Doc. 9.-the National enrolment.
Solicitor Whiting's opinion.
war Department, Office Provost-Marshal General, June 9.the following opinion of Hon. William Whiting, solicitor of the War Department, has been ordered to be published by the Secretary of War: The National forces, liable to perform military duty, include all able-bodied male citizens of the  United States, and persons of foreign birth who have declared their intention to become citizens according to law, being between twenty and forty-five years of age. Certain persons are excepted, divided into eight classes. No persons but such as are therein excepted shall be exempt. (Sec. 2d.) It is declared the duty of the enrolling officers to enroll all persons subject to military duty, (Sec. 9.) All persons thus enrolled shall be subject for two years after July first succeeding the enrolment, to be called into the military service, (Sec. 11.) The national forces (not now in the military service) enrolled under the act shall be divided into two classes, etc., (Sec. 3.) Those of the second class shall not be called out 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 enrolment, those who were in the military service at the time the act went into effect are not to be included in that class which is subject to the first draft. Several provisions of this statute are inconsistent to the idea that persons then in the service were to be treated as liable to draft from the first class. Thus it is provided in the seventh section that regulars, volunteers, militiamen, or persons called into the service under this or any other act of Congress, were to be arrested as deserters, wherever they might be found, by the provost-marshal, and to be sent to the nearest military post, thus admitting a plain distinction between these different classes of persons, namely, those who were then in the service and those who were to be drafted in. The same distinction between those who were in the service and those who were to be drafted in is recognized in Sec. 18, which provides bounties to those who being then in the service should volunteer to reenlist. The statute providing for the classification of troops from which drafts are to be made enacts as follows: (Sec. 3d.) That the national forces of the United States, not now in the military service, enrolled under this act, shall be divided into two classes. Thus those who are “now” (that is to say, on the third of March, 1863) in the military service, are not to be included in either of these classes. And as those then (March third) in the service were not included in either of these two classes, they may be said to constitute a class of persons to be enrolled under the provisions of this act. As between the first and second class the law (Sec. 3) requires that the second class shall not in any district be called into the service of the United States until those of the first shall have been thus called in. Volunteers or regulars who had been in the service, and who had been discharged therefrom, or had resigned prior to the third day of March, 1863, are liable to be drafted in the same manner as if they had never been in the service; no regard is to be paid to their former period of service or to the length or brevity of the period between the date of their discharge and that of the draft. Volunteers who were in the service of the United States on the third of March, 1863, and have since 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 a draft, which is to be made from that class of the forces of the United States under the provisions of this act.
war Department, Provost-Marshal General's office, Washington, D. C., June 6.The following opinion of Hon. William Whiting, solicitor of the War Department, has been ordered to be published by the Secretary of War: opinion. It is made the duty of provost-marshals “to obey all lawful orders and regulations of the provost-marshal general, and such as shall be prescribed by law concerning the enrolment and calling into service of the national forces.” (Act March 3, 1863. Sec. 7.) The twenty-fifth Section of the same act provides that “if any person shall resist any draft of men enrolled under the 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 man not to appear at the place of rendezvous, or wilfully persuade 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 shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, or by both of said punishments.” Two do any act which will prevent or impede the enrolment of the national forces (which enrolment is preliminary and essential to the draft) is to prevent or impede the draft itself. The enrolment is a service to be performed by the provost-marshal in relation to the draft. It is not the act of drawing ballots out of a ballot-box itself, but it is “in relation to it,” and is the first step that must by law be taken preparatory to the draft. It is therefore clearly within the duty of the provost-marshal to subject all persons who obstruct the enrolment, the meeting of the board, or any other proceeding which is preliminary and essential to the draft, to summary arrest, according to the provisions of Section 25. There are many ways of obstructing officers in  the performance of their services or duties in making, or in relation to, the draft, without employing physical force. The neglect or refusal to do an act required by law to be done may itself be such an obstruction as to subject the offender to arrest. Suppose a person to be found standing in a passage through which the drafting officers are required to enter into a place designated by law as the place for the draft; and suppose that his standing in that place would prevent access by these officers to the place of draft. If they request him to move away and he neglects or refuses to do so for the purpose of preventing the draft, the nonperformance of the act of removal would be of itself an “obstruction of the draft, or of an officer in the performance of his duty in relation to it.” Standing mute in civil courts is, under certain circumstances, a punishable offence. And so if a person, with intent to prevent the draft, refuses to give his true name when lawfully requested so to do .by an officer whose legal duty it is to ascertain and enroll it, it is an obstruction of that officer in the performance of one of his duties in relation to the draft. So also is the giving of false names with the same illegal intent; and the offender will in either case be subject to summary arrest by the provost-marshal.