern¬ 
 ments of the several States which compose it. The govern¬ 
 ment of the Confederacy possesses the powers delegated by 
 the constitution; and the States retain their original powers, 
 
9 
 
 except so far as they may be affected by the grants or prohi¬ 
 bitions of the constitution of the Confederate States. While 
 the Confederate government exists by virtue of delegated 
 authority, its powers, within their appropriate boundary, are 
 not subordinate to those of the States. On the contrary, it is 
 expressly declared in the constitution, that the constitution, 
 and the laws of the Confederate States made in pursuance 
 thereof, and all treaties made under the authority of the Con¬ 
 federate States, shall be the supreme law of the land. The 
 authority of all governments must be exercised, and must 
 reach the subjects of its operation, through the agency of 
 officers. The officers of the Confederate States, and of the 
 several States, must exercise their functions, and apply the 
 authority of their respective governments, within the same 
 temtorial area. It is the clearest deduction of reason, that 
 the officers of neither of these distinct powers, operating 
 within the same territorial limits, and performing proper func¬ 
 tions, can be subordinated to the other, except as authorized 
 by the constitution, without detriment to the harmonious work¬ 
 ing of our complicated system, and peril to the rights and 
 benefits which that system was designed to secure. 
 
 The analogy (in all respects which concern our subject) of 
 our government to that of the United States enables us to draw 
 from the history of the past an illustration of the idea which 
 we are striving to develop. The fugitive-slave law was passed 
 to protect and maintain a clear constitutional right of a class 
 of citizens in the United States, whom the fluctuations of time 
 had localized in less than a moiety of the States. In most of 
 the other States, an antagonism of sentiment to that right gradu¬ 
 ally intensified into fanaticism, and extended to the persons to 
 whom the right appertained. A right of subordinating the 
 authority of the officers deputed to execute that law, to the con¬ 
 trol of local State tribunals, infected by the feeling prevalent in 
 those States, was asserted and maintained. In many localities, 
 the execution of the law was, by this means, prevented ; and 
 the just claim of the people of the slave-holding States, to the 
 
 4 
 
 t 
 
10 
 
 maintenance of a constitutional right, was defeated. The 
 powers of the Confederate government are given to it for the 
 benefit and protection of all the people in all the States ; and 
 the historic lesson teaches us, that the execution of the laws, 
 passed by virtue of those powers, can not be safely left to the 
 control of local tribunals. The absence of the danger, under 
 our system, can only be argued by arrogating to ourselves a 
 freedom from the frailties of human nature. . 
 
 The Supreme Court of the United States, faithful to the 
 constitution, while every other branch of the government 
 seemed to conspire its overthrow, through its venerable and 
 illustrious Chief Justice, announced an opinion upon the as¬ 
 sumption by the court of Wisconsin of the authority to thwart 
 the execution of the fugitive-slave law in that State. The case 
 was Ableman v. Booth, and the United States v. Booth, reported 
 in 21 Howard, 500. The entire opinion seems to have had the 
 approval of each one of the nine judges composing the court; 
 which was rarely the case, where questions of constitutional 
 law were presented. In that opinion it is said : “ The powers 
 of the general government, and of the State, although both 
 exist, and are exercised, within the same territorial limits, are 
 yet separate and distinct sovereignties, acting separately and 
 independently of each other, within their respective spheres, 
 And the sphere of action appropriated to the United States is 
 as far beyond the reach of the judicial process issued by a 
 State judge, or a State court, as if the line of division was 
 traced by landmarks and monuments visible to the eye.” In 
 this extract, and in other parts of the opinion, the proposition 
 is maintained, that neither government can pass the line of 
 division between their respective powers; and the court fur¬ 
 ther asserts, that the United States marshal, after legally 
 showing his authority to the State tribunal, would be bound to 
 resist its further interference. The practical effect of the law, 
 as declared in that case, is, that a State court, or officer, has 
 no right of control over the conduct of the officers of the gene¬ 
 ral government, in the exercise of an authority bestowed by 
 its law. v 
 
Nor was this principle, when announced in the case above 
 named, at all new in the jurisprudence of the United States. 
 I avail myself of Chancellor Kent’s condensation of the decis¬ 
 ions upon that subject, and of the authority of his great nfrfne, 
 in behalf of my argument, in the following extract from his 
 Commentaries : “ No State can control the exercise of any author¬ 
 ity under the Federal government. The State legislatures can 
 not annul the judgments, nor determine the extent of the juris¬ 
 diction, of the courts of the Union. This was attempted by 
 the legislature of Pennsylvania, and declared to be inoperative 
 and void by the Supreme Court of the United States, in the 
 case of the United States v. Peters, 5 Cranch, 115. * * * 
 
 It has also been adjudged, that no State court has authority or 
 jurisdiction to enjoin a judgmerft of the Circuit Court of the 
 United States, or stay proceedings under it. This was at¬ 
 tempted by a State court in Kentucky, and declared to be of 
 so validity by the Supreme Court of the United States, in 
 McKim v. Voorhies, 7 Cranch, 279. No State tribunal can 
 interfere with seizures of property, made by revenue officers 
 under the laws of the United States ; nor interrupt, by pro¬ 
 cess of replevin, injunction, or otherwise, the exercise of the 
 authority of the Federal officers; and any intervention of State 
 authority, for that purpose, is unlawful. This was so declared 
 by the Supreme Court, in Slocum v. Mayberry, 2 Wheat. 1. 
 Nor can a State court issue a mandamus to an officer of the 
 United States. This decision was made in the case of McClung 
 v. Silliman, 6 Wheat. 598; and it arose in consequence of the 
 Supreme Court in Ohio sustaining a jurisdiction over the 
 register of the land-office of the United States, in respect to his 
 ministerial acts as register, and claiming a right to award a 
 mandamus to that officer, to compel him to issue a final certifi¬ 
 cate of purchase. The principle declared by the Supreme 
 Court was, that the official conduct of an officer of the govern¬ 
 ment of the United States can only be controlled bv the power 
 that created him. If the officer of the United States who 
 seizes, or the court which awards the process to seize, has 
 
