lJillllU:JIJl!!liillil!;lll 
 
. jQPINION ^ '• ' - 9 rr 
 
 * 
 
 OF 
 
 JOHN H. GILMER 
 
 ON THE 
 
 CONSCRIPTION ACT. 
 
 On the 16th day of April, 18G2,- the Congress of 
 the Confederate States passed u 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 Con- 
 federate States, in the regiments, squadrons, bat- 
 talions and companies hereafter to be re-organized, 
 shall be required to remain in their respective com- 
 panies, squadrons, battalions and regiments for 
 ninety days, unless their places shall be sooner sup- 
 1 
 
plied by other recruits, not now in tbe service, ^^'ho 
 are between the ages of 18 aixl 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, re- 
 pealed." 
 
 Soon after the passage and promulgation of this 
 law, the Secretary at War announced his interpre- 
 tation 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 
 mo7ith8, 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 Secre- 
 tary at War, and intended as an accompanying 
 expose of his views on its practical operations. It 
 
will be seen tliat the Secretary of War only in- 
 cludes the tivelve months' men, and thus, by impli- 
 cation, excludes "all persons" other than twelve 
 months' men — evidently included, and, in my 
 opinion, expressly designed io 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, <bcho are noto enrolled in 
 the military service of the Confederate States, shall 
 be required to remain for ninett/ days, unless their 
 places can be sooner supplied hy^other recruits^ not 
 notv in tlie service, who are between the ages of 1% 
 und 35 years.'^ 
 
 No language can be more explicit than this. To 
 my mind it admits of no doubt; and it is but faiv 
 to presume that the Secretary at AYar, in his ex- 
 position, could not have intended to embrace " all 
 persons " so distinctly included in this proviso, in- 
 serted in the Conscript law. It would seem he 
 
must have intended only to refer to twelve months' 
 men, and to have no allusion to "all persons" em- 
 braced 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 con- 
 tained the qualification that the persons designated 
 in it, who had enlisted for the war, since the IQth 
 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 en- 
 forced, 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 
 
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 en- 
 rolled previous to the 16th of April, 1862, ex- 
 cluded, by reason of the interpolating order of the 
 "Adjutant-General, from the specific remedial effi- 
 cacy of the act of Congress ? 
 
 On this subject, after the most solicitous and ma- 
 tured 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 de- 
 rived 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 implica- 
 tion. I am, therefore, constrained to give it as my 
 deliberate opinion, that the order in question can- 
 
 9 R Q Q 1 
 
6 
 
 not legally divest, impair, or curtail any one right 
 or privilege imparted to the certain designated per- 
 sons in the Conscript act. 
 
 The rights and privileges guaranteed to " all 
 persons" embraced in this limitation and qualifica- 
 tion of tlie 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, privi- 
 leges and immunities distinctly created by express 
 enactment in the proviso, will prevail over all quali- 
 fications, 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 provi- 
 sions, in its limitations, in its conditions, and in its 
 
 ^\ 
 
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 viohative 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 mili- 
 tary, paramount, and of binding force until it is re- 
 voked, reversed or modified ; and should challenge 
 the obedient acquiescence of every one affected or 
 designed to be affected by it. The first and highest 
 diift/ of the soldier is implicit obedience to the or- 
 ders of his superior in command. However arbi- 
 trary 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 IGth 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 " appli- 
 
8 
 
 cation." In the meantime, I cou^nsel the most reg- 
 ular, orderly and exact obedience to the orders 
 issued, or to be issued in connection -with this mat- 
 ter, 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- dis- 
 obey it, or disregard any enforcing order emanaiting 
 from the proper officer, will be, in lazv, a revolt^ 
 and will merit summary punishment. 
 Respectfully, 
 
 JOHN H. GILMER. 
 
 Capt. R. E. Kyle and others. 
 
 Richmond, July 8, 1862. 
 
Hollinger Corp. 
 pH8.5