The following is a guest post by James Martin, Senior Legal Information Analyst at the Law Library of Congress.

If it can be said that necessity is the mother of invention, then it can also be said that war is quite often its midwife.  This was certainly the case in the American Civil War when the requirements of creating, supplying and transporting armies led to various innovations.  In the history of the United States perhaps the most revolutionary innovation was the raising of armies by conscription and by necessity of war the Confederacy led the way.

In 1861 the Confederate Provisional Congress passed a number of laws to create a national army.  By the end of the year upwards of 200,000 men were under arms and the volunteer and militia systems provided the bare minimum of men needed to defend a large country.  But by the beginning of 1862 it became obvious to members of the Confederacy’s political and military elites that once the terms of enlistment for the volunteers started to expire, and many men decided not to reenlist, the country would face a manpower shortage.  Earlier legislation attempted to address this problem by offering liberal incentives to reenlist, but these incentives proved to be ineffective.  In recognition of this problem, Jefferson Davis sent a message to the Confederate Congress on March 28, 1862 recommending the enactment of a system of conscription.

Photograph by Donna Sokol

On April 16th, the Confederacy adopted a law that provided for support of the army by extending the terms of enlistment of currently enrolled soldiers to three years from the date of original enlistment.  In addition, the law made all white males between the ages of 18 and 35 who were citizens of a state in the Confederacy subject to national military service for a term of three years, unless released at an earlier date by the President.  The law allowed for individuals subject to conscription to hire a substitute, who would normally be exempt from service.  Substitution quickly proved to be unpopular since it allowed for wealthy men to escape military service while leaving men of lesser resources exposed to the draft.  The individuals who served as substitutes also were viewed with suspicion since it was felt they were mercenaries and would desert at the earliest possible moment.  In late 1863, substitution was abolished by an act of Congress; in January, 1864 a second act required that men who had hired substitutes report for duty as either volunteers or inductees.

One immediate concern about the law was its effect on the economy and civil government of the Confederacy. To address these concerns the Confederate Congress passed a law on April 21, 1862 which provided a number of occupational-related exemptions to conscription. Exemptions were granted to men who served in national and state governments; to men who worked in heavy industry and mining; communications and transportation industries; and, various occupations which directly served the public such as teachers, ministers and druggists.  The provisions for exemptions were, as with the provisions for substitutions, subject to abuse and controversy.  Because the law did not specify the need for qualifications or experience men suddenly became teachers who had no prior experience in teaching, and druggists who had no prior experience in compounding drugs.

However, these provisions were not the most controversial exemption.  That was adopted in October 1862, when the Confederate Congress, after an extensive lobbying campaign, adopted the so called “Twenty Negro Law,” which granted an exemption to an owner, or one overseer on each plantation with twenty or more able-bodied slaves.  This provision immediately became unpopular with men serving in the army as is reflected by the sentiments of General D.H. Hill who said “[S]ome examples claim to own twenty negroes, and with justice might claim to be masters of an infinite amount of cowardice.”[1]  This provision was amended in 1863 and again in 1864 when the requirement of the $500 payment was changed to a bond to provide 100 pounds of meat to the government for each able-bodied slave. In addition, at this time, the age range for enrollment was extended from 17 to 50; although active service applied only for men between the ages of 18 and 45.

Because the Confederacy had only a nascent system of national courts, most individuals who wished to challenge the conscription laws sued in a state court which exercised concurrent jurisdiction with national courts in conscription cases.  The state courts agreed that the Conscription Act of 1862 was a constitutional exercise of the national government’s power to raise and regulate armies.  The main source of legal controversy concerned the operation of the system of exemptions and who had the power to release men from the army.  The state courts adopted a view that the provision of the act that gave the enrolling officers exclusive power to release inductees was an unconstitutional delegation of power.  Instead the state courts ruled that they had the power to review decisions of the enrolling officers, and of the War Department.  If necessary they could grant relief to a man who was held counter to the provisions of the law.[2] 

Photograph by Donna Sokol

The Law Library’s collections include the published reports of the appellate courts from the individual states.  In addition, the Law Library has two slip opinions from the Confederate District Court for the Eastern District of Virginia concerning the exemption from army service of two individuals who contracted for mail carrier contracts.  In his decisions granting the contractors’ petitions for habeas corpus relief, District Judge James D. Halyburton held that the use of the word “exempt,” in the statute required the release of the petitioners from army service.  He also cited the specific exclusion of mail contractors from the operation of the conscription laws.

Conscription was not a complete success for the Confederacy but it did provide upwards of 90,000 men for the army and helped to keep the ranks filled early during the Civil War though it had negative effects on the Confederacy’s society and economy.