Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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DRAFTS

I.387.1

DRAFTS (IN U. S. HISTORY).

I.387.2

—I. THE DRAFT OF 1814. The letters of Washington during the revolution contain abundant evidence of the evils of a reliance in war upon the militia, which force he characterized in general, Dec. 5, 1776, as "a destructive, expensive and disorderly mob." Under the confederacy nothing could be done to improve the discipline of the militia, but, by the constitution, power to organize, arm and discipline it was given to congress, with the idea of thus furnishing a substitute for a standing army. Knox, the secretary of war, who either had or drew from Hamilton very radical ideas on the subject, submitted to congress, in January, 1790, a plan for the classification of the militia into an "advanced corps" (18 to 20 years of age), a "main corps" (21 to 45 years of age), and a "reserved corps" (45 to 60 years of age). Each corps was to be divided into sections of 12 persons each, and in case of necessity for an army one person was to be taken by lot from each section, or from a group of sections of the advanced corps or of the main corps. Nothing was done with Knox's plan, and the militia law of 1795 simply adopted the state militia systems without any idea of draft or of compelling military service by federal authority. Knox's idea, however, was not forgotten, and after 1805 Jefferson several times revived it in his messages, but without success. It was as yet evident to the democratic (republican) leaders in congress that the militia was a state institution, and that, when it should be called into the federal service, the power to select the regiments or organizations to fill the state quota must be in the states exclusively.

I.387.3

—When war was declared in 1812, the war party, acknowledging the weakness of the regular army, placed a large but vague reliance upon militia as a reserve force. This confidence was from the first found to be baseless. As soon as the invasion of Canada had called off most of the regular troops from the seacoast, requisitions were made upon the state governors for militia to do garrison duty in their stead. The call was at once refused by the governors of Connecticut and Massachusetts, on the ground that none of the constitutional contingencies of rebellion, invasion or resistance to the laws had occurred so as to justify the summons for militia. Even when invasion and blockade compelled the mustering of the militia, long wranglings were induced by the articles of war, which gave regular officers precedence over those of the militia, and thus, as the latter complained, took away the right of the states to officer their own troops. In 1813 a bill for classifying the militia passed the house, but was lost in the senate. The excessive demands of Great Britain as the price of peace in the next year revived the war feeling among the people, and increased the necessity for an increase of the army, to which volunteering was incompetent. The state legislatures of New York and Virginia led off in proposing to the federal government a classification and draft from the militia. This plan was recommended by the president in his message of Sept 20, 1814, and a bill to carry it into effect, mainly drawn up by Monroe, was at once introduced into congress. It occasioned great alarm and indignation among the federalists, (see CONVENTION, HARTFORD), and even among the democrats was generally looked upon as of doubtful utility and more than doubtful legality. Nevertheless it passed the senate Nov. 10, and the house Dec 9; but in the latter body, probably with a design unfriendly to the bill, the term of service had been reduced from three years to one year. On this convenient issue the two houses disagreed, and the bill was lost. The "Draft of 1814," as it is often called, was therefore a failure.

I.387.4

—II. THE DRAFT OF 1863. During the first years of the rebellion the armies were filled by volunteering, with the exception of an occasional call for militia for short terms. No attempt was made to enforce enlistments. When, Feb. 5, 1863, the debate was opened upon the Conscription Bill, its whole theory and defense were based upon the idea of enrolling the militia by federal authority and drafting individuals therefrom to fill up the president's calls for troops, very much after the plan of the draft of 1814. It was very soon found impossible to meet the democratic objections to the constitutionality of a bill for this purpose, and Wilson, of Massachusetts, on the 16th, took the new ground, upon which the act was subsequently upheld by the courts, that the bill was based upon the power "to raise armies"; that it had no reference whatever to the state militia; but that it called every able-bodied citizen of military age into the federal service, and selected the necessary number by lot. By the terms of the bill, as it became law March 3, 1863, with the amendments of Feb. 24, 1864, and July 4, 1864, the enrollment of the able-bodied citizens between 18 and 45 was to begin April 1, under the direction of provost marshals; the quotas of congressional districts, under future calls for troops, were to be filled by drafts from the enrolled citizens, in default of volunteering; substitutes were to be accepted; a commutation of $300 for exemption from the draft was allowed; and all persons refusing obedience were to be punished as deserters. The application of the draft principle to a call for 300,000 troops early in May, was the cause of intense excitement in eastern cities, where quotas were already in arrears. Charges were made, and to a considerable extent proved, that subordinate officials had so arranged the draft as to bear disproportionately on democratic districts. Thus, from nine democratic districts of New York state (with a voting population of 151,243), 33,729 soldiers were to be drafted; while from 19 republican districts (with a voting population of 457,257), but 39,626 were to be drafted. These manifest discrepancies were promptly corrected by the war department, but the absence of the state militia in Pennsylvania enabled the mob in various cities to resist the draft, with considerable temporary success, as an oppressive, illegal and partisan measure. New York city was completely at the mercy of the rioters for four days, July 13-16, but in other cities the police force was strong enough to enforce the law. Wherever the draft had been stopped by violence, it was afterward resumed and carried into full effect.

