previous next


Congress and the Conscript acts

--To the Speaker and Members of the Confederate Congress: The duties of counsel render it imperiously necessary that I should address you on a subject matter of paramount importance. As counsel for nearly one thousand soldiers, whose asserted claims rest on a principle which involves the rights and status of many thousand brave and gallant men. I am constrained, by a high sense of duty, to arrest your attention, and respectfully invoke your consideration of their petition.

That paper was presented on the first day of your present session, and was at once referred to the appropriate committee, where it has reposed, undisturbed by the fierce agitation which has seriously and unmistakably influenced your honorable body. It has, however, at last re- appeared, but to be consigned to the ‘"Tomb of all the Capelets."’ I have no complaint to make of this. In truth, it is a melancholy fact, forced upon every reflecting mind, that even much graver and more vital principles are, at least, in the estimation of many of your honorable body, entombed in the vague recollections of the past.

When the Constitution and the sovereign rights of the States are engulfed in the morbid rush and wild stampede in search of antiquated relies of monarchical institutions, it would seem, perhaps, presumptuous in one so humble as myself to expect a better fate, either for himself or his clients. Indeed. I might well despair were I not sustained by the assurances of all past experience ‘"that truth is Highly, and will prevail."’

In the opinion which I had occasion to give on the 8th July, on the Conscript act, I used the following language:

"On this subject, after the most solicitous and matured consideration, I have not a shadow of doubt. I am perfectly clear and distinct in the opinion that this order of the Adjutant General is in direct and no able conflict with the law of Congress, and also that there is no power either in the Adjutant General, the Secretary at War, the President, or all combined to interpolate any act of Congress, or to revoke, modify, or extend its provisions, in the absence of such power created and bestowed by the express provisions of the law itself; or a power derived from, and distinctly traceable to, an express grant of such power in the Constitution. I have not been able to discover anywhere the grant of such a power, even by the most platitudinous implication. I am, therefore, constrained to give it as my deliberate opinion that the order in question cannot legally direct, impair, or curtail any one right or privilege imparted to the certain designated persons in the Conscript act.

For the petition, which so quietly slept during the excited debates in your honorable body, I used this language:

"There can be no question that nil laws passed by Congress are supreme, and challenge the obedient acquiescence of the President and every Department of the Government, until they are repeated or pronounced unconstitutional by a competent judicial tribunal. And any violation of any one or more of such laws by any Department of the Government, is not less culpable than a similar violation by any other member of society.

"The reason, spirit, and intention of the law in question, as well as its words, context, and subject matter, are plain and unmistakable. There is no point, no word, no object, no purpose, which is not fairly and plainly set forth. The question then presents itself, painful, serious and viral, shall the law prevail, or shall the intervening, unauthorized interpolation of the Secretary at War prevail.--Shall an army order revoke a solemn act of Congress? Shall Congress or the Executive rule the people control the army, and legislate for the country. Have we a constitutional Government, with specific powers granted, beyond which no department of the Government shall pass, or have we an unlimited Government, dependent only on Executive will or ministerial caprica! Are the People free or is the Executive supreme?

"These are no idle questions. They are solemnly propounded, and merit a solemn response. It was legislative encroachments and Executive usurpations which destroyed the Union, never to be restored.--Shall the Southern States, confederated, yield the same destroying element of self-destruction. The answer which your honorable body may see fit to give will descend with its weighty consequences to posterity. The voice of history is not less potent in its warnings against Executive assumption or ministerial abuse of power than the hopes of the future are dependent upon your response.

"In view of the dangers which beset the country, your petitioners cannot better conclude their appeal than by adopting the significant language uttered by Patrick Henry, in the Virginia Convention, on the 7th January, 1788, when he exclaimed: ‘"The real rock of political salvation is self love — perpetuated from age to age — in every human breast, and manifested in every human action. When the commons of England, in the manly language which became freemen, said to their king, You are our servant.--then was the temple of liberty complete. "’

I respectfully, but earnestly, call your attention to these extracts. Notwithstanding the opinion at which the committee has arrived. I here reproduce and reiterate every word and sentiment. I do this with every respect for your honorable body, and with no disposition whatever to incur the personal hostility of any branch of the Government. A high sense of public duty impels me to deal with perfect frankness on so grave a subject, and under the heavy responsibilities which rest on me. It is with no other object but to discharge the duties which rest upon me that I now seek your calm and enlightened review of the report of your committee.

