The Lancaster gazette. [volume] (Lancaster, Ohio) 1863-1886, 1865-03-30
OpGm1Om.
ATTORNEY GENERALS OFFICE,
February 9th, 1865.

| In your letter Of the 2slh january, you ask my
opinion ON the legal points presented in the letter Of
Governor \. e. CURTIN to you Of dnte the 2jth jan
Iiary.
Governor CuRTIN's letter Is in relation to the con-
structon of the Act of Congress, approved Sd Of
March, 1863, commonly called the Enrolment Act.
| He insists
lst That tho words "pcriod Of SERVICE" since
the commencement Of the rebellion, as used in the
l2Ih 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 aud militia man ; and
I'd. That that part Of tho Act Of the Sd ofMarch,
1863, which makes the period Of service an element
in the calculation necessary to determine the num-
ber of men due from State district county or town,
has been repealed by the I'd section OF the Act amen
datory Of the Enrollment Act, approved 2ih Fehru-
ary 1864.
1t will lie more convenient to consider these ques.
tons IN the reverse ORDER inasmuch as ift shall he
found that the repeal has been made, rs contenJed
for the hrst point made by the Governor need not be
considered.
| The great objects of the Enrolment Actarc
LIST. To declare who shall constitute the National
forces and
2d. TO organize plan by which the National forces
can be made available.
Subordinate to the purpose of raising and organi-
zlng me National forces the plan adopted by Con-
trial population OF the several States, and the
mpnites thereof should be equalized as nearly as
practicable.
BY the 4th section of the Act of the Sd of March,
lSG the United States is divided into districts, OF
which the District Of Columbia shall constitute one
each Territory of the United Staes shall constitute
one or more, as the President shall direct and each
Congressional district of the respective States ms
liked by law of the State next preceding the enroll
ment, shall constitute The Sth section provides
that there shall be Board of Enrolment in each
District. BY the 9th section, 1t is provided that /
the Board Of Enrolment shall deem il necessary a
District may be divided into two and, with the assent
othe Secretary OF War, into any greater number OF
Isub-divisiOns.
BY the 18th section, it is made the duty Of the Pres
lldent IN assigning to the District the number Of men
70 be FURNISHED therefrom, to take into consideration
the number OF volunteers and militia furnished by
and from the serera, States in winch said Districts are
situated, and the period Of tp,ir service since the
commencement OF the present rebellion and shall
so make said assignment to tqualize the numbers
among the districts Of the severn States, considering
and allowing for the numbers already furnished as
aforesaid, and the time of their service.
IL IS EVIDENT from the face of this Act that the sew
eral States and Districts had furnished number OF
volunteers and militia, and for periods of service
The hrst duty Of the Presdehl was to have the IA.
pnal forces enrolled; his next duty was to ascer-
tam 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
reOell0n and then, from what districts in the several
States they came, that he might equaze the num-
bers among the distrcs Of the several States onsid-
ngand allowing for the numbers already furnished MS
Aforesaid, and the time of Their service. Under the
Act of the Sd Of March, 1863 it plain that he had
right andp power to cut up District into countless
townships, precincts, wards in order to eql2lizc
the dralt therein: The authority given in the 9th
section to subdyide District was for thepurpose OF
facilitating or eXpedlting the enrollment and with
no reference to equalization.
| II might, and doubtless did happen in many Dis
trlcts that one well defined portion of District, as
county, township onward had furnished greatly more
than the number due thereroIn, whilst other parts Of
the same District equally well lefned, had furnished
rev or none thereby making draft upon the District
necessary and yet under the Act, il was not in the
power Of the President to make the draft otherwise
than equal over the wi ole District.
| rms was lnust and oppressive In order to cor
rect this hagrant hardship and Injustice, Congress,
by the ~ section Of the Act of oath February 1864,
and which IS an amendment Of the Act f3d March,
1863 declared that the quota of eah ward ofa city,
town, township, precinct, election district, or of a
county, where the county is not divided into wards,
towns, townships, precincts or election districts,
shail be- as nearly as possible IN proportion to the
number Of men resident therein liable to military
service taking INTO account, ls far as practicable the
number which has been previously furnished there
from.
1t is earnestly insisted, and most ingeniously ar
gued, tha ths ri scctlonof the amended Act repeas
so much Of the 18th section of the Act of the I'd OF
March, 1863, rs makes it the duty of the President to
take INTO consideration the period Of service of the
Vollinteo md militia from the several States. The
argument ~ favor Of the repeal rests wholly upon the
words of the amendltOry Act--"the number which
hal been previously furnished thercfrom," 1t is in
sisted mat number" as hire used, means arith-
meucsl count. lcannOt so understand ii.
