Decisions of Ho 
 Conf Pam 12mo #122 
 
DECISIONS 
 
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 HON. JAMES D. HALYBURTON, 
 
 .lUDGK OF THE CONFEDERATE STATES DISTRICT COURT 
 FOR THE EASTERN DISTRICT OF VIRGINIA. 
 
 IN THE CASES OF 
 
 JOHN B. im m JOHN H, LEFTWICH. 
 
 IN RELATION TO THEIR 
 
 EXEMPTION, AS MAIL CONTRACTORS. FROM THE PERFORMANCE 
 OF MILITARY SERVICE 
 
 RICHMOND: 
 
 RITCHIE & DUNNAVANT, PRINTERS^ 
 1864. 
 
R^. 
 
 Ex Parte Lane— Habeas Corpus. 
 
 Th.» return to the writ in this case states that Lane is a volunteer in 
 tihe Provisional Array of the Confederate States of America, a member 
 of Company B, of the 18th battalion of Virginia volunteers, and that he 
 is detained for duty under the orders of Captain Fallen. 
 
 To this return .the petitioner replies that he is a contractor for the 
 transportation of the Confederate States mails, on Koute No. 2521, be- 
 tween Keswick Depot and Columbia, in the State of Virginia, and that 
 fche route is thirty-one miles and a half in length, and that he is exempt 
 from military service by virtue of the act of Congress approved on the 
 1 4th of April 1863, and entitled "An act to exempt contractors for car- 
 rying mails of the Confederate States, and the drivers of post coaches 
 aod hacks, from military service ;" which act is in these words : 
 
 " The Congress of the Confederate States of America do enact. That 
 the contractors for carrying the mails of the Confederate States shall be 
 oxempt from the performance of military duty in the armies of the Con - 
 federate States from and after the passage of this act, during the time 
 they are such contractors : provided, &c. 
 
 " Sec. 2. That drivers of post coaches and hacks for carrying the mails 
 m all routes where the weight of the mails requires that they should be 
 carried in coaches or hacks, shall be exempt from military service in the 
 armies of the Confederate States from and after the passage of this act, 
 so long as they continue to be employed as drivers : provided," &c. 
 
 It is said by the counsel for Captain Fallen that the act above referred 
 to does not discharge persons who were in service at the time when the 
 contract was made, but only extends to those who had entered into con- 
 tracts before their enrolment : that if Congress had meant to release those 
 who were already in service, the word discharged would have been used, 
 and not the word e.veynjH ; which, it is said, is inappropriate in such a case. 
 
 The word "exempt," however, is not a technical terra. It does not 
 bear in a statute a different construction from that which belongs to it in 
 common speech ; and the lexical definition of the word, along with other 
 meanings, is, ''free from any service, charge, burden, tax, duty," and so 
 forth; "not liable to." If, then, it were meant to release or discharge 
 from service a soldier who is already in service, it would be not only an 
 intelligible, but a correct, expression, to say that he should hereafter be 
 "exempt" from duty ; that is to say, free from duty or service. 
 
 If Congress had meant that the act to which we have referred should 
 
extend to men in actual service alone, they might perhaps, and probably 
 would have used the word "discharged," instead of "•exempt." If, 
 however, they intended that the law should embract^ not only persons in 
 service, but others not enrolled, the word "discharged" from service 
 would have been inapplicable ; nor does it occur to rac that they could 
 have so well expressed their meaning, in such a case, by any other word 
 as by the word "exempt," without a periphrasis. 
 
 It is further said, that to construe the exemption act as applicable to 
 soldiers who were in service at the time when their contracts were made, 
 would be to give it a retrospective operation ; which is inadmissible, be- 
 cause retrospective laws, if not unconstitutional, are odious ; and no law 
 is to be so construed without express words or declaration plain of the 
 legislature to that effect. I apprehend, however, that the proposition 
 that retrospective laws are odious, when stated without qualification, is 
 untrue. It depends on circumstances whether they are odious or not. 
 
 Retrospective laws, which deprive a party, against or without his con- 
 sent, of a right which he had acquired by contract or otherwise, under 
 former laws, are indeed generally unjust as well as odious; but those 
 which operate uptm the remedy merely, or which do not take away or 
 modify any vested right, against the will of the party interested, are not 
 80 ; and no presumption whatever is to be made against them. 
 
