The Militia Act of 1862 (, enacted July 17, 1862) was an Act of the 37th United States Congress, during the American Civil War, that authorized a militia draft within a state when the state could not meet its quota with volunteers. The Act, for the first time, also allowed African Americans to serve in the militias as soldiers and war laborers. Previous to it, since the Militia Acts of 1792, only white male citizens were permitted to participate in the militias.
The act was praised by many abolitionists as a first step toward equality, because it stipulated that black recruits could be soldiers or manual laborers. However, the Act enacted discrimination in pay and other areas. It provided that most black soldiers were to receive $10 a month, with a $3 reduction for clothing, which was almost half as was received by white soldiers who received $13. Historian Eric Foner posits that the difference in pay stemmed from the fact that the legislation envisioned black soldiers mainly as military laborers, freeing up white soldiers for combat.Foner, Fiery Trial, p. 214 Many regiments struggled for equal pay, some refusing any money until June 15, 1864, when Congress removed that portion of the Militia Act and granted equal pay for all black soldiers.
In 1863, when voluntary enlistment was declining under the Act's state-administered system, Congress passed the Enrollment Act. This was the first genuine national conscription law and required the enrollment of every able-bodied male citizen and immigrants between ages 20 and 45 who had filed for citizenship.
Background By the summer of 1862, African American involvement in the Civil War was the center of a nationwide debate.Smith, p. 3 Although the U.S. War Department had refused to accept black army volunteers since the start of the war, Union members were beginning to consider the benefits of having their support.Hamilton, p. 1 While regarding the nationwide indecision, Congress had the ultimate power to decide whether people of African descent would participate in the Civil War as laborers and/or soldiers.
The 37th Congress neither leaned heavily towards the enrollment of black volunteers, nor towards their continued blockage.Moore, p. 160 While the idea to use African Americans as laborers was generally accepted in Congress, the employment of black soldiers was not. Therefore, supporters in Congress of black combatants were proposing one of the most important developments of the war.
Observing the racial discrimination and strong opposition among ranks of military officers, Congress began to fear that black involvement would only prolong the war. However, those in support of black involvement argued that the contribution of more soldier was advantageous to the Army of the Potomac regardless of their race. The Militia Act of 1862 consequently established the legality of using black soldiers by justifying them as a war necessity.The Militia Act of 1862. U.S. Statutes at Large, Treaties, and Proclamations of the United States of America, vol. 12: Boston, 1863. pp 597–600. Black recruits' net salary was established at $7 per month in contrast to the $13 salary that white soldiers received.
Precedent and constitutional authority Under Section 8 of Article 1 of the Constitution, Congress had the power to determine the makeup of militias. It allowed Congress "[t]o raise and support armies" and "[t]o provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in their service of the United States.""The Constitution of the United States", Article 1, Section 8, Clause 5
Virginia Senator John S. Carlile was among those opposed the Militia Act, arguing that Congress "has no power to determine who shall compose the militia of a State in this Union".A Century of Lawmaking, p. 3198 Republican Representative Jacob Collamer of Vermont separately noted that the 1792 Congress had "passed an act for organizing the militia, and confined it to white people."A Century of Lawmaking, p. 3332 This Militia Act of 1792Oakes, p. 129 would have to be overridden by a new militia act to open military service to those of African descent.
Congress could also decide to confiscate Confederate slaves for war efforts.Foner, p. 3 When assigned to the position of War Department Solicitor in November 1862, Attorney William Whiting confirmed in War Powers Under the Constitution of the United States that "Congress may interfere with slavery by calling upon the slaves, as subjects, to enter the military service."Whiting, War Powers, p. 134 Whiting asserted that slavery was a military target because it enabled the Confederacy to carry on "war against the Union" and forced "three million of loyal subjects owned by rebel masters to act as if they were traitors." Allen Guelzo argues in his research that Abraham Lincoln and his Republican Congressmen "rely hugely on Whiting's book" and use it to justify his actions "both in terms of emancipation and black recruitment."Guelzo, "Class" Whiting's declaration gave Congress power to enforce a militia policy that included the black race as equal recruits.
