MILITIA - HISTORY AND LAW FAQ 3/6 version 1.01 July, 1995 3.29 Some sections from the 1792
MILITIA - HISTORY AND LAW FAQ 3/6
3.29 Some sections from the 1792 Uniform Militia Act
The entire Act is less than four pages long.
"Section 1. MILITIA HOW AND BY WHOM TO BE ENROLLED - HOW TO BE ARMED
That each and every free able-bodied white male citizen of the respective
states, resident therein, who is or shall be of the age of 18 years, and
under the age of 45 years (except as is herein after excepted) shall
severally and respectively be enrolled in the militia by the captain or
commanding officer of the company, within whose bounds such citizens shall
reside, and that within 12 months of the passing of this act. ...That
every citizen so enrolled and notified, shall, within 6 months thereafter,
provide himself with a good musket or firelock, a sufficient bayonet and
belt, two spare flints, a and a knapsack [etc] ... and shall appear so
armed, accoutred and provided, when called out to exercise, or into
service..and that from and after five years from the passing of this Act,
all muskets for arming the militia as herein required shall be of bores
sufficient for balls of the eighteenth part of a pound. And every citizen
so enrolled, and providing himself with the arms, ammunition and
accoutrements required as aforesaid, shall hold the same exempted from all
suits, distresses, executions or sales, for debt or for the payment of
"Section 2. EXECUTIVE OFFICERS, &c. EXEMPTED
That the Vice-President of the United States...all post-officers..all
pilots..; and all persons who now are or may hereafter by exempted by the
laws of the respective states, shall be, and are hereby exempted from
militia duty, notwithstanding that their being above the the age of 18
and under the age of 45 years."
"Section 3. "MILITIA HOW TO BE ARRANGED: Within one year after the passing
of this act, the militia of the respective states shall be arranged into
divisions, brigades, regiments, battalions, and companies.and each division,
brigade, and regiments, shall be numbered at the formation thereof, and a
record made of such numbers in the adjutant-general's office in the state;
and when in the field, or in service in the state, each division, brigade, and
regiments shall, respectively, take rank according to their numbers,
reckoning the first or lowest number highest in rank. That, if the same be
convenient, each brigade shall consist of four regiments; each regiment of
two battalions; each battalion of five companies; each company of
Sixty-four privates. That the said militia shall be officered by the
respective states, as follows: To each division, one major-general and two
aids-de-camp, with the rank of major; to each brigade, one brigadier-general,
with one brigade-inspector, to serve also as brigade-major, with the rank of a
major; to each regiment, one lieutenant-colonel commandant; and to each
battalion, one major; to each company, one captain, one lieutenant, one ensign,
four sergeants, four corporals, one drummer, and one fifer or bugler. That
there shall be a regimental staff, to consist of one adjutant and one
quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one
surgeon's mate; one sergeant-major; one drum-major, and one fife-major, "
"Section 7. RULES OF DISCIPLINE: That the rules of discpline, approved and
established by Congress in their resolution of 29th of March, 1791, shall be
the rules of discipline to be observed by the militia throughout the United
States... It shall be the duty of the commanding officer at every muster,
whether by battalion, regiment, or single company, to cause the militia to be
exercised and trained agreeably to the said rules of discipline".
"Section 11. ARTILLERY &c. NOW EXISTING, TO RETAIN THEIR PRIVILEGES:
And whereas sundry corps of artillery,cavalry, and infantry
now exist in several of the said states, which by the laws, customs, or
usages thereof have not been incorporated with, or subject to the general
regulations of the militia: Be it further enacted, that such corps shall
retain their accustomed privileges, subject nevertheless to all other
duties required by this act, in like manner with the other militia."
[These privileges were confirmed in the 1903 and 1916 acts for groups that
were in continuous existence since 1792]
3.30 Wasn't the very decentralized 1792 Act the only type that could be
passed by Congress? The very notion of the militia falling under
federal authority was considered a violation of the intent of a
militia (an armed citizenry), organized, trained, and disciplined
by state legisatures.