 In the case before the court, if the law should be regarded as extend- 
 ing to persons already in service, those persons would have no right to 
 e^omplain, and certainly would not complain, because they would not be 
 obliged to become contractors, and to leave the service, unless they should 
 desire to do so ; and the government would have a perfect right to pass 
 a law, and surrender its claim to the services of such persons, if it chose 
 to do so. Whether it has so chosen or not, we must ascertain from the 
 language of the law, construing it upon the same principles as any oth<^r 
 law. 
 
 But how is the law in question retrospective, if it be applicable to men 
 already in service ? 
 
 Why, only in this, that it in that case releases men from an obligation 
 they were under before the passage of the law, or before their contracts 
 were made. In this sense it is retrospective, whether it be construed to 
 embrace men in service or not. 
 
 We are obliged by its plain letter to extend it to men not enrolled, who 
 were previously liable to enrolment. We are compelled to admit that 
 such persons may exonerate themselves, by contracting to carry the mail, 
 from their previous obligation to perform military duty ; and, therefore, 
 we cannot possibly avoid giving to it a retrospective operation, in the 
 sense in which that word was used in the argument of this case. 
 
 Again: Suppose the President were, by and with the advice and con- 
 sent of the Senate, to appoint a soldier to a judicial office, or to a secre- 
 taryship of state or of war : is there any doubt that he would ipso facto 
 
be discharged from service as a soldier? We understood the very learned 
 and able counsel who argued the case against the petitioner, to concede 
 that he would be ; and if so, it must be because former exemption acts 
 declare that judges and other officers are exempted from service in the 
 armies of the Confederate States. Then, we must give to these acts the 
 same sort of retrospective operation which would be given to the act of 
 April 1863, if the construction for which the petitioner contend)* be 
 correct. 
 
 There can be no doubt that if a soldier in actual service can make a 
 valid contract to carry the mail, he must be thereafter exempt from mili- 
 tary service, under the act of the 14th April 1863. 
 
 Vdu isuch a soldier make such a contract ? 
 
 There is nothing in the act just mentioned, or in any other act ol 
 congress, to prohibit him from doing so. 
 
 It is said to be incredible that Congress should grant the great boon ol 
 exemption from military service to a soldier in the army, because he may 
 be a contractor to carry the mail, or, perchance, merely the driver of a 
 mail coach ; yet Congress has granted, beyond all controversy, that very 
 boon, for that very consideration, to persons liable to military service, 
 before enrolment. 
 
 If a man, however young, and vigorous, and active, and healthy, 
 should, before he is actually enrolled, make a contract to carry the mail, 
 it is admitted that he is thereafter exempt from military duty. 
 
 He might be better fitted to perform the duties of a soldier than ao} 
 man in the Confederate army. He might be a veteran, distinguislied for 
 hie valor on many a battle field ; and yet, if he should choose U» make a 
 contract for carrying the mail, for a cent a year, he would be exempt from 
 military service. 
 
 What great difi'erence can it make, so far as the value of his services 
 to the Confederacy is concerned, whether he enters into the contract the 
 moment before he is enrolled, or the moment after ? 
 
 But it is said that a soldier cannot be discharged from the army with 
 out certain forms and ceremonies. 
 
 That rule, however, is applicable only to cases where the party is re- 
 quired by law to remain in service u7itU he is so discharged — not to any 
 case in which a party is unlawfully held in service. 
 
 It is the practice of every day to discharge minors, without requiring 
 them to obtain regular discharges from their officers. The same course 
 may be pursued with reference to men beyond the military age. 
 
 In such cases, the court simply declares the party who may be con- 
 fined, to be at liberty to go where he pleases, and imprisons for contempt 
 the party disregarding the order. 
 
 For the reasons stated, I am of opinion that the petitioner is exempt. 
 from military service : and it is accordingly ordered that he be released 
 from custody. 
 
John H. Leftwich ) 
 
 V. > Habeas Corpus. 
 
 Major T. G. Peyton. \ 
 
 The petitioner prays to be dischargecl from custody, because he is a 
 contractor to carry the raail of the Confederate States from Monticello 
 t4> Macon, in Georgia — a distance of forty-five miles. 
 
