When the Civil War began, the militaries of the Union and Confederacy raised their Armed Forces the way American governments always had; they accepted volunteers from the states. Both sides had a small regular Army, much too small to fight the war alone, so the Federal governments called on the states to supply the necessary manpower.
Initially, this process was approximately the same on both sides. This is not particularly surprising since the federal governments and militaries on both sides had, until recently, been one system. The process started with the President petitioning Congress for a specified number of troops. Once Congress approved the number and duration of their commitment, the President called on the individual states for their share of the total number. The number each state contributed was usually determined by population. Once notified, the governors allowed men to go out and recruit volunteers. The men who recruited troops were usually well known within their city or county, and may or may not have had any military training. Once approximately one hundred men volunteered, they were formed into a company. When ten companies were formed, they were formed into a regiment.
Once units were formed, the men voted for their company and field grade officers. Although not always militarily sound, the election of officers was an accepted practice when the Civil War began. Since most units came from a small area, the men usually shared a geographic and ethnic similarity, and many volunteered because they knew who they would serve under. Lincoln and Davis were both elected officers during their military service, Davis as a Colonel of the First Mississippi Rifles and Lincoln as a Captain of the Illinois Militia.
After the men elected the company and field grade officers, those officers elected the Regimental officers. The governors actually commissioned the Regimental officers, but usually agreed with those elected by the junior officers. Once the units were completely filled out and officers elected, they headed out to war. Regiments were kept together as a rule, and formed part of a larger unit under a General Officer from the regular Army. The state government usually outfitted the men with weapons and equipment, resulting in wide variations in uniforms and weapons.
The Civil War changed all this. For the first time in American military experience, the number of men required to fight was too large and the war too long to rely solely on volunteers. Both sides enacted laws drafting men into national military service. The systems they used were different, and both presidents were challenged by governors concerning these laws. Their handling of these challenges was critical to the military effort of both sides.
Davis and the Confederate Congress moved quickly to provide military forces for the defense of the Confederacy. On 26 February 1861, Davis wrote to the Provisional Congress, asking for legislation requiring the states to turn over to the Federal Government "all arms and munitions now in the forts, arsenals, and navy-yards" recently seized.{176} Two days later, the Congress passed the first act to raise forces for the Confederacy. Beyond the arms and munitions he asked for, the act placed Davis in charge of all military operations and authorized him to receive:
such forces now in the service of said States as may be tendered, or who may volunteer, by consent of heir State, in such numbers as he may require.{177}
The Act allowed Davis to accept the men in organizations up to regimental size. The following day, Secretary of War Walker notified the governors of the Confederate states that Davis planned to proceed immediately with the provision to receive forces.
On 6 March 1861, the Congress established the Confederate Army, limiting its size to 9,420 enlisted men. On the same day, Congress further authorized Davis to employ the state militia, and accept up to 100,000 volunteers for Federal service.{178} On 8 April 1861, Secretary Walker wrote to the Governors, asking all states except Florida for three thousand volunteers "drilled, equipped, and held in instant readiness."{179} Walker asked Florida to provide only one thousand five hundred men. Again on 16 April, he asked for five thousand more from each state, requiring only two thousand from Florida.
The Confederacy fought the first year of the war with an all-volunteer force. By the end of that year, however, it became apparent the war would last longer than anyone had anticipated in early 1861. Davis addressed the first session of the permanent Confederate Congress on 25 February 1862 and told them he believed the war would continue "through a series of years."{180} One week later, in response to a House resolution asking for military requirements, Davis estimated an additional 300,000 men, in addition to those already in the field, would be required to continue the war.{181}
Faced with these formidable requirements and the expiring enlistments of the Confederacy's most experienced troops, Davis asked the Congress for drastic action. On 28 March 1862, he wrote calling for a "plain and simple" law declaring all persons eighteen to thirty-five years old and "rightfully subject to military duty" to be held in the service of the Confederacy.{182} On 16 April 1862, the Congress passed "An Act to Further Provide for the Public Defense," normally referred to as the Conscription Act.
The Conscription Act placed all white men ages eighteen to thirty-five in Federal military service for three years. In addition, all current enlistees were extended for three years from the date of their original enlistment. Five days later, the Congress passed another act listing occupations exempted from military service. The list of exemptions was long, and included members of the state executive and judicial branches, state legislators, mail carriers, boat pilots, and numerous other occupations. Davis asked for a simple method, and this seemed to fit the bill. All white men in the specified age group who were not involved in any of the exempted occupations were required to perform three years of military service or provide a substitute. In practice, however, the Conscription Act proved to be anything but simple. Within days, outraged governors wrote and telegraphed Davis, accusing him of subverting the rights of the States. Before the end of the war, the Act would be revised six times in attempts to appease the states while keeping sufficient forces in the field.
