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In Pennsylvania an attempt was made to obstruct the draft by means of a bill in chancery; and an injunction was granted by a majority of the supreme court of that State, which, however, was not obeyed.

The action of the civil courts in the foregoing particulars threatened for a time, in several districts, to defeat, or at least to suspend, the business of raising troops and of arresting deserters, and either to throw the officers of this bureau into custody, or keep them so constantly before the courts as to prevent their attendance upon the duties for which they were appointed, and thus to defeat the raising of an army according to the law. These difficulties were substantially terminated by the proclamation of the President, dated September 17, as follows:

"By the President of the United States.


"Whereas the Constitution of the United States has ordained that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it; and whereas a rebellion was existing on the third (3d) day of March, 1863, which rebellion is still existing; and whereas, by a statute which was approved on that day, it was enacted by the Senate and House of Representatives in Congress assembled, that during the present insurrection the President of the United States, whenever in his judgment the public safety may require, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof; and whereas, in the judgment of the President, the public safety does require the privilege of the said writ shall now be suspended throughout the United States, in the cases when, by the authority of the President of the United States, military, naval, and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled, drafted, or mustered, or enlisted in or belonging to the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or the rules and articles of war, or the rules and regulations prescribed for the military or naval service by authority of the President of the United States, or for resisting a draft, or for any other offence against the military or naval service:

"Now, therefore, I, Abraham Lincoln, President of the United States, do hereby proclaim and make known to all whom it may concern, that the privilege of the writ of habeas corpus is suspended throughout the United States, in the several cases before mentioned, and that this suspension will continue throughout the duration of the said rebellion, or until this proclamation shall, by a subsequent one to be issued by the President of the United States, be modified or revoked. And I do hereby require all magistrates, attorneys, and other civil officers within the United States, and all officers and others in the military and naval services of the United States, to take distinct notice of this suspension, and to give it full effect, and all citizens of the United States to conduct and govern themselves accordingly, and in conformity with the Constitution of the United States and the laws of Congress in such cases made and provided.

"In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed, this fifteenth (15th) day of September, in the year of our Lord one thousand eight hundred and sixtythree, (1863,) and of the independence of the United States the eightyeighth, (S8th.)


"By the President:


In accordance with the above proclamation I issued circular No. 85.* It directed that, if a writ of habeas corpus should, in violation of the aforesaid proclamation, be sued out and served upon any officer in the military service of the United States, commanding him to produce before any court or judge any person in his custody by authority of the President of the United States, belonging to any one of the classes specified in the President's proclamation, it should be the duty of such officer to make known by his certificate, under oath, to whomsoever may issue or serve such writ of habeas corpus, that the person named in said writ "is detained by him as a prisoner under authority of the President of the United States."

Such return having been made, if any person serving, or attempting to serve, such writ, either by the command of any court or judge, or otherwise, and with or without process of law, should attempt to arrest the officer making such return and holding in custody such person, the said officer was thereby commanded to refuse submission and obedience to such arrest, and if there should be any attempt to take such person from the custody of such officer, or arrest such officer, he should resist such attempt, calling to his aid any force that might be necessary to maintain the authority of the United States and render such resistance effectual.


Section 13 of the original enrolment act is as follows:

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SECTION 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, ($300,) as the Secretary may determine, for the procuration of such substitute, 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 such person so furnishing the substitute, or paying the money, shall be discharged from further liability under that draft. Aud 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 and sent to the nearest military post for trial by court-martial; unless, upon proper showing that he is not liable to do military duty, the board of enrolment shall relieve him from the draft."

I understood it to be the meaning and intention of the law to limit the privilege of putting in a substitute, or paying money, to the period prior to the time fixed for the drafted man's actual appearance, and that during this period he should determine which of the three things he would do, furnish a substitute, pay the commutation money, or appear in person for duty. According to my construction, the privilege of doing either of the first two was to terminate by law with "the day fixed for his appearance." On or before that day he was to pay commutation money or present for duty a substitute or himself.

