Letter from Mississippi Attorney General T. J. Wharton to Mississippi Governor Charles Clark; May 30, 1864

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Attorney Generals Office Jackson, Miss. May 30. 1864

His Excy Chas Clark:

Governor,

You have submitted to me certain papers relating to the enrollment of L A Ragsdale under the Conscription laws, & you ask my opinion on the following questions:

1^st. As to the right of exemption of State County & District officers elected or appointed under the Constitution & laws of the state? referring me to your proclamation of the 9^th. May—

2 As to the claim of exemption set up by Mr Ragsdale under that proclamation, & one of April 2^d. 1864?

3 What remedy can be applied in case of abuse of the appoint-ing power?

From the papers submitted the following facts appear: On the 15^th. Jany 1864 Mr Ragsdale was enrolled by the prop-er officer, in the mode punished by law. On the 2^d. Feby 1864 he was detailed for seventy days to Co^l. Stewart Ch. Ord. Missⁱ. On the 7^th. Feby 1864 he sent out a writ of Habeas Corpus & in the hearing thereof the writ was dismissed. On the 7^th. April 1864 he was ^declared to be^ discharged & exempted from Conscription under the act of Congress entilted "an act to organize forces to serve further pro-vide for the public defense," Appeared July 17^th 1864, in conse-quence of having been appointed & commissioned a Deputy Sheriff. The order declaring him discharged is signed Major Merwin Commanding Camp of Conscripts. The evidence that he was appointed Deputy by the Sheriff of Lauderdale County is furnished by the certificate fo the Sher-iff & said appointment is dated 1^st April 1864. His appointment was ap-proved by the Judge of Probate & the President of the Board of Police on the 6^th. April 1864. You have also submitted you three proclamations, bearing dates, respectively the 16^th. March, 2^d. April & 9^th. May 1864. Each of those proclamations have referred to the exemption of State, District and County Officers under the act of 17 Feby 1864, before cited.

Mr Ragsdale & Maj^r. Merwin seem also to have provided,

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in the action taken by them, under that law. The 2^d. art-icle of the 10^th. Sect of that law, in providing who should be exempt from military duty, enumerates the following: the Vice President of the C. S. members & officers of Congress & of the several State Legislatures, & "such other Confederate & State officers as the President, or the Governor of the respective States may certify to be necessary to the proper administration of the Confederate or State Govern-ments, as the case may be". In your proclamation of the 16^th. March you designated the officers (not including Deputy Sheriffs) who, in your judgment, were necessary for the proper administration of the Government of the State of Mississippi. In your proclamation of the 2^d. April, referring to the statute of the State authorizing every Sheriff to appoint one or more deputies, & to the necessity which existed, in order to order enforcement of the law, that there should be a police force in many Counties of the State, you declared "that all deputy Sheriffs heretofore or hereafter appointed, where appointment shall be approved by the President of the Board of Police, & the Judge of Probate of the County, are necessary In the proper administration of the State Government, & are exempt for military duty".

I have been thus careful, in referring to the facts presented by the papers submitted to me in order to show that Mr Ragsdale rests his claim to be considered exempt from Military duty upon the act of 17^th. Feby 1864, before cited, & also that Major Merwin based the discharge be granted upon that act, & your proclamation of the 2^d. April. In the view Itake of his case, it falls outside of that act, & certainly outside of your proclamation of the 9^th. May. It is very evident that his enrollment was not made under that act for it was made two months prior to this passage of that act. The only conscript laws in force at the date of said enrollment were, "An act to further provide for the public defence" approved 16^th April 1862, & "An act to amend an Act entitled "an act to further provide for the public defence," Approved 27^th. Sep^t. 1862, It does not appear, for the papers before me, that he was entitled to, or claimed exemption of either of these acts, & in neither of them is any discretion vested in the Governors

As to the conscription of Mr Ragsdale

May 30^th 1864

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of the States to certify what officers are necessary to the proper administration of the State Governments.

They contain a specific enumeration of the officers (Confederate & State) who shall be exempt. It is immaterial that it does not ap-pear whether the enrollment was made under the act of April 16^th or—Sep^t. 27. 1862, as his case for the reasons already given, falls un-der neither. Those acts fixed the status of every Citizen of the Confederate States. If between the ages of 18 & 35 years, at the time of the Call of the President & not of the class declared therein ex-empt, he was liable to military duty, under the former; if be-tween the ages of 35 & 45, at the time of such call, & not enbraced in the class exempt therein, he was liable to serve under the latter. I regard the appointment of enrolling officers as a convenient mode of ascertaining & separating the persons who are liable to ser-ve under those terms, from those who are not liable. They are the agents to execute the law. The ceremony observed by them, under the rules & regulations presented by the war Department, of collecting & placing in Camps of instruction those who are thus liable, in one sense, forms no part of the law, further than that those acts have vested in the Secretary of War are thereby to provide such rules & regulating as he thinks proper for their due execution. It is not competent for a party, owing service under either of these two acts of Congress, to claim the Benefit of an exemption only found in the act of 17^th. Feby 1864. And this, I think is true, even if his en-rollment was not made until after the passage of the latter. The exemptions apply exclusively to the particular acts in connec-tion with which they were adopted. If these principles be con-ceded, the conclusion is irresistable to my mind that Mr Ragsdale is not affected by the act of 17^th. Feby 1864, & that he is as much liable to military service now, as he was on the 15^th. Jany 1864, the date of his ^original^ enrollment.

In this argument I have gone a step farther than necessary in set-

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tting the particular case under consideration. I might have stopped with the enrollment, as that was prior to his appointment as Deputy Sheriff (which I understand to be the ground upon which he claims exemption. From that time, he was in the Military service of the Confederate States, beyond the possibility of doubt, & could not be withdrawn from that service without the consent of the government of that States. And this view is distinctly prevented in your proclamation of the 9^th May—before cited—in which you say, "As no person can be with drawn from the service of the State without the consent of the State, so no one can be withdrawn from the Military service of the Con-federate States after being duly enrolled, or enlisted. Election, or appointment to office, after such enrollments, therefore, can not exempt."

It is not in the power of the citizen by secreting himself, or Jail-ing to report in enrollment, or in any other way, to change this status, or obligation under one of those acts, by the exemptions contained in a subsequent one. The obligation is a continuing one, during the period fixed by the act to which he owes service. Only the authority—viz—(Congress, (or the President, or the Secretary of War, in the exercise of the power conferred upon them by Congress) which imposed the obligation, can remove it. The enrolling officers have only ministerial or Executive duties to perform under the conscript laws. Those laws have declared who owes military duty. Those officers are appointed to see that the debt is paid. They have no power to [?] it when it is due, nor have the power even to say Now payment shall be made, nor to compromise the same by details, extension of time for payment, or otherwise. Payment in kind to wit by the service required by the act will alone satisfy the law.

Applying what Ihave said to you 1^st. is interogatory, which is a general one it is easy to perceive, that in my opinion, " the right of exemption of State, County or District Officers elected