12 
 
 jurisdiction of tho subject-matter, then the inquiry into the 
 validity of the seizure belongs exclusively to the Federal courts. 
 But. if there be no jurisdiction in the instance in which it is 
 averted—as if a marshal of the United States, under an exe¬ 
 cution in favor of the United States, against A, should seize the 
 person or property of B—then the State courts have jurisdic¬ 
 tion to protect the person and property so legally invaded; 
 and it is to be observed, that the jurisdiction of the State court 
 in Rhode Island was admitted by the Supreme Court of the 
 United States, in Slocum v. Mayberry, upon that very ground.” 
 1 Kent’s Com. 409-10-11. See, also, McNut v. Bland, 2 How. 17. 
 
 As the officers authorized to execute the conscript law, have 
 jurisdiction to examine evidence and decide upon the question 
 of amenability to conscription, the authority of Chancellor 
 Kent, as exhibited in the foregoing extract, is wholly opposed 
 to the jurisdiction claimed for the probate judge in these 
 cases. Judge McLean, of the Supreme Court of the United 
 States, holding a circuit court in Indiana, in a charge to a jury 
 trying a case wherein a master sought to recover damages for 
 the taking of his slaves from his custody under a habeas corpus 
 issued by a Michigan court, held, that a State tribunal could 
 not release from custody persons held under the authority of 
 the United States, and procured from the jury a verdict for 
 the full measure of the master’s damages.—Norris v. Newton, 
 6 McLean, 92. Judge Nelson, of the Supreme Court of the 
 United States, in a charge to the grand jury, maintained the 
 same doctrine in 1851.—Hurd on Habeas Corpus, 198. Judge 
 Cheves, of South Carolina, in a learned opinion, reported in 
 the 12th vol. Niles’ Register, declined to take jurisdiction over 
 the matter of the discharge of one imprisoned under process 
 issued by the authority of the United States and the recorder 
 at Charleston has recently followed the principle of that decis¬ 
 ion, in refusing to interfere under a writ of habeas corpus with 
 the detention in the army of an infant only sixteen years of 
 age ; maintaining, that the precedent set by Judge Cheves 
 has since been acquiesced in as a correct exposition of the law 
 
13 
 
 in South Carolina .—Ex parte Rhodes, 12 Niles’ R. 264; In the 
 matter of Benjamin Sauls, Charleston Courier of 20th Oct. 1862. 
 In the State of New York, speaking for himself, and not as the 
 organ of the court, Chancellor Kent laid down the principle 
 more recently asserted in the case of Ableman v. Booth .—Ex 
 •parte Ferguson, 9 Johns: 239. It appears, however, that this 
 opinion never controlled the action of the New York courts; for 
 they seem to have since exercised the controverted jurisdic¬ 
 tion .—Ex parte Stacy, 10 Johns. 328; Carlton’s case, 7 Cow. 471: 
 United States v. Wyngall, 5 Hill. 16. 
 
 There are several decisions by State courts, which hold that 
 they have the power to discharge persons improperly impris¬ 
 oned under the authority of the United States, or even under 
 its process.— Almeida’s case. 12 Niles’ Reg. 415; Lockington’s 
 case, 5 Hall’s Law Journal, 301 ; Commonwealth v. Fox,. 
 7 Barr. 336: State v. Dimick. 12 N. H. 194 ; Commonwealth v. 
 Harrison, 11 Mass. 63; The State v. Brearly, 2 South. 555. 
 Several of these cases pertain to the question of the discharge 
 of soldiers, enlisted during their minority, by contracts which 
 the act of congress declared void. We will not pause to inquire* 
 whether they are not distinguishable from these cases: for. if 
 analogous, we are not willing to follow them. They were 
 decided before the Supreme Court of the United States made 
 its decision in Ableman v. Booth, herein before noticed. We 
 can not reconcile with sound principle, or real expediency, the 
 proposition, that an offider of the Confederacy, when engaged 
 in the execution of an act of congress, and acting within the 
 sphere rtf his authority, can be subject to the control of the 
 ’ judicial tribunals of the States. It is natural that the judicial 
 mind should approach a question which concerns the liberty 
 of the citizen, with a profounder solicitude, and a more sensitive 
 delicacy : nevertheless, the principle is the same, when the 
 authority of the government touches the property of the citi¬ 
 zen, as when it touches his person. And the same doctrine 
 which gives to the State tribunals a power to supervise such 
 official action as concerns the liberty of the citizen, must sub- 
 
14 
 
 jeet to the arbitrament of the humblest State officer, clothed 
 with judicial authority, the regularity and legality of the acts 
 of all the officers of the government, whose functions reach the 
 property or the money of the people. The power of taxation, 
 of collecting the customs, of regulating foreign commerce and 
 commerce between the States, of restoring fugitive slaves, 
 of raising and supporting armies, and all the other powers of 
 government, would be exercised by its officers under its author¬ 
 ity, subject to the controlling interference of the local tribunals, 
 within the jurisdiction of which the power should chance to 
 be in process of execution. Authority conferred by all the 
 States, to be exercised by a government, in the administration 
 of which all the people and all the States, directly or indi¬ 
 rectly, participate, would be admeasured and regulated by the 
 tribunals of particular localities. A law for the raising of 
 revenue, or of armies, might receive the acquiescence and 
 prompt obedience of a majority of the States; while a minority, 
 by aid of their courts, utterly thwarted its execution within 
 their limits. Thus a burden, designed to be common, would be¬ 
 come partial. And a clash of authority between the States and 
 the Confederate government would load to disastrous results. 
 
