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Ex parte McCants,

age are placed in the army proper, the substitutes will be found to consist, to a large extent, of men belonging to the militia. The history of the war now pending will show many instances of the substitution of militia-men. If the petitioner's claim to exemption is well founded, whenever a substitute and the principal belong to the militia, two men are lost to the militia service; the principal, because he has a substitute in the army; and the substitute, because he is in fact in the army. If the gov ernment were to take one half the militia as conscripts, and they were to employ the other half as substitutes, there would, upon the argument for petitioner, be no militia, notwithstanding half of them were at home following their accustomed vocations. The argument leads to the absurd and shocking conclusion, that a law, simply extending the privilege of substitution to the people, had converted all those who might, by the aid of friendship or money, procure substitutes, into a privileged class, free from the constitutional obligation to serve the Confederate States in the militia, even though every other persou belonging to that arm of the public service was in the army. Such an argunient can not be sound.

It is contended, that he who has furnished a substitute, is constructively in the army proper, and that he can not be required to render the incompatible service of the militia-man. In certain cases, the law from given premises infers facts, without any regard to their actual existence. These facts are called constructive. Thus we have in the law constructive fraud, constructive notice, constructive housebreaking, and the like. The inference of these facts is made upon principles and policy which can not apply here, and their application would lead to the most glaring absurdities. The constructive facts are not presumed to exist for a single purpose; but the law adopts them, and follows them in their consequences. If, then, the principal is constructively in the army for one purpose, the law must accept that fact with all that is consequent upon it. The principal should receive the pay, and all the privileges and exemptions provided by

Ex parte McCants.

the law for the soldier in service; and he should suffer for the desertion, or other misconduct of the substitute. It can not be necessary to argue this point. From the very nature of the thing, the doctrine of construction is incapable of any application to the case. Qui facit per alium, facit per se, is a maxim of the law; but it has no pertinency to the question. He who furnishes a substi tute, does not serve through his substitute. The latter, on the contrary, serves in his place-is mustered into service, and discharges all the offices of a soldier, as an independent, distinct person, and not as the representative or agent of another. There can be no such thing as doing military duty through an agent. The nature of the service, and the constancy, fortitude, and heroic qualities which it requires, are such as to exclude the idea of any representation by an agent in the army. The principal is always entitled to the agent's earnings in the business of the agency; and therefore, if the substitute were but an agent, the principal should receive the pecuniary compensation, and the higher rewards of honor, and fame, and gratitude, which await the faithful and gallant sol dier, and stimulate him to exhibitions of valor.

These reasons, we think, justify the conclusion which we announced at the outset, and which was attained as the result of a consultation, in which all the judges of the court participated.

The petition must be overruled, and the petitioner must pay the costs of the proceeding.

STONE, J.-As I understand the term militia, found in the 15th and 16th clauses of section 8, article I, of the Confederate constitution, it does not mean that body of men, organized under State authority, who are known as State militia. The State might fail to make, or even to provide for, an organization of the militia; and still the right and power of the Confederate government to call "forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions," would remain unimpaired. Clause 16 reserves "to the

Ex parte McCants.

States respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress;" but all other powers. are to be exercised by or under Confederate authority. I will not say the State authorities may not, if they will, be employed and aid in calling forth the militia; but such assistance is not necessary to the exercise of this power by the Confederate government. The State is armed with no power to defeat the call, by refusing to respond to it; but congress may disregard State agency altogether in the execution of this power, and provide for a direct call on the people, when either of the exigencies mentioned in the fifteenth clause arises. Congress has, also, the clear right to define and declare what persons shall be subject to militia duty, under the call of the Confederate government; a right which was frequently exercised under the government of the United States.See Brightly's Digest, tit. "Militia.”

My construction of the word militia, as found in the constitution, is, that it is not confined to any organization; but that its true and exact import is, that portion of the people who are capable of bearing arms-the arms-bearing population. This definition of the term will facilitate the solution of many of the disputed questions, which have arisen on the construction of that part of the constitution which provides for calling forth the militia.

Having thus set myself right on the question of the construction of the term "militia," it is not my intention to offer any comments on the opinion of my brothers supra, some portions of which do not meet my approbation.

INDEX.

ACCOUNTS.

1. Proof of account by entries made by deceased clerk.-Books of account, kept by a deceased clerk, and all other entries memoranda made in the course of business or duty, by one who would be at the time a competent witness to the fact which he registers, are held competent evidence from the presumed neces ity of the case; but the reason of the rule ceases, and the rule itself consequently fails, when it appears that there is other and better evidence of the sam facts; as where it is shown to be the custom of a bank to pay out money only on the checks of its depositors Bank of Montgomery v. Pla nett's Adm'r......... 178

ACTION.

1. When barlee may sue in his own name.--A bailee for reward, having delivered the goods on board his barge to a steamboat, to be carried to their destination, may maintain an action in his own name against the owners of the steainboat, for the negligence ani carelessness of their servants in the r usportation of the goods, whereby plaintiff lost his reward, and was compelled to pay damages to the owners of the goods. McGill v. Monette....

2. When guardian may sue.-Under the provisions of the Cod, (§§ 2036, 2132,) a guardian inay sue in his own name, for the use of his ward, to recover damages for the conversion of the ward's property.--Longmire v. Pilkington....

285

293

3. Action by purchaser of exempt property, against officer making levy.—A purchaser from the defendant in execution, of property exempt from levy and sale, may maintain an action against the sheriff, for a subsequent levy and sale, without making the affidavit required by the statute (Code, § 2466) from the defendant in execution.-Cook v. Baine...... 371 4. Action against lunatic, for necessaries.—An adult person, who is non com-pos mentis, is liable on an implied contract for necessaries furnished him, suitable to his estate and condition in life; and where no guardian has been appointed for him, an action for the value of such necessaries must necessarily be prosecuted against him personally-Ex parte Northington..

400

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