THE CONSCRIPTION ACT OF MARCH 3d
Few subjects are more difficult of legislation than that of the military service of a nation. The most profound wisdom, the most enlightened statesmanship, the most intimate knowledge of society, are requisite in the legislator. It is easy, indeed, to regulate the military service in times of peace, when the army is small and volunteers are abundant. But when the ordinary methods fail to fill up the ranks, decimated by actual war, when the honor and perpetuity of a nation depend upon a conscription of its citizens, then comes the tug of war, and many legislatures have failed in their deliberations on this subject. In the first place, a Conscription Act is opposed to popular prejudice. Compulsory service of any kind, except for punishment, is contrary to our ideas of personal freedom. We believe in the sovereign privilege of doing what we please, and declining to do what we do not please, to its fullest possible extent. We love to tell our neighbors that we have no standing army to defend our national honor, but that it reposes safely on the
voluntary
patriotism of the people. We may admit the
necessity
for a Conscription Act—may confess its justice and impartiality; but few men who are liable to fall into its pitiless clutches, can speak of such an act without a shrug of uneasiness or a wicked expression of anger. Again, it must be universal in its application. It must meet all classes and conditions of society; must be adapted to all shades of religious and political belief; must be inflexible as Justice on his throne, yet tender and sympathetic as a mother to her child. It must take into consideration different branches of industry, and the fields of one section must not be depleted of husbandmen that those of another may be filled with warriors.
The act of March 3d meets these difficulties more successfully, perhaps, than any previous act, whether of a State or National Legislature. It is based upon the broad and well-admitted maxim, that every citizen owes his personal service to the Government which protects him. But while the Government impartially demands this service, the law provides for the exemption of those who would suffer by the unqualified enforcement of this demand.
Many persons outside of the specified limits of age, are physically able to do military service. But,
as a class
, it would have been cruel and impolitic to have forced men into a service which would have wrecked health and happiness for life, or, by a short and swift passage through the military hospitals, have shuffled them into premature graves. Few men under twenty-five have the power of endurance necessary for a long and wearisome campaign. The muscles are not sufficiently knit and hardened for the service, nor the constitution sufficiently fortified to withstand the exposure. Men over forty-five have lost the vigor and elasticity necessary to long and arduous exertion, and are constantly liable to become a burden instead of a benefit to the service.
No previous act has so equally disposed the military duty among the various classes affected by it. It is a well-known fact that the burdens of military service are wont to bear most heavily on the
laboring
classes. Probably no legislation can entirely remove this inequality. But the act of March 3d makes special provision for the indigent and helpless, and to a great extent relieves the suffering and inconvenience dependent on an enforced military conscription. Poverty is not left without relief, infancy without protection, old age without comfort. The dependent widow, the infirm parent, the homeless orphan, are adopted by the Government, and their support and protection provided for. And in order that the character and dignity of the army may comport with the greatness and purity of the cause for which it is fighting—that it may be both the power and the pride of the nation, it is expressly provided, that 'no person who has been guilty of any felony shall be enrolled or permitted to serve in said forces.' For the benefit of those whose peculiar business or family relations require their services at home, Congress wisely inserted 'the $300 clause.' In this they but followed the established custom in most nations since the days of feudalism. No part of the act has been more violently assailed than this, none more unjustly. It is asserted that this clause discriminates against the poor, in favor of the rich; that it recognizes unjust distinctions between the classes of society, and assigns military duty unequally among the citizens. No assertion could more glaringly display the author's ignorance and lack of judgment.
The law, as originally drawn, required the service of the man drafted or an acceptable substitute within ten days. Had 'the $300 clause' not been inserted, the competition for substitutes would have been so great that their price would have risen far beyond the ability of men in moderate circumstances to pay, and many would have been forced into service who thus have an opportunity for exempting themselves. It has kept the price of substitutes at a low figure, and thus has proven itself emphatically the poor man's provision.
Nor is the law harsh toward those who may be drafted. Abundant time is given for the settlement of any pressing business, the proper disposition of family affairs, or the procuring of a substitute. It is mild toward the infirm and afflicted, making ample provision for the exemption of those who, from any cause, are unfit for service.
It assures to drafted men the same pay, bounty, clothing, and equipments as volunteers receive, and in all respects puts them on the same footing. It thus removes the unjust distinction wont to be made between the drafted man and volunteer, looking upon each as a true soldier of his country, equally interested in its honor and perpetuity. And in order that justice may be secured to the citizen as well as to the Government, the entire business of the enrolment and draft is under the supervision of a board of three men, generally residents of the district.
The prevailing spirit of the act, cropping out in almost every section, is the tenderness with which it handles the subject. It scrupulously seeks to avoid all violence, injustice, and suffering, and while it firmly asks the service of the people, distributes that service equally among all. And herein is its superiority over all previous militia acts. State and national officers, members of Congress, custom-house officials, postmasters, clerks, and the favored and fortunate generally, were heretofore exempt, instead of those who, by misfortune or otherwise, were in circumstances of dependence and want.
