The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1865-03-23
Opinion Of Attorney General Speed upon the
Enrolment Act.
Published by order of the Provost Marshal General.
ATTORNEY GENERALS OFFICE,
February 9th, 1865. :

Governor Curtin's letter is in relation to the
construction of the act of Congress. approved
Sd March, 1863, commonly called the Enrolment
Act He insists
lat That the words "period of service since
the commencement of the rebellion, as used in
the 18th section Of the get, do not require the
President in assigning the quotas to the several
States to take into consideration the whole
term of enlistment oil tue volunteer ana mlHlla
man; and t-tt
ID That that part of the act of the Sd of
March. 1868, which makes the period of serxice
an element in the calculation necessary to deter
mine the number of men due from state DIS
trict county or town, has been repealed by the
I'd section Of the act smendatOry of the enroll
ment act approved 24th February, 1864
1t will be more convenient to consider these
questions in the reverse order, lnasmuch as II 1t
shall be found that the repeal has chen made, rs
contended for, the fret point made by the Govern
or need not be considered.
The great objects of the enrolment act are:
lst To declare who shall constitute the nation
al forces; and
I'd To organize plan by which the national
forces can be made available.
Subordinate to the purpose of raising and or
papizIng 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 thereon, should be equallzed
as nearly as practicable
BY the 4th section of the act of the Sd 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 con-
stitute or more, as the President shall direct,
and each Congressional district of the respective
States as fixed by a law of the State next pre-
ceding the enrolment shall constitute one
The 9Th section provides, that there shall be q
Board of Enrolment in each District By the 9Th
section, it is provided that it the Board of en-
relIment shall deem it necessary, district may
be divided into two, and, with the assent of the
Secretary Of War, into any greater number of
subdivisions.
By the 18th section it is made the duty of the
President in assigning to the districts the num-
Der of men TO be furnished therefrom, to take in
to consideration the number of volunteers and
militia furnished by and from the several States
in which said districts are situated and the peri
cd Of their service since the commencement of the
present rebellion; and shall so make said assign
Inent as to equalize the numbers among the dis
ticts of the several States, considering and allow
ing for the numbers already furnished as aore~
said, and the the time of their service
1t is evident, from the face OF this act. that the
several States and districts had furnished a num-
Der of volunteers and militia, and Tor periods of
service.
The fret duty of the President was to have the
national forces enrolled; bis next duty was to as
certain what number of volun teers and militia
had been furnshed from the several States, aud
the periods OF their service since the commence
ment 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 Sd of March, 1868 1t is plain that
he had no right ami power to cut up district
into counties, townships, or wards, in order TO
equalZe the draft therein. The authority given
in the 9Th section to SUBJ divide a district was
for the purpose of facilitating or expe diting the
enrolment and with no reference to equaliza-
tion. 1t might, and doubtless did happen in
many districts, that one well defined portion OF
a district. county, township or ward had
furnished greatly more than the number due
therefrom whilst other parts of the same dis
trict equally well defined had furnished few OF
none, thereby making draft upon the district
necessary; and yet, under the ast, it was not n
the power of the President to make the draft
otherwise than equal over the whJle district
This was unjust and oppressive. In order to
correct this fragrant hardship and injustice. Con-
gress by the ID section of the act of 24th Feb
ruary, 1864 and which is in amendment of the
ret of Sd March, 1868, declared that the quota OF
each ward of a city, town, township, precinct Oh
election district, or of county where the coun>
ty is not divided into wards, towns, townships
precincts or election or districts, shall be, as
nearly as possible, IN proportion to the numbei
OF men resident therein liable to military service
taking INFO account, as far practicable the
number which has been previously furnished
therefrOm.
It is earnestly insisted, and most ingeniously
argued, that the ID section of the amended ac
repeats so much of the 18th section OF the act O
the Sd of March, 1868, as makes it the duty o.
the President te take into consideration the pc.
riud of service of the volunteers and militia from
the several states. The argument in favor o.
the repeal rests wholly upon the words of the
amendatOry act-'the number which has beer
previously furnished therefrum." 1t is insisted
that number" as here used, means an arithme,
tical count. 1 cannot so understand it,
The act ofthe Sd of March, 1868, had prescribed
mode by which the number of men due from
the several States, and the districts OF the severa
States should be ascettained; and that mode re-
qulred, not a simple count, but a consideration O
the period of service of men previously furnished
Congress used the lC0rd 9tumberin the I'd section
of the amendatory act, understanding that The
mode OF count prescribed in the original ac
would be preserved.
There are many evidences upon the face of tn,
amendatory act which show that 1t was not thu
intention of Congress to change the mode o
couut prescribed by the original
The amended act does not undertake 10 say
how the quota of a State or district is to be as
ceraned. In ascertainDg what number is due
from State or district the President must pur
rue the mode prescribed in the l2fh section o
the original act-he must take into consideration
the period ofservice; and yet under the construc
ton insisted upon, when he comes TO equalizt
the draft. authorized to do by the amended &C
in the districts he must be controlled by simpl,
numbers. Il cannot be that Congress intended
mode of count for the States and districts
and different and wholly inconsistent one fo
the subdivisions of districts. Inextricable con
fusion would be the result.
From the language used in various parts of tn,
amendatory act, it is evident that Congress did
not intend TO disturb the mode of count prescrb
ed in the original act. For instance, in the Stf
section of the amendatory act, it s said that til,
town, ward or township shall be credited bu hi
SerUices and in the 18th eectlon, 1.-THE period 10
which he snail have been enlisted, and 1.-THE re
IiOd for which he shall have been drafted al
going to show that time of service was held f
be an element in the count
Nor do think that the argument in favor O
the repeal is aided by the language of the LIST sec
ton OF the act, entitled IAN act further to regu
late and provide for the calling out of the nation
al forces, approved 4th of July 1864. The &C
SAYS that any such volunteer or in case of draft
as hereinafter provided, any substitute shall b.
credited to the town, sc. Congress meant tina
the credit should be given according to the
mode of count prescribed in the act of the 81
March, 1868
The whole purpose of the I'd section of tn
amendat0ry act was TO enable the President Il
equalize the draft in the several districts, sure
not to have one mode of count in ascertainin.
the quotas of the several States and districts
and another mode for equalizing the districts-
Besides, 1t is hardly to be considered that Con
gress would thus incidentally strike from so i'm
portant statute feature SO prominent AM
equitable
am therefore, of the opinion that the mode o
ascertalning and assigning to States and district
their respective quotas prescribed in the I2tl
section OF the act OF Sd July 1868 is not repealed
and that The same mode must be pursued in equal
lzlng the draft among the sub. divisions Of eacl
district
Next comes the question, what is the mode o
count prescribed in the 10Th section of the act O
Sd March, 1868?
1t is very plain that Congress regarded that ,
consideration OF the period of service would
change the rule from a merely numerical one
Some credit was to be given for the period of ser,
vice as well as for the man.. Congress has fixed
various periods of service aud States and dis,
trlcts, and fractions of districts had furnished
men for those periods of service. Now how is
the credit t. be given
Before proceeding to answer the question. il
may be proper 70 state that it is insisted that the
words period of time and thine of service" as
used in the 18th section of the act of March Sd
1908, mean something different from term ofser,
Vicf. 1t seems to me that the phrases mean one
and the same thing When the word tern, ia rsed