Ihe Act Of the 3d OF March, 1863 had prescribed a
mode by which the number ofmen due from the sew
eral states, and the Districts Of the several States
should bc ascertaned; anil that mode required not
Il slmPle count but consideration of the period o
service OF men previously furnished. Congress used
the W0rd number IN the 2d section Of the anendatory
Act understanding that the mode of count prescribed
IN the original Act would bc preserved
There aro many cvdetces upon the face Of the
hnendoory Act which show that it was not the in
tcnon OfCOngress TO change the mode of count prc-
scribcd in the original Act The amended Act does
not undertake to say how thu quota Of State or Dis.
,ret Is TO ne asceraincd In ascertainng what num-
Der is due from State or District, the President must
pufsuethr mode prescribed in thel2h section OF the
Original Act-hc must take into consideration the
period OF service and yet, under the construction
insisted upon, when hc comes to cgua2e the draft,
ls authorized to do by thcamended Act, in the Dis
ircis he must he controlled by simple numbers 1t
cannot be that Congress intended one mode of count
Tor the states and Districts, anil y different and
wholly ncOnsistcntOne for the subdivisions of Dis
trletsA lneNtric0ble confusion would result
From the language used in various parts Of the
ainendntoy act i Is evident that Congress did not
niomn 10 disturb thenode ofcont prescribed in the
orgnalact. For instance, IN the Sth section Of the
alnendntory act, 1t Is said that the town. ward or
township shall he ereih By lis scrriccs and in the
7th section "the perodfo which he shalt have been
enlisted and the period for whirh he shall have
been drafted" all going 10 show that time was held
to hc an element in the count.
Nordo think that the argument in favor Of the re.
poa S aided by the language of tho st section of the
net, entitled An act further to regulate and provide
for the calling out the Natbnn forces" approved lth
July, lSll The act says, that "any such volunteer,
stitute, shall be credited 10 the town" &c. Congress
meant that the credit Should be given according to
the mode ofcount prescribed in the act Of 3d March,
1861
Tho whole purpose of tie 2d section ofthc amend
atory act was to enable the President to eqnazc tho
drai in tho several districts, surely not to have
mode oieonnt IN asccrtaning the quotas thc sevc-
raj states and Districts, aud another mode for equal
2ng the districts, Besides, II is hardly TO be con-
sidered that Congress would thus incidentally strike
nom so important statute feature 80 prominent
| am, therefore, Of tho opinion that the mode of
ascertanng and assigning to States and districts their
respective quotas, as prescribed in the 18th section
that the same mode must he pursued m cqualizing
the draft among the sub. divisions Of each district
Next comes the question, what is the mode Of
count prescribed in tho 18th section of the act Of 3d
March, 1851
II is very plain that Congress regarded llab con.
sderlton Of the period Of scrvicGwOnd change the
rule from merely numerical one. Some credit was
to be given for the period OF scIvtc as wea for the
man. Congress has fixed varOui periods of service
aud States and districts and fractions OF districts, had
furnished men iorthose periods Ifscryicc. Now how
Is the credit to he givenl
Before proceeding TO answcrthc question: il may
be proper to state, that Is Jsstcd that the words
"periOd of time" and slime Il SERVICE" rs used in
the 18th section OF the net " March D. 1854, mean
something d ilerent from tcta ofscrrac II seems
to mo that the phrases mean hne and the same tnng
When the word term missed u reference to time, il Is
according tothe leIlcogrsplRrs very nearly the syn
ls too uncertain and shadow to believe that Congress
meant by the use of one, isomcthing different from
what is understood 10y tye other But the words
period and term, both o(clr in after parts of the
acts now under consideration, In the 18th section Of
the act flsG3 the tcrnof service IL spoken Of and
the term Of rccnsmoT, whilst in the 9TH section Of
the amended net il is khc period orwhieh he shall
have enlisted and the PROD for which he shall have
been drafted. Thus will bo perceived, that upon
the very face OF thef acts, Congress used these
words as meaning the same thing, II happens too,
tho thnl neithpr word ho used nnl thp
same idea intended rs in tho Sth section of the
mnended act, where ne language is "shall DO cred
tied by his scrvicesv
Regarding then gperod Of service" aud "term Of
service" meaning the same thing, any argument
predicaed upon N difference must be disregarded.
And TINS wo are bought back Ia the question: how Is
the credit to he dyenl Must the credit he for tho
think TINT ClMurnsa inInnIlnh hY the Mnrils Iinn-