section of the act of the 3rd of July, 1863, is not repealed, and that the same mode must be pursued in equalizing the draft among the subdivisions of each district.
Next comes the question, What is the made of count prescribed in the twelfth section of the act of 3rd of March, 1863?
It is very plain that Congress regarded that a consideration of the period of service would change that rule from a merely numerical one. Some credit was to be given for the period of service as well as for the man. Congress has fixed various periods of service, and States and districts, and fractions of districts, had furnished men for those periods of service. Now, how is the credit to be given?
Before proceeding to answer the question it may be proper to state that it is insisted that the words "period of time" and "time of service," as used in the twelfth section of the act of March 3, 1863, mean something different from term of service. It seems to me that the phrases mean one and the same thing. When the word term is used in reference to time, it is according to the lexicographers, very nearly the synonym of period. The difference betwixt them if any, is too uncertain and shadowy to believe that Congress meant by the use of one something different from what is understood by the other. But the words period and term both occur in after parts of the acts now under consideration. In the eighteenth section of the act of 1863 the term of service is spoken of and the term of re-enlistment, whilst in the seventh section of the amended act it is the period for which he shall have enlisted, and the period for which shall have been drafted. Thus it will be perceived that, upon the very face of these acts, Congress used these words as meaning the same thing. It happens, too, in the act that neither word may be used, and yet the same idea intended, as in the eighth section of the amended act, where the language is, 'shall be credited by his services."
Regarding, then, "period of service" as meaning the same thing, any argument predicated upon a difference must be disregarded. And thus we are brought back to the question, How is the credit to be given? Must the credit be for the time of actual service, or the period of enlistment?
I think that Congress intended by the words "period of service" to give credit for the time of his enlistment. When a man enlists in the service of the Government for one, two or three years his service are due to the Government for that period and during that period his service are withdrawn from the industrial pursuits of life. The act speaks as though there was a certain and fixed period for the service of each man, and yet, if any period or time is taken other than the term of enlistment, by some system of averages or guesses, a rule must be fixed. To do so would violate the certainty contemplated by the act.
I am therefore of the opinion that the President must, under the act, give credit by the whole period or term for which the man enlisted.
Whether this is the rule which should have been adopted by Congress whether it does not operate unequally, and whether it is exactly just or not, are questions that cannot now be considered. It is familiar to all that special cases of hardship will occur by the application of any general rule; nevertheless the law, must be pursued and enforced.
Very respectfully, your obedient servant,