5"; ^
!5iP The Petition of Certain Non-C~n-
■ackipts, respectfully vsesentxd to the con¬
federate States Congress.
To the Speaker and Members of Congress of the Con-
federate States of America:
Your petitioners respectfully represent that they
;are all over the age of thirty-five years, or under
the age of eighteen years. They were all "enrolled
in the military service of the Confederate Sfates"
previous to the 16th day of April, le62, the date of
the Conscript Act. Some of your petitioners be-
Song to companies mustered aud received into ser¬
vice for twelve months, some of whom re enlisted
for the war previous to the 16th day of April, 1862,
and others who have not re enlisted; some who
have received the bounty money, and others who
have not received it. Most of your petitioners had,
Kinder the call of their respective States and the
.President of the Confederate States, enlisted for
"three years or the war," previous to the 16th of
April, 1862.
Your petitioners are from the different States of
ft he Confederacy—some of them over fifty years
old, others under seventeen years of age. At the
different periods of their enlistment the prospects
of the army of the Confedetacy were darkened and
■being overshadowed by a series of mishaps, blun¬
ders, and military misadventures. The cause so
■dear to every true and brave Southron was, to all
outward appearances, waning, and n°eded renewed
■energies and rtnmistakable popular manifestations
•of personal bravery and individual sacrifices
The. call for fresh troops, increased energies, and
•redoubled exertions, was promptly responded to
fey your petitioners, as volunteers in the army of
rthe Confederate States. At that critical juncture
■of the affairs of the country, neither your petition¬
ers nor the public had any idea of the passage of
■the.Qonscript Act. It was then believed tbat it was
She settled policy of the Confederate Government
■to rest its sustaining reliance on the untrammeled
free will and high spirit of the Southern people to
be called forth, organized, and put int® action uu
der their respective State organizations. Your
•/petitioners could not have anticipated the passage
•of the Conscript Act, or the adoption and sanction
of any system of military organization by the Con¬
federate States Government, which would claim to
srest ;ae a basis on the abnegation of the cherished
■•principle of State sovereignty and individual free¬
dom of will. They, as did their States, regarded
the cardinal principle of individual personal liber¬
ty and unquestioned State sovereignty as the key-
saotctofhe existiug revolution.
Under impulses of no ordinary character, your
•petitioners, in the hour of their country's danger,
left home, family, all, to fight as freemen in the ar¬
my of freemen. To preserve sacred their birth-
sight—individual, personal liberty, under their re¬
spective State Governments—they were, and are
mow, prepared to sacrifice everything but. their
■honor and manhood. They believed, as they hqd
■every right to believe, that the agieed status of the
dtrmy would remain on the basis which had been
•adopted and sanctioned by the responsive legisla-
;tioa of the Confederate Government. Had that as¬
certained policy and accredited system of military
•organization been sustained and carried out, not
•one of your petitioners would have complained.
Under the convif tion that no such change would
•or could be made, your petitioners volunteered
♦freely and re-enlisted willingly. They thus enter¬
ed into a contract with the Confederate States,
which they had no right to suspect would ever be
violated by that high-contracting party. In this
•they were over-confider.t. On the 16th day of
April, 1862, the Conscript Act became a law. The
■will of your honorable body, as made known in
■that law, bv terms too plain to be mistaken, and
too imperious to be lightly disregarded, annulled
all previous contracts made by voluntoers; and by
•explicit terms of coercive legislation, made men
•under the age of 35 years and over 18 years, sold¬
iers for the war, or until they attained the age of 35
years—thus drawing, as with "hooks of steel,"
•every male citizen within the prescribed ages (with
a few excepted cases) immediately and entirely
from the .control of State action, and placed them
at the disposal of the President during the war.
This law, had it been unqualified and unaecom-
paniedby a reciprocating return to the body of so¬
ciety, and under the control of the different States,
(that-class then in the army, represented by your
petitioners,) could never have been sanctioned by
the States. As a bonus to society, and a concur¬
rent guarantee to the States, your honorable body
inserted certain qualifications, restrictions, and con-
•ditions precedent to the main body of the act.—
They were in the following words :
"Provided, Jurther, That all porsons under the
.age of 18 years or over the age of 35 years, who are
saow enrolled in the military service of the Confed
•erate States, in the regiments, squadrons, battal¬
ions, and companies hereafter to be re-organized-
shall b6 required to remain in their respective com,
panics, squadrons, battalions, and regiments for
ninety days, unless their places shall be sooner sup¬
plied 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 reorgan¬
ization of volunteers, and the organization thereof?1
into companies, squadrons, battalions, and regi¬
ments, shall be, and the same are hereby, repealed."