Davis's most vocal opponent was Georgia Governor Joseph E. Brown. Throughout the war, he and Davis engaged in an often heated correspondence. The real fireworks came between April and December of 1862 as each man staked out his position on conscription. Brown first wrote Davis on 22 April 1862, concerned about exemptions to conscription. Apparently unaware of the exemptions passed by Congress the day prior, Brown said he could not allow his Legislature, judges, or numerous other state officers to be drafted. He expressed extreme displeasure with a provision allowing the Confederate government to fill existing companies with conscripts, possibly breaking up some state units. Brown asked that all Georgia units remain intact. He closed telling Davis that the Conscription Act gave the President the power to disorganize state militia, and "cripple or destroy" state governments.{183}
Davis replied in a short note on 28 April, attempting to reassure Brown he had no intention of destroying state governments or crippling militia. He said the Confederate government would not interfere with the present organization of Georgia units, and reminded Brown that the Confederate Constitution granted Congress the power to raise armies.{184}
Apparently not satisfied with a one paragraph answer to his letter, Brown wrote again on 8 May 1862, In a five-page letter, he questioned the necessity of conscription. Brown pointed out that raising men was never the problem, arming them was, and conscription would not solve that.
One part of the act that particularly troubled Brown concerned the appointment of officers. Congress allowed Davis the power to fill vacancies in the officer ranks, excepting only company level officers who were elected by the men. This applied to all troops in Federal service, including state militia employed by the Confederacy. Brown argued vehemently against this, saying the appointment of militia officers belonged to the Governors alone. Brown said the Conscription Act was a "palpable violation of the Constitution," and he could not "consent to have anything to do with the enrollment of the conscripts in this State." If the Federal government required more troops from the states, Brown recommended Davis tell "the Executive" the number required and he would receive them, "organized and officered as the Constitution directs."{185}
Davis replied in a long letter of his own on 29 May 1862. Although specifically addressing Brown, Davis had this letter printed in pamphlet form and distributed. He wrote this letter in response to the criticisms of Brown and "other eminent citizens who entertain similar opinions."{186} Prominent among these "eminent citizens" citizens was his own vice-president, Alexander Stephens, who actually helped Brown write some of his letters to Davis.
Davis started by saying he intended to give his views of the "powers of the Confederate government over its armies and militia", then very carefully addressed Brown's objections. Davis reminded Brown that the full Congress had debated the Conscription Act and upheld it; also the Attorney General ruled favorably on it. He contended the law was necessary, if for no other reason than preventing the loss of "numerous regiments" of twelve month volunteers. He continued that the Constitution guaranteed Congress the power to raise armies, and the law did no more than that. He said:
None can doubt that the conscription law is calculated and intended to "raise armies"; it is, therefore, "necessary and proper" for the execution of that power, and is constitutional.
He went on to dispute the idea that he was attempting to subvert the power of the states over their militia. After a lengthy definition of the word militia, Davis said that Congress merely held the power to organize militia and call them forth to repel invasion. The militia was not part of the Confederate Army, and would never be. He assured Brown the state still held the power to appoint officers, and "the State has not surrendered the power to call them forth to execute State laws." Acknowledging that conscripts and militia was necessarily drawn from the same body of men, Davis continued that this was an extreme case and the needs were great. He reminded Brown, "Under normal circumstances, the power thus delegated to Congress [to raise armies) is scarcely felt by the States.", but in this instance necessity forced the Confederacy to call "not for any militia, but for men to compose the armies for the Confederate States." In closing, Davis explained wars may be offensive or defensive, and an offensive war provided the clearest example of the constitutionality of conscription:
If this Government cannot call on its arms-bearing population otherwise than as militia, and if the militia can only be called forth to repel invasion, we should be utterly helpless to vindicate our honor or protect our rights.{187}
This did not have the effect Davis hoped for. Brown did not write to Davis for three weeks, but wrote several telegrams to Secretary of War Randolph. Brown was apparently trying to exempt Georgians by enlarging his militia; on 17 June 1862, he wrote to Randolph to complain about Confederate enrollment officers enrolling his militia officers. Randolph replied that only men active in the militia on 16 April 1862 were exempt.{188}
