John H. Reagan to James A. Seddon, February 15, 1864

Hon. JAMES A. SEDDON, Secretary of War:

SiR: I have been prevented from making an earlier answer to your letter of the 3d instant, partly by ill-health and partly by the pressure of other duties. In relation to the case of the postmaster at Ivor, Va., about which I wrote you on the 7th of January, an investigation subsequently made by a special agent of this Department shows that the complaint of the postmaster was without just foundation. It is therefore proper for me to withdraw my request for the interposition of your authority in this case. In relation to the cases presented in my letter of October 19 and November 17, our understanding of the object had in view in the passage of the law of April 14, 1863, ”exempting contractors for carrying the mails, &e., from military service,” and of its correct interpretation, are so different that I deem it proper to state such reasons as occur to me in support of the views presented in my former letters and in answer to yours. The only point on which there seems to be a difference of opinion between us is as to whether persons who become contractors while in the military service are entitled to exemption while they remain such contractors. I should say, in passing, that the questions were raised by officers executing the law of conscription which were in my mind as well as the one above stated, when in my letter of October 19 I said that ”this Department has been very much annoyed by the impediments, seemingly of every possible kind, which have been thrown in its way by the action of the conscript officers of perfecting the contracts made during the past summer for carrying the mails.” For instance, while it was assumed that no one was entitled to exemption who was in the military service at the time of making a contract, it was also assumed that no one was entitled to exemption who had not an existing contract at the date of the passage of the act exempting contractors; and in a number of cases contractors who had become such in July preceding the passage of the act of April 14, 1863, were arrested and held for military service by the conscript officers. Repeated cases of these kinds were brought to the attention of this Department. To have carried out these constructions would have entirely defeated the purposes of the law. This will be better understood by a statement of the necessity and reasons which induced the passage of the law.

On the 11th of October, 1862, Congress repealed the act of April 21, 1862, which exempted mail contractors from the performance of military service. Bids were to be received to the 31st of March, and contracts were to be awarded on the 30th of April, 1863, pursuant to previous notice by advertisement for carrying the mails for four years, from the 1st of July, 1863, in the States of Virginia, North Carolina, South Carolina, Georgia, and Florida. There were 887 routes to be let to contract at that time in these States. On the 11th of March, within twenty days of the expiration of the time for receiving bids, only 114 bids for these contracts had reached this Department, being 773 less than the number open to competition. The then increasing depreciation of our currency deterred persons from taking contracts at a fixed rate of compensation for the period of four years as a mere business operation, and the question had to be met whether the Government would allow the postal service to go down, or, to prevent this, would exempt persons from military service who would take contracts to carry the mail. My recommendation to Congress, through the President, for the passage of a law to exempt contractors presented precisely this case as creating the necessity for such a law, and for these reasons, and to meet this necessity, Congress passed and the President approved this law. The policy of exempting mail contractors from military service was determined by the proper lawmaking authority, upon a case presented and on facts distinctly set forth, so that it is impossible to misunderstand the object of the law. Your objection is, however, that though this may be true as to those not enrolled in the military service at the time of making contracts with this Department, it has not the effect of exempting such persons as were in the military service at the time of making such contracts.

