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proceedings see the House and Senate Journals, 37th Cong., 3d Sess., and the Cong. Globe. A summary of the bill as reported in the Senate is in the Globe, February 16. The executive orders of August 4 and 8, 1862, are in Richardson, Messages and Papers of the Presidents, VI., 120-121. On the enforcement of the act see the annual report of the Secretary of War, 1863.

An Act for enrolling and calling out the national Forces, and for other Purposes.

WHEREAS there now exist in the United States an insurrection and rebellion against the authority thereof, and it is, under the Constitution of the United States, the duty of the government to suppress insurrection and rebellion, to guarantee to each State a republican form of government, and to preserve the public tranquillity; and whereas, for these high purposes, a military force is indispensable, to raise and support which all persons ought willingly to contribute; and whereas no service can be more praiseworthy and honorable than that which is rendered for the maintenance of the Constitution and Union, and the consequent preservation of free government: Therefore

Be it enacted..., That all able-bodied male citizens of the United States, and persons of foreign birth 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 hereinafter excepted, are hereby declared to constitute the national forces, and shall be liable to perform military duty in the service of the United States when called out by the President for that purpose.

SEC. 2. And be it further enacted, 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 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. 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. 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. 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 non-commissioned officers, musicians, or privates, the residue of such family and household, not exceeding two, shall be exempt. And no persons but such as are herein excepted shall be exempt: Provided, however, That no person who has been convicted of any felony shall be enrolled or permitted to serve in said forces.

SEC. 3. And be it further enacted, That 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; 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.1

SEC. 4. And be it further enacted, That, 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 be divided into districts, of which the District of Columbia shall constitute one, each 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:

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SEC. 5. And be it further enacted, That for each of said districts there shall be appointed by the President a provost-marshal, . . . who shall be under the direction and subject to the orders of a provost-marshal-general, . . . whose office shall be at the seat of government, forming a separate bureau of the War Department.

1 See act of February 24, 1864, section 11. - ED.

[Sections 6 and 7. Duties of provost-marshal-general and provost marshals.]

SEC. 8. And be it further enacted, That 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.

SEC. 9. And be it further enacted, That 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:

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SEC. 11. And be it further enacted, That 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. . .

SEC. 12. And be it further enacted, That whenever it may be necessary to call out the national forces for military service, 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 direction of the President, make a draft of the required number, and fifty per cent. in addition. . . .

SEC. 13. And be it further enacted, That any person drafted and notified to appear as aforesaid, may, on or before the day fixed for his appearance, furnish an acceptable substitute to take his place in the draft; or he may pay to such person as the Secretary of War may authorize to receive it, such sum, not exceeding three hundred dollars, as the Secretary may determine,

for the procuration of each substitute; . . . 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

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SEC. 25. And be it further enacted, That if any person shall resist any draft 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; or shall assault or obstruct any officer in making such draft, or in the performance of 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 a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, or by both of said punishments.

*

No. 135. Act relating to Habeas Corpus

March 3, 1863

APRIL 27, 1861, Lincoln by executive order authorized General Scott, in his discretion, to suspend the privilege of the writ of habeas corpus on any military line between Philadelphia and Washington. July 2 this authorization was extended to the military line between New York and Washington. A proclamation of May 10 authorized suspension in the islands of Key West, the Tortugas, and Santa Rosa. Doubt as to the legality of these executive orders, however, reënforced by public criticism of the numerous arrests of civilians in pursuance of them, led to the issue, February 14, 1862, of an order directing the release of political prisoners held in military custody, "on their subscribing to a parole engaging them to render no aid or comfort to the enemies in hostility to the United States"; but a proclamation of September 24 declared all disloyal persons subject to martial law, and suspended the privilege of the writ as to such persons. An act of August 6, 1861, had in the meantime validated all the acts, proclamations, and orders of the President, relating to military affairs, issued since the 4th of March preceding. A bill

"to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof," was introduced in the House, December 8, 1862, by Thaddeus Stevens, and passed the same day, notwithstanding strong opposition, by a vote of 91 to 46. On the 22d a protest against the bill, signed by thirty-six members of the House, was, by a vote of 75 to 40, refused entry on the journal. The bill was reported with amendments in the Senate January 15, 1863, and passed that body on the 27th, after long discussion, by a vote of 33 to 7. The House, by a vote of 35 to 114, refused to agree to the Senate amendments, and the bill received its final form from a conference committee, the Senate receding from its amendments and accepting a modified form of the House bill. A proclamation of September 15, under the act, declared a general suspension of the privilege of the writ throughout the United States; this was revoked as to the loyal States December 1, 1865. An amendatory act was passed May 11, 1866. An act of March 2, 1867, validated all acts, proclamations, and orders of the President respecting martial law, &c., after March 4, 1861, and before July 1, 1866.

REFERENCES. - Text in U.S. Statutes at Large, XII., 755–758. For the proceedings see the House and Senate Journals, 37th Cong., 3d Sess., and the Cong. Globe. The Pendleton protest is in the Globe, December 22; the Senate amendments, ibid., February 19, House proceedings. Numerous orders, reports, letters, etc., are collected in McPherson, Rebellion, 152–194; see also House Exec. Doc. 6, 37th Cong., 1st Sess., and Senate Exec. Doc. 11, 37th Cong., 3d Sess. For Taney's opinion, 1861, against the right of the President to suspend, see Ex parte Merryman, Taney's Reports, 246; cf. Tyler, Taney, chap. 6. The opinion of Bates affirming the right is in House Exec. Doc. 5, 37th Cong., 1st Sess. Cf. Ex parte Milligan (1866), 4 Wallace, 2, and Garfield's argument, Works, I., 158; Vallandigham's Case, 1 Wallace, 243. On Lincoln's proclamation of September 24, 1862, see Curtis, Constitutional History, II., 668-686. The act of indemnity of March 2, 1867, is in MacDonald's Select Statutes, No. 58. See also Thayer, Cases on Constitutional Law, 2374, 2375; reports of the Provost Marshal General; Whiting, War Powers.

An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases.

Be it enacted..., That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons

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