He could do either of the first two things without being troubled to appear at all. Whichever offer he made the government was required to accept. If he presented himself, and upon examination was found suitable for military duty, I did not consider it in the meaning of the law or the interests of the service that the case should be reopened, and that one of the two special privileges expiring by law with the day fixed for his appearance, should be renewed. To allow this would reduce the number of conscripts, delay the procuring of men, and add to the labors and complications of the bureau. The draft was resorted to only as a stern necessity, after other means of recruiting had failed.

*See Appendix, Doc. 24, Art 2.

The object was to re-enforce its armies. That object could not properly be sacrificed or subordinated to the preferences or prejudices of the parties unpleasantly affected by the draft. It was urged, that being an obnoxious measure it should be administered with gentleness and generosity. The principle thus asserted was not disputed in this bureau. On the contrary, it was made to apply to all of our people; those in front of the enemy as well as those at home. But all tenderness (not required by law) to those who staid at home and waited to be drafted-all consideration for them which would delay the execution of the draft and reduce the number of conscripts furnished by it—was clearly harshness and cruelty to the men who had gone forth voluntarily, and whose safety as well as that of the country depended on prompt re-enforcements. The law did not permit the drafted men to provide substitutes or pay commutation after the day fixed for their appearance. It was not practicable on the day fixed for their appearance both to complete their examination and go through the operation of receiving their money or substitutes. I therefore directed that they must decide before their examination and abide by the choice. The following are official opinions rendered by the Judge Advocate General on the subject:

In the case of a drafted man who fails to furnish a snbstitute, or pay commutation, on or before the day fixed for his appearance.


"Under the 13th section of the enrolment act, it is clear that a party drafted and wishing to furnish a substitute or pay the commutation must do so on or before the day fixed for his appearance.' The privilege expires with that day. If he fails to report himself, and is arrested as a deserter, he has still the right to go before the board of enrolment and prove that he is not liable to do military duty;' but if, on hearing his claim to exemption, he is held to be liable, he cannot escape personal service. He is also, under such circumstances, subject to be proceeded against as a deserter.

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"The right to furnish a substitute or pay the commutation is derived wholly from the enrolment act. That act gives the right only on or before the day fixed for the party's appearance. It does not exist afterwards, simply because the law does not give it.




"J. HOLT, Judge Advocate General."

On the 18th of July, 1863, the following circular was issued, permitting men to pay commutation or provide substitutes after they had been examined and found liable to duty, with the result that, instead of doing either, many availed themselves of the opportunity to abscond:

["Circular No. 51.]

“War Department, Provost Marshal General's Office,

"Washington, D. C., July 18, 1863.

"The 4th paragraph of circular No. 44, issued from this office July 12, 1863, is hereby modified so as to correspond with the following opinion of the Hon. William Whiting, Solicitor of the War Department, which will hereafter govern in all cases in which it is applicable :


"A person drafted into the military service of the United States, under the

out the national forces, and for other purposes," claiming exemption from draft by reason of any disability as provided in said act, has the right to have the question of his disability submitted to and passed upon by the board of enrolment, whose decision thereon is final. If the board shall have decided that the claimant is liable to serve, he has the right, after such decision against him, to pay his commutation money or to furnish his substitute within such extended time as may be fixed by the order of the board of enrolment for his appearance for duty.


WILLIAM WHITING, "Solicitor of the War Department.' "JAMES B. FRY,

"Provost Marshal General."


This draft was made in order to fill up the ranks of the depleted regiments in the field, especially those in the army of the Potomac. During its progress every variety of artifice was put in practice, especially by those opposed to the war, not only to escape service, but to do so at the least possible cost, without regard to the interests of the government. One method was, to take advantage of the ignorance and necessities of negroes and buy them up at a cheap rate as substitutes for drafted white men. So far as this practice was permitted to prevail, the purpose of this draft, filling up the ranks of the old regiments (which were composed of white troops) was defeated. The traffic was carried on among those negroes already freed, and did not benefit those held in bondage, nor was it designed to do so by the persons engaged in it. In view of these facts, and of the further fact that the government could not at that time put negroes to good use as soldiers, the laws in reference to the status of negroes were examined to see whether they required that a negro should be taken as a substitute for a white man under the draft then in progress.

