NEW YORK, May 30, 1863.
Colonel JAMES B. FRY,
Several persons were arrested this afternoon for refusing to give their names to the enrolling officers and giving false names. They were sent to the U. S. district attorney, who declines to prosecute on the ground that such refusal and false statement are not offenses under section 25 of the conscription act. What course shall I take in such cases? Please answer by telegraph.
Colonel Sixty-ninth Regiment N. Y. Vols. and A. A. P. M. G.
Respectfully submitted to the Secretary of War for instructions:
Section 25 of the enrollment act says that "if any person shall resist any draft of men enrolled under this act into the service of the United States, or shall counsel or aid any person to resist such draft; or shall assault or obstruct any officers in making such draft, or in the performance of any service in relation thereto, * * * such persons shall be subject to summary arrest by the provost-marshal and shall be forthwith delivered to the civil authorities, and upon conviction thereof be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, or by both of said punishments."
The law authorizes the draft of the national forces as enrolled. If the enrolling officer is resisted this section of the law is violated because it is resisting a lawful agent in the performance of service in relation to the draft. Such resistance is also in violation of the general provisions of the enrollment act. The act provides that the national forces, as designated, are liable to military duty in the service of the United States when called out by the President for that purpose, and it provides further that with a view to such military duty the men constituting these forces must be enrolled. An enrolling officer is required by the law to go to the citizen and take his name, age, &c. By this law the citizen is under the same obligation to give his name, age, &c., when called upon by the enrolling officer as he would have been to comply with a provision of the law requiring him to go to the enrolling officer, or county clerk's office, and record his name, age, &c., if such a provision had been passed.
If, however it is the opinion of the Government that parties tried for the offense set forth cannot be convicted, it will be necessary to direct the provost-marshal to discharge the men now in arrest as quietly as possible. The effect of this will be bad, but not so bad as to fail in case of trial.
It is of the greatest importance to secure conviction in the first case tried under the enrollment act. I think the course of the district attorney in this case as presented by Colonel Nugent is injurious to the operations of this Bureau.
JAMES B. FRY,
16 R R-SERIES III, VOL III