The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1864-08-05
THE DRAFT.
OnIcIaI Opinion ~ 20 the Hundred Day
Men.

wAsH1Nort August 4.-The following is
ver6otm copy Of the opinion of the Hon.
William Whiting, Solicitor Of the War De-
partment, which was nclosed to General Sand
ford Of New York, relative TO the exemption Of
the one hundred days volunteers from the draft
This opinion having been promulgated by the
Secretary of War rs governing the future action
Of the War Department is applicable to the other
States who furnished troops under that call. Il
will be seen at once that the errors of Governor
Andrew, of Massachusetts, as we'll as General
Sanford, Of New York, are pointed out and cor
rcctod. The opinion will be read With interest
by all, as IL affects the interests Of nearly $4,000
men who are serving or are about 70 serve under
the one hundred days call -
OPINION.
On the 9Th of July, instant, at o time Of great
public danger, the President of the United States
| under the authority yes'ed in him by the act OF
| February %, 1885, issued the following call on
| the Governor OF the State Of New York for 70 900
OF the militia of that State 70 be mustered into
| the service of the United Suites, for a term no.
exceeding one hundred days
| WAN DEPARTMENT, WASHINGTON, July s.
! 1864 His Exceency Horatio Seymour. Cover
| nor Of New York, Albany, New York The
! President directs me TO inform you that a Rebel
| force, variousy estimited az from fifteen 10
! twenty thousand men, have invaded the State of
| Maryland, and have tUkeu MartinsbuTg and lr-
| pCrs Ferry, and are threatening other points
| that the public safety requires him 70 call upon
the State Executives for a militia force 20 repel
this invasion. He therefore directs me 10 call on
you for a militia force of twelve thousand men
from your State, to serve not more than one hun
| drCd days, and TO request that you will with the
utmost despatch forward the troops 10 Washing
ton by rail or steamboat, rs may be most expe-
| dtious.
| Please favor me with an answer az your earliest
| convenience. EDWIN NJ. STANTON,
| Secretary Of War.
On July p, General Sandford issued and pub-
lished the following order
| HEADQUARTERS lsT Division, Y. Y. S. N. G..
New York, Juiy 2l.-General Order No. 6.-The
Maior-General publishes, for the information of
this command, the following section from the act
of Congress passed February "a, 1864, entitled
IAN act TO amend an act for enrolling and calling
out the National forces and for other purposes"
approved March 3, 1864.
Section 10 Re Il further enacted That the following per
sol be and they are hereby exempted from enrolm mt
abI 1at unue we SONS OF tis act ld OF inc act 70
which THIS a an amen inent 10 WI such az arc rejected
as ply sicny OF mentally unn for the Service all persons
Sta as at the time OF the dram aud Al persons who have
served in the military or naval service two during
the present and been honoraby discharged there
shall be exempt.
It will be perceived by this section tina. the
| members of those regiments ordered on duty
| when mustered into the service Of the United
| States Tor 100 days will be exempted from the
| draft which is to be made in September pext The
regiments designated in Division Orders No. %,
as forming part Of the quota of this State under
the Presidents call for 1900 militia from the
State, are requested to complete Immediately
their preparations to emb irk forthwith for Wash
ington. Those refusing or neglecting will be dis
banded. By order Of
Major General C. A. sANDFoRD.
ALEX. HAMILTON, Division Inspector.
| (Oficial)-CHNItLEs W. DARLING, A. ID. c.
At the present date, July 26, It is understood
that these militia, except two regiments, hereto
fore mustered in, are withheld from service by
order of the Governor of New York, in conse-
quence of an objection TO a decision OF the Pro-
yost Marshal General that these militiamen are
net, by reason of their being mustered in'o the
service, exempted from the draft ordered 10 take
place the 9th day Of September next, and from
time to time thereafter until the quotas required
shall be filled.
That the objection raised by the Governor OF
New York is purely theoretical, and may never
become Of the least practicable importance, is ap~
parent from the following consideratons;--
Although il clear thatby the l0th section Of the
act OF February "a, 1864, such as are rejected as
physically or mentally unfit for the service, all
persons actually in the military or naval service
of the United States n the time of the draft, and
all persons who have served In the military or
naval service two years during the present war,
and have been honOrably discharged thcrefrom,
will be exempted from the draft, yet the question
Of exemption OF the hundred days militia of
New York will not arise and no claim for such
exemption can be made under the act, unless tue
soldier claiming the exemption shall be actually
in the military service OF the United states at the
ttJHe of the draft.
Questions of exemption by reason Of mental
or physical uniitness, of age, of two years SER
vice and honorable discharge therefrOm, or eX-
emption of being in the service, must be settled
according to the state of facts at the time when
the questions are 10 be decided.
The militia of New York having been called 10
meet an emergency for term not exceeding 100
days, may all be discharged from service before
the draft shall actually take place; they may be
discharged at any time by the President, and he
is not bound TO retain their services any longer
than the public necessity requires them.
| If the draft ordered on the 9th of September
should be postponed, or not completed on that
day, no question of exemption can arise, except
when the person claiming exemption is in the
military service of the United States at the time
| when he shall be personally drafted
| No draft will be required of New York, If that
State shall fill It's quota with volunteers. Hence
. for this reason the question may he purely q
| theoretical one. SO also it will be borne in mind
the exemption from draft is personal privilege
TO be used by and for the benefit only OK the per-
son drafted he may prefer 10 waive his exemp-
ton, and to remain in the service. The question
of the right Of exemption arises only between the
| Government of the United States and the inai-
| vidual concerned.
The statement Of the law by General Sandford
| in the General Orders above cited, Is founded on
misapprenension of the meaning Of the statute.
| II is erroneous to say "that the members of
| those regiments now mustered on duty, when
| mustered into service by the United States, for
one hundred days, will be exempted frsm the
| draft which Is TO be made In September next"
But by the true construction of the act those per-
sons only who shall be actually in the service OF
| tho United States at the time when their respec-
tive names shall be drafted, will be exempted
| from that draft If such exemption shall be duly
| claimed.
Very respectfully, your obedient servant,
| wv WuTTTNq SnlipitOF of the War DeDartmput