On this point I might rest the case on the decision and authority of the Confederate and State courts, notwithstanding the opinion expressed in your letter that ” by every rule of reason and usage the settled construction given by an Executive Department of the Government to an act of Congress for its action is entitled to more consideration and weight of authority than an exposition by a subordinate judicial tribunal.” I must express my dissent from the correctness of the principle announced in the lines above quoted. The true rule, as I understand it, is that the settled construction of an act of Congress by the department of Government charged with its execution, is strong persuasive evidence to the courts in favor of the correctness of that construction in cases of doubt. But under our system of Government this is the first case in which I ever heard of the assumption by any one that the construction of an act of Congress by an Executive Department of the Government was entitled to more consideration and weight of authority than its exposition by a judicial tribunal of competent jurisdiction. I use the expression of ”competent jurisdiction” instead of the expression ” subordinate judicial tribunal,” because the decision of a judge of the district court of the Confederate States in a case over which he has rightful jurisdiction is conclusive as to the right of the Government and all of its departments, and of all other parties to the suit, until appealed from and reversed. Such is the effect in the case Ex parte Lane, decided in the Confederate district court held in this city, a copy of the opinion in which case I sent you with my letter of October 19. I have not been furnished with copies of the opinions of any other courts on this subject, but have seen in the newspapers and learned from other sources what purported to be the leading points in a decision made by the supreme court of the State of Georgia, which showed that that court had decided in a similar case to that of Lane, that a contractor for carrying the mails, though in the military service at the time the contract was made, was entitled under the law of April 14, 1863, to exemption. The same decision was made by a State court of Virginia of competent jurisdiction in the cases of John Surface and John C. Kinzer, and I have seen from the newspapers and heard from other sources that similar decisions have been made in several other courts in different States, while I have only heard of one judge of a State court who held a contrary opinion. So far, therefore, assuming this information to be correct, the authority of the courts would seem to be almost uniform against your construction of the act of 14th of April, 1863, exempting mail contractors. I doubt not that this law has been so conclusively settled by the courts that a disregard of the principles of these decisions by an officer of the Army by attempting to coerce military service from a mail contractor would lay him liable to a civil suit in damages for an unlawful arrest and false imprisonment. And they certainly seem sufficiently conclusive to control the action of the Executive Departments of the Government, if the courts are to be regarded as the expositors of the law, and if the military is subordinate to the civil authority. If the doctrine should prevail that the construction of statutes by the Executive Departments of the Government is of paramount authority to the decisions of courts of competent jurisdiction, then there is an end, of course, to civil liberty, except in so far as it may be enjoyed by the forbearance of those departments. The form of our Government does not admit of this, nor would our people endure it. But if it were admitted that the construction of this statute by the departments could override judicial decisions, would the construction of the War Department or that of the Post-Office Department prevail? Each is interested, and who should determine which is the more interested? There must be an arbiter of this question. If this arbitrament is todepend on the possession of soldiers and bayonets, then of course it is a question not of law and right, but of force and power. But if the courts of the country are to be the arbiters, then the question is one for judicial solution, according to law and the principles of justice.

You inform me that ”the views of this (the War) Department on this question of construction have been given fully in answer toa resolution of the House of Representatives during the present session, and unless Congress shall otherwise direct, these views will continue, as heretofore, to be the rule of its action.” I have not seen your response to the resolution of the House on this subject, and would in nowise feel bound by a document never brought to my notice, and which, while entitled to respect, is of no more binding authority than the opinion of a coequal branch of the Executive Government. The fact that Congress passed the law exempting mail contractors, with the express understanding that it was necessary to deprive the Army of the service of this small number of men who were necessary to keep up the postal service, and that the courts have decided that such was the effect of the law they passed, together with my protest in my last report to Congress against the action of the military authorities on the subject, are deemed sufficient to preserve the rights of this Department against any supposed assent to adverse views; and besides, it cannot rightly be assumed that Congress consents to the correctness of the interpretation of a law by one of the departments because it omits to legislate in response to said interpretation. It may well and properly leave the determination of the question as to the correctness of such interpretation to the courts, where alone the question can be authoritatively decided.