 The officers, executing the law of conscription, are required 
 to act under rules given them from the war department. 
 Guided by those rules, the officers may attain a conclusion 
 altogether variant from that which a State judge, either unin¬ 
 formed as to those rules, or not recognizing their obligation 
 upon him, would attain. I presume, tfiat those who argue the 
 subordination of the Confederate officers to the State tribunals, 
 would repudiate the idea of the government of those tribunals 
 by regulations of the war department ; for the argument 
 which maintains a supervisory authority over the subordinate 
 officer would as well apply to his superior. Are we, then, to 
 have an officer, obligated by rules and regulations from the war 
 department, subject to the supervision and control of another, 
 who is not bound to an observance of them? Are we to have 
 an officer convicted as a usurper, and made amenable to dam- 
 
15 
 
 ages as a trespasser, who has acted correctly according to 
 regulations which govern him, but who is to be tried by a tri¬ 
 bunal not recognizing them ? These inquiries suggest a very 
 conclusive argument against the assumption of State authority 
 in these cases. 
 
 I do not controvert the right of State courts to interpret the 
 constitution, treaties, and laws of the Confederate States, and 
 treat as nullities all laws infringing the constitution, in cases 
 over which they have jurisdiction. The point of my argument 
 is, that these cases are without the jurisdiction of the probate 
 judge, and he can not adjudge any thing concerning the rights 
 of the parties. 
 
 Nor do I controvert the general proposition, that the courts 
 of the States have concurrent jurisdiction over all subjects 
 cognizable in the courts of the Confederate States, when it is 
 not otherwise provided by law. But I think, that the general 
 rule must be taken with the exception of those cases in which 
 the execution of the laws of the Confederate States by its offi¬ 
 cers is to be supervised and controlled. 
 
 I am not unmindful of the argument ab incmvenienti. which 
 has been made. It may be, that access to a judicial officer of 
 the Confederate States would, at present, be inconvenient; 
 but, if so, it is an evil which could easily be avoided, by an 
 act of congress increasing the number of officers, and adjusting 
 their locations with a view to the convenience of the people. 
 The postponement of this duty by congress can not justify us 
 in the abandonment of a principle, or in the setting of a per¬ 
 nicious precedent. Moreover, it must be observed, that the 
 government of the Confederate States has not been so unmind¬ 
 ful of the liberty of the citizen, as to leave it to the irrevisable 
 decision of the subordinate enrolling officer. On the contrary, 
 an appeal to the commandant of conscripts, and thence to the 
 secretary of war. is provided by the regulations prescribed 
 for the officers employed in the execution of the law ; and 1 
 presume the appeal could be extended to the president him¬ 
 self. I am not prepared to admit, that this succession of 
 
 
16 
 
 officers does not afford a reasonable assurance of the mainten¬ 
 ance of justice, right and law. At least, no one can justly 
 complain that no remedy against an erroneous decision is pro¬ 
 vided, until he has tested those which the government extends 
 to him. And besides all this, a resort may be had to the judge 
 of the court of the Confederate States. The government of 
 the Confederate States was organized by the Slates, and its 
 laws have been passed and its officers selected, directly or 
 indirectly, by the States and the people ; and it should have 
 the generous confidence and the manly support of the country, 
 in the present struggle for independence and liberty. 
 
 If it be true that, at common law, the facts alleged in the 
 return to a habeas corpus can not be contested; and if no remedy 
 for that vice in the law had been provided, the blame would 
 be due to the State government. But in fact, in this State, 
 and in all the other States of the Confederacy, as far as. our 
 examination has been extended, there is an express provision 
 for the contestation of the return.—Code, § 3782. If, there¬ 
 fore, a false return should be made, that the petitioner Avas 
 held by a duly appointed officer by competent authority, it 
 Would be the duty of the probate judge to hear a contestation 
 of the return, and not to remand the prisoner if the return 
 was false. In these cases, the petitions themselves, when 
 properly construed, show the want of jurisdiction in the pro¬ 
 bate judge : and it was his duty to have rejected them in lim¬ 
 ine. — Ex parte Tobias Watkins, 3 Peters, 201. 
 
 [2. | The cases of Ex parte Burnett, 30 Ala. 461. and Ex parte 
 Smith. 23 ib., are deemed conclusive authority in favor of the 
 right to apply to this court for a prohibition, without a previ- 
 ous application to an inferior court. The probate judge, in 
 granting the lialteas corpus upon the petitions, exercised an 
 authority that did not belong to him ; and there is no other 
 remedy than the writ of prohibition. It is clear, therefore, 
 that that writ is tlie proper remedy.— Ex parte Morgan Smith, 
 23 Ala. 94; Ex parte Walker, 25 ib. 81 ; Ex parte Greene & 
 Graham, 29 ib. 52. The petitioner for the prohibition is the 
 
 
17 
 
 party whose custody of the conscript is interfered with, an 
 we think he may make this application. 
 
 Judge Stone concurs with the conclusions of this opinion, 
 hut upon his own reasoning. 
 