But the act of March 3d, thus general in its application, thus humane in its provisions, is not without omissions and imperfections. But these arise rather from the language of its provisions, than from its general design. Let us briefly examine these provisions as they are given in the second section of the act.
Clause second exempts 'the only son liable to military duty of a widow dependent upon his labor for support.'
The Judge Advocate General has decided, that 'a woman divorced from her husband who is still living, is not in the sense of the law a widow—a widow being defined to be a woman who has lost her husband by death.' Her only son, therefore, upon whom she may be dependent for her support, cannot be exempted. A divorced woman, whose husband is still living, may thus be left entirely without support, unless she have several sons 'liable to draft,' in which case, she may elect one for exemption.
Clause third exempts 'the only son of aged or infirm parent or parents dependent upon his labor for support.'
It has been decided that a son cannot be exempted under this clause unless
both
the parents are 'aged or infirm.' Thus it may happen that, by reason of bodily or mental infirmity, a father, with a family of helpless children, may be totally dependent upon the exertions of the mother and a draftable son. But the law pitilessly takes the son without possibility of exemption, throwing the entire burden of support upon the mother.
But no clause of this section is more liable to objection than the
fourth
, which reads as follows: 'Where there are two or more sons of aged or infirm parents subject to draft, the father, or if he be dead, the mother, may elect which son shall be exempt.' It will be observed that the provision—'dependent upon his labor for support'—is omitted in this clause. Now, to interpret its language by the legal method of construction, by the context, it would seem that such dependence were necessary in order to secure the exemption. For the two clauses immediately preceding exempt 'the only son of a widow or of aged or infirm parent or parents
dependent upon his labor for support
. The two immediately following, exempt 'the brother or father of orphan children under twelve years of age
dependent upon his labor for support
.' That is,
four
of the five clauses referring strictly to this subject, grant exemption to the applicant only when some one depends upon him for support. Hence it may be presumed, according to an admitted custom of legal interpretation, that in the remaining clause, standing between the other four, the question of dependence, though not expressly
stated
, is clearly
implied
.
But an 'opinion,' published by the Provost-Marshal General's Bureau for the guidance of the boards of enrolment, declares that 'the right to this exemption does not rest upon the parents' dependence on the labor of their sons for their support. The law does not contemplate any such dependence.'
What is the result of this decision?
First, it places the wealthy and independent on the same footing with the indigent and needy, exacting from the one no more service than from the other.
Second, it is more lenient toward the wealthy citizen who has several sons liable to draft, than toward the helpless widow who may have but one.
Third, it makes a distinction against that family which may have contributed most to the military service.
By the 'opinion' just quoted, the only fact to be established by parents electing one of several sons 'subject to draft,' is that they are 'aged or infirm'. When this is done, boards of enrolment must grant the exemption. The parents may live in affluence independent of their children; the sons may all be in the second class except the one elected; they may reside in different districts or States; they may belong to different households: yet, if the same parents, or some indigent widow adjoining them, had but
one
son 'liable to military duty,' or, having
several
, had sent them all into the army save
one
, that one remaining could not be exempt unless it were proven that they actually depended on him for their support. Why should a helpless widow, having but
one
son, be required to prove her dependence on him for support in order to have him exempted, when her wealthy neighbor, who has
two
sons, can have one of them exempted without this dependence?
Another published 'opinion' says: 'Election of the son to be exempted must be made
before
the draft.' Now amid the chances of a draft it may happen that the brother or brothers of the elected son may not be drawn. Thus the Government loses the services of the entire family. In many cases no election would be necessary unless
all
the sons were drafted, in which case it could be made as well
after
as
before
the draft. Besides, if there be a considerable interval between the time of election and the time of draft, the ground of exemption may no longer exist when the Government calls for the service of the man.
On clause sixth an 'opinion' has been issued, stating that 'the father of motherless children under twelve years of age, dependent upon his labor for their support, is exempt, notwithstanding he may have married a second time and his wife be living.'
A stepmother is not believed to be a 'mother' in the sense of the act. Another 'opinion' declares that the father of children of an insane mother under twelve years of age dependent on his labor for support, is
not
exempt.
A moment's reflection on these two 'opinions' is sufficient to establish their injustice. A stepmother may and should, in all important respects, take the place of the actual mother. Yet the father is exempt. Children of an insane mother, however, may be left entirely without maternal care and protection, and the father, upon whom may rest the burden of children and wife, is
not
exempt.
Clause seventh reads as follows: 'Where there are a father and sons in the same family and household, and two of them are in the military service of the United States, as non-commissioned officers, musicians, or privates, the residue of such family or household, not exceeding two, shall be exempt.'
