Opinion
(June Term, 1863.)
1. A person who had been drafted, and who had put in a substitute that was accepted by the officer appointed to act on that business, was held not liable to be conscripted under the act September, 1862.
2. The circular of the War Department, dated 20 October, 1861, allowing substitutes to be received after the companies were formed and actually in the service, applies, by a liberal construction, to companies while in the condition of being formed and organized or recruited, and when a substitute is received under the latter circumstances, several of the formalities for obtaining a discharge become immaterial.
PETITION for habeas corpus, before the Supreme Court. Elias Ritter, the petitioner, on the call on the State of North Carolina for troops, was drafted on 25 February, 1862, to go into actual service. He then hired a substitute over 18 years of age, by the name of Medlin, for three years of the war, who was received by Colonel Richardson, an officer authorized by the Government to receive substitutes. Medlin entered into the service for the war, and the petitioner received his discharge from Colonel Richardson. Under the conscription act of April, 1862, Ritter was not called on (being over 35 years), but under that of September, 1862 (being under 45), he was enrolled and ordered into the camp, near Raleigh, and was held there against his will by the officer in command.
It was insisted on the argument that as no company was organized When the substitute was offered and received, that he did not, and could not, comply with the requisitions of the department in furnishing of substitutes.
The regulations of the War Department, alluded to above, are as follows:
"WAR DEPARTMENT "RICHMOND, 20 October, 1861.
"1. When any noncommissioned officer or soldier of the volunteer service desires to procure a substitute, he shall first obtain the written consent of the captain of his company and of the commander of his regiment or corps, a duplicate of which he shall forward to the substitute.
"2. The substitute shall then obtain from some surgeon and some commissioned officer in the service of the Confederate States a certificate of his fitness for service and of his having been mustard into the service of the Confederate States for the war, no matter what the (77) term of the service of his principal may be, and those several certificates shall serve as a passport to the holder to join the regiment or corps to which his principal belongs — he paying the expenses of his own transportation.
"3. When a noncommissioned officer or soldier is entitled to discharge, by reason of a substitute, the captain of his company and commander of his regiment or corps shall give him a certificate to that effect, stating that the substitute furnished according to the regulations is actually on duty with the regiment or corps; that the holder of the certificate is in no wise indebted to the confederate states, and that he is not entitled to transportation at the expenses of the Government; and this certificate shall serve the holder as a passport to leave the camp and travel to his home.
"4. If it shall be found that a noncommissioned officer or soldier, discharged reason of substitute, is indebted to the Government the commander of the regiment or corps giving the discharge will be held accountable for the same, and any back pay due said noncommissioned officer or soldier shall be drawn and receipted for by the substitute at the next pay day.
"5. Commanders of regiment or corps shall, under no circumstances, permit substitution in their commands to exceed one per month in each company, and all such cases shall be noted in the following morning report of the regiment or corps in which they occur, and in the next muster roll and monthly return."
McDonald for petitioner.
Strong and Bragg contra.
We are of opinion that the circular from the War Department, dated 20 October, 1861, by which substitutes were allowed to be received after the companies were formed and actually in service, applies, by a liberal construction, to the companies while in the act of being formed or organized, or recruited, without the (78) necessity of the details which were made material by the fact that when the party was in service and wish to put in a substitute, many circumstances had to be attended to in order to prevent confusion — as the back pay or indebtedness of the principal and mode of getting home, and then to allow too many at a time might disorganize the company; but when the companies were in the act of being organized, no considerations of that nature were presented, and the purpose was fully answered by putting in an able-bodied man for the war; and if proof can be made that these essentials were complied with, the object is fully answered when the substitute went into the service, and is still there, or has been killed or disabled.
PER CURIAM. Petitioner discharged.
Cited: In re Prince, post, 195; In re Wyrick, post, 377; McDonald v. Morrow, 119 N.C. 672.