A. No, the 1792 law was the one that (obviously) Congress passed.
However, there were other laws proposed that would have resulted in a much
different militia. You cannot say that the proper limits to a power
granted under the Constitution are shown by the laws passed. All you can
say is that the 1792 Act was one way of organizing the militia system.
There certainly were other plans proposed that would have created a very
different type of militia in the 19th century as we will see below.
3.31 Could Congress prevent the States from creating militias?
A. Probably not; but the question has never seriously been raised since
1789. The great anti-federalist fear of the central government disarming
the state militias against their opposition never occurred. The 1792 law
resulted in a militia system with very little central control. There
were no penalties placed on states that refused to create and maintain
militias as required by the 1792 Act. Rather than Congress preventing or
disarming the militias, it was the states who let the militia system
gradually die out within a federal law that would not change
substantially for 111 years.
3.32 Why did the 1792 Act provide that militiamen purchase and maintain
their own weapons? How did this change over time?
A There were two basic reasons for deciding that militiamen maintain their
own arms, rather than the government providing all the arms. One was,
the fear that the government could give arms to some and deny them to others.
The other was simply the cost of arming so many militiamen.
However, as time went on, fear of the former decreased, and willingness to
bear at least a part of the burden of arming increased. A number of people in
Congress during the period 1789-1807 argued that the federal government should
bear the cost of weapons, rather than individual people. The main reason for
this was socioeconomic--poor people were generally the ones who had to serve
in the militia to begin with, and it seemed harsh to also make them buy
The 1792 law requiring that militiamen arm themselves really upset a lot
of poor people, who had to buy expensive military weapons, which were easy
for the rich to afford. What many of them wanted was something like a
property tax, which would then be used to buy guns for distribution. That
way, the rich would be making a contribution proportionate to the
contribution of the poor, towards the defense of the country.
The Southern states and the Western states and territories had extremely
severe shortages of weapons in the early Republic. They were hard to get, and
expensive when they could be gotten. Southerners and Westerners tried to get
Congress to buy weapons for the militia, or loan weapons to the militia, or to
do _something_ about the situation.
However, Congress repeatedly refused to do anything about the situation.
They threw a sop to Southerners and Westerners in the late 1790s by
purchasing $30,000 worth of weapons to sell to the states, but that was
After the Chesapeake Incident of 1807, when a British ship fired on a U.S.
Navy ship, killing several crewmen, then boarded it, the U.S. almost went
to war with Great Britain. In the end, it decided not to, but it did make
several improvements to its military situation. One was started by
Congressman John Randolph of Roanoke, the conservative Virginian, who
argued that the United States begin appropriating a sum--around a million
dollars or so,--each year to buy arms for the militia. The U.S. would then
distribute the arms proportionately to each state, which would then
dispense them to the militia. In this way, the U.S. government could not
be said to be withholding any arms, etc. The sum got debated down to
$200,000, to Randolph's displeasure, but this was passed, and became an
amazingly long-lasting piece of legislation.
This law had several important consequences. In one respect, it helped the
militia, because it gave states a "carrot" (free arms) to encourage them to
maintain their militias. On the other hand, once states started getting
weapons from the federal government, they shut down state armories, like the
one in Virginia, and stopped buying weapons themselves, which a number of
states, including Maryland, New York, and Vermont, had done.
As time went on, less and less of the militia was armed. Even early on,
western and southern militias had a big problem procuring arms. And as
militia service fell into disrepute, it was easier for people to get away
without having weapons.
States also had a problem of what to do with the weapons they got from the
federal government. The logical solution, which was suggested time and time
again by adjutants-general and governors, was to build armories, keep the guns
in the armories, pay for people to clean and maintain the arms, and send them
out in time of emergency.
However, in practice this was really difficult to do, because members of the
militia put considerable pressure, political and otherwise, on the state
governments to distribute the arms. Militia companies were more likely to
attract members if they had arms; they were more likely to gain public respect
and acceptance, and in general this was a big morale booster.
