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17 July 1862.

17 July 1862 3. 12 Stat. 598.

teer force.

mustered into the service as infantry, shall have been reorganized and employed as engineers, pioneers or sappers and miners, shall be and the same are hereby recognised and accepted as volunteer engineers, on the same footing, in all respects, in regard to their organization, pay and emoluments, as the corps of engineers of the regular army of the United States, and they shall be paid for their services, already performed, as is now provided by law for the payment of officers and non-commissioned officers and privates of the engineer corps of the regular army.

164. That the president be and he is hereby authorized, in addition to the volunteer forces which he is now authorized by law to raise, to accept the services of any number Additional volun- of volunteers, not exceeding one hundred thousand, as infantry, for a period of nine months, unless sooner discharged. And every soldier who shall enlist under the provisions of this section shall receive his first month's pay, and also twenty-five dollars as bounty, upon the mustering of his company or regiment into the service of the United States. And all provisions of law relating to volunteers enlisted in the service of the United States for three years or during the war, except in relation to bounty, shall be, and the same are extended to, and are hereby declared to embrace, the volunteers to be raised under the provisions of this section.

Bounty.

Ibid. 4.

165. That, for the purpose of filling up the regiments of infantry now in the United Term of service. States service, the president be and he hereby is authorized to accept the services of volunteers, in such numbers as may be presented for that purpose, for twelve months, if not sooner discharged. And such volunteers, when mustered into the service, shall be in all respects upon a footing with similar troops in the United States service, except as to service bounty, which shall be fifty dollars, one half of which to be paid upon their joining their regiments, and the other half at the expiration of their enlistment. 2 March 1863 1. 166. In addition to the four major-generals and nine brigadier-generals for the regular army, and the forty major-generals and two hundred brigadier-generals for the Increase of gen- volunteer service, authorized by the existing laws, there may be appointed thirty majorgenerals and seventy-five brigadier-generals for forces in the service of the United States other than the regular army: Provided, That the officers to be appointed under this act shall be selected from those who have been conspicuous for gallant or meritorious conduct in the line of duty.

12 Stat. 699.

eral officers.

S March 1863 218. 12 Stat. 734.

listments.

167. Such of the volunteers and militia now in the service of the United States as may re-enlist to serve one year, unless sooner discharged, after the expiration of their Bounty for re-en- present term of service, shall be entitled to a bounty of fifty dollars, one-half of which to be paid upon such re-enlistment, and the balance at the expiration of the term of re-enlistment; and such as may re-enlist to serve for two years, unless sooner discharged, after the expiration of their present term of enlistment, shall receive, upon such re-enlistment, twenty-five dollars of the one hundred dollars bounty for enlistment, provided by the fifth section of the act approved 22d of July 1861, entitled "An act to authorize the employment of volunteers to aid in enforcing the laws and protecting public property." (a)

Ibid. 19. Consolidation of companies.

Ibid. 20.

3 March 1863 ? 7. 12 Stat. 743.

listment in cer

168. Whenever a regiment of volunteers of the same arm, from the same state, is reduced to one-half the maximum number prescribed by law, the president may direct the consolidation of the companies of such regiment: Provided, That no company so formed shall exceed the maximum number prescribed by law. When such consolidation is made the regimental officers shall be reduced in proportion to the reduction in the number of companies.

169. Whenever a regiment is reduced below the minimum number allowed by law, no officers shall be appointed in such regiment beyond those necessary for the command of such reduced number.

170. Upon any requisition hereafter being made by the president of the United States for militia, any person who shall have volunteered or been drafted for the service Bounty on re-en- of the United States for the term of nine months or a shorter period, may enlist into a regiment from the same state to serve for the term of one year, and any person so enlisting shall be entitled to and receive a bounty of fifty dollars, to be paid in time and manner provided by the act of July 22d 1861, for the payment of the bounty provided for by that act.(a)

tain cases.

