, 1863-06-15
THE CONSCRIPTION.
Opinion Of Hon, VIM. Whiting,
Solicitor Of the War Depart
ment,
Soldiers in Service March 8,
1868, Not to Be Drafted.


WASHINGTON, June 10, 1868.
The following official orders have been pro-
mu1gated.
War DEPARTMENT.,
OFFICE PROVOST MARSHAL GEN. Jnue9.
The following opinion of Hon. William
Whiting, solicitor Of the War Department,
has been ordered to be published by the Sec.
retary of War:
The national forces, liable to perform mill
tary duty, include all the able-bodied male
citizens Of the United States, and persons Of
foreign birth who have declared their intcn-
tion 10 become citizens according to law, be-
ing between twenty. aud forty-dve years Of
sge Certain persons are excepted, divided
into eight classes. No person, but such rs
arc therein excepted, shall be exempt {Sec.
tion 2.)
It is declared the duty Of tho enrolling on.
GERS to enroll persons subject to military
duty (section 81 All persons thus enrolled
shall be subject for TWO years aftes July I sue
ceediug the enrolment, to be called into mill
tary service (sectlon III The national forces
(not now in military ser7ice) enrolled under
the act shall be divided into two classes, &c.
Those Of the second c1ass shall not be called
ont until those Of the first class shall have
been exhausted.
Thus it seems, by the true construction Of
this act, while all persons coming. within its
provisions are to be enrolled In the national
forces, nevertheless, under the first enroll
ment, those who were in the military service
at the time the act went into effect, arc not
to he included in TINT class which is subject
to the first draft.
Several provisions of this statute are incon-
sistent to the fdea that persons then In the
service were to be treated us liable to draft
from the first class.
Thus 1t is provided In the seventh section
that regulars, Tolunteers, militia men, or
persons called into the service under this or
any other act Of Congress, wero to be arrest
found, By the Provost Marshal, and to be
sent to the nearest military post, thus admit
ting plain distinction between these differ
ent classes of persons, viz: those who we're
tlen III the service aud those who were 10 be
lrafse ed In.
Wert in the service and those who were to be
drafted in, Is recognized in section Is, which
provides bounties to those who being then in
The service should volunteer to re.enlist.
The statute providing for the classification
of troops from which DRIFTS arc to 10 nude,
natioual forces Of tlu UnItctl States, not saote
IN the military se1ricr, enrolled under this act,
shall be divided into two clasaea. Thus those
who are ssnow" TINT IL to my, on the ID Of
March, 1868, In thu military service, are not
to bc included In either Of these clnsscs. And
sa7 tAUoG &HtH th4AECH mi I'LL lMt 6El*a HElt
not included I'll either 0i these two classes,
they may be said TO constitute class of per:
sons TO be enrolled under tho provisions o1
this act.
As between tho first and second class the
law (sec. 3 requires that the second clase
shall not III any district bc called into the SER
Vice Of tue United 8 'atcs until those OF the
first class shall nave been thus called in.
Volunteers or regulars who had been in tic
service, and who hAd been discharged there.
from, or had resigned prior to the Sd day Of
March, 1868, are liable to he drafted In the
same manner us If they had never been in the
service; no rgard Is to be paid to their for
ner period Of service or tp tile length OF brey.
ity Of the period between the date Of thefl
discharge and that Of the draft.
Volunteers who were in the service Of the
United States on the Sd of March, 1867 and
have elnce that time been discharged, are not
therefore included in the first class from
which the first draft is intended to be made,
and are therefore not now liable to be called
on by draft, which Is to be made from that
class Of the forces Of the United States under
the provisions Of this act.
WILLIAM WHITING,
Solicitor Of tho War Department.
JAMES B. FKr, Provost Marshal General.