question was brought up in September, 1863, and the opinion of General Joseph Holt, Judge-Advocate-General of the Army, was rendered on it and adopted by the War Department. A copy of that opinion and the orders on the subject are herewith inclosed.* They have been in force since September 7, 1863. A careful examination of the laws passed subsequent to the one on which General Holt rendered his opinion fails to disclose any modification or repeal of that law. Your decision of the justice of the practice has been carefully examined. It seems to me you overlook some points in the case which will occur to you when you examine the opinion of General Holt. It is true that "any person failing to report after due service of notice shall be deemed a deserter and shall be arrested by the provost-marshal." The provost-marshals do all in their power to secure the arrest of these criminals for punishment as deserters, but in the meantime the Government must have a certain number of soldiers for military duty, and the men who become deserters without ever appearing or coming under Government control cannot be construed as obtained as soldiers. If a man chooses to expatriate himself, committing the crime of desertion because his country is at war, that fact, it seems to me, is not sufficient reason for leaving the institutions f the country to fall for want of sufficient available military defense. To take an extreme case, suppose all the men drafted in a district on the Canada frontier should cross into the British Provinces. Could it be said that in the letter and spirit of the law the Government wants in that district had been satisfied, and she had obtained the number of soldiers required for military service? You say, "If it is understood that there is to be no effort to find and arrest those who do not report, but few drafted men will appear. Men are thus encouraged to abscond." That is true, but it is not to be so understood. On the contrary every possible effort is made to arrest the deserters; but this may take a long time, and in the meanwhile the Government cannot forego its efforts to "obtain" soldiers because it is required to seek for absconding criminals. These criminals, if found, may or may not be fit for duty. At absent, they will not strengthen the Army as required by law and demanded by the public exigency, and hence their places are filled by others. If, after their arrest, they are held for service, they will be credited to their proper districts, and at most the effect can only be to put these districts a few men in excess of their present quotas. Moreover, desertions are generally in proportion to the umber of men drawn in the several States and districts, and therefore the losses which result from desertion to any one State or district are relatively no greater than the losses which any othf it is understood that a district has done its duty in regard to furnishing soldiers when the names of men have been drawn, and they abscond without every appearing, it seems to me that both encouragement and facility to abscond will be the result. But, on the contrary, if the requirements of the law, namely, to obtain the quota of men, are observed, the people, as well as the Government officers, will try to make every man do his duty in answering the call of his country.
Hoping the construction of the law by the Judge-Advocate-General may, on further examination, prove satisfactory to you,
I am, sir, very respectfully, your obedient servant,
JAS. B. FRY,
*See Circular Numbers 80 and Holt's opinion, Vol. III, this series, pp. 777, 784.