In re Ritter, 60 N.C. 76, 1 Win. 76 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 76, 1 Win. 76

In the matter of ELIAS RITTER.

A person who had been drafted, and who had putin a substitute that was accepted by the officer appointed to act on that business, was held not hable to be conscripted under the act of September, 1862.

The circular of the War Department, dated 20th October, 1861, allowing substitutes to be received after the companies were formed and actually in the service, applies, by a liberal construction, to companies while in the condition of being formed and organized or recruited, and when a substitute is received under the latter circumstances, several of the formalities for obtaining a discharge, become immaterial.

Petition for a Habeas Coepus, before the Supreme Court, Elias Ritter, the petitioner, on the call on the State of North Carolina for troops, was drafted on 25th of February, 1862, to go into actual service. He then hired a substitute over eighteen years of age, by the name of Medlin, for three years or the year, who was received by Col. Richardson, an officer authorised by the government to receive substitutes. Medlin entered into the service for the war, and the petitioner received his discharge from Col. Richardson. • Under the conscription act of April, 1862, Ritter was not called on, (being over thirty-five,) but under that of September, 1862, (being under 45) he was enrolled and ordered into the camp, near Raleigh, and was held there against his will by the officer in command.

It was insisted, on the argument, that as no company was organised when the substitute was offered and received, that he did not, and could not, comply with the requisitions of the department in furnishing of substitutes.

The regulations of the War Department, alluded to above, are as .follows:

“ Wae DepastMENT, Richmond, Oct. 20, 1861.

“1. When any non-commissioned officer or soldier of the volunteer service desires to procure a substitute, he shall first obtain the written consent of the Captain of his company and of the commander of his regiment or corps, a duplicate of which he shall forward to the substitute.

“ 2. The substitute shall then obtain from some surgeon and some commissioned officer in the service of the Confederate States, a certificate of his fitness for service and of his having been mustered into the service of the Confederate States- for the war, no matter what the term of the service of his principal may be, and these several certificates shall serve as a passport to the holder -to join the regiment or corps to which his principal belongs — he paying the expenses of his own transportation.

“ 3. "When a non-commissioned officer or soldier is entitled to discharge, by reason of a substitute,, the Captain of his company and the commander of his regiment or corps shall give him a certificate to that effect, stating that the substitute furnished, according to the regulations, is actually on duty with the regiment or corps;. that the holder of the certificate is in no wise indebted to the Confederate States, and that he is not entitled to transportation at the expense of the government, and this certificate snail serve the holder as a passport to leave the camp and travel to his home-.

“ 4. If it shall be found that a non-commissioned officer or soldier, discharged by reason of a substrate, is indebted to the government, the commander of the regiment or corps giving the discharge, will be held accountable for the same, and any ■back pay due said non-commissioned' officer or soldier, shall be drawn and receipted for by the substitute at the next .pay • day.

“ 5. Commanders of regiments or corps shall, under no circumstances, permit substitutions in their commands to exceed one per month in each company, and all such cases shall be noted in the following morning report of the regiment or corps, in which they occur, and in the next muster roll and monthly return.”

MóDonálá\ for the petitioner..

Strong and JSmgg, contra.

EeaesoN, C. J.

We are of opinion that the-circular, from the war department,, dated October 20, 1861, by which substitutes were allowed to be received .after the companies were formed and actually in service,, applies, by a liberal construetion, to tbe companiespvhile in the act of being formed or organized, or recruited, without the necessity of the details, which were made material by the fact that when the party was in service, and wished to put in a substitute, many circumstances had to be attended to, in order to prevent confusion — as the back pay or indebtedness of the principal and ' mode of getting home, and then to allow too many at a time, might disorganize the company; but when the companies were in the act of being organised, no considerations of that nature were presented, and the purpose was fully answered, by putting in an able bodied man for the war, and if proof can be made that these essentials were complied with, the object is fully answered when the substitute 'went into the service, and is still there, or has been killed, or disabled.

PER CubxaM, Petitioner discharged.