The problem was that giving arms to the militia--either the compulsory militia
or the volunteer militia--was the same as throwing them away. Time and time
again it was proven that the militia could not take care of its weapons. For
instance, a volunteer company might get weapons and take care of them for a
few years. Then the captain might resign his commission and move to another
state. Since he was the motivating force behind the militia company, it
disbanded after he left, and no one bothered to return the arms to the
government. Five years later, or so, someone found the box of weapons, badly
rusted, in an outhouse, and reported the same to the governor. This was an
actual example from Alabama.
What states tended to do was to strike a compromise. They would not give arms
to the regular militia, but they would give them to the volunteer companies,
on the theory that the volunteer companies were more efficient and easier to
keep track of. So state arsenals generally just became holding depots for
weapons that went from the federal government to the volunteer companies. The
arms attrition, as you might suspect, was huge, as volunteer company turnover
was incredible, so states were never able to accumulate very many weapons.
Another source of militia arms was "factory seconds." Factories making guns
for the federal government, or the federal arsenals doing the same (Harper's
Ferry and Springfield) would sell the weapons that did not meet inspection.
Clever people would buy these below-standard weapons and sell them to the
militia cheap, since militiamen (in those states with effective enforcement)
were subject to fines if they didn't show up to musters with weapons.
Different people had different opinions on which weapons would last longer.
Some militia officials didn't want to get small arms like cavalry pistols and
sabers, because those were lost most easily. Others liked to try to get
expensive and fancy weapons like Halls' Rifles, on the theory that the militia
would spend more time keeping them in working orders. Some wanted to get huge
items, like cannon, on the theory that it was difficult to misplace them.[MP]
3.33 It is well known that George Washington was not happy with the 1792
Act as he had proposed a select militia system. But Presidents such
as Jefferson and Madison, surely they must have approved of the 1792
A. It's well-known among military historians and Jefferson scholars that
Jefferson wanted a strong select militia. You can find plenty of evidence
on this material in The Writings of Thomas Jefferson, vol. XI, or Reel 55
of the Thomas Jefferson Papers of the Library of Congress (Microfilm
edition), or in the published Jefferson-Kosciuszko Correspondence.
Jefferson called for a system of classification of the militia designed to
allow the federal government extended use of the state militias.
Jefferson tried to get this implemented in 1805, but the classification
plan met with considerable opposition in Congress, including opposition
from key New England Republican Joseph Varnum.
Among some extracts, we see Thomas Jefferson writing to Henry Dearborn on
October 23, 1805, estimating how many men aged 18-26 the government could
conscript once it set up a classified militia. On December 31, 1805,
Thomas Jefferson told Henry Dearborn (his Secretary of War) that "the
important thing is to get the militia classed so that we may get at the
young for a year's service at a time." In 1807, Thomas Jefferson wrote
James Madison that "Convinced that a militia of all ages promisucously are
entirely useless for distant service, and that we never shall be safe
until we have a selected corps for a year's distant service at least, the
classification of our militia is now the most essential thing the United
States have to do..."
On May 2, 1808 , Thomas Jefferson wrote Taddeusz Kosciuszko that "Against
great land armies we cannot attempt it but by equal armies. For these we
must depend on a classified militia, which will give us the service of the
class from 20-26, in the nature of conscripts, composing a body of about
250,000 to be specially trained."
It is easy to find James Madison arguing for greater control over the
militia. During the Constitutional Convention he argued that the federal
government should appoint all militia generals. During the first session
of Congress, which passed the Bill of Rights, Madison also argued for
greater control. And during his presidency, Madison called for a system
of classification just like Jefferson did.
Both Jefferson and Madison believed that the militia was the best
security, but only if the national government could use them effectively,
and this could only be accomplished by greater federal control. [MP]
3.34 Was the 1792 Uniform Militia Act found constitutional?
A. Yes, almost self-evidently so. The following excerpts are from the
judgement of the U.S. Supreme Court in the 1820 case of Houston v. Morris,
found at 5 Wheaton 1.
The case dealt with whether a state could punish someone for failing to
show up for federal service during the war of 1814. Most of the judgement
is taken up with discussing the finer points of the limits of state power
over the militia. However, all sides agreed that the Constitution had
given the federal government very strong power over the militia.