 If we have the facts of these cases correctly presented t«s- - 
 us in the petitions, the foregoing opinion is decisive of theme 
 But, as the facts do not appear of record, we deem it the safer 
 course to issue a rule nisi to the probate judge.—3 Blacks... 
 
 Com. 113-14. 
 
 STONE, J.—In the discussion of the questions before 
 us—among the gravest that ever came before this court—we 
 have to lament the absence of our brother R. W. Walker, who • 
 is detained at home by providential causes. Deprived of his 
 counsel and co-operation, we would, under ordinary circum¬ 
 stances, withhold our decision in cases commanding the deep- 
 interest which these do. But, being thoroughly convinced of 
 the correctness of the results we attain, so far as we now pro¬ 
 pose to announce them, we have felt that the public welfare 
 demands an early decision. Hence, the reluctance with which 
 we approach this interesting question, in the absence of a full 
 court, must yield to the paramount claims of the public service. 
 
 I propose, as brief!}’ as I can. to give the reasons which lead 
 my mind to the same result as that which has been announced 
 by my brother, the Chief Justice. In doing so, however, I 
 wish it understood, that I limit the operation of my remarks 
 to cases which are, in principle, like the one before us. I with¬ 
 hold the expression of any opinion on all those cases, in which 
 the party, either by name, or as one of a class or sect, stands 
 absolutely and unconditionally exempt from conscription, with¬ 
 out any other qualification than that he is of the given class; 
 such, for example, as persons under the age of eighteen years, 
 or over forty-five ; officers, judicial and executive, of the Con¬ 
 federate and State governments, &c. There are still other 
 2 
 
t 
 
 18 
 
 classes of a mixed character, upon which I, at present, express 
 no opinion. 
 
 I shall devote but little time to the consideration of the 
 constitutionality of the acts of congress known as the “ con¬ 
 scription laws.” The power to conscribe the citizens of the 
 several States composing this Confederacy, is, in my judgment, 
 expressly given in those grants of the constitution which confer 
 on congress the power “ to declare war,” “ to raise and sup- 
 port armies,” “to provide and maintain a navy,” and “tomake 
 rules for the government and regulation of the land and naval 
 forces.”—Const, of Confederate States, art. I, sec. 8, subd. 11, 
 12, IB, 11. These are specific grants of power, in language 
 free from ambiguity ; and in neither of the clauses quoted is 
 found a word or syllable, which defines the mode or manner of 
 executing the power. The same clause Avhich gives the power 
 to raise armies, gives also the power to support armies. The 
 two words are coupled together by the copulative conjunction; 
 mid if the one power require the agency of State authority for 
 its execution, by every sound canon of construction, the other 
 power must equally require such agency. In fact, all the grants 
 of power in the 8th section of the 1st article of the consti¬ 
 tution—seventeen that are specific, and one general in its 
 terms—are one continuous sentence ; each clause being ex¬ 
 pressed in phraseology of kindred character; and if con¬ 
 gress can not directly execute the powers enumerated above, 
 neither could that body directly execute the other powers 
 therein granted. Now, when we reflect that, among the enu¬ 
 merated grants found in that section and sentence , are the power 
 “ to lay and collect taxes, duties, imposts and excises,” “ to bor¬ 
 row money on the credit of the Confederate States,” “ to regu¬ 
 late commerce with foreign natiofis,” “to coin money,” “to 
 declare war,” <fcc.,—surely it will not be contended, that these 
 powers can only be exercised through State instrumentality. 
 Prigg v. Commonwealth, 16 Peters, 616. 
 
 The 16th clause of the section I am considering, contem¬ 
 plates that the militia —which constitutes the material out of 
 
19 
 
 which armies are to be raised —may be kept in a state of organ¬ 
 ization and discipline ; and, inasmuch as invasions or insurrec¬ 
 tions may be suddenly precipitated upon us, or the execution 
 of the laws of the Confederate States may be resisted in force, 
 so as to require prompt and vigorous measures for the defense 
 of the country and the welfare of society, congress is also 
 empowered, by the 15th clause, “ to provide for calling forth 
 the militia.” This is a separate clause, distinct from the author¬ 
 ity to raise armies; and was deemed a necessary reserve to 
 meet exigencies, in a country which revolted at the idea of 
 large standing armies, or splendid military establishments in 
 times of peace. The militia for exigencies ; the army, when 
 war has become an established fact. 
 
 It being thus shown, as I think, that congress is clothed 
 with power to raise armies by direct means, without calling 
 to its aid State authority, it follows irresistibly, that congress 
 is the sole arbiter of the means and machinery it will adopt 
 for executing this power; with the well-known limitation, that 
 the means employed shall be both necessary and proper for 
 carrying into execution the granted power ; that is, as I 
 understand this clause, that both qualifying words shall have 
 operation and effect. Necessary to the full enjoyment of the 
 right; and proper —homogeneous and harmonious with our 
 compound system of government. No matter how necessary 
 the proposed means may appear, still, if it antagonize any 
 of the reserved rights of the States or of the people, or mili¬ 
 tate against any of the principles which underlie our liberties, 
 then it is not proper ; and, on the other hand, if the means 
 proposed be in harmony with every principle of our institu¬ 
 tions, and be not necessary to the full enjoyment of some power 
 granted to the Confederate government, the employment of 
 such means by that government would be a sheer usurpation. 
 When I speak of incidents to the grants of power to the Corn- 
 federate government, I mean express grants ; for there should 
 be no incidents to incidental powers.—See Federalist, No. 33. 
 
