[Sections 6 and 7. Duties of provost-marshal-general and provost marshals.]

SEC. 8. And be it further enacted, That in each of said districts there shall be a board of enrolment, to be composed of the provost-marshal, as president, and two other persons, to be appointed by the President of the United States, one of whom shall be a licensed and practising physician and surgeon.

SEC. 9. And be it further enacted, That it shall be the duty of the said board to divide the district into sub-districts of convenient size, if they shall deem it necessary, not exceeding two, without the direction of the Secretary of War, and to appoint, on or before the tenth day of March next, and in each alternate year thereafter, an enrolling officer for each sub-district, and to furnish him with proper blanks and instructions; and he shall immediately proceed to enrol all persons subject to military duty, noting their respective places of residence, ages on the first day of July following, and their occupation, and shall, on or before the first day of April, report the same to the board of enrolment, to be consolidated into one list, a copy of which shall be transmitted to the provost-marshal-general on or before the first day of May succeeding the enrolment:

SEC. II. And be it further enacted, That all persons thus enrolled shall be subject, for two years after the first day of July succeeding the enrolment, to be called into the military service of the United States, and to continue in service during the present rebellion, not, however, exceeding the term of three years. . . .

SEC. 12. And be it further enacted, That whenever it may be necessary to call out the national forces for military service, the President is hereby authorized to assign to each district the number of men to be furnished by said district; and thereupon the enrolling board shall, under the direction of the President, make a draft of the required number, and fifty per cent. in addition. . . .

SEC. 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, as the Secretary may determine,

for the procuration of each substitute; . . . And 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

...

*

SEC. 25. And be it further enacted, 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 wilfully 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 forthwith delivered to the civil authorities, and, upon conviction thereof, be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, or by both of said punishments.

*

No. 135. Act relating to Habeas Corpus

March 3, 1863

APRIL 27, 1861, Lincoln by executive order authorized General Scott, in his discretion, to suspend the privilege of the writ of habeas corpus on any military line between Philadelphia and Washington. July 2 this authorization was extended to the military line between New York and Washington. A proclamation of May 10 authorized suspension in the islands of Key West, the Tortugas, and Santa Rosa. Doubt as to the legality of these executive orders, however, reënforced by public criticism of the numerous arrests of civilians in pursuance of them, led to the issue, February 14, 1862, of an order directing the release of political prisoners held in military custody, "on their subscribing to a parole engaging them to render no aid or comfort to the enemies in hostility to the United States"; but a proclamation of September 24 declared all disloyal persons subject to martial law, and suspended the privilege of the writ as to such persons. An act of August 6, 1861, had in the meantime validated all the acts, proclamations, and orders of the President, relating to military affairs, issued since the 4th of March preceding. A bill

"to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof," was introduced in the House, December 8, 1862, by Thaddeus Stevens, and passed the same day, notwithstanding strong opposition, by a vote of 91 to 46. On the 22d a protest against the bill, signed by thirty-six members of the House, was, by a vote of 75 to 40, refused entry on the journal. The bill was reported with amendments in the Senate January 15, 1863, and passed that body on the 27th, after long discussion, by a vote of 33 to 7. The House, by a vote of 35 to 114, refused to agree to the Senate amendments, and the bill received its final form from a conference committee, the Senate receding from its amendments and accepting a modified form of the House bill. A proclamation of September 15, under the act, declared a general suspension of the privilege of the writ throughout the United States; this was revoked as to the loyal States December 1, 1865. An amendatory act was passed May 11, 1866. An act of March 2, 1867, validated all acts, proclamations, and orders of the President respecting martial law, &c., after March 4, 1861, and before July 1, 1866.

-

REFERENCES. Text in U.S. Statutes at Large, XII., 755-758. For the proceedings see the House and Senate Journals, 37th Cong., 3d Sess., and the Cong. Globe. The Pendleton protest is in the Globe, December 22; the Senate amendments, ibid., February 19, House proceedings. Numerous orders, reports, letters, etc., are collected in McPherson, Rebellion, 152–194; see also House Exec. Doc. 6, 37th Cong., 1st Sess., and Senate Exec. Doc. 11, 37th Cong., 3d Sess. For Taney's opinion, 1861, against the right of the President to suspend, see Ex parte Merryman, Taney's Reports, 246; cf. Tyler, Taney, chap. 6. The opinion of Bates affirming the right is in House Exec. Doc. 5, 37th Cong., 1st Sess. Cf. Ex parte Milligan (1866), 4 Wallace, 2, and Garfield's argument, Works, I., 158; Vallandigham's Case, 1 Wallace, 243. On Lincoln's proclamation of September 24, 1862, see Curtis, Constitutional History, II., 668-686. The act of indemnity of March 2, 1867, is in MacDonald's Select Statutes, No. 58. See also Thayer, Cases on Constitutional Law, 2374, 2375; reports of the Provost Marshal General; Whiting, War Powers.

An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases.

Be it enacted That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons

detained by him by authority of the President; but upon the certificate, under oath, of the officer having charge of any one so detained that such person is detained by him as a prisoner under authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ, so long as said suspension by the President shall remain in force, and said rebellion continue.

SEC. 2. And be it further enacted, That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia a list of the names of all persons, citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest; . . . And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after the passage of this act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said judge's order; and in case he shall delay or refuse so to do, he shall be subject to indictment for a misdemeanor, and be punished by a fine of not less than five hundred dollars and imprisonment in the common jail for a period not less than six months, in the discretion of the court; Provided, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance

to the Government of the United States, and to support the Constitution thereof; and that he or she will not hereafter in any way encourage or give aid and comfort to the present rebellion, or the supporters thereof.

SEC. 3. And be it further enacted, That in case any of such prisoners shall be under indictment or presentment for any offence against the laws of the United States, and by existing laws bail or a recognizance may be taken for the appearance for trial of such person, it shall be the duty of said judge at once to discharge such person upon bail or recognizance for trial as aforesaid. And in case the said Secretaries of State and War shall for any reason refuse or omit to furnish the said list of persons held as prisoners as aforesaid at the time of the passage of this act within twenty days thereafter, and of such persons as hereafter may be arrested within twenty days from the time of the arrest, any citizen may, after a grand jury shall have terminated its session without finding an indictment or presentment, as provided in the second section of this act, by a petition alleging the facts aforesaid touching any of the persons so as aforesaid imprisoned, supported by the oath of such petitioner or any other credible person, obtain and be entitled to have the said judge's order to discharge such prisoner on the same terms and conditions prescribed in the second section of this act: Provided, however, That the said judge shall be satisfied such allegations are true.

SEC. 4. And be it further enacted, That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending, or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue.

*