Four days later, Brown again turned his pen on Davis. In an even longer letter than before, he took issue with every point Davis made in his response of 29 May. The tone of his letter was still cordial, but more confrontational than his last. He opened, "Entertaining as I do the highest respect for your opinions . . . your argument fails to sustain the constitutionality of the act." Brown told Davis the Congress was not the judge of the constitutionality of a law, the courts were. He included many quotes from James Madison and the original Constitutional Convention about the tendency of the Executive branch of government to overstep its bounds. He disagreed with Davis's closing argument, saying if troops became necessary for offensive war, Southerners would realize it and volunteer. He told Davis, "To doubt this would seem to be to doubt the intelligence and patriotism of the people and their competency for self-government." Referring to Davis's argument that the needs of the Confederacy were desperate; he asked, "In the midst of such pressing danger why was it that there was no necessity for any militia?" He answered the question for him, telling Davis conscription allowed him to appoint officers of his choice, removing that power from the governors. He closed asking Davis to call on him when he could "without violation of constitutional obligations resting upon me, do any service to the great cause."{189}
Davis replied on 10 July, obviously growing tired of the argument. He told Brown it was never his intention to engage in a "protracted discussion." He continued that he never meant the Congress could judge constitutionality, nor did he believe "the judgement of Congress was conclusive against a state." He told Brown he did not share his concern over states rights, and closed saying:
The right of each State to judge in the last resort whether its reserved powers had been usurped by the General Government is too familiar and well settled a principle to admit of discussion.{190}
Brown wrote back on 22 July, opening with a blast. He told Davis he was happy to see him disclaim the position attributed to him by "every fair-minded man who has read your letter of the 29th of May last, and has construed plain English words according to their established meaning." He again pointed out that the Conscription Act allowed Davis the power to appoint militia officers; and reminded Davis that he himself turned down a Brigadier Generalship offered by President Polk on the grounds that the President had no right to appoint a General of State volunteers.{191}
This letter closed the first round between Davis and Brown, with neither man moving an inch toward the other's opinion. In a message to Congress on 13 August 1862, Davis told the Legislators "I am of the opinion that prudence dictates some provision for the increase of the Army in the event of emergencies not now anticipated." He was concerned about a recent increase in Union forces, and feared that it might be necessary to increase the size of the Confederate Army while Congress was not in session. He specifically mentioned the possibility of raising the age provision of the Conscription Act "so as to embrace persons between the ages of thirty-five and forty-five years."{192}
On 27 September 1862, the Congress passed an amendment to the Conscription Act, raising the eligible age to 45 according to Davis's wishes. They further authorized the President to suspend the Act in any locality where it may be "impracticable" to execute it, and to receive troops in those localities under any previous act of Congress. On 11 October 1862, they also repealed some of the original exemptions. The actual order to extend the conscription age was issued on 20 October, and only raised the eligible age to forty years old, not forty-five as approved by Congress. This was due to a recommendation from Secretary of War Randolph. Randolph informed Davis that raising the eligible age to forty-five would increase the Army beyond the capabilities of the Confederate supply system. Davis agreed and lowered the age according to Randolph's estimates.
This opened the door for Governor Brown to renew his protest, and he did so with renewed vigor. Brown wrote to Davis on 18 October 1862, telling him he had protested earlier but did not actively resist conscription "on account of the emergencies of the country growing out of the neglect to call upon the State for a sufficient amount of additional force." He made it clear that this time was different. He argued that there was no reason to call for more troops now, citing the recent "brilliant successes" of the Confederate Army. He accused Davis of taking the only men he had left to form his militia, destroying the state military organization and leaving "her people utterly powerless to protect their own families even against their own slaves." Brown again volunteered to raise any troops needed if Davis would only ask him for volunteers instead of conscripts as Congress allowed him to do. In closing, Brown told him: "I cannot permit the enrollment of conscripts under the late act of Congress."{193}
The Confederacy had no Supreme Court, but several state Supreme Courts had already ruled in favor of conscription. Davis, however, temporarily suspended conscription in Georgia until the Georgia Supreme Court ruled on the constitutionality of the Act.{194} Much to Brown's dismay, the Georgia Court ruled in favor of the Confederate government and conscription. Brown appealed to the Georgia Legislature next, declaring that the court decision was "rendered under heavy outside pressure." A committee appointed by the legislature sided with Brown, but only by a slim margin, and the session ended without action by the legislature.{195} By December 1862, Brown gave up and allowed Confederate officers to begin enrolling Georgians for conscription.
Davis sent his annual message to Congress on 12 January 1863. Secretary of War Seddon informed him earlier the Confederate Army still did not have the numbers it required and Davis asked Congress to revise the exemption policy to fill the ranks.{196} On 14 April 1863 the Congress passed an act exempting mail carriers; but on 1 May 1863 they repealed several exemptions. The most important exemption repealed affected all state officers previously exempted by the Governors. The new law required any state officers exempted by the Governor to be approved by the state legislature in its next session. All officers not legally exempted by the legislature were eligible for military service. Brown answered this by exempting all civil and military officers until the next session, when the legislature upheld his actions.{197} Despite this maneuvering, the correspondence between Brown and Davis became considerably more cordial. Brown still denounced conscription, but for the most part confined his remarks to the state legislature.
Davis did not ask for another increase until his annual message on 7 December 1863. Again acting on the advice of Secretary of War Seddon, Davis asked Congress to increase the Army by ending substitution, overhauling exemption laws, and replacing "enlisted cooks,…wagoners, and other employes [sic] in the Army, by negroes."{198} This is the first mention of using Negroes in the Confederate military service, and the Congress did not act on it. The Congress prohibited substitution in an amendment approved on 28 December 1863, but took no further action on Davis's recommendations.
On 23 December 1863 Governor Brown made another attempt to change Davis's mind about conscripts electing their own officers. In a letter to Davis, he enclosed a resolution passed by the Georgia legislature demanding that Georgia troops be allowed to elect their own officers. Davis did not respond to Brown this time, and merely forwarded the resolution to the Secretary of War for his comments. Seddon returned it to Davis saying it was a matter for the Congress, but he considered the claim "unfounded."{199} Brown appears not to have challenged Davis again on this resolution. In the next exchange between the two in January 1864, there is no mention of it. This time Brown passed a resolution from the Georgia legislature vowing to "prosecute the present war with utmost vigor and energy." Davis answered, thanking Brown for the copy, and praising Georgia for its war effort.
In another message to Congress on 13 February 1864, Davis asked the legislators to extend the Conscription Act. Congress obliged him and on 1 Mar 1864 passed another amendment to the Conscription Act. Under the new law, all those currently serving were extended for the duration of the war. Additionally, more exemptions were repealed and the eligible age extended again, this time encompassing all white men from seventeen to fifty. This made thousands more eligible, but another part of the amendment allowed Governors to exempt indispensable officials. Brown took full advantage of this provision, and on 9 April 1864, he issued a proclamation exempting all civil and military officers, the Attorney General, solicitors general, and masters of chancery.{200}
Davis did not address the subject of conscription again until 7 November 1864. With the war going badly for the Confederacy, Davis appealed to Congress to repeal all exemptions and allow the military the discretion to keep sufficient numbers of people in critical public services. He also returned to the subject of using slaves. Davis recommended that slaves be employed as pioneers and engineer laborers. He suggested the Congress approve 40,000 of these positions, with the provision that those slaves be freed after the war as a reward "for past faithful service." He advised against using slaves as soldiers, however, citing a "broad moral distinction" between using slaves to defend their homes and inciting insurrection.{201}
Brown was adamantly opposed to Davis's recommendations, and used the opportunity to rally the legislature and state opinion. In a message to the state legislature, Brown said this would prohibit anyone from performing their occupation without specific approval. He recommended the state legislature pass a resolution demanding their representatives in the Confederate Congress oppose this amendment.{202} Before he could get the resolution passed, General Sherman and his Army caused an early end to the legislative session.
The Confederate Congress was apparently still debating Davis's proposals in February 1865 when he again wrote; this time asking for "prompt action for adding to our strength in the field."{203} News from the field was bad, and Davis began to change his mind about arming slaves. In a letter written on 21 February, Davis said the situation required "employing for the defense of our country all the able bodied men we have, without distinction of color."{204}
Congress finally sent Davis a bill on 11 March 1865. Davis replied on 13 March and cited two disagreements with the bill. First, he opposed a section allowing him no discretion over exemptions. In a separate letter, he pointed out that the new bill did not change the number of men currently exempt. He told the legislators he wanted "A law of a few lines repealing all class exemptions."{205} He also mentioned that he read of the passage of a bill to use Negroes as soldiers, but had not seen it yet.
There was no more correspondence concerning conscription. By this time, it was apparent to most southerners that the war was over. The bill Congress sent to Davis in March was never enacted, and the Bureau of Conscription was abolished on 29 March 1865. Governor Brown fought Davis till the end, and through his considerable efforts, supplied only 8,992 conscripts. By his own records, Brown exempted 15,000 men from conscription. All but 1,450 of these were exempted by enrollment in the militia. Georgians did, however, volunteer in large numbers. More than 26,000 entered the Confederate service between April 1862 and February 1865.{206}
Like most everyone else at the beginning of the Civil War, Abraham Lincoln badly underestimated the number of men he would eventually require. The day after Fort Sumter, Lincoln called for 75,000 militia for 90 days service, and this call drove North Carolina and several other states to secede rather than take up arms against fellow Southerners. He took a somewhat more realistic outlook two weeks later. On 3 May 1861, he issued a proclamation calling for 42,034 three year volunteers for infantry and cavalry and increasing the regular Army by eight regiments of infantry, one regiment of cavalry, and one regiment of artillery. Additionally, the proclamation called for the enlistment of 18,000 seamen for not less than one year and not more than three.{207}
Lincoln took these steps without congressional approval since the Congress was not in session. When the legislators returned on 4 July for a special session called by Lincoln, he laid out the steps he had taken in their absence. In a lengthy address, Lincoln set the tone he would maintain throughout the war. He asked:
Is there, in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?
Lincoln continued, telling the legislature that the measures taken "whether strictly legal or not, were ventured upon . . . trusting, then as now, that Congress would readily ratify them." Lincoln further recommended that Congress "place at the control of the government" a minimum of 400,000 men.{208}
Congress agreed with these suggestions, and approved all Lincoln's prior actions to raise troops. Lincoln did not call again on Congress for troops for more than a year; but in July 1862, there was a flurry of activity to raise more men for the Union army. Lincoln began on 1 July 1862 by calling on the governors for 300,000 three year volunteers; the quotas for each state determined according to population.{209} On 17 July, Congress approved an amendment to the Uniform Militia Act of 1792. The amendment authorized the President to call up militia for no more than nine months, accept up to 100,000 infantry volunteers for nine months and to accept volunteers "in such numbers as may be presented" for twelve months to fill current regiments. In addition to these powers, the Congress granted the President the power to "make all necessary rules and regulations" for enrolling the militia. The Congress further ruled that enrollment of the militia "shall in all cases include all able bodied male citizens between the ages of eighteen and forty-five."{210} This significantly increased Lincoln's power to raise troops, and appears to have laid the foundation for the Draft Act. Surprisingly, there is no correspondence recorded between Lincoln or the War Department and the Congress asking for these measures. Regardless of whether he asked for the amendment or not, he wasted no time using his new authority. Five days after Congress passed the amendment, Lincoln wrote to the Secretary of War concerning a militia call up. Concerned about asking for more men so close to his 1 July call for 300,000, Lincoln authorized Stanton to enroll state militia to fill old regiments, by draft if necessary.{211}
Although this was not the Draft Act that would cause so many problems in the following year, there was evidently enough dissatisfaction to cause Lincoln to issue a proclamation on 24 Sep 1862. In it, Lincoln claimed that any person interfering with the enrollment of volunteers or resisting militia drafts was "affording aid and comfort to rebels against the authority of the United States.", and was subject to martial law. Furthermore, the writ of habeas corpus was suspended for any person arrested by military authorities or held in military facilities.{212}
On 3 March 1863, Congress passed "An Act For Enrolling and Calling out the National Forces, and for other Purposes," more popularly known as the Draft Act. In this Act, they called for all able bodied male citizens, and foreign born males who declared their intention to become citizens, between the ages of twenty and forty-five to make up the national forces. This act had some similarities to the Conscription Act in the Confederacy: eligible men could avoid service by providing a replacement or paying three hundred dollars, and there were some exemptions. The exemptions were not nearly as numerous as in the Confederacy, and were not usually occupation dependent. The only exceptions to this were federal and state government officials and judges. The eligible men were split into two groups; all men between twenty and thirty-five years old and unmarried men between thirty-five and forty-five were designated as the first to be called. All married men between thirty-five and forty-five were required to enroll, but would be called last. All draftees were required to serve for three years or for the duration of the war.
Once again there is no record of correspondence between Lincoln or Stanton and the Congress concerning the administration's desires on the content of this act, so it cannot be determined if this were Lincoln's plan or Congress'. In Battle Cry of Freedom, James McPherson attributes it to Congress, in reaction to an imminent loss of men similar to the one faced by the Confederacy one year prior.{213} There is no documentation in the Official Records or in Lincoln's papers to suggest he requested this of Congress.
Regardless of who the ideas originated with, the Lincoln administration moved quickly. The Provost-Marshal-General, Colonel James B. Fry, proposed the methods for enrolling and drafting men in two letters to Secretary of War Stanton in May 1863. In his first letter, he recommended the first call be for deficiencies from the previous call. He advised Stanton to begin drafting men by state as soon as enrollment was complete in that state, not waiting for all states to complete their enrollment. Warning that calling for too large a number of men would flood the training system, he recommended "several successive drafts," and further suggested no call for new men occur until a draft for deficiencies was well underway.{214} In a second letter, Fry strongly advised against announcing a draft by Presidential proclamation. He recommended the War Department give the total number of men required for each draft to the Provost-Marshal-General alone. As his reason for this, Fry said,
If the whole number be called out by proclamation, every man who knows how to cipher proves for his friends that the quota for his State, district, and county are not correct, and this creates a bad feeling.{215}
Lincoln and Stanton followed this advice throughout the war. On 7 July, the Adjutant General sent the order to the Provost-Marshal to commence the draft.
Lincoln realized there could be problems with the new law, especially in New York. New York was the largest and most powerful state in the Union, and was controlled by Democrats. Lincoln wrote a private and confidential letter to Governor Horatio Seymour three weeks after the Draft Act passed, telling him he hoped they might become "better acquainted." He told Seymour that their positions were similar; Lincoln was head of the nation, and Seymour head of the greatest state in the nation. Pointing out that they could not have a difference of purpose in maintaining the integrity of the nation, he hoped any difference of opinion "as to the means . . . should be as small as possible." He closed telling Seymour the cooperation of New York was "indispensable."{216}
Seymour's reply was exactly what Lincoln wanted to hear. He told Lincoln: "For the preservation of this Union I am ready to make every sacrifice."{217} Three months later, Seymour was put to the test. Most New Yorkers did not believe a draft would ever take place in their state. Governor Seymour himself believed he could fill federal quotas with volunteers, and believed the courts would rule that the draft was unconstitutional before it was ever required.{218} Enrollment in New York City ended in June 1863, and the draft was scheduled to begin the following month on Saturday, 11 July. When it finally dawned on the citizens of New York that the draft would actually happen, tensions began to rise. On Monday, 13 July, the city erupted in the most violent civil disturbance in American history.
The mayor of New York City wired Secretary of War Stanton on 13 July, telling him resistance against the draft had sparked a riot which threatened to become serious.{219} The following day, General Halleck ordered two New York regiments from Pennsylvania to New York City. Halleck also wired Governor Seymour, telling him the regiments were on the way; and also passing a request from Stanton that Seymour call out sufficient militia to stop the disturbance. With a pursuit of Lee's army expected, Halleck informed Seymour that more troops from the field would be sent only "if absolutely necessary."{220} To help in the crisis, the draft was temporarily suspended in New York City, Buffalo, and Brooklyn.
Lincoln did not declare martial law in New York; and aside from sending the two New York regiments, the federal government did little to quell the riot. Local authorities and militia units were able to stop the rioting with the aid of the New York regiments by 17 July. However, the suspension of the draft was causing concern around the country. Lincoln and Stanton received several telegrams from the other governors, warning them of disastrous consequences if the draft could not be carried out in New York. Typical was a telegram from the governor of Iowa, Samuel J. Kirkwood. He advised Stanton that allowing resistance to the draft in New York would preclude enforcement anywhere else. He closed saying, "For God's sake let there be no compromising or half-way measures."{221} Stanton assured him Lincoln had no intention of allowing the rioters to stop the draft. He told Kirkwood, "The draft will be enforced in New York City. You need entertain no apprehensions of compromising or half way measures.”{222}
Lincoln took a very definite measure to ensure the riots would not prevent the draft from taking place. On 15 July, he appointed General John Dix, a New York Democrat, to command the Department of the East, which included New York. Dix was well respected in New York, but also had a reputation as a fierce opponent of treason while Commander of the Maryland Department. With this appointment, Lincoln sent a clear message that the draft would be carried out in New York.{223}
On 19 July, Governor Seymour sent a representative to Washington to discuss the events in the state. On 1 August, he sent telegrams to both Lincoln and Stanton asking them to suspend the draft in New York "until I can send you a communication I am preparing."{224} Lincoln replied within hours, asking when he could expect Seymour's communication and if he was concerned about any other parts of the state besides New York City and the immediate vicinity.{225}
Seymour sent the promised communication on 3 August; a long, eloquent argument against the quotas imposed on New York and the constitutionality of the law. He began by explaining that the riots spread because he had no warning that the draft was about to occur. Without this knowledge, he was unable to call out militia in advance. He called the quotas for New York "glaringly unjust", and cautioned:
the abandonment of voluntary enlistment for a forced conscription will prove to be unfortunate. . . it will not secure either so many or so effective men.
He argued that people will make "great sacrifices" if they believe their rights are protected; and the best way to protect their rights was to submit the law to the courts to determine its constitutionality. He told Lincoln a judgment for the draft would strengthen their cause; a judgment against would merely cause a return to volunteering. He assured Lincoln, "No evils are to be feared if the law should be pronounced unconstitutional." He closed asking again to suspend the draft until a judgment was obtained, saying this was "but a small concession for our Government to make to our people."{226}
Lincoln answered on 7 August, and wasted no time letting Seymour know the draft would be enforced. In his second sentence Lincoln said, "I cannot consent to suspend the draft in New York as you request, because, among other things, time is too important." He acknowledged Seymour's complaint concerning the quotas for New York, and reduced them in New York City districts for this draft only. After that, he proposed a re-enrollment in those districts. He also told Seymour he would be notified before each future draft to allow him to prepare for protests. Addressing the constitutionality of the law, he said he had no objection to a U. S. Supreme Court ruling, "In fact, I should be willing to facilitate the obtaining of it, but I cannot consent to lose the time while it is being . obtained."{227}
Seymour sent a letter to Lincoln that same day, telling him he had evidence that the enrollment figures for New York were wrong, and "shameless fraud" may have been committed. He said the honor of the country was at stake, and he would not "spare any effort" to stop the draft.{228} The following day, he replied to Lincoln's telegram of 3 August. He appreciated the concessions Lincoln made, but regretted his decision to go on with the draft. After telling Lincoln that he need only ask for volunteers and they would be provided, he took a more confrontational tone. Citing a difference in quotas between comparably sized congressional districts in Manhattan, Long Island, and Staten Island; he pointed out that nine Democratic districts were assigned the same number of conscripts as nineteen Republican districts. He told Lincoln, "You cannot and will not fail to right these gross wrongs."{229}
Lincoln felt he needed to make his views on the draft clear to the public. So, much like Davis's reply to Governor Brown, he prepared a constitutional argument. He obviously intended this for public release, beginning by saying it was "proper that misunderstanding between the public and the public servant should be avoided." He listed the motives for enlistment, then stated that the Union already obtained all the men they could by that method. He then described the Draft Act, and assured people that its only purpose was to raise and support an army. He emphasized this, saying "There is nothing else in it." He argued that the power to raise and support armies was granted to the Congress by the Constitution, and asked "How can Congress exercise a given power in an un-constitutional mode?" Continuing on this theme, he stated:
The power is given fully, completely, unconditionally. It is not a power to raise armies if State authorities consent; nor if the men to compose the armies are entirely willing, but it is a power to raise and support armies given to Congress by the Constitution without an "if."
He continued that not everyone who avoided service was "unpatriotic", but said "every patriot should willingly take his chance under a law made with great care." He also defended the three hundred dollar substitution clause, saying if government did not set the price, rich men would drive it up. He said in this way, the law worked for the poor, not against them as some believed. He concluded asking: "Shall we shrink from the necessary means to maintain our free government . . . Has the manhood of our race run out?{230}
Lincoln never released this paper, although he obviously put considerable thought into it. Perhaps he thought it best to follow the advice Colonel Fry gave concerning the calls for troops, and somehow distance himself from the issue by not releasing any opinions on it. Regardless of his reasons, the paper gives a clear insight into his thinking on the draft, and shows his determination to carry it out.
Lincoln and Seymour resumed their correspondence on 11 August, when Lincoln replied to Seymour's telegram of 8 August. He authorized the re-enrollment of more districts to ensure the accuracy of the count, but reminded Seymour "No part of my former letter is repudiated by not being restated in this, or for any other cause."{231}
By this time, General Dix was in New York and preparing to resume the draft. He had been requesting state militia assistance from Governor Seymour since 30 July, saying he did not want to bring federal troops in from the field to enforce the draft.{232} He advised Washington he was not getting much cooperation, and on 16 August Stanton sent him a proclamation signed by Lincoln. The proclamation called out the state militia, and ordered them to report to General Dix. The place and date on the proclamation were left blank; Dix was to fill them in if he needed to call out the militia. Stanton told Dix that Lincoln desired him to call on Seymour first, and let him help or "shoulder the burden of refusing."{233} The following day, Dix wired Halleck concerning his preparations to resume the draft. He emphasized his determination to avoid a repeat of the previous attempt to draft New Yorkers. He told Halleck, "You need not fear the rioters, if they show themselves, will be tenderly treated." He repeated to Halleck his orders to his troops: there would no blank cartridges, and mobs would not be merely dispersed. He told his men to follow the rioters and deal with them so that the same persons "should never be assembled again."{234} Clearly Lincoln made the right choice of generals to resume the draft.
