McDaniel v. Trull
| Decision Date | 31 October 1864 |
| Citation | 2 Win. 1,60 N.C. 399 |
| Court | North Carolina Supreme Court |
| Parties | JOSEPH McDANIEL v. TRULL. |
OPINION TEXT STARTS HERE
A substitute never liable to conscription, being 50 years of age, is not discharged from the service by the conscription of his principal under the act of Congress of 4th January, 1864.
The nature and facts of the case are stated in the opinion of the Court.
Winston, Sr., for Trull .
No counsel in this Court for the petitioner.
The case before us is brought into this Court, by writ of certiorari from the judgment of the Chief Justice at chambers; his judgment being pronounced pro forma, that it might be reviewed in this Court at this term. The case involves the question, whether a substitute taken into the military service of the Confederate States, under the act of April, 1862, was entitled to a discharge upon the conscription of his principal, after the passage of the act of 5th January, 1864.
It seems the substitute was not bound under any act of Congress to do service on his own account, (being past 50 years of age,) so that the question is freed from complication; and is simply, whether the act of the government calling back into the service the principal, puts an end to the substitute's term of service. We think it does not.
As we had occasion to say, at the last regular term of this Court, in the case of Walton, with the special agreement of the parties, in a case of substitution, with the considerations and motives actuating them, the Confederate Sates have had nothing to do. They acquiesced in the arrangement of the parties, so far as to accept one man instead of another, in compliance with what was supposed to be their mutual wish and convenience: and in respect to the Confederate States, the substitute stands therefore, in the light of a volunteer for the term of service to which the principal was subject; and such being the case, there is no principle we are aware of, to exempt him from the performance of the full term of that service, by reason of any action of the government, which may affect the rights of his principal under their private agreement.
There is a manifest intention, on the part of Congress, to retain the substitute in the service; and I take it, there can be no question that Congress had the power to do so specifically, without any general legislation to cover their case. No provision is made for their discharge in the act of January 1864, but they are left in the condition in which they were...
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