"Foreigners who have voted at our elections are regarded as having exercised a franchise that subjects them to military duty. Declaration of intention to become naturalized is not of itself sufficient to prevent their taking advantage of their alienage, but a man who votes must bear arms."
It sounds like there was an interesting backstory to Edward Salomon's communication to Secretary Stanton regarding foreign born residents who had declared their intention to become citizens of the US. Perhaps there was a move to make foreign born residents exempt from military service. Will have to look into that.
Stanton was not correct - a declaration of intention to become a citizen was indeed enough to subject a male to possible military service - voting was not a criteria for possible service:
"...and persons of foreign birth who shall have declared on oath their intention to become citizens under and in pursuance liable of the laws thereof, between the ages of twenty and forty-five years, except as hereinafter excepted, 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 ."
-see Enrollment Act of 1863 (12 Stat. 731)
It sounds like there was an interesting backstory to Edward Salomon's communication to Secretary Stanton regarding foreign born residents who had declared their intention to become citizens of the US. Perhaps there was a move to make foreign born residents exempt from military service. Will have to look into that.
There was certainly a backstory. Conscription before the formal draft worked by having the Federal government give each state a quota to fill. Some states desired to fill their quota with non-citizens, in preference to sending their own home grown boys.
The draft was not very popular and led to the largest riot in American history. Part of the U.S. Army went from Gettysburg to NYC, with naval ships joining in to bombard downtown NYC. Blacks were hanged from street lamps, later the subject of a Billie Holliday song, Strange Fruit.
It would appear there were no definitive laws to determine who was eligible to be drafted. There was no previous draft to legislate. However, there is no doubt that resident foreign nationals were drafted as a matter of executive discretion.
Stanton was not correct - a declaration of intention to become a citizen was indeed enough to subject a male to possible military service - voting was not a criteria for possible service:"...and persons of foreign birth who shall have declared on oath their intention to become citizens under and in pursuance liable of the laws thereof, between the ages of twenty and forty-five years, except as hereinafter excepted, 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 ."
-see Enrollment Act of 1863 (12 Stat. 731)
Stanton's letter was of August 12, 1862, and the Act of 1863 at 12 Stat. 731 was of March 3, 1863. In 1862, they sort of made it up as they went along, as a matter of executive discretion. The draft of 1862 was made under the Militia Act of March 2, 1795, as amended by the Militia Act of July 17, 1862.
A declaration of intent to become a citizen was equally subjective as a right to vote. Regarding nationality, a declaration of intent means nothing. The law of 1863 was objectionable on the grounds an alien could be drafted to fight against the country of his citizenship (and the lack of an actual draft law).
Some states conferred the right to vote upon a declaration of intent. The argument for draftability was that it made them citizens of the state. At the time there was no constitutional definition of a citizen of the United States, and many thought one could be a citizen of a state without being a citizen of the United States.
James G. Randall, Constitutional Problems Under Lincoln, University of Illinois Press, 1951, pp. 254-55:
The Federal statutes contained, in 1862, no specific provision for a draft. Notwithstanding this, Federal drafts were conducted in various States in that year. Even where the draft of this year was conducted uioon State authority, this was done under the President's order. It is terefore apparent that the first draft for the raising of Federal troops ever conducted in our history under the Constitution was a presidential draft. It was instituted by rules and regulations which the President promulgated through the War Department upon authority only inferentially from an act of Congress. This was a truly remarkable extension of executive power in a democratic state, and the legality of the draft of 1862 was a matter of grave question in the minds of many thoughtful men.
https://tile.loc.gov/storage-services/service/ll/llsl//llsl-c3/llsl-c3.pdf
1 Stat. 424, February 28, 1795 [pdf pg 84]
An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for those purposes.
https://tile.loc.gov/storage-services/service/ll/llsl//llsl-c37/llsl-c37.pdf
12 Stat. 597, July 17, 1862 [pdf page 343]
An Act to amend the Act calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel Invasions, approved February twenty-eight, seventeen hundred and ninety-five, and the Acts amendatory thereof, and for other Purposes.