Mr. Seward to Mr. Mercier.
Sir: I have attentively read your excellency’s note of the 6th instant. Thus far, only two persons who have claimed exemption from the military draft on the ground of their being French subjects have been presented to this department, and both of them were discharged promptly and without delay.
This is a complex government, consisting of State governments, within their sphere independent of the Federal government; the Federal government, in its sphere, independent of the State governments. Collisions between them cannot [Page 819] be prevented by executive action. They must however, be reconciled when they have occurred. The government calls on the States to furnish troops by draft of the militia. The States determine for themselves who constitute the militia, and they make the draft. They respectively provide for ascertaining who are liable to the draft and who are exempt from it, and they have State commissioners to hear, try, and determine such cases. Those commissioners render accounts of their doings to the governors of the States, and act with entire independence of the Federal government, and are in no way responsible to them. If the governor of a State errs, and subjects to military duty a person who is entitled to exemption on the ground of alienage, a question is thus raised between the United States and the nation which is entitled to protect the complainant. This department then receives and promptly and effectually decides the case. It would indeed be very agreeable to communicate in advance to representatives of the foreign powers the principles upon which the department would proceed in such cases. But, on the other hand, it must be allowed there are few subjects more productive of conflicting legislation and adjudication than that of alienage. It seems, therefore, to be prudent to refrain from anticipating merely what speculative questions involve, and to confine the action of the government to those cases which, being practically brought before it, must necessarily receive its solution. In the hope that these explanations will be satisfactory to your excellency, I have the honor to be, your very obedient servant,
Mr. Henry Mercier, &c., &c., &c.