 The magnitude and intensity of the war that is being waged 
 
20 
 
 against us, render it necessary that our young government put 
 forth its greatest strength for the protection of our liberty and 
 our property. This, I am satisfied, could not be accomplished 
 by any means short of compulsory enrollment; and hence I 
 hold, that the conscription acts are constitutional. 
 
 It was early said, that over subjects which, before the adop¬ 
 tion of the Federal constitution, were within.State cognizance, 
 the powers of legislation granted to congress were never 
 exclusive of similar powers existing in the State legislatures, 
 except in cases in which the constitution has, in express terms, 
 given an exclusive power to congress, or the exercise of a like 
 power was prohibited to the States, or there was a direct 
 repugnancy or incompatibility in the exercise of it by the 
 States.—See Houston v. Moore, 5 Wheat. 1; 1 Kent’s Com. 
 390, in margin ; Federalist, No. 82; Sturgis v. Crowninshield, 
 4 Wheat. 193 ; Prigg v. Commonwealth, 16 Pet. 625. Ch. 
 Kent adds : “The States retain concurrent authority with con¬ 
 gress, except where the laws of the States and of the Union are 
 in direct and manifest collision on the same subject; and then 
 those of the Union, being the supreme law of the land, are of 
 paramount authority, and the State laws, so far, and so far only 
 as such incompatibility exists, must necessarily yield.” 
 
 The first and second of these exceptions seem to be so plain, 
 as to leave no ground for dispute. The third, though much 
 more difficult of practical administration, must also be con¬ 
 ceded. All the authorities hold, that when the powers of the 
 two governments are, under the rules above declared, concur¬ 
 rent, it is within the power of congress to make the jurisdiction 
 exclusive in the Confederate government; and that whenever 
 congress is in the actual exercise of a power thus possessed 
 concurrently by the Confederate and State governments, this, 
 without more, takes away the power of the States, to the 
 extent congress exercises the power.—Houston v. Moore, szcpra; 
 Moore v. Houston, 3 Serg. & R. 179; Blanchard v. Russel, 
 13 Mass. 16; Livingston v. Van Ingen, 9 Johns. 507; Prigg v. 
 Commonwealth, 16 Pet. 617-18. 
 
21 
 
 At an early day under the government of the United States, 
 it was also decided, that over subjects of judicial cognizance, 
 which owe their existence to the Federal government, the 
 State courts have no jurisdiction, unless it be conferred by the 
 Federal government; and it was further settled, than even 
 when such jurisdiction has been thus conferred, the State tri¬ 
 bunals are not, by the mere force thereof, required to assume 
 the jurisdiction tendered, but can exercise it or not, at their 
 pleasure, subject to the control of their own legislatures. 
 2 Story on Cons. §§ 1755-6, and note 2 ; Houston v. Moore, 
 supra; 1 Kent’s Com. in margin, 396; Prigg v. Commonwealth, 
 16 Peters, 539, 622; Ex parte Gist, 26 Ala. 156. The crimi¬ 
 nal jurisdiction of the Confederate States cannot, consistently 
 with the constitution, be delegated to State courts.—Martin 
 v. Hunter, 1 Wheat. 304. 
 
 On the subject of judicial powers, it was said in the 82d No. 
 of the Federalist, “that the State courts would retain the juris¬ 
 diction [they had before the adoption of the constitution], unless 
 it appears to be taken away” in one of the modes above men¬ 
 tioned, as taking away the legislative jurisdiction of the States. 
 Chancellor Kent’s statement of the principle thus laid down 
 in the Federalist, slightly variant from the original, is, “ that 
 the State courts retained all pre-existing authorities, or tho 
 jurisdiction they had before the adoption of the constitution, 
 except where it was taken away, either by an exclusive author¬ 
 ity granted in express terms to the Union; or in a case where 
 a particular authority was granted to the Union, and the exer¬ 
 cise of a like authority was prohibited to the States ; or in the 
 case where an authority was granted to the Union, with which 
 a similar authority in the States would be utterly incompati¬ 
 ble.”—1 Com. 395-6. “ This doctrine,” adds Chancellor Kent, 
 “ was only applicable to those descriptions of pauses, of which 
 the State courts had previous cognizance.” In the case of 
 Houston v. Moore, supra , in speaking of this question, the 
 court adopted the theory of the Federalist, given above; with 
 the reservation, that congress has power to withdraw the whole, 
 
22 
 
 or any part, of cases thus circumstanced from the jurisdiction 
 of the State courts. 
 
 It will thus be seen, that there is a substantial conformity 
 between the declared rule which governs the question of con¬ 
 currence of legislative jurisdiction, and that which obtains on 
 the same question, when it arises in the performance of judi¬ 
 cial functions. 
 
 Whether the rule above declared receive the approbation 
 of all legal minds or not, I apprehend that no one will contend 
 for a larger exercise by State authorities of what are called 
 the concurrent jurisdictions of the two governments, than is 
 there sanctioned. Taking this rule and its exceptions for my 
 guide, I think the present cases can be shown to be within 
 the operation of one, if not more than one of the exceptions. 
 
 I have shown above, that congress, having power “ to raise 
 armies,” may directly employ such means as may be necessary 
 and proper to carry this power into full effect. Tli# only 
 source from which it can draw the personnel of an army, is found, 
 in the citizens of the several States. The acts of congress, 
 known as ‘‘the conscription laws ”, being both necessary and 
 pn'oper, as means of carrying into effect the expressly delegated 
 power “ to raise armies”; various officers, agencies, rules and 
 regulations were equally necessary and proper instrumen¬ 
 talities, in carrying into effect this express grant of power. 
 Hence these means were also constitutional. In fact, every 
 step taken, and to be taken, from the call and enrollment of 
 the citizen, to the maturing and equipping a well-appointed 
 and disciplined army, required agencies, rules, skill, and organ¬ 
 ized procedure, which could only be attained or expected in a 
 system having one head, and governed by uniform rules of 
 action. 
 
