Court Cases Related to the New York City Draft Riots

Judge John McCunn

At the outbreak of the Civil War, large numbers of New York men volunteered to fight for the Union. As the war continued and casualties mounted, the number of new volunteers fell and many of the early volunteers failed to reenlist. This created a crisis for the Union Army and led to the enactment of legislation to ensure that a sufficient number of troops would continue to be available. On March 3, 1863, “An Act for enrolling and calling out the national Forces” (12 Stat. 731) became law and required all male citizens between the ages of 20 and 45, and all male immigrants in the same age range who had filed for citizenship, to enroll. The Act contained a pernicious section that allowed wealthy draftees to hire a substitute or pay a $300 commutation fee to avoid the draft.

Immediately, the Provost Marshal General's Bureau – the department charged with implementing the Enrollment Act – drew up quotas of new troops to be provided from each congressional district. Horatio Seymour, Governor of New York, objected to the quotas imposed on New York on the grounds that, in response to prior calls, New York had provided some forty-two thousand troops over and above the numbers required of it, and the new quotas were not assigned evenly throughout the State’s congressional districts but imposed more heavily in the Democratic strongholds of New York City and Brooklyn. The Governor requested that President Lincoln suspend enrollment until the courts could rule on the constitutionality of the Act.

Leading New York attorney David Dudley Field also advocated recourse to the courts. In a letter to President Lincoln, Field wrote, “that there is a very prevalent impression among the persons liable to the draft, that the act is unconstitutional,” and noted that the objectors “professed an entire willingness to abide by the decision of the courts.” Field concluded by saying, “I would suggest, that the question be brought before the circuit court of the United States. In the mean time I would proceed with the draft of course; as it will be time enough to pause when the act is declared unconstitutional, an event which I do not think will ever take place.”

The federal enrollment process continued, and in early July an incident occurred that brought the actions of an enrollment officer before the New York City courts. According to a story in the New York Times, two enrolling officers, Stephens and Dodge, entered a family business on Seventh Avenue in New York City run by a father and son named Biesel. Stephens demanded the younger man’s name, and here the accounts differ: some saying that the son, Henry Biesel, responded with his name and others saying that he did not respond. Whatever the truth of the matter, Stephens seized Henry Biesel and handcuffed him, drew his pistol and then threatened to shoot Henry Biesel’s father. Stephens then arrested Henry Biesel and committed to the Park Barracks. The legality of the arrest was challenged in the New York City court, but before the case had been adjudicated, a major multi-day riot broke out in the City.

In New York, tensions between desperately poor Irish immigrants and African Americans had been growing because of the competition between them for jobs. The Enrollment Act of 1863 added to these tensions by allowing individuals who had been drafted to avoid military service by paying another to fight in his stead or by paying a $300 commutation fee, a large sum of money at the time. This provision led to the divisive perception that the conflict was a “rich man’s war but a poor man’s fight.” Against this background, Governor Horatio Seymour delivered an incendiary speech on July 4, in which he said, "Remember this, that the bloody and treasonable and revolutionary doctrine of public necessity can be proclaimed by a mob as well as by a government."

Although the initial drawing of the names of those drafted took place on Saturday, July 11, 1863, without incident, over the weekend news stories in the Peace Democrat newspaper inflamed the population. With the resumption of draft drawings due to resume on Monday, July 13, thousands of people mobbed the Draft Office at Third Avenue and 47th Street. When one of the building’s windows was broken, the crowed surged into the building, smashed the election wheel and set the building on fire. Later, the mobs began to loot and rob, and attack the offices of pro-war newspapers such as the New York Times and the New York Tribune. Horrifically, some of the rioters burned the Colored Orphan Asylum, and assaulted and lynched local African Americans. Hundreds were injured and 105 killed. The police and militia units based in Manhattan tried to restore order, and New York’s Mayor, George Opdyke, proclaimed the City to be “in a state of insurrection.” Secretary of War Edwin Stanton ordered ten regiments of Union troops to the City to restore order.

Meanwhile, on July 14, the case of the arrest of Henry Biesel by Enrollment Officer Stephens came before a New York City Judge. John Sedgwick, Esq. appeared for Mr. Stephens and Mr. C.C. Leeds for the prosecution. Judge John McCunn held that Stephens had no legal authority to make the arrest and that the Enrollment Act did not make refusal to give one’s name to an enrolling officer an offense. The New York Times reported:

Before Hon. John H. McCunn, City Judge -- July 14, at Chambers . . . But apart from this, Judge McCunn is of [the] opinion that the entire act is clearly unconstitutional, for it not only violates the rights of the people and creates a distinction among our citizens, but it is in direct contravention of the 14th and 15th sub-divisions of section 8 of article I of the Constitution of the United States. The Constitution, in authorizing Congress "to raise and support armies," provides only for the standing armies of the country, and not for the volunteer and temporary forces which any emergency may demand, because the 14th sub-division of the 8th section of article I, authorities [sic] congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions." And Article II of the amendments provides: "A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." And for the purpose of using this militia force, the President is not only made the Commander-in-Chief of the army and navy of the United States, but also of the militia of the several States, when called into the actual service of the United States. And, therefore, as this conscription law does not make the force it creates a militia force of the States, nor is it part of the standing armies of the United States, it is clearly not authorized by the Constitution. The standing army of the country could be increased by an act of Congress, and the subdivision referred to authorizes Congress to provide the means for raising it; but Congress having neglected to do this; the only force the President is authorized to use, exclusive of the regular army and navy, is the militia and volunteer forces contributed by the several States when called upon. The Judge deeply regretted that the people had not had patience and patriotism enough, under the operation of the Conscription law, to wait until the Courts had fully determined this question. That the Courts were able and equal to the duty of sustaining the rights of the citizens, and it was through the Courts alone that their rights and safety in the end was fully and properly protected.

Although Stephens was held on bail of $5,000, no further information has been found.

Following the Draft Riots, the federal government set up an investigation but took no other action. John U. Andrews, a Virginia Lawyer and Peace Democrat, who delivered an anti-draft speech outside the Draft Office, was arrested and held in Fort Lafayette on July 16, 1863. On February 26, 1864, the New York Times reported that a federal grand jury had returned an indictment against John Andrews on charges of treason, conspiracy to levy war against the United States, inciting setting on foot and engaging in a rebellion and insurrection against the United States and resisting, and counseling and aiding resistance to the draft. Andrews was tried before Justice Samuel Nelson on May 24, 1864, convicted, and sentenced to three years hard labor. He was the only rioter charged in the federal courts.

New York County District Attorney Abraham Oakey Hall, a Tammany Hall Democrat, prosecuted all the other cases brought in connection with the Draft Riots and was widely praised for ensuring fair trials. In all, 67 of the indicted rioters were convicted, but few were sentenced to long terms of imprisonment.

President Lincoln’s administration halved New York's draft quota and civic organizations raised money to hire substitutes for City residents who could not otherwise afford them.



SOURCES

Adrian Cook. The Armies of the Streets: The New York City Draft Riots of 1863 (2015)
New York Times. Judge McCunn on Conscription. The Validity of the Law Denied. July 15, 1863
National Archives. A City Under Siege: The 150th Anniversary of the Civil War Draft Riots
The Lehrman Institute. Mr. Lincoln and New York
Iver Bernstein. The New York City Draft Riots (1990)



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