Note the comments of Justice Washington on the the wisdom of the 1792
militia laws as seen from the perspective of 1820.
From the opinion of Justice Washington:
"1. What are the powers granted to the general government, by the
constitution of the United States, over the militia? and 2. To what extent
have they been assumed and exercised?" (p.12)
"After the Constitution went into operation, Congress proceeded, by
many successive acts, to exercise these [the militia clause] powers and to
provide for all the cases contemplated by the Constitution.." [p.13]
"The [Uniform Militia Act of 1792] declares who shall be subject to be
enrolled in the militia and who shall be exempt; what arms and
accoutrements the officers and privates shall provide themselves with;
arranges them into divisions, brigades, regiments, battalions and
companies, in such manner as the state legislatures may direct; declares
the rules of discipline by which the militia is to be governed, and makes
provision for such as should be disabled whilst in the actual service of
the United States...."
"The laws which I have referred, amount to a full execution of the powers
conferred upon Congress by the Constitution. They provide for calling
forth the militia to execute the laws of the Union, suppress insurrection,
and repel invasion. They also provide for organizing, arming and
disciplining the militia and for governing such part of them as may be
employed in the service of the United States; leaving to the states,
respectively, the appointment of the officers and the authority of
training them according to the discipline prescribed by Congress".
"This system may not be formed with as much wisdom as, in the opinion of
some, it might have been, or as time and experience may hereafter suggest.
But to my apprehension, the whole ground of Congressional legislation is
covered by the laws referred to. The manner in which the militia is to be
organized, armed, disciplined and governed, is fully prescribed... "
[at 18] "..So long as militia are acting under the military jurisdiction
of the state to which they belong, the powers of legislation over them are
concurrent in the general and state government. Congress has power to
provide for organizing, arming and disciplining them; and this power may
be unlimited, except in the two particulars of officering them and
training them, according to the discipline to be prescribed by Congress,
it may be exercised to any extent that may be deemed necessary by
Congress. But as state militia, the power of the state governments to
legislate on the same subjects, having existed prior to the formation of
the Constitution, and not having been prohibited by that instrument, it
remains with the states, subordinate nevertheless to the paramount power
of the general government, operating upon the same subject."
[at 20] "It may be admitted, at once, that the militia belong to the
states, respectively in which they are enrolled, and that they are
subject, both in their civil and military capacities, to the jurisdiction
and laws of such state, except so far as those laws are controlled by Acts
of Congress constitutionally made. Congress has power to provide for
organizing, arming and disciplining the militia; and it is presumable,
that the framers of the Constitution contemplated a full exercise of these
powers. Nevertheless, if Congress had declined to exercise them, it was
competent to the state governments to provide for organizing, arming and
disciplining their respective militia, in such manner as they might think
proper. But Congress has provided for all these subjects, in the way
which the body must have supposed the best calculated to promote the
general welfare, and to provide for the national defence."
[at 23] " Upon the subject of the militia, Congress has exercised the
powers conferred on that body by the constitution, as fully as was thought
right, and has thus excluded the power of legislation by the states on
these subjects, except so far as it has been permitted by Congress;
although it should be conceded, that important provisions have been
omitted, or that others which have been made might have been more
extended, or more wisely devised."
3.35 Congress' right to provide for organizing, arming and disciplining
militias does not give it the right to say that militias may not exist,
nor can Congress prevent the militia from equipping itself differently
from that which Congress provides.
A. Congress' power to organize definitely did give it the right to say
that _some_ militia units should not exist. For instance, the 1792 law
that Congress passed limited volunteer companies of cavalry and artillery to
one per regiment. States that allowed more previous to this law had to
disband the extra. As to equipment, they could carry any additional
equipment they wanted to, but Congress specified rather rigorously what
equipment they were supposed to have.
It is true that not all states followed the 1792 law to the letter, nor
did all individuals. There was not a lot of compulsion in early American
3.36 Did the states object to the degree of central control over the
militia in the 1792 Uniform Militia Act?