3 March 1863 2 1. 12 Stat. 758.

ed soldiers on

171. Every non-commissioned officer, private or other person who has been or shall hereafter be discharged from the army of the United States, within two years from the Bounty to wound- date of their enlistment, by reason of wounds received in battle, shall be entitled to receive the same bounty as is granted or may be granted to the same classes of persons who are discharged after a service of two years; and all acts and parts of acts inconsistent with this are hereby repealed.

discharge.

(a) Supra 134.

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12 Stat. 731.

be liable to con

172. All able-bodied male citizens of the United States, and persons of foreign birth 3 March 1863 3 1. who shall have declared on oath their intention to become citizens under and in pursuance of the laws thereof, between the ages of twenty and forty-five years, except as What persons to hereinafter excepted, are hereby declared to constitute the national forces, and shall be scription. liable to perform military duty in the service of the United States, when called out by the president for that purpose. (a)

Ibid. & 2.

Who to be ex

173. That the following persons be and they are hereby excepted and exempt from the provisions of this act, and shall not be liable to military duty under the same, to wit: such as are rejected as physically or mentally unfit for the service; also First, the empt. vice president of the United States, the judges of the various courts of the United States, the heads of the various executive departments of the government, and the governors of the several states. Second, the only son liable to military duty of a widow dependent upon his labor for support. Third, the only son of aged or infirm parent or parents dependent upon his labor for support.(b) Fourth, where there are two or more sons of aged or infirm parents subject to draft, the father, or, if he be dead, the mother may elect which son shall be exempt.(c) Fifth, the only brother of children not twelve years old, having neither father nor mother, dependent upon his labor for support. Sixth, the father of motherless children under twelve years of age, dependent upon his labor for support. (d) Seventh, where there are a father and sons in the same family and household, and two of them are in the military service of the United States as noncommissioned officers, musicians or privates, the residue of such family and household, not exceeding two, shall be exempt.(e) And no persons but such as are herein excepted shall be exempt:(g) Provided, however, That no person who has been convicted of any felony shall be enrolled or permitted to serve in said forces.

174. The national forces of the United States not now in the military service, enrolled under this act, shall be divided into two classes: the first of which shall comprise all persons subject to do military duty between the ages of twenty and thirty-five years, and all unmarried persons subject to do military duty above the age of thirty-five and under the age of forty-five; (h) the second class shall comprise all other persons subject to do military duty, and they shall not in any district be called into the service of the United States until those of the first class shall have been called.

Ibid. 23.
Classification.

Ibid. 24.

175. For greater convenience in enrolling, calling out and organizing the national forces, and for the arrest of deserters and spies of the enemy, the United States shall Enrolment disbe divided into districts, of which the District of Columbia shall constitute one, each tricts. territory of the United States shall constitute one or more, as the president shall direct, and each congressional district of the respective states, as fixed by a law of the state next preceding the enrolment, shall constitute one: Provided, That in states which have not by their laws been divided into two or more congressional districts, the president of the United States shall divide the same into so many enrolment districts as he may deem fit and convenient.

Ibid. 5.

176. For each of said districts there shall be appointed by the president a provostmarshal, with the rank, pay and emoluments of a captain of cavalry, or an officer of Provost-marsaid rank shall be detailed by the president, who shall be under the direction and shals. subject to the orders of a provost-marshal general, appointed or detailed by the presi- general.

(a) In New York, it has been determined, that this act is unconstitutional, on the ground, that it attempts to create a national militia, a power not granted to the federal government, which is only empowered to raise an army and navy, whilst the militia is but a state force, though liable to be called into the service of the United States, by the president, in case of emergency. The People v. Stephens, before McCunn, J., at chambers, 14 July 1863. In Pennsylvania, however, Cadwalader, J., decided that the act was constitutional. Antrim's Case, 20 Leg. Int. 300.

(b) The only son of aged or infirm parent or parents is not exempt unless his parent or parents are dependent on his labor for their support. If he is in a condition to support, and does support them without his personal labor for that purpose, he is subject to draft, because he is in condition to perform military service without depriving his parents of the support the law designs to secure them. The parents need not be wholly dependent on the labor of their son for support. If they are so dependent for the principal part of their support, the right to exemption arises. In the case of a widow having four sons, three of whom are already in the military service, the fourth is exempt, provided his mother is dependent on his labor for support.

