The Militia Act of 1862, 12 Stat. 597, enacted July 17, 1862, was legislation enacted by the 37th United States Congress during the American Civil War that allowed African-Americans to participate as war laborers and soldiers for the first time since the Militia Act of 1792.
The act created controversy on several fronts. Praised by many abolitionists and black-rights activists as a first step toward equality, it stipulated that the black recruits could be soldiers or manual laborers. Although black soldiers proved themselves as reputable soldiers, discrimination in pay and other areas remained widespread. According to the Militia Act of 1862, most soldiers of African descent were to receive $10 a month with an additional reduction of three dollars for clothing. Therefore, a black soldier’s pay would be almost half as much as the white’s wage of $13. Many regiments struggled for equal pay, some refusing any money until June 15, 1864, when Congress vacated that portion of the Militia Act and granted equal pay for all black soldiers.
By the summer of 1862, African American involvement in the Civil War was the center of a nation-wide 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, those of the 37th Congress in support 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. But, in great contradiction, the overwhelming argument from those in support of black involvement was that at this point in the war, the contribution of more soldiers was 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—despite great opposition from the less radical members—as a war necessity to allow the army black soldier recruits, and with it, enforced unequal pay upon black combatants.
CHAP. CCI.–An Act to amend the Act calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions, approved February twenty-eight, seventeen hundred and ninety-five, and the Acts amendatory thereof, and for other Purposes. . . . .
SEC. 12. And be it further enacted, That the President be, and he is hereby, authorized to receive into the service of the United States, for the purpose of constructing intrenchments, or performing camp service or any other labor, or any military or naval service for which they may be found competent, persons of African descent, and such persons shall be enrolled and organized under such regulations, not inconsistent with the Constitution and laws, as the President may prescribe.
SEC. 13. And be it further enacted, That when any man or boy of African descent, who by the laws of any State shall owe service or labor to any person who, during the present rebellion, has levied war or has borne arms against the United States, or adhered to their enemies by giving them aid and comfort, shall render any such service as is provided for in this act, he, his mother and his wife and children, shall forever thereafter be free, any law, usage, or custom whatsoever to the contrary notwithstanding: Provided, That the mother, wife and children of such man or boy of African descent shall not be made free by the operation of this act except where such mother, wife or children owe service or labor to some person who, during the present rebellion, has borne arms against the United States or adhered to their enemies by giving them aid and comfort.
SEC. 14. And be it further enacted, That the expenses incurred to carry this act into effect shall be paid out of the general appropriation for the army and volunteers.
SEC. 15. And be it further enacted, That all persons who have been or shall be hereafter enrolled in the service of the United States under this act shall receive the pay and rations now allowed by law to soldiers, according to their respective grades: Provided, That persons of African descent, who under this law shall be employed, shall receive ten dollars per month and one ration, three dollars of which monthly pay may be in clothing.
APPROVED, July 17, 1862