I.387.5

—III. CONFEDERATE STATES' CONSCRIPTION. Conscription in the southern states preceded and, to some extent, compelled the adoption of conscription by the federal government. The act of April 16, 1862, with the amendment of Sept. 27, 1862, was rather a levy en mass than a conscription. It made no provision for draft, but placed all white men between the ages of 18 and 45, resident in the confederate states, and not legally exempt, in the confederate service. July 18, 1863, by proclamation, president Davis put the conscription law into operation, and directed the enrollment to begin at once. Feb. 17, 1864, a second conscription law was passed. It added to the former conscript ages those between 17 and 18, and between 45 and 50, who were to do duty as a garrison and reserve corps. It excepted certain classes, such as one editor to each newspaper, one apothecary to each drug store, and one farmer to each farm employing 15 able-bodied slaves, and provided that all persons who should neglect or refuse to be enrolled should be placed in the field service for the war. No substitutes were or could be accepted, for every person able to do military duty was himself already conscripted. Very little resistance was made to this sweeping levy, for the government of the confederate states showed little mercy to opposition of any kind. Only through the conscription were the southern armies filled for the last two years of the war, and its enforcement was so rigorous and inquisitorial that toward the end of the war the confederacy generally had more men in the field than it could provide with arms.

I.387.6

—IV. DRAFTS IN GENERAL. The liability of every able-bodied citizen of military age to do military duty, or to render its equivalent, has been imbedded in the constitutions of the various states, the reason being thus clearly stated in the New York constitution of 1777: "It is the duty of every man who enjoys the protection of society to be prepared and willing to defend it." By parity of reasoning, it would seem impossible, even in the absence of express stipulation on the subject, to deny the obligation of the citizen to be "prepared and willing to defend" the federal government, the national society, also, whose protection he enjoys, or the power of congress, if necessary, to make military service compulsory. The constitution, however, has not left the matter in doubt or to construction (see CONGRESS, POWERS OF, VIII.); it has expressly given to congress the power to "raise armies," without any restriction or limitation as to the manner or extent. Until 1863, nevertheless, the power to draft, with which the power to raise armies is pregnant, remained in abeyance, and its first exercise in 1863 marks strongly a great advance in the nationalization of the government. In 1795 the military reliance of the country, outside of the regular army, was placed exclusively on the state forces of militia. In 1798 the authority given by congress to the president to accept organizations of volunteers, and commission their officers, was widely censured as an infringement upon the militia rights of the states. In 1814 public opinion had advanced so far as to consent to the employment of volunteers under national authority, but insisted that armies were to be "raised" only by voluntary enlistment, and resisted a draft even when disguised as an enrollment of the militia. In 1863 the general government claimed and exercised the right to compel service ad libitum from the mass of its citizens, a power which justice Story in 1833 did not suggest, and probably did not dream of. And yet, when this power was first exercised in 1863-4, the constitutional arguments against it were surprisingly feeble. They were, in brief, that liability to compulsory military service was due, before the adoption of the constitution, to the states; that it had not been granted to the federal government by the constitution; and that it must, therefore, still be enforced, if at all, only by the states. Further arguments were drawn ab inconvenienti—from its possible absorption of state militia, and even of state civil officers, into the federal service—but these we may pass over. On the other hand, the courts have steadily held that, as the constitution has given to congress the unlimited power to "raise armies." it has given therewith unlimited discretion of choice of the method by which armies shall be raised, whether by volunteering or by draft.

I.387.7

—But, however sound may be the theory of conscription or draft in the United States, in practice it has always been found troublesome, irritating, and very barren of results compared with volunteering, because of inevitable exemptions, rejections, and desertions. In 1863, on an enrollment of 3,113,305 able-bodied citizens between 18 and 45, it is doubtful if 100,000 conscripts were obtained for the army. The usual results of the draft are exemplified in one of provost marshal general Fry's periodical reports in 1864: Number of drafted men examined, 14,741. Number exempted for physical disability, 4,374; number exempted for all other causes, 2,632; number paid commutation money, 5,050; number who have furnished substitutes, 1,416, total, 13,472 Number held for personal service, 1,269. The results in substitutes and recruits must be still further diminished by the ultimate loss from desertion, which is not estimated here. All the hardships of the system came with most crushing severity upon those least able to endure or to avoid them. But it must not be understood that the conscription law was therefore useless; on the contrary, as an assertion of the enormous reserve power of the federal government, and as a stimulus to the energy of states and individuals in encouraging volunteering, it was of the very greatest value. It is very evident that if the United States should ever again be compelled to maintain large armies, volunteering will still be the rule, and the draft power will only be held in terrorem to insure the prompt action of the states in filling their quotas. (See CONVENTION, HARTFORD; REBELLION; WAR POWER; CONFEDERATE STATES; UNITED; STATES.)

I.387.8

—See (I.), 1 Schouler's United States, 130; Dwight's Hartford Convention, 247, 318; 6 Hildreth's United States, 529; 2 Ingersoll's Second War with Great Britain, 270; Carey's Olive Branch, 378; 3 Spencer's United States, 262; the act of Feb. 28, 1795, is in 1 Stat. at Large, 424, and see also 12 Wheat., 19. (II.), McPherson's History of the Rebellion, 261; Appleton's Annual Cyclopædia, 1863-4; D. M. Barnes' Draft Riots in New York; Baker's History of the Secret Service; 4 Victor's History of the Rebellion, 124; the acts of March 3, 1863, Feb. 24, and July 4, 1864, are in 12 Stat. at Large, 731, 13 Stat. at Large, 6,379. (III), Pollard's Life of Davis, 325; 16 Gratt., (Va.), 443, 470; 34 Geo., 22, 85; 38 Ala., 457; 39 Ala., 475, 609 (IV.), law authorities under CONGRESS, POWERS OF, VIII.; Whiting's War Powers (10th edit.), 205; 1 Hough's New York Convention Manual of 1867, 33; Story's Commentaries, §§ 1173, 1202; Tiffany's Constitutional Law, § 430.

ALEXANDER JOHNSTON.

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