The Militia Act of 1862 boosted the size of the Union's armed forces by authorizing the enlistment of African-Americans and by empowering the president to order governors to draft citizens into state militias to meet federal manpower quotas.
After Southern forces fired on Fort Sumter on April 12, 1861, touching off the American Civil War, President Abraham Lincoln called for state militias to provide 75,000 volunteers to put down the insurrection. Northerners responded enthusiastically and states quickly filled their quotas. Some Unionists expected the Southern challenge to federal authority to be as short-lived as the Whiskey Rebellion of 1789. Overconfidence gave way to concern following the Confederate rout of Union forces at the First Battle of Bull Run on July 21, 1861. Still, Northern bravado outweighed the reality of the situation as late as April 1862, when Secretary of War Simon Cameron ordered Federal recruiting offices closed, presumably because the Union had enough soldiers under arms to win the war.
By early June 1862, however, Confederate forces on the outskirts of Richmond halted Major General George McClellan’s advance on the Confederate capital. After the wounding of General Joseph Johnston at the Battle of Seven Pines (May 31, 1862–June 1, 1862), Robert E. Lee assumed command of the Army of Northern Virginia. With the Federal army stalled at the gates of Richmond, the new Secretary of War, Edwin Stanton, formally rescinded the closing of the recruiting offices a week later. Facing the possibility of a prolonged siege, Adjutant-General Lorenzo Thomas sent word to Northern governors, “We are in pressing need of troops. How many can you forward immediately?” Lee contributed to the Union’s “pressing need” by launching a counterattack on June 25, 1862, known as the Seven Days Battles, which drove McClellan’s army away from Richmond and back to the James River by July 1.
On July 2, President Lincoln called for 300,000 fresh troops, but he soon discovered that the realities of war had considerably diminished the fervor of Northern men to serve the Union. Despite the incentive of offering cash bonuses in advance of service, governors found meeting their recruitment quotas difficult. Federal authorities began to fret that a draft might be necessary.
With the Union war effort in the East rapidly deteriorating, the 37th Congress aggressively addressed the situation after it convened for its second session in July 1862. On July 8, 1862, Massachusetts Senator Henry Wilson introduced a bill focused on rectifying the Union’s mounting military problems. After a week of debate, the Senate approved Wilson’s amended proposal and sent it to the House, which passed it the next day. Congress officially entitled the legislation as “An Act to Amend the Act Calling Forth the Militia to Execute the Laws of the Union, Suppress Insurrections, and Repel Invasions, Approved February 28, 1795, and the Acts Amendatory Thereof.” President Lincoln signed the bill, more commonly known as the “Militia Act of 1862,” into law on July 17, 1862.
The Militia Act of 1862 was a quasi-omnibus bill that addressed several military issues. Among other things, the legislation:
- Established rules about the payment of bounties as incentives to boost volunteerism
- Established rules about courts-martial
- Established rules about the organization of infantry, artillery and cavalry corps
- Authorized the president to organize army corps as he preferred
- Established that state militias comprised all able-bodied male citizens between the ages of eighteen and forty-five
- Authorized the president to specify the duration of militia service if activated by the national government (up to nine months),
- Proscribed how state militias would be organized upon activation.
The two more noteworthy provisions of the legislation, however, addressed the problem of providing more manpower for the Union military. Section 12 of the act authorized the president to “to receive into the service of the United States, for the purpose of constructing intrenchments, or performing camp service, or any other labor, or any military or naval service for which they may be found competent, persons of African descent . . . .” As an incentive for runaway or captured slaves to join the fight, section 13 of the act stipulated that the government would free former slaves who enlisted, along with their mothers, wives, and children.
Although section 15 established lower pay and benefits for blacks in the service than for their white counterparts, African Americans responded enthusiastically. By the fall of 1862, regiments of African-American soldiers were forming in Kansas and in federally occupied areas of Louisiana and South Carolina. Although not formally mustered into federal service until January 13, 1863, the 1st Kansas Colored Volunteers, which included former slaves from Arkansas and Missouri, became the first African-American unit to take part in combat during the Civil War. Six black soldiers lost their lives as the regiment dispersed a band of Confederate guerrillas during the Skirmish at Island Mound on October 29, 1862, in Bates County, Missouri. By the end of the Civil War, roughly 200,000 African-American soldiers and sailors served in the Union army.
The second provision of the Militia Act of 1862, designed to provide the Union with more manpower, opened the door for implementing compulsory service. It stated that:
If by reason of defects in existing laws, or in the execution of them, it shall be found necessary to provide for enrolling the militia and otherwise putting this act into execution, the President is authorized in such cases to make all necessary rules and regulations; . . .
Lincoln wasted little time in using the power granted to him by Congress to devise new “necessary rules and regulations.” On July 26, 1862, Secretary of War Stanton instructed Iowa Governor Samuel J. Kirkwood that “By order of the President of the United States you are authorized and directed to make a draft of militia of the state of Iowa to fill up the quota of volunteers called for by the President, . . .”
By August 1862, state governors struggled to meet their established quotas for Lincoln’s July 2nd call for fresh troops. The president adroitly side-stepped the problem by implementing the powers given to him by the Militia Act. While Lincoln had no Constitutional or Congressional authority to draft citizens into the federal military, the Militia Act granted him the power to use conscription to fill militia quotas. On August 4, 1862, the War Department issued General Orders, Number 94, which read:
- That a draft of 300,000 militia be immediately called into the service of the United States, to serve for nine months unless sooner discharged. The Secretary of War will assign the quotas to the States and establish regulations for the draft.
- That if any state shall not by the 15th of August furnish its quota of the additional 300,000 volunteers authorized by law, the deficiency of volunteers in that State will also be made up by special draft from the militia. The Secretary of War will establish regulations for this purpose.
On August 9, Stanton issued General Orders, Number 99, detailing how the states should implement conscription. The order required the states to complete drafts by August 15, 1862. As the deadline approached, several governors complained that the order did not give them enough time to develop the mechanisms to carry out the order. The War Department responded by allowing numerous postponements. The first drafts did not occur until mid-September 1862.
The Militia Act of 1862 angered Peace Democrats and incited a rush for the Canadian border by men attempting to avoid the drafts. The administration had expected such reactions. On August 8, Secretary of War Edwin Stanton issued an order authorized by the president stating that “that until further order no citizen liable to be drafted into the militia shall be allowed to go to a foreign country.” The order also specified that persons captured while trying to leave the country would be fined and “conveyed to the nearest military post or depot and placed on military duty for the term of the draft.”
Stanton also ordered that the “writ of habeas corpus is hereby suspended in respect to all persons so arrested and detained, and in respect to all persons arrested for disloyal practices.” Lincoln later reaffirmed Stanton’s suspension of the writ of habeas corpus with his own presidential proclamation dated September 24, 1862, which made “resisting militia drafts” a crime subject to court-martial without recourse to civil courts. The administration’s usurpation of constitutionally guaranteed rights further inflamed opposition to the war.
In due time, the threat of conscription proved more effective than the drafts themselves. Of 600,000 men Lincoln requested in July and August, roughly 508,000 eventually volunteered, necessitating the drafting of only about 90,000 men. The social stigma associated with being drafted (as opposed to volunteering), combined with the incentive of cash bounties, no doubt boosted volunteerism.
By 1863, the administration abandoned the unwieldy and largely ineffective state-administered drafts. In March, Congress enacted the Enrollment Act establishing a federal draft.