 . These multiplied agencies, trusts and duties, being all within 
 the constitutional power of congress, and many of them requir¬ 
 ing professional knowledge and skill which can not be looked 
 for in persons who have not had the advantages of military 
 training and experience, it was very natural that the Confed- 
 
erate government should draw to Itself the exclusive direction 
 and determination of the various questions incident to the 
 formation of its armies ; and this precise thing, I think, it has 
 done.—See Prigg v. Commonwealth, supra, page (123. 
 
 The 3d section of the act approved April 16th, 1802, declares, 
 that in making enrollments, it shall be lawful for the presi¬ 
 dent, with the consent of the governors of the respective 
 States, to employ State officers ; and on failure to obtain such 
 consent, he shall employ Confederate officers, charged with 
 the duty of making such enrollment, “in accordance with rules 
 and regulations to be prescribed by him,:' 
 
 By the act approved Oct. 8th, 1802, it is provided, “that all 
 persons, subject to enrollment for military service, may be 
 enrolled under instructions from the war department ”, Ac.—Stat.. 
 at Large, 70. 
 
 By the act approved Oct. 11th, 1802, (Stat. at Large, 75.) 
 certain places of rendezvous were ordered to be established in 
 each county, parish, or district, for persons “ enrolled for mili¬ 
 tary duty in the field, who shall be there examined by one or 
 more surgeons, to be employed by the government, to be 
 assigned to that duty by the president, on a day of which ten 
 days’ notice shall be given by said surgeon; 
 and the decision of said surgeons, under regulations to be 
 established by the secretary of war, as to the physical and men¬ 
 ial capacity of any such person for military duty in the feld, 
 shall be final.” 
 
 Under the above acts, the following rules and regulations 
 have been ordained and established by the war department, in 
 reference to enrollments and exemptions: 
 
 “ Questions of bodily and mental incapacity, will be decided 
 by surgeons employed for the purpose, by virtue of the act of 
 congress approved on the 11th of October, 1862. 
 
 “ Persons deemed incapable of bearing arms, shall be re¬ 
 ported by the examining surgeon to the board of examination, 
 who shall determine the questions of exemption, and grant 
 certificates thereof. * * * g 0 eoon as the examining 
 
 board shall be organized in any congressional district, and 
 
24 
 
 •shall enter upon the discharge of their duties, no other mode of 
 ■xcnnination for persons in that district will he pursued ; and the 
 decision of the examining board will be deemed final. 
 
 Applications for exemption must, in all cases, be made to 
 .he enrolling officer, from whose decision an appeal may be 
 taken to the commandant of conscripts. The department will 
 not consider the application, until it has been referred by the 
 latter, officer.” 
 
 ‘■Now, it seems to me to be clear, that what I have quoted 
 above demonstrates, that congress has taken to itself, to the 
 war department, and to the officers for whose appointment it 
 makes provision, the exclusive determination of the questions 
 raised by the several petitions for habeas corpus , which were 
 presented to the probate judge; and that with equal clearness, 
 .t has denied to the State tribunals the adjudication of these 
 questions. 
 
 It may be said, however, that the Confederate government 
 nas made no express provision for the writ of habeas corpus in 
 these several cases, nor has it denied the use of that writ to 
 the State tribunals; and from these conceded premises, the 
 :-onclusion may be attempted to be drawn, that the concurrent 
 'urisdiction of the courts of the two governments exists, under 
 :he rules stated above. The argument implied in this state¬ 
 ment falls to the ground, when we take into consideration 
 ;he issues of fact and of law which are sought to be raised in 
 the petitions for habeas corpus. These applicants claim enlarge¬ 
 ment on the ground of physical incapacity to perform military 
 service. They seek to revise, reverse and annul the decision 
 of this question, pronounced, or to be pronounced, by the sur¬ 
 geon, board of surgeons, commandant of conscripts, or, per¬ 
 chance, by the secretary of war ; and this, in the very face of 
 the act of congress, \^hich declares that such decision shall be 
 final. Against the statute and the regulations to the contrary, 
 they seek to open the door for proof of physical incapacity, by 
 surgeons and physicians other than those provided for by the 
 act of congress ; for the judge, to whom these petitions were 
 addressed, could not, and would not, undertake the decision of 
 
23 
 
 grave questions in medical science, without the aid of evidence! 
 
 The law looks to the substance, rather than to the form or 
 shadow of things ; and it is a sound maxim, that that which 
 can not be done directly, can not be done indirectly. A juris¬ 
 prudence would become contemptible, should it hold that its 
 great, fundamental principles could be subverted, by the sub¬ 
 stitution of one form of procedure for another. 
 
 The exercise of the proposed power by the State tribunals, 
 looking, as it does, to the reversal of decisions pronounced by 
 Confederate officials, would be utterly repugnant to, and incom¬ 
 patible with, the definitive exercise of the same powers by the 
 Confederate authorities, as provided for by the act of congress 
 and the rules established thereunder. This principle brings 
 the cases we are considering within the direct operation of the 
 exceptions to the rules about concurrent jurisdiction, as above 
 laid down. 
 