A. States did not object to the 1792 Act. EVERY SINGLE STATE passed a
new set of militia laws, completely reorganizing their militias, so as to
conform with the militia organization mandated by Congress. Whenever
states changed their militia organizations after that, they made sure they
did it according to the laws set forth by Congress. And when Congress
passed new laws regarding the militia, the states followed those laws,
As a matter of fact, it was a quite frequent occurrence for state
legislatures to _petition_ Congress, asking Congress to legislate a new,
more effective organization of the militia. Did the states do it on their
own? No. Partially this was because they wanted to pass the buck on a
potentially unpopular measure, but also because they recognized that
Congress had the power to do it, as the petitions all acknowledged. These
petitions and resolutions are available in the House and Senate Document
compilations, as well as state legislative journals.[MP]
3.37 Examples of state Petitions and Resolutions to Congress to legislate a
new, more effective organization of the militia.
December 16, 1823, Ohio House of Representatives. Mr. Blackburn adopts
resolution and preamble: "Whereas the experience of all ages of the world
has shewn, that standing armies are dangerous--that a well organized and
disciplined militia composing themselves the mass of the community, with
attachment to the government in their hearts and arms in their hands,
constitute the best safe guard of national liberty, the strongest bulwark
and only sure defence of a republican government, and Whereas the
experience of this nation as well in time of peace as of war has evinced
that numerous and weighty evils result from the want of a uniform system
of militia organization and discipline throughout the union; And Whereas
the national government has the constitutional right and the sole power to
remove these evils, therefore, Be it resolved by the General Assembly of
the State of Ohio, that our Senators and Representatives in Congress be
requested to use their utmost exertion to procure the passage of an act
establishing a uniform system of organization and discipline for the
militia of the United States.
January 5, 1832, Ohio House of Representatives, Governor Duncan McArthur
sends to the general assembly a communication from the governor of New
Hampshire with certain resolutions of the legislature of that state
relative to the passage of a law by Congress for the more perfect
organization of the militia of the several states.
December 7, 1832, Message of former militia major general and current
governor Robert Lucas to the General Assembly of Ohio: The Militia is the
dread of tyrants and the guard of freemen; they form the strong arm of
national defence, and are the first resort, in case of hostilities. I
have long been of the opinion, that were the militia put under that
organization and discipine, of which they are susceptible, and when called
into service, clothed and equipped by the public, as regular troops are,
that they would be as efficient in the field as regulars. But the
particular power of organizing, arming, and disciplining the militia, and
to provide for their government when in the service of the United States,
is granted by the Constitution to the General Government, with the
exception of the appointment of the officers by the states, and it is much
to be regretted, that Congress has not given to this important subject, a
greater share of attention than appears to have been done. Our present
militia law is defective in all its parts, so much so, that it is
extremely difficult to keep the militia organized under it. I therefore
recommend its revision, and hope a law may be passed of sufficient energy
to infuse a spirit of emulation throughout the whole body."
January 10, 1833, Ohio House of Representatives, Resolution of General
Assembly: "Resolved by the General Assembly of the State of Ohio, that we
view with deep concern and anxious solicitude, the present deranged and
disorganized state and condition of the militia and military strength of
our beloved country. "Resolved, that we deem it expedient that a more
effective system of organization and discipline be adopted by the
authority of the general government. "Resolved, that our Senators in
Congress be instructed, and our Representatives requested to endeavor to
procure the passage of a law for organizing and disciplining the Militia
of the United States, in conformity to the power vested in Congress by the
March 28, 1833. Veto message by Massachusetts Governor Levi Lincoln: "The
power to organize, to arm, and to discipline, is vested in Congress. The
ORGANIZATION implies the right to prescribe who shall be made liable to
the duty of militia service, and their arrangement into distinct Bands and
Corps for its performance. The ARMING respects the authority to prescribe
the appropriate arms and accoutrements with which the Militia shall be
proivded, and with which they shall be exercised. And the DISCIPLINING
implies instruction in the use of these arms, and in the drill required
for the knowledge of the soldier in parade, evolution, and manoeuvre,
under the organization to which the Militia may be subjected. These
positions are plain, simple, and incontrovertible, and comprise the powers
which Congress may exercise over the Militia of the Union. The RESERVED
authority to the States, to appoint Officers, and to train the Militia,
may be considered subordinate to, and dependent upon the previous action
of the National Government in the exercise of the DELEGATED authority.
