The twenty-fifth section of the same act provides "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 will fully 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 forwith delivered to the civil authorities, and, upon conviction thereof, by punished by a fine not exceeding $500, or by imprisonment not exceeding two years, or by both of said punishments."
To do any act which will prevent or impede the enrollment of the national forces (which enrollment is preliminary and essential to the draft) is to prevent or impede the draft itself.
The enrollment 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 be law be taken preparatory to draft. If its, therefore, clearly within the duty of the provost-marshal to subject all persons who obstruct the enrollment, 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 be found standing in a passage through which the drafting officers were required to enter into a place designated by law as the place for 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 so to do, for the purpose of preventing the draft, the non-performance of the act of removal would be itself an "obstruction of the draft, or of an officer in the performance of his duty in relation to it."
Standing must in civil course is, under certain circumstances, a punishable offense; 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 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, of 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.
Solicitor of the War Department.
JAMES B. FRY,
WAR DEPT., PROV. March GENERAL'S OFFICE, Numbers 29.
Washington, June 16, 1863.
The following opinion of Honorable 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 expected, divided into eight classes. No persons but such as are therein excepted shall be exempt. (Sec. 2.)
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 1 succeeding the enrollment, 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. (Sec. 3.)
24 R R-SERIES III, VOL III