 The several acts of congress cited in this opinion, and the 
 instructions framed under their authority, commit the deter¬ 
 mination of the various questions involved in these petitions 
 for habeas corpus, to certain officers and agents of the Confed¬ 
 erate government. Under these circumstances, the State 
 legislatures have no authority to create a new remedy or 
 forum for their adjudication.—See Wayman v. Southard, 
 10 Wheat. 1; U. S. Bank v. Halsted, ib. 51. It would bo 
 strange, if the State courts, in the absence of legislation, could 
 perform functions which the legislature lias no power to con¬ 
 fer on them. 
 
 That the Confederate courts can redress individual griev¬ 
 ances growing out of any errors or oppressions that may arise 
 under the discharge, by Confederate officers, of the functions 
 pertaining to enrollment, is, perhaps, too clear to be contro¬ 
 verted. 
 
 If it be contended that these petitioners were not liable to 
 be conscribed, “ by reason of bodily incapacity,” and that 
 therefore they could not be enrolled as conscripts, the author¬ 
 ity to conscribe not extending to them, the answer is fur- 
 
26 
 
 nished by the exemption statute itself. Its language is, “ That 
 all persons who shall be held unfit for military service in the 
 field, by reason of bodily or mental incapacity or imbecility, 
 under rules to be prescribed by the secretary of Avar.” The 
 petitioners do not* show that they have been held unfit for 
 military service in the field, under the rules that were pre¬ 
 scribed by the secretary of Avar. 
 
 I am aAvare that, in the course of this opinion, I haArn uttered 
 sentiments that, on a severe criticism, may be considered as 
 opposed to some of the expressions found in the opinion of this 
 court, in Mabry, Giller & Walker v. Herndon, 8 Ala. 848. I 
 do not think those expressions, if given the largest significa¬ 
 tion of Avhich they are susceptible, declare the true rule as 
 to concurrence of jurisdiction in Federal and State courts, 
 arising under acts of congress. They Avere unnecessary to the 
 decision in that case, because, under the act of congress “ to 
 establish a uniform system of bankruptc}" throughout the 
 United States,” (5 United States Statutes at Lai-ge, 440, 444,) 
 the certificate of discharge to the bankrupt is not a perfect 
 res adjudicata —not an absolute discharge from all debts, but 
 only prima-facie evidence of discharge, liable to be impeached, 
 in any court in which it is pleaded, for some fraud or willful 
 concealment by the bankrupt of his property or rights of 
 property. The discharge, then, was only conditional; depend¬ 
 ing on the question, Avhether it was successfully impeached on 
 some ground mentioned in the statute. This, in terms, gave 
 to any court in Avhich the discharge Avas pleaded jurisdiction 
 of the issue to be formed on its bona fides and validity. 
 
 If it be contended that, under our construction, denjnng to 
 the State courts jurisdiction in cases of habeas corpus at the 
 suit of enrolled conscripts, such as these, great oppression and 
 abuse may fall on the citizens, for which they have either no 
 remedy, or a very inadequate one ; the ansAver is, that some 
 confidence must be reposed in the virtue, integrity and intelli¬ 
 gence of the government officials. The Confederate govern¬ 
 ment Avas created by and for the States—derives its support 
 
27 
 
 and continued existence, either directly or indirectly, from the 
 same constituency which makes up the several States; and 
 the corrective is in the hands of the people themselves, who 
 can demand through their representatives ample means of 
 redress, or, failing in that, can displace them for their infidelity, 
 and fill their places with officers more trust-worthy. It is bet¬ 
 ter to endure this individual oppression for a season, than that 
 the great bulwarks which guard and defend our liberties, nay, 
 our very existence, should be broken down forever. 
 
 I am of that school who believe, that the Confederate'gov¬ 
 ernment is one of limited and defined powers, and that great 
 care should at all times be exercised, to prevent it from enlarg¬ 
 ing its powers by construction. Our compound system of 
 government, perhaps, exposes the States to encroachments 
 upon their reserved rights, more than any other form of con¬ 
 stitutional government could do. This grows in part out of 
 the fact, that, within the sphere of their operation, the consti¬ 
 tution of the Confederate States, and the acts of congress 
 passed pursuant thereto, are the supreme law of the land. The 
 constitution, in addition to its enabling clauses, which confer 
 powers on the government, contains several restraints upon 
 State authority. Under these clauses, an appellate jurisdiction 
 was built up in the Supreme Court of the United States, which, 
 in my opinion, was, in some instances, carried to an extent of 
 doubtful propriety. I will not discuss this question here, fur¬ 
 ther than to say, that 1 think many of the imputed errors which 
 crfcpt into the old system grew out of the mistaken theory of 
 the oneness of our distinct governments, and the too great 
 subordination of the State to the Federal government. One 
 source of alleged encroachment of Federal upon State author¬ 
 ity, has been removed by a wise amendment of the second 
 section of the third article of the constitution ; and other 
 amendments have also shorn our young government of much 
 of the power which the old one wielded to our detriment. I 
 hope that, when the Confederate judiciary shall be fully or¬ 
 ganized, the heresies which aided in overthrowing the old 
 
28 
 
 Union, will not be allowed to enter the sanctuaries of the new. 
 
 I do not mean, in what I have said, to question the distin¬ 
 guished ability which has, at all times, marked the long and 
 brilliant history of the Federal Supreme Court. My precise 
 meaning is, that, in my judgment, false views of the powers of 
 the Federal government, and especially of the relations which 
 the States sustain to that government, found utterance at an 
 early day; and that the court, in later years, although it burst 
 some of the fetters by which early precedent had sought to 
 confine it, left many of those errors unreversed. Let us avail 
 ourselves of the much good bequeathed to us by the many 
 able minds which have adorned that bench at every period 
 of its history; but let us avoid the errors which time and expe¬ 
 rience have made manifest. 
 