Unless, under the latter, the Citizens are enrolled and organized into
Companies, Battalions, Regiments, Brigades, and Divisions, the character,
rank, and authority of the Officers to be appointed by the States cannot
be determined; for the offices dependent upon this organization not being
created, no appointments could be made. And again, unless Congress
prescribe the discipline, the reserved power to the States to train the
Militia, which is restricted to the mode of discipline thus to be
prescribed, does not practically exist. [IMPORTANT --MP --> ] It will
readily be admitted, that the states could not adopt an organization, nor
enforce a system of discipline of their own. A failure on the part of
Congress to enroll for organization, would devolve no more right upon the
states to direct that enrollment than a failure to exercise any other of
the delegated powers, such as the coining of money, passing acts of
naturalization, or of bankruptcy, establishing Post offices, etc., would
authorize the State Governments to pass Laws for the accomplishment of
such objects. By the 10th Article of the Amendments to the Constitution, it
is declared, that "the powers not delegated the United States, nor
prohibited to the states, are reserved to the states respectively, or to
the people." The expression is in the disjunctive, and by an obvious and
just construction, if the power be either thus deleted, or prohibited, it
no longer remains to the states. On the other hand the exercise by
Congress of the delegated power imposes the obligation upon the states to
act in conformity to it, under their reserved authority. They are bound
to provide for the appointment of officers, according to the manner of
organization, and also to require the trainings in pursuance of the
discipline which may be prescribed. Otherwise, the reserved are repugnant
to, and destructive of, the delegated powers. If the states may be at
liberty to refuse to provide for the election and appointment of officers,
and the trainings of the Militia, the power to organize and to discipline
becomes utterly nugatory. Without officers there can be no such thing as
military organization, and without training there is no military
discipline. Whenever, therefore, under the Constitution, Congress provide
for the organization of the Militia, the respective states are bound to
the appointment of officers appropriate to that organization; and they are
no less obliged to give effect to the instruction, which is required by
the system of discipline which is prescribed. Both these obligations rest
upon the same authority. It will not be pretended by any one, that the
Legislature of a state may neglect to enact, or may repeal an enactment,
by which the offices, created under the form of organization provided by
Congress, may be filled..." [MP]
3.38 The federal government did very little to exercise
its power over the militia in the 19th Century. Right?
A.That depends on what you define as "little." In terms of passing laws
to organize the militia, you are correct; the Uniform Militia Act of 1792
lasted until 1903. However, the United States spent money to arm the
state militias throughout virtually all of that period, as well as
spending money buying manuals and other miscellaneous items. The federal
government tried many times to reform the militia, especially in 1805,
1807, 1812,1814-1815, 1817, 1826, and 1840. The federal government
called up the militia countless times during this period, as well.
There was a real difference between concepts of reform on the state level
and on the federal level. On the state level, "reform" usually meant
finding some way to lower the burdens of militia service, or at least
distribute them more equally. On the federal level, "reform" meant
improving the military efficiency of the militia. Almost inevitably, the
plan put forth for this was classification. Classification was a concept
that involved splitting military-age manpower into several groups
(different plans ranged from two to four, usually). Older men would have
a very small burden, while most of the weight of militia service and
training would rest on young males, usually aged 18-26, sometimes 21-26.