 His contract was made on the 27th day of May 1864, since the passage 
 of the act of 1864, entitled ''An act to organize forces to serve during 
 the war," and he is between eighteen and forty-five years of age. 
 
 The question to be decided is, whether a person who has entered into 
 a contract to carry the mail, since tlie passage of the act aforesaid, is 
 exempted or not from service in the army, under the act of April 14th, 
 1863, entitled " An act to exempt contractors for cariying the mails of 
 the Confederate States, and the drivers of post coaches and hacks, from 
 military service,^' taken in connection with the 6th clause of the 10th sec- 
 tion of the act of 1864 aforesaid. 
 
 A very similar question arose and was decided by me in Lane's case. 
 The reasons for the decision in that case were given in my opinion then 
 pronounced, and I do not mean to repeat them here, or to add mnch to 
 them. 
 
 The case now before me was argued with much learning, research Jind 
 ahility, and T listened to the argument with pleasure and attention. It 
 t!:d not, however, convince me that the decision in the case of Lane was 
 wrong ; and still less did it tend to satisfy me that the prisoner in this 
 case ought to be remanded. 
 
 Without instituting a critical enquiry into the various significations of 
 the word " exempt," and taking the term in the sense in which it is com- 
 monly understood, by the learned and the unlearned, in books and in or- 
 dinary discourse, in the halls of legislation and elsewhere, it may safely 
 be assumed, that when Congress declares that mail contractors shall be 
 •' exempt from the performance of military duty" it cannot mean lesfi 
 than this, that such contractors shall be free from the performance of 
 such duty; shall not be liable to it; shall not be required to perform it. 
 
 It is true, that if it could be shown that Congress did not mean what, 
 as it seems to me, it has plainly said, the court would be guided by the 
 intention of Congress, and not by the language of the act ; but, in that 
 case, it would be necessary to demonstrate that intention clearly, and 
 
beyond all reasonable doubt. That, I think, has not been done in this 
 case. 
 
 Reference was made to several acts of Congress, to prove that the trrrn 
 ** exempted" or "■ exempt" is never nsed where Congress intended t«> - . t 
 free from service those who are actually in it : that, in such cases the vtrd 
 "discharged" is always adopted. 
 
 The most cursory examination of the acts cited will show that this .•- u 
 mistake. 
 
 The first exemption act (the act of the 21 st of April 1862, entithd 
 ^*An act to exempt certain persons from enrolment for service in Jhe 
 armies of the Confederate States") provides that "all persons carrviiig 
 the mails, all ferrymen on post routes," and a number of other classfH of 
 persons therein mentioned, shall be " exempted from military servico in 
 the armies of the Confederate States." There is no room for doulft, 
 then, that, under that act, mail carriers, who had become such hefurr 
 their enrolment, were not liable to enrolment, or to military service after 
 its passage. Yet, the conscription act of 1862 authorized the President 
 to call out and place in service all white men who were residents of ihe 
 Confederate States, between the ages of eighteen and thirty-five, and 
 those persons were as truly in service after the call of the President, and 
 before their enrolment, as they were afterwards, and when thv»y w* r\i 
 actually serving in the field. 
 
 They were "exempted," 'however, in the language of the exemptiuu 
 iict, "from military service in the armies of the Confederate States," 
 though they may have been iu it when put upon t\\e. list of conscripts by 
 the enrolling ofl5cer. 
 
 Again: The exemption act of the 11th of October 1862, provides, 
 " 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 War, are hereby exempted from military 
 service." How can there be a doubt that persons who were at that mo 
 ment serving in th^ army, were, under that act, entitled to exemption 
 from the time when they should be held to be unfit for military servicH 
 in the field ? 
 
 The conscription act, approved on the 17th of February 1864, places 
 in the service, from its passage, all white men, residents of the Confede- 
 rate States, between the ages of seventeen and fifty. 
 