 I have said that an early error crept into our system, as to 
 the relation which the Federal and State governments sustain 
 to each other. In my opinion, we should struggle, from the 
 very threshold of our existence, to keep the powers and func¬ 
 tions of the two governments as distinct as possible. The 
 dividing lino of jurisdiction, where no territorial boundary 
 marks it, must, in the nature of things, be sometimes difficult 
 of ascertainment. Still, the line exists, and, when discovered, 
 must be respected. It is history, now made sadly impressive 
 by the ocean of noble blood which it has caused to flow, that 
 by transgressions of this boundary line, sometimes by the 
 Federal, and sometimes by State governments, our once pros¬ 
 perous and happy country is now the theatre of a war of almost 
 unprecedented malignity and atrocity. That enlightened jurist 
 and venerated patriot, Chief-Justice Taney, speaking for the 
 court, felt and expressed the necessity of preventing encroach* 
 ments by one jurisdiction upon the other; but his counsels 
 came when fanaticism had well nigh matured its parricidal 
 plot, the culmination of which is now converting portions of 
 our rich domain into a desolation.—See Ableman v. Booth, 
 21 How. 506; Dred Scott v. Sandford, 19 ib. 393. 
 
 The jurisdictional area of each government should be kept 
 
29 
 
 distinct—restraining the Confederate government within the 
 boundaries of its delegated authority, and not allowing the 
 State governments to trespass on Confederate jurisdiction. 
 The powers conferred on that government by the Confederate 
 constitution, the laws enacted under its authority, and treaties 
 made pursuant thereto, are the supreme law of the land. Let 
 us respect and obey them as such. Let us not weaken or 
 destroy our Confederate power, by embarrassing that govern¬ 
 ment in the manly exercise of those functions with which the 
 States themselves have clothed it. This will neither destroy 
 nor impair the sovereignty of the several States. They are 
 not despotisms. For certain general purposes, they have con¬ 
 ferred on the Confederate government certain attributes of 
 their sovereignty ; but they retain the others. They have 
 thus become constitutional, instead of absolute sovereignties. 
 This no more destroys State sovereignty, than does the sur¬ 
 render of certain attributes of natural liberty destroy civil 
 liberty. In upholding and maintaining each government in 
 the exercise of its constitutional authority, each will neces¬ 
 sarily be kept within the appointed orbit of its powers. This, 
 I humbly conceive, would effectually prevent all collision of 
 {jurisdictions. It need not, and would not, interdict the comi¬ 
 ties and kind offices which belong to good neighborhood. 
 These should be cultivated and strengthened, as the life-blood 
 of our confederate existence. 
 
30 
 
 Ex Parte STRINGER. 
 
 [application for babfas corpus.] 
 
 1. Conscientious scruples against bearing arms no ground for discharge of 
 tnroUtd conscript _Tho power of the Confederate government to conscribe citi¬ 
 
 zens as soldiers is derived from the Confederate constitution, and is not at all 
 dependent on the provisions of the State constitution; consequently, a person 
 who has been enrolled as a conscript, and who does not belong to one of the 
 religious denominations specially exempted by “the conscript laws” of con¬ 
 gress, cannot claim exemption from military service in the Confederate armies, 
 on account of conscientious scruples against bearing arms. 
 
 Application by Levi N. Stringer, for the writ of habeas 
 corpus, to obtain his discharge from the custody of Major W. 
 T. Walthall, commandant of the camp of instruction near Tal¬ 
 ladega. The petitioner alleged, that he was held in custody 
 at the said camp of instruction as a conscript; that he was a 
 regular member of a “ Christian church”, and had conscien¬ 
 tious scruples against bearing arms ; that he was therefore 
 exempt from military service, under that provision of the State 
 constitution which declares, that “ any person who conscien- 
 tiousty scruples to bear arms, shall not be compelled to do so, 
 but shall pay an equivalent for personal service”, and claimed 
 the right to pay an equivalent for personal service, as therein 
 provided ; that he had applied to the Hon. Jno. T. Heflin, 
 one of the circuit judges of the State, for the writ of habeas 
 corpus, claimiug his right of exemption from military service 
 on the ground above stated ; and that said judge, on the hear¬ 
 ing of the writ, had refused to discharge him. 
 
 , it 
 
 L. E. Parsons, for the petitioner. 
 
31 
 
 STONE, J.—The acts of congress, known as “ the conscrip¬ 
 tion laws,” are constitutional.—Sec Ex parte L. H. Hill, in 
 manuscript. Those acts authorize the enrollment and con¬ 
 scription of citizens within the conscript age ; and this, with¬ 
 out invocation of State authority. The power of the Confed¬ 
 erate government to conscribe the citizen, is de rived from the 
 Confederate constitution, and is not at all dependent on the 
 constitution of the State of Alabama. The petitioner does not 
 show a case which entitles him to exemption from military 
 service under the acts of congress. Conscientious scruples 
 against bearing arms, unless the party entertaining them be¬ 
 longs to one of the religious sects mentioned in the statute, 
 presents to the courts of the country no legal ground for declar¬ 
 ing the petitioner exempt from military duty. 
 
 As the opinion of the entire court is not yet announced, nor 
 indeed formed, on the broad question of jurisdiction of State 
 courts in cases like the present;—and as we feel no hesitation 
 in refusing the present application on the merits, we place our 
 refusal on the ground stated above. 
 
 The prayer of the petitioner is denied. 
 
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