Commutation: Democratic or Undemocratic?

Abstract

COMMUTATION: Democratic or Undemocratic? Hugh G. Earnhart The enthusiasm characteristic of the first months of any war must eventually ebb. In Ohio the ardent response to Lincoln's call for volunteers in 1861 was proof of the fierce patriotic spirit that swept the North. Yet, within two years the threat of conscription was needed to stimulate volunteering, and by the spring of 1864 conscription itself was instituted under the "Act for Enrolling and Calling Out the National Forces," commonly called the Conscription Act. The most objectionable of all the provisions in the Conscription Act was section thirteen, which provided— That any person drafted and notified to appear, may, on or before the day fixed for his appearance, furnish an acceptable substitute to take his place in the draft; or he may pay to such person as the Secretary of War may authorize to receive it, such sum, not exceeding three hundred dollars, as the Secretary may determine, . . . and thereupon such person so furnishing the substitute, or paying the money, shall be discharged from further liability under that draft.1 The practice of furnishing a substitute was not new in 1863, for it had been the practice as far back as colonial days to hire a substitute for service in the local militia.2 As long as there was only a single call or draft this practice did little damage. But the scope of the Civil War necessitated repeated calls for men, and the immunity from service derived from furnishing a substitute reduced the available manpower pool on each successive draft. The commutation clause, without precedent in America, was widely believed to be "a concession to the man of means." While this provision, allowing a man to pay a sum of money and thus avoid military service, is contrary to present-day standards of justice, as it was to some a cen1 Congressional Globe, 37 Cong., 3 sess., pt. 2, Appendix, p. 210. 2 Arthur J. Alexander, "How Maryland Tried to Raise Her Continental Quotas," Maryland Historical Magazine, XIII (1947), 193-195; Arthur J. Alexander, "Pennsylvania's Revolutionary Militia," Pennsylvania Magazine of History and Biography, LXIX (1945), 15-25; Emory Upton, The Military Policy of the United States (Washington, D.C., 1907), p. 35. 132 tury ago, it did place a ceiling on the cost of escaping personal service. The Peace Democrats claimed the commutation clause was undemocratic in that it favored the rich and highborn, thus constituting a flagrant piece of class legislation. They argued that the poor and middle classes could not afford to pay the necessary $300 commutation fee, while the richer classes could. This argument soon became the mainstay of anti-draft agitators and the Achilles' heel of the conscription law. "The rich man's money against the poor man's blood" or "The rich man's war and the poor man's fight" were slogans which epitomized the opposition to the commutation clause; the objection to such discrimination, on the basis of the ability to buy exemption, soon produced great excitement in the North. As President Lincoln maintained, the reason many approved the hiring of a substitute, but objected to the commutation provision, was that the former was an established practice. The very purpose of commutation, he argued, was to correct the inequality introduced by the substitute clause, by permitting men too poor to hire substitutes to escape service. If the commutation clause had not been included in the law, no avenue of escape would have been left to the poor men since they would not have had the money necessary to compete with wealthier men in an open substitute market, where the price often rose above $300. "Is an unobjectionable law," asked Lincoln, "which allows only the man to escape who can pay a thousand dollars made objectionable by adding a provision that anyone may escape who can pay the smaller sum of three hundred dollars?" The commutation clause, which enabled poor men to avoid personal service, could hardly be prejudicial to the poor. On the contrary, the inequality between the classes was alleviated by the inclusion of the clause. Perfect equality could be achieved by deleting both provisions , but then public opinion would consider...