The legislation affecting the status and rights of this class of persons had been gradual and was incomplete. The result of it was before the bureau in the following opinion of the Solicitor of the War Department :

"In regard to the employment of persons of African descent in the military service, their pay and emoluments.


By the 11th section of the act of July 17, 1862, entitled 'An act to define the pay and emoluments,' &c., the President was authorized to employ as many persons of African descent as he should deem necessary and proper for the suppression of this rebellion, and to organize and use them in such manner as he judged for public welfare. No provision was specially made for their compensation in that act.

"By the 15th section of the act of July 17, entitled An act to amend the act calling forth the militia,' &c., it is provided that each person enrolled under that act, (authorizing the raising of one hundred thousand (100,000) volunteers for nine months,) who should enlist in the infantry under the provisions of section 3 of that act, should be entitled to receive his first month's pay and twenty-five dollars ($25) bounty upon the mustering of his company or regiment into the service of the United States. See section 3.

"2. All persons enrolled under that act are entitled to receive (by section 15) the pay and rations now allowed by law to soldiers, according to their respective grades: Provided, That persons of African descent, who should be employed under the law should receive ten dollars ($10) per month and one ration each per day, of which three dollars ($3) might be paid in clothing. By the act of March 3, 1863, cooks of African descent are entitled to receive for their full compensation ten dollars ($10) per month and one ration each per day, three dollars ($3) of which monthly pay may be in clothing.

"It seems, therefore, that in accordance with the foregoing acts persons of African descent received into the service of the United States as volunteers under said act are entitled to receive as pay ten dollars ($10) per month and one ration daily, of which monthly pay three dollars ($3) per month may be in clothing.

"APRIL 25, 1863."

"WILLIAM WHITING, "Solicitor of the War Department.

Congress made a distinction, especially in the matter of bounty, between white and colored troops, and continued it up to July, 1864, as shown in this report, under the head of "Colored men and their relation to the military service." It does not appear whether this resulted only from the general principles governing supply and demand, or from a supposed difference in the value, as soldiers, of these two classes of persons.

The Solicitor, when consulted on the particular point of accepting negroes as substitutes for white men, under the draft then being made, was of opinion that it would not be in accordance with the meaning and intention of the laws in force at the time to do so. In compliance with special instructions from the President, an order was issued on the 20th of July, 1863,* directing that men of African descent should only be accepted as substitutes for each other.



Under the law as it stood at the time this draft was made, no exemptions were allowed on account of religious creeds or conscientious scruples against bearing The amendments approved February 24, 1864, however, granted exemptions to persons of this class, under certain strict limitations. The action of the bureau in this matter is shown in the following report, in answer to a resolution of the House of Representatives:


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"SIR: I have the honor to acknowledge the receipt of a resolution of the House of Representatives, dated February 6, 1865, wherein the Secretary of War is directed to inform this house whether any privileges have been granted to the preachers of any denomination of professing Christians, which have been denied to others; and if so, what denominations these persons belonged to, and also their names and places of residence, with the reason of making such distinction.'

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"In reply, I have the honor to state that I know of no instance in which boards of enrolment have exempted preachers of the Gospel belonging to churches whose religious tenets do bring them within the scope of the act of February, 1864, for enrolling and calling out the national forces,' nor do I know of any 'privileges having been granted to the preachers of any denomination of professing Christians which have been denied to others.'

"I have the honor to be, sir, very respectfully, your obedient servant,

"JAMES B. FRY, 'Provost Marshal General.

"Hon. EDWIN M. STANTON, Secretary of War."

Under the original act embarrassment frequently arose in the attempt to secure, as required by law, military service under the draft from ministers of the Gospel, but more especially from members of the society of "Friends, or Quakers." The experience of the bureau, in this respect, was substantially the same as that of the government during the revolutionary period, with the same class of persons.†

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