The prevailing spirit of the act, cropping out in almost every section, is the tenderness with which it handles the subject. It scrupulously seeks to avoid all violence, injustice, and suffering, and while it firmly asks the service of the people, distributes that service equally among all. And herein is its superiority over all previous militia acts. State and national officers, members of Congress, custom-house officials, postmasters, clerks, and the favored and fortunate generally, were heretofore exempt, instead of those who, by misfortune or otherwise, were in circumstances of dependence and want.
But the act of March 3d, thus general in its application, thus humane in its provisions, is not without omissions and imperfections. But these arise rather from the language of its provisions, than from its general design. Let us briefly examine these provisions as they are given in the second section of the act.
Clause second exempts 'the only son liable to military duty of a widow dependent upon his labor for support.'
The Judge Advocate General has decided, that 'a woman divorced from her husband who is still living, is not in the sense of the law a widow—a widow being defined to be a woman who has lost her husband by death.' Her only son, therefore, upon whom she may be dependent for her support, cannot be exempted. A divorced woman, whose husband is still living, may thus be left entirely without support, unless she have several sons 'liable to draft,' in which case, she may elect one for exemption.
Clause third exempts 'the only son of aged or infirm parent or parents dependent upon his labor for support.'
It has been decided that a son cannot be exempted under this clause unless both the parents are 'aged or infirm.' Thus it may happen that, by reason of bodily or mental infirmity, a father, with a family of helpless children, may be totally dependent upon the exertions of the mother and a draftable son. But the law pitilessly takes the son without possibility of exemption, throwing the entire burden of support upon the mother.
But no clause of this section is more liable to objection than the fourth, which reads as follows: 'Where there are two or more sons of aged or infirm parents subject to draft, the father, or if he be dead, the mother, may elect which son shall be exempt.' It will be observed that the provision—'dependent upon his labor for support'—is omitted in this clause. Now, to interpret its language by the legal method of construction, by the context, it would seem that such dependence were necessary in order to secure the exemption. For the two clauses immediately preceding exempt 'the only son of a widow or of aged or infirm parent or parents dependent upon his labor for support. The two immediately following, exempt 'the brother or father of orphan children under twelve years of age dependent upon his labor for support.' That is, four of the five clauses referring strictly to this subject, grant exemption to the applicant only when some one depends upon him for support. Hence it may be presumed, according to an admitted custom of legal interpretation, that in the remaining clause, standing between the other four, the question of dependence, though not expressly stated, is clearly implied.
But an 'opinion,' published by the Provost-Marshal General's Bureau for the guidance of the boards of enrolment, declares that 'the right to this exemption does not rest upon the parents' dependence on the labor of their sons for their support. The law does not contemplate any such dependence.'
What is the result of this decision?
First, it places the wealthy and independent on the same footing with the indigent and needy, exacting from the one no more service than from the other.