In the case of a widow having two sons, one of whom is already in the military service, and the other has been drafted, the latter is exempt, as the only son liable to military duty in the sense of the act. Opinion of Holt, Judge Advocate General, July 1863.

(e) In the case of aged or infirm parents having two or more sons subject to military duty, election of the son to be exempted must be made before the draft, and his name should not then appear in the draft box. If one of only two sons of such parents is alrea dy in military service, the other is exempt, provided his parents are dependent on his labor for their support.

In the case of aged and infirm parents having two sons subject to military duty, the father, or if he be dead, the mother may elect which of them shall be exempt. The right of this exemption

Provost-marshal

does not rest upon the parents' dependence on the labor of their
sons for support. The law does not contemplate any such de
pendence. Opinion of Holt, Judge Advocate General, July 1803.
(d) The children of an insane mother, who may at any time
recover her reason, cannot, in the sense of the law, or with any
propriety of language, be termed motherless children. The father
of such, though they may be dependent on his labor for their
support, cannot, therefore, claim exemption from the draft. The
case is a hard one, and would probably have been provided for
had it been foreseen. It is, however, the law as it is, and not as
it may be supposed it ought to be, that is to be so enforced.
Opinion of Holt, Judge Advocate General, July 1863.

(e) In the case of a father having four sons, two of whom have died in the military service, it seems clear that the remaining two are not exempt from the draft. Before such exemption can be allowed, it must be shown that the father has not had two sons in the military service, so the law is written. Congress might well have accepted the loss of two sons in the field as equivalent to their continuance in the service, and therefore securing the same privileges to their family; but this has not been done. To hold otherwise would not be interpretation but legislation. Opiuion of Holt, Judge Advocate General, July 1863.

(g) Persons having conscientious scruples in regard to bearing arins are not on that account exempt. They are not found in the list of exempted classes, and the act expressly declares that no persons except those enumerated in that list shall be exempt. The Society of Friends, and those entertaining similar sentiments, if drafted, may find relief from their scruples in the employment of substitutes, or in the payment of the $300. Opinion of Holt, Judge Advocate General, July 1863.

() If a married man, over 35 years of age, be enrolled and drafted in the first class, he may be discharged, by a federal court, on ha beas corpus. Stingle's Case, Dist. Court, Penn., Cadwalader, J., 4 Sept. 1803. MS.

2 March 1863.

Ibid. 26.

Duties of provost

dent of the United States; whose office shall be at the seat of government, forming a separate bureau of the war department, and whose rank, pay and emoluments shall be those of a colonel of cavalry.

177. It shall be the duty of the provost-marshal general, with the approval of the secretary of war, to make rules and regulations for the government of his subordinates; marshal general. to furnish them with the names and residences of all deserters from the army, or any of the land forces in the service of the United States, including the militia, when reported to him by the commanding officers; to communicate to them all orders of the president in reference to calling out the national forces; to furnish proper blanks and instructions for enrolling and drafting; to file and preserve copies of all enrolment lists; to require stated reports of all proceedings on the part of his subordinates; to audit all accounts connected with the service under his direction; and to perform such other duties as the president may prescribe in carrying out the provisions of this act. 178. It shall be the duty of the provost-marshals to arrest all deserters, whether reguDuties of provost- lars, volunteers, militiamen or persons called into the service under this or any other act of congress, wherever they may be found, and to send them to the nearest military commander or military post;(a) to detect, seize and confine spies of the enemy, who shall without unreasonable delay be delivered to the custody of the general commanding the department in which they may be arrested, to be tried as soon as the exigencies of the service permit; to obey all lawful orders and regulations of the provost-marshal general, and such as may be prescribed by law concerning the enrolment and calling into service of the national forces.

Ibid. 27.

marshals.

Ibid. 28.