I refer you to the opinion of Judge Halyburton in the case of Lane for the reasons which sustain this construction of the act of April 14, 1863, to save the trouble of copying or restating them. In reference to your suggestion that the act of April 2, 1863, authorizing the discharge of certain officers from the military service throws additional light upon the proper construction of the acts of October 11, 1862, and 14th of April, 1863, I would say that the force of this suggestion seems to consist in a supposed distinction created by the use of the word ”discharge” in the act of April 2, and the word ”exempt” in the act of April 14. On this point I quote from the opinion of Judge Halyburton:

It is said by the counsel for Captain Follen (the conscript officer) that the act reterred to does not discharge persons who were in the service at the time when the contract was made, but only extends to those who had entered into contracts before their enlistment; that if Congress had meant to release those who were already in service, the word “discharge” would have been used, and not the word “exempt,” which, it is said. is inappropriate in such a case. The word “exempt,” however, is not a technical term. It does not bear in a statute a different construction from that which belongs to it in common speech, and the lexical definition of the word along with other meanings is ”free from service, charge, burden, tax, duty, &c., not liable to.” If, then, it were meant to release or discharge from service a soldier who is already in service, it would be not only an intelligible but a correct expression to say that he should hereafter be ”exempt” from duty; that is, to say free from duty or service. If Congress had meant that the act to which we have referred should extend to men in actual service alone, they might perhaps, and probably would, have used the word “discharged” instead of ”exempt.” If, however, they intended that the law should embrace not only persons in the service, but others not enrolled, the word “discharged” from the service would have been inapplicable. Nor does it occur to me that they could have so well expressed their meaning in such a case by any other word as by the word ” exempt ” without a periphrasis.

This reasoning seems to me to be sound and to dispose of the question. It is conceded that when one enters the military service for a time agreed on, either voluntarily or by conscription, he cannot, by entering into new engagements without the consent of the Government, avoid his liability to serve out his time. Hence the necessity for the passage of the law of the 2d of April above referred to. And it was equally competent for Congress to exempt those who were in the military service, or liable to be enrolled, in order that the Government might have the benefit of their services in carrying the mails, by the act of April 14, 1863.

I have discussed this subject at this length more because of the principles involved than on account of the small number of men who may happen hereafter to be employed by this Department who would otherwise be liable to service in the Army. In my letter to you of October 19 I said:

I may also mention that there will be no other general letting of mail contracts until the summer of the year 1866, and only such additional contracts will have to be made as are rendered necessary when present contractors abandon the servyice; and these, it is hoped, will be but few.

In my last annual report it is shown that there are but 1,253 contractors for carrying the mails in the Confederate States, and that of these only 147 had obtained contracts at nominal rates of compensation. These are presumed to be persons otherwise liable to military seryice, but I have no means of knowing what proportion of them were in the military service when they entered into contracts. I said in this report:

I recognize fully the necessity of calling into the military service all who are capable of bearing arms and who can be spared from other employments. But under this law the number to be exempted was too small to affect materially the military operations, and yet the exemption of that small number, under the circumstances which induced the adoption of the policy, was necessary to keep in successful operation the postal service and to satisfy the demands of the public by the proper and speedy transmission of intelligence.

I have no subsequent information which requires a change of the views expressed in the above extract. I may add that this Department is not singular in being compelled to ask for the services of persons otherwise liable to military duty. A number of contracts, it is understood, have been made by the War Department to supply its necessities which involve exemption. And this has doubtless been the case with other departments. Some public necessities must be met in this way at a time when so large a part of the male population of the country is called into the field. I will, in all cases in which it is practicable, avoid the employment of persons in the service of this Department who are either in the Army or liable to enrollment, as I sympathize most fully with your efforts to fill up the Army.

In reference to your request that I ”designate all the contractors where the parties have been discharged from the military service on writs of habeas corpus, in order that they may be reclaimed by the inilitary authorities,” I have to say that if I thought it right to aid in disregarding the judicial decisions by which these persons were discharged, I have no information which would enable me to comply with your request, except in a very few cases which have incidentally come to my knowledge. We receive bids and award contracts in the great mass of cases without seeing or knowing the contractors, and without any means of knowing whether they are in the military service or liable to enrollment, except as we infer from the low rates of their bids, and without any means of knowing who have been discharged on habeas corpus. But you will see from the foregoing that I do not think it would be proper to adopt the course you suggest.

With great respect, your obedient servant,