Legislative history Attitude of Congress The 37th Congress was divided in their stance on the enrollment of black volunteers, with some in the Republican Party (who held a majority in both chambers) arguing that they should not be integrated with white soldiers. However, the idea to use African Americans as laborers was generally accepted.Robertson, p. 31 Debate focused on the intensity of the labor African Americans would perform. At the time, affluent Confederates were already taking advantage of their slaves by bringing "body servants" that would prepare food, build trenches, construct shelters, and clean clothes at campsites.Robertson, p. 30 Head of the Militia Committee, Republican Senator Preston King commented, for example, that "nobody would, probably, object to their cooking."A Century of Lawmaking, p. 3228 Conversely, Senator Garrett Davis of Kentucky argued that only labor-intensive jobs such as digging canals were acceptable for African Americans.A Century of Lawmaking, p. 3204
Therefore, those of the 37th Congress in support of black combatants were proposing one of the most important developments of the war. If they were to convince their counterparts of the benefits to using black soldiers during the Second Session of 1862, blacks would be involved in combat and labor positions for the first time since 1792. Furthermore, they would be bestowing an opportunity for slaves everywhere to prove themselves worthy of respect and equality on the battlefield.Oakes, "Class" For that reason, abolitionist Frederick Douglass strongly urged the President and Congress in 1861 to "[l]et the slaves and free colored people be called into service and formed into a liberating army, to march into the South and raise the banner of Emancipation."Blight, p. 149 Although lasting only seven days, July 9 to 16, the debate concerning the proposition of black soldier participation and its result brought blacks so much closer to earning their freedom.
Given the opportunity to alter the status of many African Americans, a few members of Congress feared that the next militia act would change the purpose of the war.Grant, p. 277 Believing in Lincoln's insistence, exhibited in his 1862 letter to editor Horace Greeley of the New-York Tribune, that the "paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery," they did not wish to see the war evolve into something more than the restoration of the Union.Lincoln, Abraham. "Letter to Horace Greeley." Letter to Horace Greeley. 22 Aug. 1862. Web. 8 Jan. 2011. Republican Representative John P. Hale of New Hampshire voiced on July 9 at a Congressional session, "This war ought to be carried on without any regard at all to the subject of slavery or slaves. It out to preserve a free government for free people."A Century of Lawmaking, p. 32-- Frustrated with the Congressional focus on black soldiers, Democratic Senator Willard Saulsbury of Delaware thought similarly: "But no sooner are we engaged in civil war ... than an attempt is made on every occasion to change the character of the war, and to elevate the miserable nigger, not only to political rights, but to put him in the Army, and to put him in your Navy."
The racism that deemed blacks incapable of being skillful soldiers echoed in Congress. Although acknowledging blacks' competence with household chores, "[a] goodly number of Northerners agreed with Southerners that the black was a biologically inferior being and could not be trusted with important military responsibilities." Consequently, the whole race was loudly criticized as being lazy, ambivalent, and cowardly.
A generation of men had grown up disrespecting persons of African descent and in awe of slavery that devalued the abilities of blacks. Historian Allen C. Guelzo finds that because slavery encourages "submission, it encourages docility, and it encourages stupidity"- all characteristics that soldiers must not possess, several officers believed that former slaves would be poor soldiers, particularly in battle. For example, Lieutenant Colonel Charles Francis Adams of the Massachusetts's cavalry wrote to his brother in the summer of 1862, sharing his thoughts that "[a]t best [a black man] could perform fatigue duty" because "he has not the mental vigor and energy" to do more.Smith, p. 5 And while he disbelieved in the black race's competence, others had good reason to doubt the white men's acceptance of integration.
Observing the racial discrimination and strong opposition among ranks of military officers, Congress began to fear that black involvement would only prolong the war. Democratic Senator of Missouri John B. Henderson asserted that because white soldiers do not "want to fight by side with the nigger.... The rebellion will never end if they are used. I do not believe they will help you any."A Century of Lawmaking, p. 3134 Henderson voiced the opinion that black and white cooperation in the war was not possible. Seconding his fellow Senator, Republican James W. Grimes of Iowa, who wished to see blacks fighting, regretfully informed those at the Congressional debate, "I believe for that every good soldier you would get among them, you will lose a white man, who will be driven off by his prejudices." And even though Lincoln wished to see slaves free, he said the same thing in the late winter of 1862: "To arm the negroes, would turn 50,000 bayonets from the loyal Border States against us that were for us."Lincoln, Abraham, and G. S. Boritt. Of the People, by the People, for the People and Other Quotations from Abraham Lincoln. p. 414 New York: Columbia UP, 1996. GoogleBooks. Web. 17 Oct. 2010. Although he uses kinder words, Lincoln, too, implies that the racist attitudes have the power to rip the Union apart even more.
Meanwhile, the overwhelming argument from those in support of black involvement, unlike those who believed in black inadequacy was that the contribution of more soldiers was then extremely advantageous to the Army of the Potomac, regardless of their skin color. In the spring of 1862, the Potomac Army "had suffered a series of military defeats, which struck a sharp blow at Northern morale."McPherson, p. 56 The Union army was experiencing a decline in volunteers when it needed them most.