Boards of enrolment.

Ibid. 9. Sub-districts.

Enrolling officers.

Ibid. 10.

Ibid. 11.

Persons enrolled

to be liable to military duty.

Ibid. 12.

made.

Notice.

179. In each of said districts there shall be a board of enrolment, to be composed of the provost-marshal as president and two other persons, to be appointed by the president of the United States, one of whom shall be a licensed and practising physician and surgeon.

180. It shall be the duty of the said board to divide the district into sub-districts of convenient size, if they shall deem it necessary, not exceeding two, without the direction of the secretary of war, and to appoint on or before the tenth day of March next, and in each alternate year thereafter, an enrolling officer for each sub-district, and to furnish him with proper blanks and instructions; and he shall immediately proceed to enrol all persons subject to military duty, noting their respective places of residence, ages on the first day of July following, and their occupation, and shall, on or before the first day of April, report the same to the board of enrolment, to be consolidated into one list, a copy of which shall be transmitted to the provost-marshal general on or before the first day of May succeeding the enrolment: Provided nevertheless, That if from any cause the duties prescribed by this section cannot be performed within the time specified, then the same shall be performed as soon thereafter as practicable.

181. The enrolment of each class shall be made separately, and shall only embrace those whose ages shall be on the first day of July thereafter between twenty and fortyfive years.

182. All persons thus enrolled shall be subject for two years after the first day of July succeeding the enrolment, to be called into the military service of the United States, and to continue in service during the present rebellion, not, however, exceeding the term of three years; and when called into service shall be placed on the same footing in all respects as volunteers for three years or during the war, including advance pay and bounty, as now provided by law.

183. Whenever it may be necessary to call out the national forces for military serHow draft to be vice, the president is hereby authorized to assign to each district the number of men to be furnished by said district; and thereupon the enrolling board shall, under the direc tion of the president, make a draft of the required number, and fifty per cent. in addition, and shall make an exact and complete roll of the names of the persons so drawn, (b) and of the order in which they were drawn, so that the first drawn may stand first upon the said roll, and the second may stand second, and so on; and the persons so drawn shall be notified of the same, within ten days thereafter, by a written or printed notice, to be served personally, or by leaving a copy at the last place of residence, requiring them to Apportionment. appear at a designated rendezvous to report for duty. In assigning to the districts the number of men to be furnished therefrom, the president shall take into consideration the number of volunteers and militia furnished by and from the several states in which said districts are situated, and the period of their service since the commencement of the present rebellion, and shall so make said assignment as to equalize the numbers

(a) A state court has no power to discharge on habeas corpus, from the custody of the provost-marshal, a person arrested for desertion, under this act, although enlisted contrary to law. Shirk's Case, 20 Leg. Int. 200. And see Dew's Case, 25 Law Rep. 538. Jordan's Case, 11 Am. L. R. 749.

(b) If a person liable to military duty be properly enrolled, a

misnomer in the ballot placed in the box will not vitiate the draft. Spangler's Case, 11 Am. L. R. 598. But a misnomer in the enrolment will render the draft illegal. McCall's Case, 20 Leg. Int. 108. Affirmed in Robinson's Case, Dist. Court, Penn., Cadwa lader, J., 5 Sept. 1863. MS.

among the districts of the several states, considering and allowing for the numbers 3 March 1863. already furnished as aforesaid and the time of their service.

lieu of service.

184. Any person drafted and notified to appear as aforesaid may, on or before the day Ibid. 13. fixed for his appearance, furnish an acceptable substitute to take his place in the draft; Substitutes may or he may pay to such person as the secretary of war may authorize to receive it such be furnished. sum, not exceeding three hundred dollars, as the secretary may determine, for the procuration of such substitute;(a) which sum shall be fixed at a uniform rate by a general order made at the time of ordering a draft for any state or territory; and thereupon Or payment in such person so furnishing the substitute, or paying the money, shall be discharged from further liability under that draft. And any person failing to report after due service of notice as herein prescribed, without furnishing a substitute or paying the required sum therefor shall be deemed a deserter, and shall be arrested by the provost-marshal Absentees to be and sent to the nearest military post for trial by court martial, (b) unless upon proper showing that he is not liable to do military duty, the board of enrolment shall relieve him from the draft.

deemed deserters.

