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Opinion of John H. Gilmer
on the Conscription Act:

Electronic Edition.

John Harmer Gilmer, b. 1812

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First edition, 1999
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Library of Congress Subject Headings, 21st edition, 1998

LC Subject Headings:

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        On the 16th day of April, 1862, the Congress of the Confederate States passed a law known as the Conscript Act. In the first section of that act the following proviso was inserted:

        "Provided, further, That all persons under the age of 18 years or over the age of 35 years, who are now enrolled in the military service of the Confederate States, in the regiments, squadrons, battalions and companies hereafter to be re-organized, shall be required to remain in their respective companies, squadrons, battalions and regiments for ninety days, unless their places shall be sooner supplied

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by other recruits, not now in the service, who are between the ages of 18 and 35 years. And all laws and parts of laws providing for the re-organization of volunteers, and the organization thereof into companies, squadrons, battalions and regiments, shall be, and the same are hereby, repealed."

        Soon after the passage and promulgation of this law, the Secretary at War announced his interpretation of its various sections and provisions as they were to be exemplified in their practical operation upon the parties designed to be affected by them. Among numerous others, the following is found:

        "When any company, now in service for twelve months, shall, before the 16th day of July next, attain the maximum number prescribed by this act, without including the men under 18 and over 35 years of age, all such men may be discharged, and such of them as remain in service on the said day will, upon their application, be then discharged, whether such maximum is attained or not."

        Thus stands the law as expounded by the Secretary at War, and intended as an accompanying expose of his views on its practical operations. It

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will be seen that the Secretary of War only includes the twelve months' men, and thus, by implication, excludes "all persons" other than twelve months' men--evidently included, and, in my opinion, expressly designed to be included, in the Conscript Act, as before recited.

        The language used in the Act of Congress is very explicit, and it would seem difficult to place any other construction on it than what is so plainly and with marked distinctness expressed in the very clear and precise language employed by its framers. It is--"That all persons, under the age of 18 and over the age of 35 years, who are now enrolled in the military service of the Confederate States, shall be required to remain for ninety days, unless their places can be sooner supplied by other recruits, not now in the service, who are between the ages of 18 and 35 years."

        No language can be more explicit than this. To my mind it admits of no doubt; and it is but fair to presume that the Secretary at War, in his exposition, could not have intended to embrace "all persons" so distinctly included in this proviso, inserted in the Conscript law. It would seem he

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must have intended only to refer to twelve months' men, and to have no allusion to "all persons" embraced in the law of Congress.

        This would be the only construction which could fairly be placed on the exposition of the Secretary at War, but for the recent order published by the Adjutant-General, revoking General Order, No. 44, and announcing that all persons who have enlisted for the war, who were under the age of 18 and over the age of 35 years, would not be discharged on the 16th of July, 1862. Had this order contained the qualification that the persons designated in it, who had enlisted for the war, since the 16th day of April, 1862, would not be discharged on the 16th day of July, 1862, it would have been consistent with, and ancillary to, the Conscript act. But, as the order stands and is directed to be enforced, there is a painful conflict between it and the law of Congress.

        My opinion has been asked by various persons as to the validity and legality of this order; also, whether this order divests the persons designated and designed to be embraced in the proviso of the Conscript law of their rights and privileges, as

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declared and defined in the law of Congress? In other words, are the persons under 18 and over 35 years, who had enlisted for the war, and were enrolled previous to the 16th of April, 1862, excluded, by reason of the interpolating order of the Adjutant-General, from the specific remedial efficacy of the act of Congress?

        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 unmistakable 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 latitudinous implication. I am, therefore, constrained to give it as my deliberate opinion, that the order in question cannot

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legally divest, impair, or curtail any one right or privilege imparted to the certain designated persons in the Conscript act.

        The rights and privileges guaranteed to "all persons" embraced in this limitation and qualification of the main body of the act, are paramount, and, so long as the proviso stands, are superior to any limitation or qualification sought to be derived from the body of the act by implication or liberal construction. The proviso takes precedence and over-rides the purview; and, in case of a conflict, the purview must give place to the proviso. As a necessary legal deduction, any and all rights, privileges and immunities distinctly created by express enactment in the proviso, will prevail over all qualifications, conditions or conflicting enactments in the main body of the act.

        It is, however, needless to discuss such questions here, or to cite the numerous authorities in point. I prefer giving my opinion, as asked for, without entering upon any elaborate consideration of the law, its spirit, reason and purpose. Suffice it to say, the law of Congress is explicit in its provisions, in its limitations, in its conditions, and in its

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extent and scope, both as to persons and time; and that, in my opinion, the order of the Adjutant-General is in conflict with and violative of both the letter, spirit, scope and policy of the law. With this opinion, I reserve my reasons and authorities for another occasion, should it arise.

        It is proper, however, in this connection, that I should here add, the order of the Adjutant-General is, according to all rules of law, both civil and military, paramount, and of binding force until it is revoked; reversed or modified; and should challenge the obedient acquiescence of every one affected or designed to be affected by it. The first and highest duty of the soldier is implicit obedience to the orders of his superior in command. However arbitrary or contrary to law, as an order emanating from the proper source, it should be obeyed in good faith until the proper remedy is properly applied.

        In this case there is a remedy, notwithstanding the suspension of the habeas corpus act. Let the proper "application" be made, on the 16th July, as required, and, if that fails, then a proper and respectful appeal to the Secretary at War; and, if that fails, Congress will not be deaf to the "application."

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In the meantime, I counsel the most regular, orderly and exact obedience to the orders issued, or to be issued in connection with this matter, until the proper remedies can be invoked and applied in the regular and proper way. Nor is this all. It is my duty to say to you, that however harsh, or even unjust, this order may seem, to disobey it, or disregard any enforcing order emanating from the proper officer, will be, in law, a revolt, and will merit summary punishment.




Capt. R. E. Kyle and others.
Richmond, July 8, 1862.