Burke, the profoundest-thinker of any age, and the most enlightened and elevated patriot of his time, used, on a memorable occasion, this language ‘"To make a government requires no great prudence. Settle the sent of power, teach obedience, and the work is done. To give freedom is still more easy. It is not necessary to guide; it only requires to let go the rein But to form a free Government; that is, to temper together the opposite elements of liberty and restraint in one consistent work, requires much thought, deep reflection, a sagacious, powerful and combining mind"’

I do not by any means desire to intimate that each member of your honorable body does not possess all these high mental and moral attributes.--Indeed, I am willing to concede them freely. But ‘"Homer nodded,"’ and ‘"Solomon blundered"’ Poor human nature is not infallible. Feeling my own weakness, and properly appreciating your wise discrimination and enlarged patriotism, I am emboldened to invoke your enlightened consideration of the important and, indeed, vital issues involved in this petition of my clients. Having done this, I shall leave the question to your honorable body, and the Sovereign States of this Confederacy.

The same profound thinker, just cited, well said: ‘"Liberty, without wisdom and without virtue, is the greatest of all evils; for it is folly, vice, and madness--without tuition or restraint."’ The chief ‘"virtue of wisdom"’ is a high and sacred regard for the Constitution and recognized laws and institutions of one's country. The people, or government, council or rulers, who deliberately or habitually violate the established laws, are sure to run into anarchy or be arrested by monarchy. No one lesson taught by history is more impressively illustrated than this. What is the difference, in morals or legislation, between the habitual violation of fundamental laws and the authoritative teaching the people to disregard admitted authority? Where no respect is paid by those whose duty it is to make laws, to the Constitution, how can they expect those for whom they are made to respect the laws? The breach once made, where and by whom, when and how, is it to be healed?

the issues important for poor decision. There is but one question, which to this. ‘"Were the petitioners as of right, entitled to their discharge on the 16th of July, by virtue of the law of Congress and if so, could the orders of the Secretary at War divest those rights?"’

It is needless here to restate the provisions of the act of Congress. It is perfectly plain that the express language of the bill included ‘"all persons"’ under thirty-five and over eighteen years of age, and as expressly excluded ‘"all persons"’ not embraced in those ages. The terms of the law are express. Its scope, design, and purpose, are as clear as language can express any idea. Whatever the language clearly expressed could not be construed away. But I need not argue this point; for, to doubt it. I should but contradict and deny the express language of the honorable Secretary at War, in his letter to Governor Clark, of North Carolina. My long acquaintance with, and high personal regard for, the honorable Secretary at War, would forbid so great a rudeness, if, indeed, I were not restrained by the ordinary courtesies of life.

It is true, the honorable Secretary afterwards caused to be issued general orders No. 44 and 46, each of which ran counter to the act, and did not comport with his declarations to Governor Clark.--But it is not for me to compose and reconcile those discrepancies. I respectfully refer them to your honorable body. I make no doubt that each member will discern the path of duty, from the suggestions of inclination, and, where any conflict occurs between the law and these orders, he will, at least, give the law its proper weight, in the scale of legislative justice. I may here remark, in anticipation of any learned objection, as well as in answer to the report of the learned committee, that general order No. 46 was in plain, affirmative, authoritative contradiction to the express expositions by the honorable Secretary at War, of the Conscript Act, as promulgated by himself as to the 12 months men. In the exposition, as well as in his letter to Gov. Clark, he distinctly announced to that patriotic branch of the army that they should all be discharged on the 16th July. In general order No. 46 he authoritatively ordered that they should not be discharged until ninety days after the expiration of the period of their enlistment, and consequently they were so held to service.

Before dismissing this point, allow me to call your attention to the terms used in the Conscript act No. one; for it seems your honorable body is nearly as prolific in Conscript acts as the honorable Secretary is in orders. It is to be hoped you will not be less consistent. It I am not misled by my recollection of the usual and ordinary rules of construction, it is a cardinal rule that the Legislature is always supposed to employ the very best and clearest terms known to the English language to convey their meaning. Under this rule, may I ask, in all respect, what is the legal import of the words ‘"persons aforesaid,"’ as applied to the 35 year men; and ‘"all persons now enrolled, "’ &c., as applied to those men over 35 and under 18 years of age? The distinction is not without a difference. What that difference is I deferentially refer to the wisdom of your honorable body. It will doubtless meet, as it merits, a clear and precise legislative exposition.

