The Portland daily press., 1865-03-14
Provost HInrshaI's Once
OPINION.
Attorney Generals Office,
FebruaFV q. 1885

SIR.-In your letter oftbe 18th January lou ask
nv opinion on the legal pents presents in the let
ter of governor A. u. CURTIN, TO you, OF date 25th
saoSsynor cuRrrN's letter ia in relation to he
Of the Act OF CongIess, approved Sd
March 1863, comm only called the Enrolment Act
He insists
ist mat the words "peTicd ofserviee,n since the
commencement of the rebel ion, as used IN The 18th
section of the Act, do not require me rresaent' IN
ming the quotas to he sever STATE TO tase IN
to consideration the whole torn OF enlistment OF ire
" unteer ana militia man ard ..,
I'd. That that part of the Act of the 81 OF March,
1853. which ,es the period OF service an element
In the calculation necessary o determine Inc rum
Der OF men due a Stats district, county or
town. has bsen repealed by the I'd ction Of the Act
amendatorw 81 the Enrolment Act approved gam
February, 1864.
IL va be mOre convenient to consid,r these ques-
tions the reverse order, ina.mush If IL sha DO
found that the repeal has teen mad as contendtd
Tor. the fret point made by the Governor need not
" The treat offsets fthe Enroluent Act ares
Is. to declare who shall constitute the national
forces; and
forces can be made available
Snoordinats TO the purpose OF railing and organ.
izing the naioaal forces the Ra9 aaoP,ed ey Con
trial popula ion Of tbs several states aud the com
muuities tnereoi should be equa'ized a. nearly as
By he attn section of the Act ofthe Sd Of March,
1868 the United States is divided INTO districts, OF
which the District OF Columbia shell constu 6 oneg
as the President shall dire and each Cor gressional
District OF the respective States, a. liked b. aw OF
the st 10 next preceding the enrolment, shau g n
situte one The Sth section provdes. that there hall
be a beard OF Enrolment IN each District. b, the
9th ction it is provided thai II the Board OF En-
roment shal deem it necessary, a dls CT mey DO
divided into tw0 and with the assent of the seer Ia
ry OF War into any grea e. number sub divirtis
b. the Y b section. IL il made the duty o the
President Ia assignip to the Districts ncmcer
of m IN t. be furnished here'rom. 10 ks into n.
| side alton the number OF volunteers end militia UT.
shed by and from tie segerat states in which sud
DISTRICTS are situated and the pc iod OF their sesv ee
| since the commencement OF the resent rebelIoni-
aud shall so make said assgnment as to squslize he
numbers AMONG the Dis riots ofthe several Staies
/ con Id rig aud allowing Tor the numbers already
furnished as Aforesaid AID hs time OF th r service.
Itis evident from the face OF this Act, that the
sav raj States and Districts had furnished nu@ber
of volunteers and mill H. ano for periods of sriec.
The mr. duty of the President was to have the ma
tiona TO- ces enrc H. d his next duty as t. atcer-
tain what number of volunteers and militia had be
furnished froe the several st tts and tie periods Of
| their servcs since the c9mmencement OF NJ present
reballIon; and then from what Distrio in the sew
eral sta es they that he might (qualize the
numbers among the Districts of the several States,
considering and aiis wing for the numbers Already
IN rnishea a. at said aud the time of hsir service.
Under tn Act of the third OF March, 1868, u Is plain
thai he had no right aud power 70 cut up Dis tict
into counties townships. precincts, or wards, Ia
der to equAlze the draft therein The auth ritv Civ
en- in The h section TO sub.diwd District was for
tho pur lose Of facilitating or expediting tho enroll
meat, AID with no re enee to eqnarz1ticn IL
| might and doubtless did hapIe in many Districts,
that one well defined ortion ola Distric as o I'M
~ TO 1pshie, or ward, had furnished greatly more
than the number due thereffom, whilst other parts
Of the sane District, equally well d, hued, had fur
nished few none. thereby making draft upon
\ tbs District necessary and ye;, der the Act. Il
was not in the power otthe Pr sident to maze the
draft other wise than equal oysr the Tho Ds.llet
rect this hlgrant ha dshtp and injustice. Congress
by the I'd stction ofths Act Of 24,h February 1854,
| ava which is in amendment ofthe Act of Sd March,
1853 declared that the quota Of each NaJd ola city,
town. towoship, precinct or eleet IN distric or Of
county where the conuty is not divide int ards
towns tewu. hics, prtciacts, election dist let's,
shall be- a. nearly as p'ssible, in proportion
TO the number Of men resident therein liable to
mi itary service tax ng into acsornt a. far pre-
ticabs, the number which has been previously fur
: mia cd therefrom.
tits earnestly insist-d and most IN q nj 1usy ar
gGed that this ID section oitie ded Act repeals
50 much of the IL section of the Act the 90 OIL
March, 1868 as makes it the duty the Presdentto
tske into consideration he period of service OF ths
volunteers aud mi itia from The several states he
argument in avor of the repeal rests wholly upon
the words of The amendafofy Act-the NUMBER
which has been previously fdrashs tn refrom." III
, IL insisted that number as here used. means an
The Acto the Sd March. 1863, had prescribed a
mode by which the number Of men due fran the
several States should be ascertanedi ard that ode
required, no simple count but consi Iteration of
the period of service OF previously furnish d.
COnsTess used the lcOrd number ia the I'd section of
the amendatory Act, unds standing that the mode
of count prescribed in ihe Original Act, would be
preserved. -. r
rnere are many evidences upon the face Of he
amendatory Act which show that 1t was OF The in-
tenon ofCongress to change the mode Of count pre-
5cribed in the original Act.
| The amended ACT does n9s undcrtlKe 10 how
The quota of State Ditrct is to be 3riained.
In ascsrtaing what number js due from n State or
= Ditrict, tbs Pre- sdent must pursue TIE mode pre-
must take into confederation the period OF service
and vet upder the construction Unlisted upon when
becomes to equaiZe the dra as aut hoszed 10 do bv
the amended Act. in tn Distacts, he must be con-
trolled by simple numbers. cannot be that Con-
gress fntez ded one mo ofo unit for the States and
Districts, and different and WHOLLY inconsise one
for the sub DIVISIONS of Districts. luck rcabe con-
III ion would result.
| L a.. \ l..
amend toty act it Is evid MT that Cons did not
intend to disturb the mode OF pr scrib in the
original act For instance 10 the 9th section Of the
ameudatary set, 1t is said that the town, war !. or
township shall be credit by hi SerVices ana In The
It'll section 1.-THE period Which he shall have been
enlisted 'ald the period tor which be shall h4ye
been drafted" all going to show that time Of service
was held TO BE- an element in The count.
Nor do think that the argnment ia favor of
the rep a. is aided by the la guase the LIST section
OF the ct, tiled An act fur her to regulate and
provide TOR The ng out the IA ionsl iorces . ap-
proved 4th July. 1884 The act says, that any fueh
volunteer or in case of draft, n rein provided
any substitute. shall be or, dted to the town :" &c-
Congress meant that the credit should be piven ac-
cordng to TIE mode OF count prescribed in the act
81 March, 1858.
Tbs whole purpose ofthe Cd section Of the amend
atoty act was to enable tn President to eqnaze the
drait in the several dietric e. surely not to have
oae OF count IN acer amin the quotas Of the SOW
eia stes and Districts and anothtr med for equal
trsd that Congress wou d thus Incidentally strike
IRON 80 important statute a feature SO prominent
and equitable.
am, therefore. ofthe opinion that the mode ofas-
pertaining aad ass gnng to States dsricts their
respective gu ta as psescr oed in the 18th section
oil the act of the Sd July, 1853 is not rel called,
and that the same mode must DO pursued ia EQUAL
zng the draft among the sub divisions Of each dis
Next c mei The que ton, what is tho mo "a Of
count prescribed in hs 18th section the act of
1t is very plain that Congress regarded that a
consideration OF tn Lerod OF service would chan
the rule from merely numerical one some credit
was 10 De given Tor the petiod OF service as well "a
for the man. Congrt IS has txed varirus nerioas Of
| service, snd Ststes and districts and ractions al
dstilct had furnished mea tor thess periods OF SIR
VlcN Now now is the credit to be giYeng
Before proceeding to answer the question: IL NAV
be pro er to state that it is insisted that the
peri OF time and ''time OF service" as used in
the IL h sec ion OF the act of March g. 1853 m.sp
some lligg different from terRof servtce Ii seems
60 me that the phrases mean o. andt same thug
When the word term s used in reference 10 tIae it
is, according to he lexicographrs very reary the
synoBy m OF perio5 The difference betwixt them. n
any.ls too uncertain and shadowy t. beiie o that
Congress meant by the use OF one onethin0 d;ai,r
| ent from what is understood b the other RAT the
words pert'd and term DO oce. in after perts Of
the acts now under consideration. In the lsUh sec
ton the ast of 1854 the term CT service is sroken
o. ana the term Of re- nils ment whilst ~ the I'm
he sSa beve act Is ne period for which
shall have been drsfted. Thus 1t i'll b, pc ceived
tnat upon ihsveTy face of these acts CorGress used
nese words a 10 eaning the same thing Ithlpl ems
too in The act that melt word may be used ana WI
the same idea nse ded, in The Sth sesticn on ihe
/ Nne IN language is shall be
ed b. his scrVicesH
Regarding then ''period Ivice, - and GERM Of
service as meaning the same thiag snv arSs,nent
| pteiicatoi upon ference must be dis eTsrdsd
Ana this we are brought back to the question how
IS the credit to BE- given. Must thee dit be for Inc
una OF actual service, CT the PERIOD OF EN- stmeafY
tnink that Congress intended by the WORDS me.
ROO OF service to give credit for the time of hs
enlistment. When man eulists in The Srsia ~, ~
ane government enc two or three yea his SER
wees are due tothe Govtrnmsnt for that period and
,hn nat period his services Withdraw from
me industrial pursuits of lie. The act speaks "a
anougn there was certa = and fixed period for tbs
SCI noes OF each man. and yet If any period or time
Is taken, other than the Term o en.tment hy sonos
system OF ayera .es or guesses rus must be- tiSed
the act. 10y N0"e0pAFi@ ca W
an therefore, OF the opinion hat the President
must under ths act give credit by the VIII le neriod
or Term for which the man enlisted ~ p0''OU