 That act, therefore, places forthwith in military service all State and 
 Confederate judges, and all other State and Confederate officers, who may 
 be between the ages of seventeen and fifty years, except "the Vice-Pre- 
 sident of the Confederate States, the members and officers of Congress 
 and of the several State Legislatures, and such other Confederate and 
 State officers as the President or the Governors of the respective States 
 may certify to be necessary for the proper administration of the Confede- 
 rate or State governments, as the case may be;" all of whom are ex- 
 
8 
 
 ••.n)f)ted by the second clauee of the tenth section of this act. Now, a& 
 ^ho claflses of State oflScers and Confederate oflScers not named were 
 jflacod in service by the act, and were lawfully in service until the certi- 
 ficate of the President or the Governor of a State could be obtained, it is 
 plain that the terra " exempted" is here applied to persons who at the 
 tiin»? wore in the military service. 
 
 It was insisted, however, that if Congress had meant to take persona 
 out of the service, who were already in it, they would have provided for 
 the discharge of such persons, as well as for their exemption. They 
 have not done so, however, in the ca?oa already mentioned, and in a vast 
 number of analogous cases. 
 
 Congrcf^s must have foreseen that many exempted persons, who ought 
 not to have been enrolled, would, nevertheless, probably be enrolled, 
 either by accident, or carelessness, or design, and they must have intended 
 that, iu those cases at least, the enrolled persons should be discharged 
 from service. Yet they have made no provision for such cases, because, 
 in legal contemplation, a discharge is the necessary consequence of an 
 exemption : and if the military tribunals do not discharge them when 
 their right to an exemption and discharge has been discovered, they may- 
 be discharged by habeas corpus. So all persons who are over the mili- 
 tary age, or under that age, who may be, unwittingly or otherwise, en- 
 rolled and placed in service, are entitled to an immediate discharge; yet 
 there is no legal provision on the subject. 
 
 Why Congress have not chosen to provide for the discharge of these 
 persons, as well as for the discharge of persons elected to any of the 
 offices mentiont^d In the act of April 2d, 1863, entitled " An act to autho^ 
 rize the discharge of certain civil officers from the military service of the 
 Confederate States. '" 3 do not know. All T know is, that they have not 
 chosen to do so. 
 
 Tt was said, also, that the policy of Congress, declared upon the face 
 of the conscription aet, wap to keep the army, then existing, in the ser- 
 vice, and that it is iK>t, therefore, to be presumed that they would, in a 
 short time afterwards, have taken out of the service any who were at that 
 time in it; but the very act which sets out with that declaratiim, also 
 declares that after the expiration of ninety days, all who are in service, 
 under the age of eighteen, may leave it; or at least, shall not be com- 
 pelled to remain. 
 
 If it be the policy of our government to inorease the number of soldiers 
 in our army, it is also its policy to increase the number of bidders for 
 contracts to carry the mail. 
 
 At one time the act to exempt mail contractors was repealed; but 
 afterwards, as we know, the Postmaster General stated, in a communi- 
 cation to the President, the great difficulty he found in obtaining contracts 
 to carry the mail, and Congress afterwards passed the act of April 14th, 
 1863, exempting mail contKactors from military service. It is not, then, 
 
9 
 
 reasonable, as it seems to ine, to snppose that Congress meant to exclude 
 as bidders for these contracts all persons fit for the army, between the 
 ages of 18 and 45 ; and still less reasonable would it be to presume that 
 they meaflt, by the act of 17th February 1864 (which continues in force 
 the exemption act of 1863, in relation to mail contractors), to exclude 
 from the class of bidders all between seventeen and fifty years of age. 
 
 The argumentum, ah inconvenien/i was pressed upon the court, and it 
 was said that the mischief would be incalculable, if every blacksmith, and 
 shoemaker, and mechanic of every kind, were allowed to leave the array. 
 
 I do not perceive, however, that the principle upon which Lane's case 
 was decided couM lead to this consequence. 
 