In reading this clause, the question naturally arises: Why is this provision made applicable only to families in which the father is still living? Why should not a widow, having two uncommissioned sons in the army, have her remaining son exempt, as well as if her husband were still living? Judge Holt has decided that 'a widow having four sons, three of whom are already in the military service, the fourth is exempt,
provided
she is dependent on his labor for support.' If the father were living, the remaining son would be absolutely exempt.
The evident design of this clause is to take into consideration the amount which each family may have contributed to the service. But this generous intention is practically ignored by another 'opinion,' which makes it necessary that two members of the same family must be
now
in service, in order that the exempting clause may apply. Thus, by the calamities of war, a father and several sons may have been killed or rendered helpless for life, yet if there remains a son liable to draft in the same family, he cannot be exempted unless his mother depends on him for her support. It must be admitted that the parent or parents who have had two sons
killed
in their country's service, have made quite as great a sacrifice as those who have two sons still engaged in that service. And if the question of support is involved, it is reasonable to suppose that two sons in the army would do quite as much for needy parents as two sons in the grave.
These are some of the inconsistencies of the law, as it has been interpreted by authority. Other cases also may arise that seem to demand an exempting clause equally with those in the act. Of such are the following:
First, the husband and father of a family depending upon his labor for their support.
Second, the only support of an aged or infirm spinster or bachelor.
It is not unusual for persons of this class to adopt the son of a relative or stranger. And when the infirmities of age render such persons unfit for toil, the youth whom they brought up, and who is now by his labor repaying their early attentions to him, should, not be taken away.
Third, the only support of helpless children, having neither parents nor grown brothers.
Orphans are often thrown upon the charity of a relative, and it seems right that their support should not be taken from them. In view of the many difficulties presented by the subject of exemptions, the many diverse claims that arise, and the impossibility of making a special provision for each, would it not be better to adopt a few general principles on the subject, and submit all claims to the judgment of the boards of enrolment? Thus, instead of clauses second to sixth, inclusive of the second section, there might be a single proviso that—No person who is dependent by reason of age, bodily, or mental infirmity, shall, by the operations of this act, be deprived of his or her necessary and accustomed support. This would include all possible cases, and would secure to each the necessary maintenance, as designed by the law. It would do away with the necessity of an unlimited issue of circulars of explanation from the Department at Washington, throwing each case upon the judgment of the board, who are to be presumed able to decide intelligently on proper evidence being given before them. It would avoid the unjust and injurious distinctions noticed under clause fourth, and in the end would secure more men to the Government with less liability of wrong to the citizen. Clause seventh also could easily be so modified as to avoid the objections noticed above.
Another evident objection to the act of March 3d, is the limited power given to boards of enrolment as such. All clerks, deputy marshals, and special officers, are appointed by the Provost-Marshal alone. Yet a large—perhaps the
chief
part of their duty is directly connected with the enrolment and draft. The judgment of the remaining members of the board would certainly be of some value in making these appointments, as they are always residents of the district, and hence acquainted with the peculiar wants of the service and the character of the applicants. The duties of the commissioner should also be more definitely stated. Special duties are assigned to the marshal and surgeon, but no further definition of the commissioner's labor is given than that he is a member of the board. Thus there is liability to a conflict of authority and a shirking of responsibility, which could easily be avoided by more explicit divisions of duty. The board system is undoubtedly a good one. It gives
the people
a larger representation in the business of conducting a draft, tends to secure justice to all, and thus relieves the popular prejudice and feeling of opposition to the law itself.
But why should not every board of enrolment throughout the country also be a board of enlistment? The time is fast approaching when the bulk of our present army will return home. It is important that as many of these men be reënlisted as can be, with any new troops that may offer themselves. The Government should avail itself of every opportunity for making voluntary enlistments. And by having a recruiting office within every district, convenient to every man's residence, a surgeon always at hand to examine applicants, offering the authorized Government bounties, much could still be done in this way toward keeping an army in the field, without any additional expense or without in the least interfering with the draft.
The act of March 3d is a law for the present, not for the future. It is an act for the emergency, not for coming time.
During the long years of peace and prosperity that we have enjoyed, the great truth that every able-bodied man owes military service to his country as sacredly as he owes protection to his family, has slumbered in the minds of the people. For half a century there was scarcely anything to remind us of it, and we were fast verging into that hopeless national condition, when
'Wealth accumulates and men decay.'
This act brings duty home to the conscience of the nation. It is an impressive enforcement of a great political principle. But if our quickened sense of obligation fail to make us
act
, if we refuse to receive the lessons of wisdom which the developments of the hour force upon us, if we fail to improve our military organization and instruction, and render our able-bodied men effective for military service at a moment's call—then this act will have done us little permanent good. Our men of education and high social position, instead of aiding to make the militia