Ibid. 14.

185. All drafted persons shall on arriving at the rendezvous be carefully inspected by the surgeon of the board, who shall truly report to the board the physical condition Inspection of of each one; and all persons drafted and claiming exemption from military duty on conscripts. account of disability or any other cause, shall present their claims to be exempted to the board, whose decision shall be final.(c)

Ibid. 15.

186. Any surgeon charged with the duty of such inspection who shall receive from any person whomsoever any money or other valuable thing, or agree, directly or indiPenalty for rectly, to receive the same to his own or another's use for making an imperfect inspec- frauds by inspecting surgeons. tion or a false or incorrect report, or who shall wilfully neglect to make a faithful inspection and true report, shall be tried by a court martial, and on conviction thereof be punished by fine not exceeding five hundred dollars nor less than two hundred, and he imprisoned at the discretion of the court, and be cashiered and dismissed from the service.

Ibid. 16.

187. As soon as the required number of able-bodied men liable to do military duty shall be obtained from the list of those drafted, the remainder shall be discharged; and Discharge of surall drafted persons reporting at the place of rendezvous shall be allowed travelling pay plus men. from their places of residence; and all persons discharged at the place of rendezvous shall be allowed travelling pay to their places of residence; and all expenses connected with the enrolment and draft, including subsistence while at the rendezvous, shall be paid from the appropriation for enrolling and drafting, under such regulations as the president of the United States shall prescribe; and all 'expenses connected with the Expenses. arrest and return of deserters to their regiments, or such other duties as the provostmarshal shall be called upon to perform, shall be paid from the appropriation for arresting deserters, under such regulations as the president of the United States shall prescribe: Provided, The provost-marshals shall in no case receive commutation for transportation or for fuel and quarters, but only for forage when not furnished by the government, together with actual expenses of postage, stationery and clerk hire authorized by the provost-marshal general.

Ibid. 17. Certificates of ex

188. Any person enrolled and drafted according to the provisions of this act who shall furnish an acceptable substitute, shall thereupon receive from the board of enrolment a certificate of discharge from such draft which shall exempt him from military emption. duty during the time for which he was drafted; and such substitute shall be entitled Pay of substi to the same pay and allowances provided by law as if he had been originally drafted into the service of the United States.

tutes.

Ibid. 25.

189. If any person shall resist any draft(d) of men enrolled under this act into the service of the United States; or shall counsel or aid any person to resist any such draft; Penalty for resistor shall assault or obstruct any officer in making such draft, or in the performance of ing the draft, &c. any service in relation thereto; or shall counsel any person to assault or obstruct any such officer; or shall counsel any drafted men not to appear at the place of rendezvous, or wilfully dissuade them from the performance of military duty as required by law; such person shall be subject to summary arrest by the provost-marshal, and shall be forthwith delivered to the civil authorities, and upon conviction thereof be punished by

(2) A municipal corporation has no power to levy a tax on the public, to procure the exemption of drafted men. 11 Am. L. R. 621. 25 Law Rep. 519.

(The state courts have no jurisdiction to inquire into the validity of the draft, on habeas corpus. Spangler's Case, 11 Am. L. R. 598. But in Pennsylvania, it has been decided, by Lowrie, C. J., that the state courts do possess the power to inquire into the validity of the draft. Com. v. Wright, 11 Pittsburgh Leg. J. And see In re Hicks and Archibald, Ibid. 25.

41.

(e) It has been decided in Pennsylvania, that, after having given a certificate of exemption, the jurisdiction of the board over the

conscript is at an end; their adjudication is final and conclusive, and they have no power to revise their decision, so as again to subject the exempted man to military duty. Carney's Case, before Lowrie, C. J., at chambers, 14 August 1863. MS. And in the district court of the United States, Cadwalader, J. held, that the decision of the board, though final, was not conclusive of the rights of the parties, and that one exempted from the draft by the 24 section, might be relieved on habeas corpus, notwithstanding an adverse decision of the board. Antrim's Case, 20 Leg. Int. 300.