 From the time when a man is put in the army he cannot well be " en- 
 gaged habitually" in any mechanical employment, " working for the 
 public." He has no right to leave the army, or neglect his duties as a 
 soldier for that purpose; and, if he were to do so, could found no right to 
 exemption upon his wrongful act. The government has a right to his 
 services for every moment of his time after he has entered the army, and 
 we cannot suppose that the case of a man acquiring a trade or resuming 
 his employment as a mechanic, after being placed in military service, was 
 in the contemplation of Congn^ss. For this, and other reasons which 
 might be given, I think that the Supreme Court of North Carolina wa>j 
 right, in the case cited and relied upon by the counsel for the enrolling 
 oflScer, or for Major Peyton, in this case, in saying that no person is 
 "embraced by the provisions of the exemption act of April 1862, so 
 as to be entitled to exemption as a shoemaker, tanner, &c., who was, at 
 the date of its passage, in the army as a soldier — that is, who had been 
 placed in the militaiy service of the Confederate States in the field;" 
 and I have heretofore, if I remember, decided the same point in the same 
 way, and gone further than the court did in that case. 
 
 The case of the mail contractor, however, in my view, is widely differ- 
 ent from that of the mechanic. 
 
 An officer or soldier in the army ha« n perfect right to make a mail 
 contract. He would have had that right if the exemption act had never 
 existed, and would continue to have it if the act were struck out of ex- 
 istence to-morrow. If he were to make such a contract, he would be 
 bound by it, and might cause it to be executed— that is to say, might 
 fulfill it perfectly, through the agency of others ; though he would not be 
 likely to undertake it, unless for a most extravagant and unreasonable 
 compensation. It would not be at all incompatible, or inconsistent, in a 
 legal point of view, with his duties as an oflScer or a soldier, for him to do 
 80 ; and the moment he made the contract, he would become one of the 
 class to which the exemption law is applicable. His exemption would 
 not be founded upon an unlawful act. He would become exempt in con- 
 sequence of having done that which he had aclear right to do, and which 
 Congress has declared shall exempt him. 
 
That the Chief Justice of the Snpreme Court of North Carolina did 
 not think then; was any inconsistency between the principle decided in 
 Guyer's case, in which he delivered the opinion of the court, and the 
 case of Lane, delivered by me, is manifest from the opinion delivered by 
 him in the case of liradshaw, in February 1864. 
 
 What puri)(>rts to be a complete copy of that opinion, in a North Caro- 
 lina newspaper, is before me, and from it, it appears that Bradshaw was 
 a constable in April 1863, and was enrolled and sent to a camp of in- 
 struction : that in May 1863 Congress passed an act declaring that "in 
 addition to the state oflScers exempted by the act of the 1st October 1862, 
 there shall be exempted all State officers whom the Governor of any State 
 may claim to have exempted for the due administration of the govern- 
 ment and the law s thereof," &c. ; and that Governor Vance, on the 9th 
 of May 1863, claimed to have exempted "constables who had entered 
 into bond previous to the 11th May 1863." Upon this state of facts, the 
 Chief Justice decided that the constable, though he had been rightly held 
 in service up to that time, was exempt from that time. 
 
 He says; 'I can see no ground to except from the operation of the 
 statute State officers who* were in the military service. If such was the 
 intenti<m, a proviso to that effect would have been made ; and there is 
 no rule of law under which it can be made by construction. I am, there- 
 fore, of opinion that the petitioner is exempted. 
 
 '• It was said in the argument, that the exemption should be made by 
 implication, from the use of the words 'shall be exempted;' and it was 
 said that the word 'exempted' is restricted in its meaning to persons who 
 are not in the military service; and 'discharged' is the proper word 
 when referring to persons who are in the military service. This distinc- 
 tion may obtain in military circles ; but the word * to exempt' is not a 
 technical term — it is a plain English word, and means literally 'to take 
 out or from ;' and its ordinary signification is ' to free from, and not be 
 subject to' any service or burden to which others are made liable : as, to 
 exempt from military service ; to exempt from taxation ; and it is a set- 
 tled rule of I'onstruction, that words in a statute are to be construed 
 according to their ordinary meaning, unless there is something to show 
 ?they are used in a different sense. The court cannot expect Congress to 
 take notice of the military parlance, and require, in order to express the 
 intention, that all the State officers whom the Governor may claim as 
 necessary, &c., shall be free from military service, that this particular 
 mode of expression shall be adopted, to wit : ' All State officers not in 
 the military service shall be exempted, and all who are in the military 
 service sliall be discharged^ whom the Governor may claim as necessary, 
 &c.' The meaning, as expressed by the act of Congress, to exempt all 
 State officers, is clear, and the words used to express the intention are 
 appropriate, according to their well known interpretation." 
 