If I am correct in the views here expressed, and distinctly thrown out in the petition, allow me, in all respect, to call your especial attention to the provisions of Conscript act No. two. By the operation of general order No. 46, as expounded by the honorable committee, all men retained in the service over 35 years of age, even though they be sixty years of age, are kept in service. By the non-conforming vote of the Senate, all boys, though only twelve years of age, are retained. To top the climax, the bill which has passed your honorable body requires the States to furnish, when called on so to do by the President, every male citizen, subject to military duty, under the age of 45 years. Compute all the boys retained by the Senate, and all the men over 35 years held by general order No. 4d, and all the men under 45 years claimed by Conscript act No. two, and how many men or boys will be left? The calculation is worthy of your attention. Reduced to figures, you will have drained the entire country, utterly destroyed the basis of militia organization, and well nigh depopulated the country.

When I first read Conscript act No. two, it occurred to me, as a fair suggestion, that it was the design of your honorable body to relieve, by prompt discharge, all men over 35 years of age, in order that each State might be in a state of preparation to meet the demands of the President for men over 35 and under 45 years of age. Indeed, I am not sure that this is not the design of your honorable body. For otherwise, it must seem to every reflecting mind that it will be a most unreasonable draft on the States. To illustrate, say there is now five per cents of the population over 35 years of age in the army that is retained. The President calls on the States for a draft of 10 per cent of this population. Here you draw on this branch of industry and home defence for an unjust proportion.

But why hold on to men over 40, now in service? and relieve men of a similar age who are out of it:

From these views, thus crudely expressed in the hurry of pressing engagements, it occurs to my mind that the only way to sustain, with justice, the objects of the supplemental Conscript act, is to carry out in good faith the provisions of the first act. And this I respectfully ask you to do. As an honorable man I can ask nothing less.

I offer you my sincere apologies for thus bringing to your notice the claims of my clients. The report of your honorable committee precludes me from any other course. The obligations of professional honor will not allow entire silence. I represent a class of men as true as they are brave, as loyal as they are patriotic. They only ask for their lights. They are sternly opposed to every species of legislative or executive tyranny they are devoted to the cause in which we are all so deeply involved, they are taught-by the blood and of many a well fought battle that the "jewel of liberty is even more precious than life, but to be well and worn, it must be respected in lair as well as precious.--Those that have fallen hoped to bequeath it to their posterity, and those that survive claim to and possess it That ‘"jewel"’ is — pardon the expression, I mean no offence--States rights in arms, and first laws fairly administered.

My clients are not more interested in this matter than are the different States. For when your honorable body shall disregard the vested rights of the citizen, it is an easy and rapid step to disregard the rights of the States. Indeed, it is to be feared that there is not the highest regard for the States existing in certain quarters at this time. It is to be hoped that no such sentiment prevails in the breast of any member of your honorable body. To suggest such an idea would be to intimate the existence of a purpose as treasonable to constitutional liberty as it is subversive of institutional freedom. The power, wherever it exists, or by whomsoever it is caught to be exercised, which strikes at the sovereignty of the States, will fail of its purpose, and soon fall into hat state of mental, moral, and governmental decadence, which now hangs like a pall over the Northern mind and heart. As we cherish this principle and practically elucidate it in a just regard for personal liberty and versed rights, so will we hold up a beacon light to lead back to peace, and after that, constitutional liberty. I commit the case of my clients to your honorable body, and subscribe myself.

Your ob'dt serv't.

John H. Gilmer.
Richmond, Sept. 24, 1862.

Creative Commons License
This work is licensed under a Creative Commons Attribution-ShareAlike 3.0 United States License.

An XML version of this text is available for download, with the additional restriction that you offer Perseus any modifications you make. Perseus provides credit for all accepted changes, storing new additions in a versioning system.

hide Places (automatically extracted)

View a map of the most frequently mentioned places in this document.

Sort places alphabetically, as they appear on the page, by frequency
Click on a place to search for it in this document.
Patrick Henry (Virginia, United States) (1)
North Carolina (North Carolina, United States) (1)
hide People (automatically extracted)
Sort people alphabetically, as they appear on the page, by frequency
Click on a person to search for him/her in this document.
Clark (3)
Homer (1)
John H. Gilmer (1)
Burke (1)
hide Dates (automatically extracted)
Sort dates alphabetically, as they appear on the page, by frequency
Click on a date to search for it in this document.
July 16th (2)
August, 7 AD (1)
September 24th, 1862 AD (1)
January 7th, 1788 AD (1)
hide Display Preferences
Greek Display:
Arabic Display:
View by Default:
Browse Bar: