War of the Rebellion: Serial 124 Page 0632 CORRESPONDENCE, ETC.

Search Civil War Official Records

and the certificate of exemption based upon it should be vacated and held for naught. The party should then be held for military duty as though no such certificate had been issued. The persons making the false oaths in the matter would be subject to persecution, but as the military authorities have the first claim on the party drafted, he should not be turned over to the civil authorities without the special direction of the Secretary of War.

In case of persons who were exempted from the draft of 1862 by reason of begin engaged in the manufacture of arms for the Government.

Opinion.-No ground is perceived on which the claim of exemption made for these men can rest. The letter of the Secretary of War does no touch the question;. It recognizes them, it is true, as in the service of the Government, but this they may well be without their being in the "military service" in the sense of the enrolling act. They do not seem to have been ever enlisted or t have been formally entered into the service for which they were drafted, but, on the contrary, were excused therefrom because of their being engaged in the manufacture of arms for the government in Colt's establishment. It is in reference to this latter employment that they are spoken of by the Secretary of War as "in the service of the government," and such service most clearly cannot exempt them.

In case of a substitute who proves to be a deserter from military service, or a man already in that service.

Opinion.-A man who is under obligation to perform military duty on his own account cannot certainly be received as a substitute for another. To be "acceptable" in the sense of the law he must possess all the legal qualifications for the service. But an enlisted man has disqualified and absolutely disable himself from performing the duties of a substitute by engagements entered into with the Government.

If the Board of Enrollment has been imposed upon and has granted a certificate of exemption because of a substitute furnished who proves to be a deserter, or one already in the military service, the board should, after notice t the party, proceed to reconsider its action, and should set aside its former judgment and annul the certificate of exemption granted. Its right to do so on a proper showing is undeniable, the act of determining upon the acceptability of the substitute being judicial in its character, and subject to revision and reversal. The certificate of exemption having been thus vacated, the party's original liability under the draft remains.

JAMES B. FRY,

Provost-Marshal-General.

CIRCULAR

WAR DEPT., PROV. March GENERAL'S OFFICE, Numbers 65.

Washington, D. C., August 6, 1863.

It is apprehended that Circular Numbers 53, from this office, in relation to exempting men from the draft on the plea of alienage, is not fully understood by boards of enrollment. Wherever the fact of alienage is clearly established exemption must be granted; but where the Board has any doubt in the matter the case must be referred, through the Provost-Marshal-General, for the decision of the Department of State. Until such decision shall have been obtained all action in the case shall be suspended. The certificate of the State Department shall be deemed conclusive evidence, and the question of liability or non-liability to the draft shall be decided by the Board of Enrollment in accordance therewith.

JAMES B. FRY,

Provost-Marshal-General.

DAVENPORT, IOWA, August 6, 1863.

Honorable E. M. STANTON,

Secretary of War:

A large mob of armed men is now organized in Keokuk County, in this State. Its prompt suppression will prevent future occurrences