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. (Previously, since the Militia Act of 1792, only white male citizens were permitted to participate in the militias.)
The act was controversial. It 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. According to historian Eric Foner, however, the difference in pay stemmed from the fact that the legislation envisioned blacks mainly as military laborers freeing up whites for combat. Many regiments struggled for equal pay, some refusing any money until June 15, 1864, when Congress deleted that portion of the Militia Act and granted equal pay for all black soldiers.
The state-administered system set up by the Act failed in practice and in 1863 Congress passed the Enrollment Act, the first genuine national conscription law. The 1863 law required the enrollment of every male citizen and those immigrants who had filed for citizenship between ages 20 and 45 and making them liable for conscription.
Background
By the summer of 1862, African American involvement in the Civil War was the center of a nationwide debate. 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. 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. 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, in great contradiction, the overwhelming argument from those in support of black involvement was that the contribution of more soldiers was then extremely advantageous to the Army of the Potomac, regardless of their skin color. Justifying the use of black soldiers as a war necessity, the issued Militia Act of 1862 established the legality of black soldiers. Yet the recruits' salary was overlooked and established at $7 a month, almost half of what white soldiers received.
Congress created the Militia Act of 1862 as a war necessity to allow the army black soldier recruits, and with it, enforced unequal pay upon black combatants.
Precedent and constitutional authority
It was widely accepted that under the Constitution, Congress had the power to determine the makeup of militias. Section 8 of Article 1 of the Constitution empowered 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."
However, some politicians, including Senator John S. Carlile from Virginia, argued against the act: "I hold that Congress of the United States has no power to determine who shall compose the militia of a State in this Union". On the other hand, Republican Representative Jacob Collamer of Vermont reminded the members that in 1792 Congress had "passed an act for organizing the militia, and confined it to white people." The bill was called the Militia Act of 1792, which would have to be overridden by a new militia act to open military service to those of African descent.