Burroughs v. Peyton

• Decision Date: 07 March 1864
• Citation: 57 Va. 470
• Parties: BURROUGHS v. PEYTON. ABRAHAMS v. PEYTON.
• Court: Virginia Supreme Court

57 Va. 470

BURROUGHS v. PEYTON.

ABRAHAMS v. PEYTON.

Supreme Court of Appeals of Virginia.

March 7, 1864

1. Congress has the constitutional power to raise armies, either by contract or by coercion.

2. A person who has put in a substitute who has been regularly received and continues in the service, not liable himself to conscription, is not thereby entitled to be discharged from service, under a call made upon him by virtue of a subsequent law of Congress.

3. Congress has no power to make a contract with the citizen whereby that body shall be forbid to call him into the military service of the country.

4. The act of Congress authorizing persons in the military service to put in substitutes does not constitute a contract between the government and such persons.

5. But if it is to be regarded as a contract, it does not apply to exempt the person who has put in a substitute from any call which may thereafter be made upon him for military service.

6. Congress has no power to coerce officers of the State government into the military service of the Confederate States.

On the 12th and 17th of February 1864, J. R. F. Burroughs and L. P Abrahams applied to this court by petition, setting out that they were held in custody by Major T. J. Peyton commanding at Camp Lee near the city of Richmond, as conscripts. That they had theretofore put in substitutes under the act then in force, and had been regularly discharged from the service and that their substitutes were still in the service, and were not liable to conscription under any act of Congress the substitute of Burroughs being an unnaturalized foreigner, and the substitute of Abrahams being fifty-seven years old.

The writs were issued, and Major Peyton produced the parties, and made return that he held them under and by virtue of the act of Congress entitled " an act to further provide for the public defence," approved April 16th 1862, and the several acts amendatory thereof and in addition thereto, now in force, they being liable under the same to military duty in the armies of the Confederate States; and that they were detained for no other cause.

In Burroughs' case it appeared, that on the 19th of March 1862, James R. Branch, Capt. Co. K. 16th Regiment Va. Volunteers, gave to Burroughs a certificate that said Burroughs a member of Branch's company, before being mustered into the service, having furnished an able-bodied man well clothed, in the person of Frederick W. Rholeder, a non-resident of the State of Virginia, who had been accepted by said Branch for the war, as his substitute, has been this day discharged from said company. And on the same day Burroughs received from the Governor of Virginia a certificate exempting him from all military service, except ordinary militia duty, on the ground that he had furnished a substitute for the war, who had been received for the war in Capt. Branch's Co. K. 16th Regiment Va. Volunteers. It was not proved that the substitute was still in the Confederate service; but the fact seemed to be admitted by the counsel for the government.

In Abrahams' case it appeared that on the 17th of November 1863, he was regularly discharged from the service of the Confederate States on the ground that he had furnished a substitute who had been accepted, so long as the substitute was exempted under the law and orders regulating the same. In this case too there was no question as to the continuing service of the substitute.

The cases were heard together, and were elaborately argued by Gilmer, Branch, H. Marshall and Crump, for the petitioners, and August and Randolph, for the government.

OPINION

ROBERTSON, J.

The returns having been made without reference to the recent act of Congress suspending the privilege of the writ of habeas corpus in certain cases, and the respondent not asking leave to amend them and rely upon that act; but on the contrary stating that he asserts no right under it to hold the petitioners in custody; the court does not consider it necessary to decide any question which might arise under said act, and will proceed to consider these cases irrespective of it.

Although this court has, more than once, acted upon questions arising under the acts of Congress approved on the 16th day of April 1862, and on the 27th day of September 1862, commonly called the conscription acts, it has never until now been called on to decide upon their constitutional validity, that having been heretofore either expressly or tacitly conceded. But the question, whether Congress had the power, under the constitution, to pass said acts, is now raised: and, as it is of the highest public importance, it is proper that it should receive the most careful and deliberate examination. In deciding it, considerations of expediency and policy cannot be permitted to control our judgment. We must expound the constitution according to what appears to be its true meaning; and if it be clear that no power to pass the acts in question has been conferred by it, we are bound to declare them void and of no effect, however disastrous may be the consequences of our decision.

It is said that Congress cannot, under the grant of the power to raise armies, place, by force, and at their own discretion, the citizens of a state in the ranks of the army of the Confederate States. That a power so to do, would be despotic in its nature, and far greater and more dangerous than any possessed by the government; subjecting as it does the personal freedom of every citizen to arbitrary discretion: and moreover that it would be inconsistent with the rights of the states; putting their very existence at the mercy of the Confederate government. That a mere general grant of the power to raise armies, without specifying the mode in which they are to be raised, cannot be held to confer an authority so repugnant to the spirit of free institutions, the principles on which our constitution rests, and the rights secured by it.

The power of coercing the citizen to render military service, is indeed a transcendent power, in the hands of any government; but so far from being inconsistent with liberty, it is essential to its preservation. A nation cannot foresee the dangers to which it may be exposed: it must therefore grant to its government a power equal to every possible emergency; and this can only be done by giving to it the control of its whole military strength. The danger that the power may be abused, cannot render it proper to withhold it; for it is necessary to the national life. The hazard of abuse should be guarded against by so framing the government as to render it unlikely that it will ever use the power oppressively.

The real question for our consideration, then, is not whether the power exists, but where it exists. Has it been conferred on the Confederate government, or is it retained by the states? In its effects upon the individual personally, the act of compelling him to render the service is the same whether it is performed by the state, or by the Confederate government. The question as to which of them should exercise the authority relates merely to the proper distribution of political power between the two governments. And the idea that first suggests itself is that it ought to be placed in the hands of the one which is charged with the duty of providing for the defence of the country; for a government " from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained."

The clauses of the Confederate constitution relating to the military power, and its exercise, have been adopted without change from the constitution of the United States, the amendments to the latter being inserted in the body of the former. Whatever therefore throws light upon the meaning of the constitution of the United States, on this point, throws equal light upon the meaning of ours.

It is well known that the union of the colonies was formed for the purpose of combined resistance to the oppression of the mother country. Delegates from the several colonies, constituted a Congress which assumed the conduct of the war, in the name and on behalf of all the colonies, which soon became the United States of America. But the Congress could exercise the power of compelling citizens to serve in the army only through the intervention of the states, by means of requisitions upon them for their respective quotas of men; and, being unable to enforce compliance with these requisitions, it was found impossible to raise an army sufficient for the vigorous prosecution of the war. This difficulty, which had been so painfully felt throughout the contest, and which, indeed, put to serious hazard the success of the cause, was one of the chief reasons urged in favor of the change of the form of government effected by the adoption of the constitution of the United States. It was insisted that the government having the power of determining on peace and war, and charged with the duty of providing for the common defence, should be invested with power commensurate with that end, and that this could only be done by abandoning the system of requisitions upon the States, and authorizing the Federal government to act directly upon individuals. These views prevailed, the constitution being framed in accordance with them.

It will be observed that a broad distinction is made in the constitution, between the " militia, " and the " armies, " referred to in it: the powers conferred upon Congress, and denied to the states, in reference to the one, being widely different from the powers conferred and denied in reference to the other. And, indeed the two words could not properly have been used to convey the same idea. An army is a body of men whose business is war: the...