This draft, though not directly fruitful in producing men, served the essential purpose of substituting the reality for the semblance of conscription, and of establishing the power and determination of the Government to proceed in the re-enforcement of its armies. When it was restored to volunteering had stopped, and would not have been again started without the spur of the draft. Having applied it and increased the bounties to the largest practicable limit, a call for volunteers was made on the 17th of October, 1863, a and the 5th of January following was fixed as the day for commencing a second draft in all localities that had not furnished their quota of volunteers by that time.
Indefiniteness in certain parts of the law caused misunderstanding and embarrassment in effecting the draft. The most marked instance of this were the following: First, an order was issued from this office on the 12th of July, 1863, in the following terms, to wit:
Any drafted person paying $300, under section 13 of the enrollment act, is thereby exempt from further liability under that draft, but not from any subsequent draft. Any drafted person furnishing an acceptable substitute is exempt from military service for the period for which said substitute is mustered into the service.
The intention and effect of this order was to encourage the presentation of men instead of money. It was in accordance with the law, as interpreted by the Solicitor of the War Department in the following opinion:
It has been claimed that persons paying $300 are discharged from further liability, not only under that draft but under all other drafts which may be ordered during the time for which they were originally drafted. This supposed exemption has been asserted through misapprehension of the language and meaning of the statute.
The liability of certain citizens of the United States to do military duty is declared in the first section of the act, viz: "All able-bodied citizens, $c., between the ages of twenty and forty-five (except, &c.) are hereby declared to constitute the national forces, and shall be liable to perform military duty in the service of the United States when called out by the President for that purpose." Provisions are made for enrolling said forces; and "All persons thus enrolled shall be subject, for two years after the 1st day of July succeeding the enrollment, to be called into the military service of the United States, and to continue in service during the present rebellion, not, however, exceeding three years." These quotations show that the liability of enrolled men to be called into the military service exists, and is derived from the declaratory clauses of the statute, and is fixed and made personal by the enrollment, even if not draft be made or if no persons are actually called into the service. Liability is not destroyed if no service is required or rendered, as a debt is not discharged while payment is not called for or received.
Whenever the President determines to call out a portion of the national forces the Board of Enrollment must make a draft, or selection by lot; the persons drafted are required to be notified of the draft by a special notice, "requiring them to appear at a designated rendezvous and report for duty."
The duty or liability imposed upon the citizen by the drafts, as stated in the statute, is to appear and report for duty, the liability to serve as a soldier having been imposed upon him, not by the draft, but by the declaratory sections of the act above cited; and then he is discharged from liability under that draft, either by furnishing a substitute, or by paying the commutation money, or by being sent home as a supernumerary in accordance with section 16, he is simply released from his obligation to "report for duty" under the notice which has been served on him. In other words, whether a drafted man is discharged as an exempt, or released from his obligation to "report for duty" by paying his money or furnishing his substitute, or discharged because "the obtained," in all these case he is discharged from further liability under that draft, and that only. But no discharge takes away his liability to be deemed part of the "military forces," nor his liability to be continued as "enrolled," nor his liability to do military duty under any succeeding draft.
a See Appendix, Doc. 36.