Year: 1863

een oeciared Liable TO this duty, but have been eX
cosed from or INDUCED In its exercise.


But that which distinguishes this case. is that
congress has delegated to an officer Of the Govern
ment the Secretary of War, the power to prescribe
tne regulations under which substitutes may be
received The regulations have been prescribed,
the substitutes have been received under them and
the Question in the is, whether the Secretary
OF War has the same controlling power over the
matter as belongs to Congress could be exercised
ny the President The question appears to be thus
presented because it cannot be maintained that any
Act OF Congress has been passed, destroying the
privilege which has been secured by those who have
mad substitutes accepted for them. Nor is there
any order of the President, by him directly made
calling into military service those who have been
thus exempted. Nor is the order Of the Secretary
OF War canceling discharges heretofore granted to
De referred to any other source for its authority than
the 9Th Section of the act approved 18th. April,
1852. The Secretary of War having acted in the
matter under the direct authority of this act will be
presumed to have continued the exercise Of power
under the same source


do not consider the act approved 9th Septem-
Ser' 1852 as requiring or supporting the order Of
the Secretary of War, which avoids discharge pro-
perry obtained because substitute, when accepted
not liable to military service, may subsequently
become so by the provision of another act If the
act of27th September, 1862, was intended to in
validate the discharges which had been lawfully
obtained by compliance. with the regulations pre-
scroed by the Secretary Of War; il is reasonable to
suppose that its language would in some manner
have conveyed that purpose. But when it excepts
from its operations those who are legally exempted
iron military SERVICE he who exhibits discharge,
granted to him by competent authority, which ex-
empts him from military service, is fairly to be
considered as one OF that class who are excepted
from the operation of the act And if Congress, by
new act, called into service those who were not
liable under the former act it could operate only
" nnt vat nlyan 10
military service. If one had been already enrolled
and mustered in for three years. unless the war
Shall have sooner ended, it is not to be supposed
that ne would be discharged for the purpose of be-
ing again enrolled and mustered in for the same
term. There is no doubt that one although not
embraced in the terms Of the act approved the 18th
OF April, 1862; nevertheless could by voluntary en-
gagepent impose upon himself the same obliga-
tions OF military service if he called out un-
der that act fby subsequent act he became in
cluded in its provisions, both acts contemplating
the same service, he would not be considered among
those who were called forth by that subsequent act
He had, by his own engagement, consented to be
considered as one who had been legally called. He
had been accepted, and IN that was recognized as
one who had been properly called. To say that he
was subject to call for military service while he
was In the actual discharge of that service to which
ne had been presumptively already called would
seem 10 involve the question of actual and pros





The act of the 9th September, 1852, cannot be
considered as sustaining the construction, that
substitute within the ages which it makes subject
70 the call OF the military service Is by its opera
ton, prevented from continuing to be- as he was
when accepted q legal substitute under the act of
the 18th April, 1852. If the act Of Congress then
does not require that construction which is set forth
in General Orders, No. 64, dated 9Th September,
1862, in these words substitute becoming liable
to conscrpton renders his principal also liable un-
less exempt on other grounds )" and if no special
order Of the President has been issued to the same
effect, it only remains to inquire whether, under
the 9th section of the act approved 10th April 1852
the secretary of War was authorized to declare, by
the General Orders No. g. that for the there
stated the liability of the principal for military
should be renewed


Inar the power gtrvu 70 ttrv evcrvtury of War to
make regulations for the admission Of Substitutes
would authorize him to modify these regulations
according to his convictions of expediency will not
be disputed. But that such power can be exer-
cised so as to affect one who, having complied with
established regulations, has thereupou been dis
charged, may wellbe doubted Retrospective legis-
lation having retro active operation is recognized
but very high power Of government When exer-
cised, it is always upon the ground of some manifest
public policy. That Congress intended to admit, -
in certain cases, the privilege of substitution is
clear That it could take away that privilege BY
retrospective legislation, is equally clear. That its
delegation to the Secretary of War of the power to
make regulations concerning substitutes, would
authorize that officer if he had considered it neces
sary, to insert in the discharge the condition that
it by subsequent legislation the case of the propos
ed substitute was embraced the substitution would
be avoided, and the discharge imperative is also
clear. But that without the insertion or express
sion of any such condition, Congress intended to
confer the same high power of legislation, which it
possessed so that the Secretary of War could avoid
q discharge which he had granted upon his accep-
lance Of a substitute, cannot be maintained.


The orders Of the Secretary of War, moreover,
have expressly declared the cases in which the ex-
emption of the pincpal procured by the acceptance
of his substitute, may be cancelled. If fraud or
mistake be discovered, the exemption ceases
The expression of these two, the cases IN which
exemptions would cease must have been from abun-
dant caution. If not expressed, the same conse-
Quence would have resulted upon the discovery of
either. But the expression Of these is significant
of the fact that it was then considered, except in
such cases, the discharge, If fairly obtained was
conclusive so far as the Secretary Of War was
concerned. -.t--'


Considering that the act approved 9th Septem-
Der, 1862, does not support the construction in
General Orders No Ga, concerning the liability OF
principals who have furnished substitutes; and that
no order of the President as Commander in Chief
has been issued touching this NATTER and that the
power given to the Secretary Of War to make reg
ulations concerning substitutes, does not authorize
him, after he has granted . discharge, in . case
where neither fraud nor mistake is alleged, TO i'm
pose . new condition upon one who has beenVby his
order discharged from military service and by the
enforcement Of that condition impose upon him the
performance Of that military SERVICE from which the
order Of that officer has exempted him; am Of
opinion that the detention Of Leopold Cohu by the
enrolling officer is illegal. The order will there
fore be entered for his discharge %s-~