(d) The act provides no punishment for obstructing the enrolment. United States v. Will, 20 Leg. Int. 341.

3 March 1863.

Ibid. 33.

Ibid. 34.

3 March 1863 2 5. 12 Stat. 751.

Pay of members of enrolling board.

a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, or by both of said punishments.

190. The president of the United States is hereby authorized and empowered, during the present rebellion, to call forth the national forces by draft in the manner provided for in this act.

191. All persons drafted under the provisions of this act shall be assigned by the president to military duty in such corps, regiments or other branches of the service as the exigencies of the service may require.

192. The surgeon and the citizen at large, who are with the provost-marshal to form the enrolling board of each congressional district, shall receive the compensation of an assistant surgeon of the army, excluding commutation for fuel and quarters for the time actually employed; and that the same may be paid by the secretary of war out of appropriations already made for the services of that department.

Attorney-General,

1. Assistant and clerks. Temporary clerks. How moneys to be paid on requisition of attorney-general.

2. Attorney-general to have the superintendence of district attorneys and marshals.

3 March 1859 ? 1. 11 Stat. 420.

Assistant and clerks.

Temporary clerks.

How moneys to

3. May retain counsel to assist district attorneys.
4. Additional clerks.

5. Solicitor of the treasury not to be affected.

1. That the attorney-general, in place of the six clerks now employed in his office, be and he is hereby authorized to appoint one assistant in the said office, learned in the law, at an annual salary of three thousand dollars; two third class clerks, at salaries of sixteen hundred dollars each; and one second class clerk, at a salary of fourteen hundred dollars; and that the said attorney-general be authorized, when necessary, to employ temporary clerks: Provided, That the allowances to such temporary clerks shall in no one year exceed one thousand dollars: Provided also, That all moneys herebe paid on requi- after drawn out of the treasury upon the requisition of the attorney-general shall be disbursed by such disbursing officer as the secretary of the treasury may designate. 2. That the attorney-general of the United States be and he is hereby charged with 12 Stat. 285. the general superintendence and direction of the attorneys and marshals of all the Attorney-general districts in the United States and the territories, as to the manner of discharging their perintendence of respective duties; and the said district attorneys and marshals are hereby required to district attorneys report to the attorney-general an account of their official proceedings, and the state and condition of their respective offices, in such time and manner as the attorney-general may direct.

sition of attorneygeneral.

2 August 1861 21.

to have the su

and marshals.

Ibid. 2.

3. That the attorney-general be and he is hereby empowered, whenever in his May retain coun- opinion the public interest may require it, to employ and retain (in the name of the United States) such attorneys and counsellors at law as he may think necessary to assist the district attorneys in the discharge of their duties, and shall stipulate with such assistant counsel the amount of compensation.

sel to assist district attorneys.

Ibid. 3.

Additional clerks.

6 August 1861 21. 12 Stat. 327.

4. The attorney-general shall have power to increase the clerical force of his office to discharge the increased duties of the same, occasioned by this act, by appointing additional clerks, not exceeding two, and may fix their compensation at an annual salary not exceeding fourteen hundred dollars each per annum.

5. Nothing in the act of which this act is explanatory (a) shall be construed to repeal, modify or in any way affect any law now in force, defining or regulating the duties of the solicitor of the treasury.

(a) Act 2 August 1861, supra 2.

15 May 1862 8. 12 Stat. 387.

Powers of com

missioners of bail enlarged.

Bail.

1. Powers of commissioners of bail enlarged.

1. Commissioners appointed by the courts of the United States to take bail, affidavits, and so forth, shall have like powers to take surety of the peace and for good behavior, according the act of July 16th 1798, (a) that other officers designated by said act now have.

(a) See ante, tit. "Bail," 2.

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