Perhaps seeing he was not going to stop the draft with a constitutional challenge, Seymour tried a new approach. He telegraphed Lincoln on 16 August, asking that volunteers be accepted in place of men who had already been drafted.{235} Lincoln replied that any volunteer meant one less man had to be drafted, but refused to allow substitutes for those already drafted. He again reminded Seymour of the urgency to raise troops, telling him, "My purpose is to be just and fair, and yet not to lose time."{236}
The draft resumed three days later, on 19 August. There were no riots, and the process went smoothly. Although he protested again that he was not notified the draft had commenced, Governor Seymour did call the militia when asked by General Dix. Dix wired Halleck on 20 August that everything was going well. He said that Governor Seymour "held out to the last and then backed out."{237}
Seymour did not quit trying to influence Lincoln, however. On 21 August, he complained to Lincoln again that he was not notified when the latest draft started. He also claimed great success in recruiting through offering bounties, and wanted to know how these recruits would be counted toward New York's quota. Finally, he accused other states of recruiting New Yorkers to fill their own quotas.{238} The following day, Seymour telegraphed Lincoln to inform him he was sending a Major Stonehouse to ask some questions for him.{239}
Lincoln answered Seymour's telegram of 21 August by enclosing a report from the Provost-Marshal. He assured Seymour that all New York volunteers were accounted for and credited to New York. He also found Seymour's claims of recruiting by other states in new York baseless. The final correspondence from Lincoln concerning the New York draft is a memo to Stanton, giving him a notice to be telegraphed and mailed to Governor Seymour each time the draft was conducted in New York.
The exchange between Lincoln and Seymour concerning the draft was over, and Lincoln left no doubt that the federal government meant to carry out the draft. He called for more than one million men before the war ended; each time calling first for volunteers and drafting to fill deficiencies. On 4 July 1864, Congress voted to allow Lincoln to call for any number of one, two or three year volunteers at any time. Beside the draft of 1863, The Provost-Marshal's annual report to the Secretary of War in November 1864 showed that two drafts actually occurred in 1864 to fill deficiencies in calls for volunteers.{240} The Union's last call for draftees was made in December 1864. On 13 April 1865, the day before Lincoln's assassination, the Union stopped the draft and recruiting.
Lincoln's firm handling of the New York draft riots was the key event for the successful implementation of the draft during the remainder of the war. He knew when to hold back and when and how to apply pressure. By not committing large federal forces to New York City, he allowed mostly local authorities to put down the rioters and restore calm. The presence of large amounts of federal troops probably would have increased resentment of the federal government. The appointment of General Dix to resume the draft was brilliant. A native New Yorker and well known Democrat, he was not an outsider and was also certain to take a dim view of any attempts to repeat the rioting of July. His telegram to Halleck showed his determination to see the draft carried out.
Lincoln also dealt well with Governor Seymour. Although refusing to even consider suspending the draft in New York pending a Supreme Court hearing, he still allowed Seymour some measure of victory by temporarily lowering the quotas around New York City. This allowed Seymour to come away with some tangible victory for his constituents, however small.
Davis also achieved his goal of enlarging the Confederate Army, and under the considerable handicap of the Confederacy's commitment to states' rights. Additionally, the Confederacy lacked a Supreme Court, a necessary exemption in an government which considered states' rights more important than any federal laws. This meant Davis had no recourse if a state judged that conscription violated their rights. He told Governor Brown himself the states were the final judge of whether their rights had been infringed upon by the federal government. Davis was required to convince each state that conscription was a temporary necessity for the effective protection of the whole Confederacy. Working within this framework, he was still able to win enough people over to his view to carry out conscription in the South. The challenge from Governor Brown was serious, but Brown lacked strong popular support within his own state. Publishing his reply to Governor Brown as a pamphlet was an excellent way for Davis to appeal his own views to the people of the Confederacy, and allowed him to publicly dispute the arguments of his most vocal critic.
Conscription in the South raised more men as volunteers than actual conscripts. In a report to Davis in November 1863, Secretary of War Seddon told Davis that three men volunteered for every conscript.{241} This was true in Georgia as elsewhere in the Confederacy; so although Brown was able to limit the number of men drafted in his state, Davis still achieved his goal of enlarging the Confederate Army. Severely limited by the Confederacy's commitment to states' rights, Davis was able to convince the people of the necessity of conscription. Despite the best efforts of a small but powerful group of men, Davis prevailed and conscription continued until the end of the war.