[Airbornelawyer]

Originally posted by Greenhat
I disagree. And I would point to the draft itself as an example of an arbitrary action from which resulted many other arbitrary actions.

Was the draft necessary to win the war? Possibly, but when forced conscription is necessary in order to win the battle, maybe the battle shouldn't have been won.

The draft was the beginning of the slippery slope, and other actions by Lincoln continued the path down and along that path. In my opinion, Lincoln was the first President to start us on the path that led to Franklin Delano Roosevelt and Lyndon Baines Johnson.

We drafted soldiers in World War Two. Should we not have won the battles then?

The introduction of conscription can hardly be called arbitrary by any definition (1. Determined by chance, whim, or impulse, and not by necessity, reason, or principle; 2. Based on or subject to individual judgment or preference; 3. Established by a court or judge rather than by a specific law or statute; 4. Not limited by law; despotic). It was legally enacted after long debate, based on experiences and the circumstances of the war, following numerous other alternatives to provide the necessary manpower. The law as passed had flaws, most notably the commutation fee, but the draft per se was hardly arbitrary.

The Enrollment Act was passed on March 3, 1863. This was two years into the war, four months before Gettysburg, when Union victory was far from assured. The Enrollment Act was debated for months, in Congress and in public. It followed the failure of the traditional methods of raising troops, calling on the states to call up the militia and setting quotas for each state (and bounties to be paid by the state to recruiters), to provide adequate forces.

The Enrollment Act came into effect as the army was looking at one immediate manpower problem - the expiration of 2-year enlistments of many regiments, including New York's 1st through 38th Infantry - and one to follow - the looming expiration by July 1864 of three-year enlistments of some 500,000 soldiers. The problems already encountered by the expirations of 30-day and three-month enlistments back in 1861 were also fresh on people's memories.

Add to this what was happening in the Confederacy. The Confederate Provisional Congress' re-enlistment law of Dec. 11, 1861 (the "bounty and furlough act") having proved disastrous, the Confederate Congress passed a conscription act on April 16, 1862. Under the "Act to further provide for the public defence," the Confederate Congress authorized the President "to call out and place in the military service of the Confederate States, for three years, unless the war shall have been sooner ended, all white men who are residents of the Confederate States, between the ages of eighteen and thirty-five years at the time the call or calls may be made, who are not legally exempted from military service."

The Federal Militia Act of 1862, signed into law on July 17, came in response to the manpower pressures in the North and the Confederate conscription act. Its main change to existing law was to allow the President to call up state militias into national service for up to nine months, rather than three, but it still relied on states to devise the means to fulfill their quotas. General Order No. 94 of August 4, 1862 then directed the states to call up 300,000 militia into Federal service for nine months. The main result of the requirement to enroll in the militia was to spur volunteers. The July and August 1862 call-ups resulted in 508,000 volunteers and draftees - 421,465 three-year enlistees and 86,360 9-month enlistees (the breakdown is unknown, as many states' militia draftees, given the option of joining volunteer regiments, were then counted as volunteers).

This system still relied on states to devise their own drafts to fulfill their quotas, with mixed results and rioting, so the 1863 Enrollment Act was crafted and enacted, more formalizing the process (but still seen primarily as a way of inducing volunteers).

Far from acting arbitrarily, it seems clear Lincoln had thought through the issues:

At the beginning of the war, and ever since, a variety of motives pressing, some in one direction and some in the other, would be presented to the mind of each man physically fit for a soldier, upon the combined effect of which motives, he would, or would not, voluntarily enter the service. Among these motives would be patriotism, political bias, ambition, personal courage, love of adventure, want of employment, and convenience, or the opposites of some of these. We already have, and have had in the service, as appears, substantially all that can be obtained upon the voluntary weighing of motives. And yet we must somehow obtain more, or relinquish the original object of the contest, together with all the blood and treasure already expended in the effort to secure it. To meet this necessity the law for the draft has been enacted. You who do not wish to be soldiers, do not like this law. This is natural; nor does it imply want of patriotism. Nothing can be so just, and necessary, as to make us like it, if it is disagreeable to us.
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This law was considered, discussed, modified, and amended, by Congress, at great length, and with much labor; and was finally passed, by both branches, with a near approach to unanimity. At last, it may not be exactly such as any one man out of Congress, or even in it Congress, would have made it-- It has been said, and I believe truly, that the Constitution itself is not altogether such as any one of its framers would have preferred. It was the joint work of all; and certainly the better that it was so.
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The principle of the draft, which simply is involuntary, or enforced service, is not new. It has been practiced in all ages of the world. It was well known to the framers of our Constitution as one of the modes of raising armies, at the time they placed in they instrument the provision that "the Congress shall have power to raise and support armies". It had been used, just before, in establishing our independence; and it was also used under the Constitution in 1812. Wherein is the peculiar hardship now? Shall we shrink from the necessary means to maintain our free government, which our grand-fathers employed to establish it, and our own fathers have already employed once to maintain it? Are we degenerate? Has the manhood of our race run out?
...Again, a law may be both Constitutional and expedient, and yet may be administered in an unjust and unfair way-- This law belongs to a class, which class is composed of those laws whose object is to distribute burdens or benefits on the principle of equality. No one of these laws can ever be practically administered with that exactness which can be conceived of in the mind.
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This sort of difficulty applies in full force, to the practical administration of the draft law. In fact the difficulty is greater in the case of the draft law-- First, it starts with all the inequality of the Congressional Districts, but these are based on entire population, while the draft is based upon those only who are fit for soldiers, and such may not bear the same proportion to the whole in one District, that they do in another. Again, the facts must be ascertained, and credit given, for the unequal numbers of soldiers which have already gone from the several Districts. In all these points errors will occur in spite of the utmost fidelity. The government is bound to administer the law with such an approach to exactness as is usual in analogous cases, and as entire good faith and fidelity will reach. If so great departures as to be inconsistent with such good faith and fidelity, or great departures occurring in any way, be pointed out, they shall be corrected; and any agent shown to have caused such departures intentionally, shall be dismissed.

With these views, and on these principles, I feel bound to tell you it is my purpose to see the draft law faithfully executed.

I do not object to abide a decision of the United States Supreme Court, or of the judges thereof, on the Constitutionality of the draft law. In fact, I should be willing to facilitate the obtaining of it; but I can not consent to lose the time while it is being obtained. We are contending with an enemy who, as I understand, drives every able bodied man he can reach, into his ranks, very much as a butcher drives bullocks into a slaughter pen. No time is wasted, no argument is used. This produces an army which will soon turn upon our now victorious soldiers already in the field, if they shall not be sustained by recruits, as they should be. It produces an army with a rapidity not to be matched on our side, if we first waste time to re-experiment with the volunteer system, already deemed by Congress, and palpably in fact, so far exhausted, as to be inadequate; and then more time, to obtain a Court decision, as to whether a law is constitutional, which requires a part of those not now in the service, to go to the aid of those who are already in it; and still more time, to determine with absolute certainty, that we get those, who are to go, in the precisely legal proportion, to those who are not to go.

My purpose is to be, in my action, just and Constitutional; and yet practical, in performing the important duty, with which I am charged, of maintaining the unity, and the free principles of our common country.