Maine Supreme Court strikes down onerous draft-avoidance scheme

As the national draft ramped up in the North, wealthy men could hire a substitute or pay $300 for a commutation. Poor men could so neither, and this cartoon styled as a draft poster revealed the results. (Library of Congress)

Maine Governor Abner Coburn scratched his head after Congress passed in March 1863 a law titled “An Act for enrolling and calling out the national forces and for other purposes.”

This law established the national draft, which spawned its own problems by summer 1863. New Yorkers might riot, burn, and kill in the Draft Riots, but many Mainers responded in a particularly Yankee fashion — and Coburn needed legal advice from the “Maine Supreme Judicial Court.”

The draft law stipulated that a potential draftee could hire a substitute or pay $300 to avoid military duty. Therein lay the rub, according to Coburn.

Various towns … are voting in public meetings three hundred dollars as a commutation in money for each of their citizens that may be drafted into the military service of the United States,” Coburn opened a June 27, 1863 letter to Chief Justice John Appleton and the Maine Supreme Court.

Essentially the voters (all male) of certain municipalities were raising public funds to buy commutations for draft-eligible local residents (all male), many of whom were probably the same voters shouting “aye” when the votes were taken.

It is feared by many good citizens (likely men whose towns did not raise such funds) that serious complications and embarrassments may result to the towns” pledging “their credit to raise money to supply these commutations[,] as well as to individuals who advance the money” to the towns, Coburn wrote.

He posed two questions to the Maine Supreme Court:

1. Has a city or town any legal right to pledge its credit to raise money for the purpose of paying the commutations of such of its citizens as may be drafted into the serve of the United States under the law aforesaid?

2. Has a city or town any legal right to raise money by taxation to provide commutations for such of its citizens as may be thus drafted?”

On July 2, Appleton and justices William G. Barrows, Jonas Cutting, Woodbury Davis, Jonathan G. Dickerson, Edward Kent (from Bangor), Richard D. Rice, and Charles W. Walton responded to Coburn’s “interrogatories.”

The justices laid out the constitutional right of Congress “‘to declare war’” and to raise and maintain an army and a navy. Congress also had the authority “‘to provide for calling forth the militia to execute the laws of the Union, and suppress insurrection, and repel invasion’” (italicized in the original).

The power of Congress in the premises is supreme,” the Maine justices stated. “In a great national emergency, when the national unity and republican institutions are in peril,” Congress “has the right to command all the resources of the nation, and the lives of its citizens, to prevent, by any and all proper means, that fearful anarchy” that the successful separation of the United States into two nations would cause.

The draft law, “by section 13,” stated “that any person drafted” could “furnish an acceptable substitute” to take his place. Or the draftee could “pay to such person as the Secretary of War may authorize to receive it,” a sum not exceeding $300, the justices wrote.

Hiring a substitute to take his place in the draft, a New York City dandy encountered his stylish beau’s response in this Harper’s Weekly cartoon. (Library of Congress)

Thereupon such person so furnishing the substitute, or paying the money, shall be discharged from further liability under that draft,” the draft law stated, according to the Maine Supreme Court opinion (italicized in the original). The responsibility lay upon the draftee to complete his military service, find a substitute, or pay the $300 commutation, “each case alike a personal liability,” the justices noted.

They then enumerated “the general power of towns to raise money” and, according to Maine state law, the specific purposes for which towns could spend money. “Unless new powers are conferred, or an excess of power receives a subsequent legal ratification,” Maine “towns … cannot transcend the authority given by the statute” and spend money for purposes not allowed by state law, the justices indicated.

Towns have no authority to raise money to give as a mere gratuity to one, or more citizens, to enable them to escape the performance of services which every citizen should cheerfully render, as due the government,” the opinion read.

Were a town to raise money to be distributed to favored individuals, the tax assessed for such a purpose could not for a moment be upheld,” the justices noted. “Still less can it be,” when providing public funds for draftees’ commutations “would be, to defeat” the purpose of the draft law, intended “an act to raise soldiers,—not to raise money” (italicized in the original).

If one town may assess taxes to pay the commutation money of those who may be drafted, so may all; and the government would be left without a soldier for its protection, and the nation surrendered into the power of those who are warring for its overthrow,” the justices stated.

The resources of the State would be turned to its destruction, by depriving it of the means necessary for its preservation,” the justices noted.

We therefore answer each of the [two] interrogatories in the negative,” they concluded.

Thus under state law, Maine towns could not raise taxes and spend public funds to spare their residents being drafted. Satisfied with the legal opinion, Coburn moved quickly to stop the practice.

If you enjoy reading the adventures of Mainers caught up in the Civil War, be sure to like Maine at War on Facebook and get a copy of the new Maine at War Volume 1: Bladensburg to Sharpsburg, available online at Amazon and all major book retailers, including Books-A-Million and Barnes & Noble. —————————————————————————————————————–

Sources: Important Judicial Decision, Kennebec Journal, Friday, July 10, 1863

Brian Swartz can be reached at He enjoys hearing from Civil War buffs interested in Maine’s involvement in the war.

Brian Swartz

About Brian Swartz

Welcome to "Maine at War," the blog about the roles played by Maine and her sons and daughters in the Civil War. I am a Civil War buff and a newspaper editor recently retired from the Bangor Daily News. Maine sent hero upon hero — soldiers, nurses, sailors, chaplains, physicians — south to preserve their country in the 1860s. “Maine at War” introduces these heroes and heroines, who, for the most part, upheld the state's honor during that terrible conflict. We tour the battlefields where they fought, and we learn about the Civil War by focusing on Maine’s involvement with it. Be prepared: As I discover to this very day, the facts taught in American classrooms don’t always jibe with Civil War reality. I can be reached at