 Afterwards he says : "My conclusion is also supported by the decision 
 
11 
 
 of Judge Halybnrton, of the District Court of the Confederiifce States, in 
 the matter of Lane, where it was held, that a soldier who became a mail 
 contractor is embraced by the act of 14th of April 18(>3, and is exempted 
 from military service; and by the decision of Judge Meredith, in the 
 matter of Bunting, which I noticed briefly referred to in a newspaper, 
 where it is held, that a soldier, who, while in the service, was elected a 
 justice of the peace, and regularly qualified a;? such, is exempted." 
 
 It may be worthy of note that the first exemption act t>f April 21 st. 
 1862, is entitled "An act to exempt certain persons from enrolment for 
 service in the armies of the Confederate States ;" while the act of 14th 
 April 1863 is entitled "An act to exempt contractors for carrying the 
 mails of the Confederate States, and the drivers of post coaches an<l 
 hacks, from military service.''* 
 
 I am still of opinion that the case of Lane was rightly decided ; but 
 the case at bar stands upon a footing materially different from that of 
 Lane. 
 
 The sixth clause of the tentli section of the act of the 17th of February 
 1864, entitled "An act to organize forces to serve during tho war," pro 
 vides that nothing contained in that act "shall be construed as repealing 
 the act approved April 14th, 1863, entitled 'An act to exempt contractors 
 for carrying the mails of the Confederate Stattrf, a«d the drivers of post 
 coaches and hacks, from military service : provided, that the exemptions 
 granted under this act shall only continue whilst tlie persons exempted 
 are actually engaged in their respective pursuits or occupations.' " 
 
 When this act of 1864 was passed, the case of Lane, and many other 
 cases to the same ejffect, had been decided by me, establishing the prin 
 ciple, so far as decisions of this court could do so, that persons who were in 
 the military service of the Confederacy became ex(Mnpt from that service 
 upon entering into contract for carrying the mail, and were consequently 
 entitled forthwith to a discharge. Several cases in the Circuit Court of 
 this city, and some, I believe, in other courts of this State, w<ro decided 
 in the same way. 
 
 It is to be presumed, and indeed can hardly be doubted, that Congress 
 knew that the courts had so decided. 
 
 The President had called upon the Secretary of War for information 
 as to the course pursued by the Department of War in relation to mail 
 contractors. What the courts had decided, as well as wh;it the War 
 Department had done, was stated by the Secretary to the President, and 
 was probably made known by him to Congress, in answer to a resolution 
 of enquiry, which had been passed by that body. 
 
 Under these circumstances, I regard the action of Congress as ratify- 
 ing the construction which, up to that time, had been placed on the 
 exemption act by all the courts of Virginia which had spoken on the sub- 
 ject, and was not opposed by the decision of any court elsewhere that 1 
 have heard of. If there had been any such decision, it would no doubt 
 
12 
 
 have been produced by the learned counsel who argned this 
 elaborately and so well against the prisoner. 
 
 The current of judicial decisions upon this subject appears to have 
 been, at that time, uniform and unbroken. 
 
 If the constructioi! given, as above mentioned, to the exemption act, 
 and r.nder wliich a considerable number of persons had been discharged 
 from service in the armies of the Confederacy, had been contrary to the 
 intention of Congress in passing the act ; or, at least, if the Congress 
 which passed the act of 1864 had not designed to allow the intrepretation 
 whicli had been given by the courts to this act to stand without change, 
 it is very difficult, if not impossible, to believe that they would have 
 expressly continued in force the act of 1863, without any alteration what- 
 ever. 
 
 Congress had no reason for presuming that the courts would reverse a 
 nettled course of decision, or for doubting that men would be discharged 
 after the passage of the act of 1864, as they had been discharged before. 
 
 If this action of the courts had been disapproved by them, they would 
 probably ha\ (^ manifested their disapprobation by changing the language 
 of the law. 
 
 Two decisions entitled to great respect — one by the Court of Appeals 
 of this State, and the other by the Circuit Court at Petersburg — were 
 cited as adverse to my decision in the case of Lane ; but as these de- 
 cisions were subse(juent to the conscription act of 1864, they were not 
 known to Congress at the time of its enactment of that law, and could 
 not, of course, have had any influence upon it. 
 
