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

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

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People

Clark, Charles, 1811-1877 Davis, Jefferson, 1808-1889 Merwin, Unknown Ragsdale, L. A.Seddon, James A. (James Alexander), 1815-1880 Stephens, Alexander Hamilton, 1812-1883 Stewart, Unknown Wharton, T. J.

Events

Confederate States of America--Draft Crime Crime--Treason Criminal Procedure Criminal Procedure--Arrest Criminal Procedure--Deputize Criminal Procedure--Writ of Habeas Corpus Military Events--Military discharge Military Events--Military elections Military Events--Military service exemption Military Events--Recruiting and enlistment Political Office--Appointment to office

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Confederate States of America--Military Service (Branch Unspecified)Mississippi Home Guard

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Boards of Police Confederate States of America--Congress Confederate States of America--War Department Courts and Judicial Systems Courts and Judicial Systems--Probate courts Jails

Occupations

Attorneys General Judges Law Enforcement Law Enforcement--Police Law Enforcement--Sheriffs

Places

Military training camps Mississippi--Hinds County. Jackson Mississippi--Lauderdale County

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Draftees

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[seal]

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,

—1—

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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

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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

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or appointed under the constitution and laws of the State can only be claimed by those holding such offices or appoint-ments at the time they were enrolled—if not at the passage of the act of Congress under which ~~the~~ such exemption is claimed.

In answering this, I have anticipated your 2^d. interrogatory, which is directed to the particular case of Mr Ragsdale—his enrollment, as already shown, having been made two months, prior to the pas-sage of the act under which he claims exemption.

You refer me to your proclamation of the 2^d. April, & ask me to con-sider his case as affected by that. If his enrollment—occurring be-fore the passage of that act—operates to deprive him of the exemptions contained it it, by parity of reasoning, it would deprive him of the benefit of a proclamation defining what class of officers would be [?] in those exemptions. To make the case still strong-er—suppose that deputy Sheriff had been specially included in the class of exempts, the exemption could have [?] back, & [?] a party who was liable to, & had been actually enrolled under a previous law—containing no such exemption.

Your 3^d. interogatory is not [?] in any thing I have said or the 7^th & 2^d. You inquired what remedy can be applied in case of above of the appointing persons?

Of course, I understand the question as directed to the action of the Sheriff, in appointing deputies under your proclamation of 2^d April last. That proclamation does not undertake to restrict Sheriffs in the number of deputies they are authorized to appoint. It recites the statute of the State—(Code [?] 122. Art. 115—which pro-vides that "every Sheriff shall have power to appoint one or more deputies, & to remove them at his pleasure." The Same Statute makes all Sheriffs liable for the acts of their deputies.

Th introgatory under consideration empels me to consider the policy, & the proper construction of the Statute cited. For if it should ap-pear that it was enacted in reference to the condition of the country at the date of its passage, & in view of the ordinary routine of duties presented

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by law for Sheriffs, & that its favors did not contemplate a different condition of the Country, & different duties to be performed by the deputies when appointed under it from them indicated in your proclamation, then the appoint-ment of a [?] number of deputies I have the ordinary duties prescribed by law for Sheriff to perform—would be obnoxious to the objection that such appointments were violation both of the spirit, & intent of the Statute, & also of the clause in the act of Congress of 17^th Feby 1864, which exempts such other State officers as the Governor may certify and necessary to a proper administration of the State Government. That statute was originally enacted June 15. 1822. Sec [Poindexter?]—Code [?] 250, Sec 6—& was reenacted in the Revised Code of 1857—[?] 122 Art. 115—

It is clear to my mind, from the Whole Statute defining the duties of Sheriffs, from which the [?] Article is taken, that the Legislature was prescribing a law for the government of the Sheriff, as a Civil officer in the execution of legal process, & as a Conservator of the peace. Hence they are required to keep the peace in their Counties by the arrest of all offenders against the penal laws—also "to quell & suppress all affrays, sects, rowdys, & unlawful asemblages, for which end they shall be empowered to call to their aid, the power of the Country. He shall also pursue apprehend & commit to jail all persons charged with treason, felo-ny, or other crimes." In the performance of those duties heis authorized to appoint "one or more deputies". The country was in a state of pro-found peace when that Statute was passed. Their power, as conser-vators of the peace were to be exorcised in the apprehension of of-fenders against the laws of the State. In the discharge of those du-ties they were authorized, if resistance was made or threatened, to call to their aid the power of the Counties—in the form of a posse, not as regular deputies.

The restrictive language of the statute—one or more—negating the idea that any large number was comtemplated.

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One or twenty five, or, one or fifty would not seem to come within the preview of the Statute.

Your proclamation of the 9^th May last states that "all State & County officers, & others exempt from military service should form mili-tary companies, & prepare for home defence". "All officers, agents & others capable of baring arms, will, when I have the power, be re-moved, unless they attach themselves to, & serve in, such companies for home defence, & to aid in the enforcement of the laws."

Here are duties [?] to those prescribed by the Statute for ~~Deputies~~ Sheriff, & Deputies are authorized to perform all acts requi-red of their principals. It cannot be maintained that the latter can be responsible for the acts of their deputies when those acts are outside of the duties imposed by law upon themselves. This will suffice as to the con-struction of the statute. I think it as clear that Congress, in the act of 17^th. Feby. 1864, by the words such "other state officers or the Governor of the respective States may certify " &c, had reference to the same condition of things as I have indicated above led to the enactment of the Statute in relation to the appointment of deputy Sherriffs. As to protection against the enemy now waging war against us, & to any foreign enemy invading the country, our reliance must be upon military organization proper, either by the Confederate Government, or the Government of the States, in the mode presented by law.

There views have pressed themselves upon my mind. I have ventured with great diffidence to express this, as they obviously conflict with them entertained, & acted upon by your Excellency, in issuing your proclamation of 2^d. April & 9^th May.

When, therefore, I under take to answer the question "What remedy can be applied, in case of the above of the appointing power" by Sheriff, under these proclamations, I can furnish, because I think neither the statute nor the act of Congress, alon cited, authorized or contemplated ^the appointment^ of deputies in the manner and for the purposes specified in these proclamations.

I think the "one or more deputies," referred to in the Statute, means

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so many, and no more, as may be necessary to aid the Sheriffs in the performance of the duties prescribed by law—I have already specified what is the character of those duties.

If however, I am mistaken in this view, I do not see where the power resides to correct the writ, as the statute is express "Every Sheriff shall have power to appoint one or more deputies, and to remove them at his pleasure. The power of appointment & removal is a matter of discretion with himself purely. It also makes him liable for the acts of his deputies. Of course necessary such as are within the presented routine of his official duties. He would not be responsible for any act of his deputies outside of that routine.

Observing the acts laid down in your proclamation of 9^th. May, the writs resulting from an above by the Sheriff of the appointment of deputies may be at least restrained. Let all such appointments be disregarded, when made after the parties have been enrolled I must not be understood by this, however, to admit this authority to appoint deputies for any other purpose, or to clothe them with any other power than those properly per-taining to the office, and the duties thereof, as presented by law, I have excused all reasonable bounds in this connection. My apology will be forced in the intrinsic importance of the subject, & the necessity which exists for placing in the ranks of the army all who can possibly be spared from public office and industrial pursuits.

As I differ with your Excellency in some of the views here-in expressed, I have felt it incumbent upon me to address such arguments as have brought my mind to the conclusions thus stated.

I am, Governor, Very Respy Yrs,
T J Wharton
Atto. Genl of Missⁱ.

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Att. Gen—Opinion on Exemption of State Officers