On the promulgation of the law, with this qualific¬
ation, (without which your petitioners aver the law
could never have been passed,) there was but
one construction placed on it in the army and
throughout the country, so far as your petitioners
are advised and believe; and that was, that all per¬
sons over the age of 35 years or under 18 years,
who were, on the date of the law, "enrolled in the
military service of the Confederate States," should
be discharged on the 16?7i day of July, 1862; and
this without restriction, qualification or p»radven-
ture. These were the terms of the law. They were
plain, unequivocal and mandatory. Common sense—
universal public opinion, concurring military, pop¬
ular and official sentiment, thus understood, ac¬
cepted and adopted the law. Nor was it anywhere,
by any one, or under any circumstances, otherwise
spoken of, considered or regarded, so far as your
petitioncers are advised, in or out of the army, until
General Order No. 46, rescinding General Order No.
14, was issued by the Adjutant General, under and
by authority of the Secretary at War.
That order took the country and the army by
surprise. It fell as a death knell upon the assured
expectations of your petitioners. It struck the
popular ear with no less astonishment. It disclosed
a new, secret, and dangerous spring of Executive
and ministerial power, as unloosed for as it was
novel and perilous to the spirit and genius of the
revolution inaugurated on the declared principle of
eternal opposition and unyielding resistance to Ex¬
ecutive or quasi legislative encroachments on the
chartered rights and constitutional privileges of
the p.-ople. It manifested a will to assume power
where none was bestowed, or intended to be be¬
stowed, and to exercise high retroactlug and an¬
nulling prerogatives where all exercise of Execu¬
tive will or ministerial discretion was positively
and distinctly inhibited. It presented a painful
instance of a plain, palpable and dangerous infrac¬
tion of the constitutional guaranties and vested
rights of your petioners, as declared by your hon¬
orable body, aud unmistakably announced in the
Conscript Act.
Your petitioners, feeling that this interpolating
order of the Adjutant-General was a clear, palpa¬
ble, and unauthorized (by the law) infraction of
their rights, consulted counsel^ and procured his
written opinion, which was published, and will
be laid before your honorable body. Ia thus
seeking counsel, your petitioners were not actuated
by any other spirit than that of a disposition to
ascertain their legal rights, as defined and enumer¬
ated by your honorable body. They bad volun¬
teered without the least idea of the passage of any
such law. That law, without their solicitation, not
only revoked and annulled the act of their volun¬
teering, but, in distinct terms, released them from
all military service after the 16th day of July, 1862,
as a consideration to society and the different States
for the unconditional, peremptory, and mandatory
draft, which the same law made indiscriminately
on the community. It in express terms released all
over 35 years or under 18 year s, that it might claim,
demand, and impress all between thoce ages. It
discarded those over 35 years of age, that it might
COERCE those under that age.
This was a severe tax on the community at large,
and not less severe on your petitioners as a class.
It took the manhood and youth of the country,
with or without their consent; but it undertook
and guaranteed that all over 35 years or under 18
years should be discharged. This was, in terms, a
solemn legislative compact with the States and so¬
ciety. As such, severe and harsh as it was, it was
ratified by acquiescence, and no settled opposition
was made.
You petitioners even now would greatly prefer
tbat matters should have remained as tbey were.
But they were disposed of by the law, and respect¬
fully insist that what the law did the Secretary at
War cannot undo. The comp .ct made by your
honorable body, if good in one part, must stand
unaltered in every part. The clause releasing your
petitioners was in a proviso, and was and is para¬
mount to the enactments in the main body of the
act. It was the codicil to the legislative will, and
was superior in its active powers to any and all
parts of the act which might happen to conflict
with it. If the retroactive interpolation entered
by authority of the Secretary at War repealed that
proviso, according to all law and every rule of
seund construction the same repealing order would
annul and destroy the main body of the act. On
this subject your petitioners are advised the an
thorities ay most satisfactory.