 A letter was read at the bar, from the Secretary of War to the Presi- 
 dent, in which th<; Secretary states that the War Department did not 
 regard mail contractors, who had made contracts after their enrolment, 
 as entitled to a discharge from the army ; and, therefore, they were not 
 discharged, except under a writ of habeas corpus ; stating, at the same 
 time, that ohedienr.e was always paid to the writ, and the party who ob- 
 tained it discharged, when it was so ordered by the courts. 
 
 Whether this letter was ever submitted to Congress, or not, I do not 
 know ; but, if it were, we certainly cannot infer from that fact that Con- 
 gress intended to arrest, or to justify any interference with, the action of 
 the courts, by their omission to change the phraseology of the law. 
 
 We have already seen that Congress has not thought fit to order the 
 discharge of exempt persons, in many cases where they are clearly enti- 
 tled to it, but has left them to their remedy by habeas corpus, if the 
 army officers will not voluntarily discharge them. 
 
 So with reference to mail contractors. Congress may have thought it 
 best to leave their cases to be disposed of, as they have been heretofore, 
 and to be investigated and decided by the courts, when the officers of the 
 army shall not think it proper to discharge them, either because the con- 
 tract may not have been proved, or for some other reason. 
 
13 
 
 in addition to what has been said, it is certainly a consideration en- 
 titled to much weight, that many individuals may have entered into con- 
 tracts for carrying the mails for a small, or merely nominal pecuniary 
 compensation, believing that they would thereby be exempt from military 
 duty, and induced to believe so by the decisions of the courts to which 
 reference has been made. 
 
 Those persons are now bound by their contracts, and cannot escap*' 
 from the obligation. 
 
 Their case would b(; one of nmch hardship, if they were now compelled 
 to perform their contracts, and the whole consideration for which they 
 undertook to perform them taken away. 
 
 Many <»f them might, in this way, be subject to ruinous losses ; be- 
 cause they might be absolutely unable to comply with their contracts, 
 without giving to them their personal attention, and thus obliged to pay 
 the penalty for nonperformance', without receiving any remuneration 
 whatever. 
 
 If the law be clear against them, thi& consideration could, of course, 
 have 110 weight ; but it would not be right for the courts, unless the point 
 be clear, to bring about such a result, by reversing a series of decisions, 
 any more than it would be right to shake titles to lands, by departing' 
 trom a settled course of decisions, upon grounds not entirely satisfactory. 
 
 One of the counsel who argued this case against the petitioner, re- 
 marked, if I understood him correctly, that he found it difficult to con- 
 ceive how a man who had once entered the military service of the country, 
 could ever get out of it without a regular and formal discharge by some 
 military officer, as directed by the articles of war. 
 
 But there is no magic in the fact that a man is in military service. 
 No charmed circle is thereby drawn around him, which no civil court <.i 
 civil officer can approach. 
 
 No court has ever refused, so far as I am informed, to discharge a per- 
 son brought up under a writ of habeas corpus, and who could show that, 
 by reason of infancy or old age, or any other ground of exemption, he 
 was illegally detained in service, upon the ground that the military 
 authorities alone could discharge him. The moment it is shown that a 
 person is entitle<i to exemption, and is illegally detained in service, whe- 
 ther he was put in it lawfully at first, or unlawfully, he has a right to be 
 discharged, under the great remedial writ of habeas corpus. The ques- 
 tion in these cases is not how a person got into the service, but whether 
 he is legally detained there or not. 
 
 He may have enlisted voluntarily, for a certain and limited time, or he 
 may have rightly been placed there for a definite period ; but in either 
 case, when the time for which he is bound to serve has expired, if he be 
 ptill retained in the service against his will, he may be discharged, under 
 the writ of habeas corpus, by the courts, if th<5 military authorities will 
 not discharge him. 
 
14 
 
 So, if after he has entered the army, an act of OongrHga be passed 
 declaring that he shall be exempt from service, and no longer be held 
 thern, the courts may discharge him. 
 
 I am of opinion that, in this case, the prisoner is entitled to relief, and 
 he will be discharged accordingly. 
 
Hollinger Corp. 
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