State ex rel. Graham

39 Ala. 459

• Court: Supreme Court of Alabama
• Decided: June 15, 1864
• Status: Published

Opinion

A. J. WALKER, C. J.

In a case recently decided by us, we held that persons within tbe age of conscription, and bable to conscription, were constructively in tbe mihtary service of tbe Confederate States.—Ex parte Graham, in re Emerson, at tbe present term. This decision was made under tbe influence of tbe first clause of tbe act of congress of 17th February, 1864, wbicb is in these words-: “From and after tbe passage of this act, all white men, residents of tbe Confederate States, between tbe ages of seventeen and fifty, shall be in tbe military service of tbe Confederate States.” This express and positive declaration of tbe statute places every man, bable to conscription, constructively in tbe military service of tbe Confederate States; and a man in such service can not be taken into tbe military service of tbe State as a militia-man. Tbe claim of tbe State to the military service of a man must yield to tbe conflicting claim of tbe Confederate States; for tbe constitution, and laws of tbe Confederate States passed in pursuance thereof, are tbe supreme law of tbe land.

[2.] Pibe, who obtained tbe habeas corpus in this case, is bable to conscription, and in tbe military service of tbe Confederate States, if be is domiciled in this country. Therefore, if be is a domiciled foreigner, be is in tbe service of tbe Confederate States, and not liable to the military service of the State; and in no point of view could the State have a right to take him into the army as a militia-man.

We approve the decision of the court below, and refuse the certiorari asked.