1865 April 1: U.S. Attorney General’s Opinion on the Enrollment Act
From The Polk County Press of April 1, 1865. It was published again in the April 8, 1865, issue.
ATTORNEY GENERAL’S OFFICE, }
February, 9, 1865. }
SIR :—In your letter of the 28th of January, you ask my opinion on the legal points presented in the letter of Gov. A. G. Curtin [sic: Andrew C. Curtin] to you, of date the January 25th January.
Gov. Curtin’s letter is in relation the construction of the Act of Congress, approved 3d March,1863, commonly called the Enrollment Act.—He insists—
1st. That the words “period of service,” since the commencement of the rebellion, as used in the 13th section of the Act, do not require the President, in assigning the quotas to the several States to take into consideration the whole term of enlistment of the volunteer and militiaman ; and
2nd. That that part of the Act of the 3d of March, 1863, which makes the period of service an element in the calculation necessary to determine the number of men due from a State district, county or town, has been repealed by the 2d Section of the Act amendatory of the enrollment Act, approved 24th of February 1864.
It is more convenient to consider these questions in the reverse order, inasmuch as if it shall be found that the repeal has been made, as contended for, the first point made by the Governor need not be considered.
The great objects of the Enrollment Act are :
1st. To declare who shall constitute the national forces ; and
2nd. To organize a plan by which the national forces can be made available.
Subordinate to the purpose of raising and organizing the national forces, the plan adopted by congress shows a desire that the draft upon the industrial population of the several States, and the communities thereof, should be equalized as nearly practicable.
By the 4th section of the Act of the 3d of March, 1863, the United States is divided into districts, of which the District of Columbia shall constitute one, each Territory of the United States shall constitute one or more, as the President shall direct, and each Congressional district of the respective States, as fixed by a law of the State next preceeding [sic] the enrollment shall constitute one. The 8th section provides, that there shall be a board of Enrollment in each district. By the 9th section, it is provided, that if the Board of Enrollment shall deem it necessary, a District may be divided into two, and, with the assent of the Secretary of War, into any greater number of sub-divisions.
By the 12th section, it is made the duty of the President, in assigning to the Districts the number of men to be furnished therefrom, to take into consideration the number of volunteers and militia furnished by and from the several States in which said districts are situated, and the period of their service since the commencement of the present rebellion ; and shall so make said assignment as to equalize the numbers among the districts of the several States considering and allowing for the numbers already furnished as aforesaid, and the time of their services.
It is evident from the face of this Act that the several States and Districts had furnished a number of volunteers and militia, and for the periods of service.
The first duty of the President was to have the national forces enrolled ; his next duty was to ascertain what number of volunteers and militia had been furnished from the several States and the periods of their service since the commencement of the present rebellion ; and then, from what districts in the several States they came, that he might equalize the numbers among the Districts of the several States, considering and allowing for the numbers already furnished as aforesaid, and the time of their service. Under the Act of the 3d of March, 1863 it is plain that he had no right and power to cut up a District into counties, townships, precints [sic] or wards, in order to equalize the draft therein. The authority given in the 9th section to sub-divide a district was for the purpose of facilitating or expediating [sic: expediting] the enrollment, and with no reference to equalization. It might and doubtless did happen in many districts, that one well defined portion of a district, as a county, township or ward, had furnished greatly more than the number due therefrom, whilst other parts of the same district, equally defined, had furnished few or none, thereby making a draft upon the district. This was unjust and oppressive. In order to correct this flagrant hardship and injustice, Congress, by the 2nd section of the Act 24th of February, 1844, and which is an amendment of the Act 3rd of March, 1863, declared that the quota of each ward of a city, town, township, precinct, or election districts, shall be, as nearly as possible, in proportion to the number of men resident there in liable to military service, taking into account, as far as practicable, the number which has been previously furnished therefrom.
It is earnestly insisted, and most ingeniously argued, that this 2nd section of the amended Act repeals so much of the 12th section of the Act of the 3rd of March 1863, as makes it the duty of the President to take in to consideration the period of service of the volunteers and militia from the several States. The argument in favor of the repeal rests wholly upon the words of the amendatory Act-
. .Your obedient servant,
(Signed) . JAMES SPEED,
. .Attorney General.
To the PRESIDENT.