But the Secretary at War has repealed the pro¬
viso, recalled the warrant of discharge, aud placed
his own construction on the whole law, and direct¬
ed that your petitioners should not be discharged—
the twelve-months' men—until the expiration of
"ninety days after their term of service, aud claims
to retain all persons enlisted for the war previous
| to the 16th of April, 1862, for the war.
Your petitioners are advised that the rights,
privileges, and immunities vested in thern by virtue
of the proviso to the said act, are full and complete,
attended by no conditions and restrained by no quali¬
fications, and that those ryfets admit of no interme¬
diate and eounteractingJPe strict ions, either from
the Executive or ministerial Department of the
Government. They aver, most respectfully, that
any interpolating or retroactive orders, whether by
the Chief Magistrate, or any one or more of his
subordinate functionaries, is in law (however they
may temporarily act on your petitioners) unavail¬
ing, null and void. But they are advised that, as
there is in operation no judicial process by which
they could test this matter as a class, their only le¬
gitimate means of redress is through your honora¬
ble body.
There can be no question that all laws passed by
Congress are supreme, and challenge the obedient ac¬
quiescence of the President and every Department
of the Government, until they are repealed or pro¬
nounced unconstitutional by a competent judicial
tribunal. And any violation of any one or more of
such laws by any Department of the Government,
is not less culpable than a similar violation by any
other member of society.
The reason, spirit, and intention of the law in
question, a;- 'veil as its words, context, and subject-
matter, are plain and unmistakable. There is no
point, no word, r.o object, no purpose, which is not
fairly and plainly set forth. The question then pre¬
sents itself, painful, serious and vital, shall the law
prevail, or shall the intervening, unauthorized in¬
terpolation of the Secretary at War prevail? Shall
an army order revoke a solemn act of Congress?—
Shall Congress or tho Executive rule the people,
control the army, and legislate for the country ?—
Have we a constitutional Government, with spe¬
cific powers granted, beyond which no department
of the Government shall pass, or have we an unlim¬
ited Government, dependent only on Executive
will or ministerial caprice ? Are the People free or
is Vie Executive supreme ?
These are no idle questions. They are solemnly
propounded, and merit a solemn response. It was
legislative encroachments and Executive usurpa¬
tions which destroyed the Union, never to be re¬
stored Snail the Southern States, confederated,
yield the same destroying element of self-destruc¬
tion ? The answer which your honorable body may
see fit to give will descend with its weighty conse¬
quences to posterity. The voice of history i3 not
less potent in its warnings against Executive as¬
sumption or ministerial abuse of power than the
hopes of the future are dependent on your response.
In view of the dangers which beset the country,
your petitioners cannot better conclude their ap¬
peal than by adopting the significant language ut¬
tered bv Patrick Henry, in the Virginia Conven¬
tion, on the 7th January, 1788. when he exclaimed:
"The real rock of political salvation is self-love—
perpetuated from age to age—in every human
breast, and manifested in every human action.—
When the commons of England, in the manly lan¬
guage which became freemen, said to their king,
You are our s: rvant,—then was the temple
of liberty complete."
It is with no view of avoiding danger, or shun¬
ning responsibilities, that your petitioners ask their
discharge. Their hearts, hopes, energies, are all
enlis.ted in this war. They had rather lose all and
peii-di themselves, than fail to maintain the cardi¬
nal principle on which this war turns. They will
never yield to an insolent foreign foe, or succumb
to any power which seeks to subvert the inherent
rights of the Stages or to destroy the individual
liberty of the free-born citizen. Feeling that in
this order of revocation, (General Order, No. 46,)
not only their rights,bnt the rights of the people,and
the legitimate powers and functions of Congress,
are invaded and endangered, they seek the pro¬
per remedy; should their services be needed, they,
and all they have, will be freely offered up on the
altarof constitutional liberty. But they are not pre¬
pared to yield a silent submission to the violation of
their rights or the subversion of the vested immu¬
nities, when their title papers are derived from your
honorable body.
Your petitioners respectfully ask, that they may
be fully heard before your honorable body, through-
their counsel. THE PETITIONERS,
By their Counsel, John H. Gilmer,
Richmond, Aug. 8th, 1862. * *