Usually, this would mean training about thirty days a year (as opposed to
the then-current 3-6). Classification plans also almost always involved
greater federal control over the militia, since presidents such as
Washington, Adams, Jefferson, Madison, Monroe, Jackson, and Harrison all
supported both greater federal control over the militia and classification
(JQ Adams appears to have been lukewarm, while Tyler didn't like the
Resistance in Congress to the classification plans, which always stopped
them, was based on two grounds: 1) an unwillingness to make young men
shoulder the whole burden, and 2) an unwillingness to give the federal
government more control over the state militias than it already had.[MP]
3.39 Did all states have militia laws? For those states which did not,
wasn't the regulation of the militia up to the individuals of
A. Every single state had militia laws. The notion that the regulation of
the militia was up to individuals in local communities is a present-day
one. Depending on the state, even most volunteer militia companies had to
get permission or authorization (often through special laws passed by
state legislatures) and/or had to conform to the state regulations
regarding the militia or volunteer militia. [MP]
3.40 How did individuals become 'enrolled' in the militia?
The actual procedure varied from state to state. In most states at most
times, it was the responsibility of the local officers to find out who was
new to an area and enroll them in the militia. For instance, here is the
1836-37 Revised Statutes of North Carolina:
"That all free white men and white apprentices, citizens of this state,
or of the United States, residing in the State, who are or shall be of
the age of eighteen, and under the age of forty-five years, shall, as
soon as is practicable, be severally and respectively enrolled in the
militia of this State, by the captain or commanding officer of the
infantry company within the bounds of whose district...such citizen shall
reside; and it shall, at all times, be the duty of every captain or
commanding officer of any community, to enrol every such citizen, except
as hereinafter excepted; and also those between the ages aforesaid, and
not exempt by law, who may from time to time, come to reside within the
bounds of his district, and remain therein thirty days; and he shall
without delay, notify such citizen of his enrolment, by a proper
non-commissioned officer of the company, by whom the notice may be given."
3.41 What happened to compulsory militia duty as called for by the 1792
Uniform Militia Act?
A.The 1792 Uniform Militia Act represented the high point of the militia
under the U.S. Constitution. All free able bodied white male citizens
were part of the militia should do militia duty. Militia duty meant going
for training with the ever present danger of being forced to go on active
duty and fight or put down a riot or insurrection. Rather than a right,
being a member of the militia was a _responsibility_. It was widely seen
as an undesireable burden, which was why many states abolished the
compulsory militia systems in the 1840s, and went to a volunteer militia
system that eventually, a long time later, evolved into the National
Guard. Occasionally states would grant privileges to members of the
militia, such as not having to pay a poll tax. But these were intended
simply to lessen the burden of militia service, and were not a right.[MP/SS]
3.42 Why did the militia decline?
A. The militia declined because the arguments against militia service won
out over those that suggested the advantages of it. There were two main
schools of opposition to the militia. Many argued against the militia on
moral grounds: it promoted drunkenness and gambling, among other vices.
Pacifists (belonging to a strong peace movement in the early 19th century)
argued that the militia promoted militarism. The other school of
opposition, and probably the stronger one, was opposed to the militia on
socioeconomic grounds. These people were angry that the rich could always
get out of militia service. It was a common lament that "the poor had to
pay in order to protect the property of the rich, who paid nothing."
Against these arguments, supporters of the militia tried to portray the
militia as a good institution: a) protector against tyranny, b) defense
against foreign invasion, and increasingly, c) defense against mobs and
riots. They also tried to reform the militia, to make it more "moral" and
less inequitable. However, the rationales for militia service were not
convincing; it was pretty clear that the federal government was not about
to become "tyrannical" while the standing army seemed a better defense
against (unlikely) foreign invasion than the unreliable militias. The mob
and riot argument was more successful, but the compulsory militia was not
needed for this; a volunteer militia could serve just as well. On the
reform front, the reformers basically failed in their endeavors. As a
result, people grew more and more unwilling to participate in the militia
system, thus creating its 'decline'. [MP]
The first Congressional definition of the militia started out, as all
free, white able-bodied males from 18-45, _except those exempted_.
Congress gave states the power to exempt anybody they wanted, and states
used the exemption power extremely liberally. This resulted in huge
segments of society being exempted from militia duty. Indeed, some states
began early on to exempt _entire age groups_ from militia duty. For
instance, Massachusetts soon exempted everybody aged 41-45. Then they
exempted people aged 35-45. Then they exempted people aged 30-45, so that
by the 1830s the Massachusetts militia was composed only of those
individuals aged 18-29 who were not exempted in other ways (such as
serving in volunteer fire companies or any of the other exemptions).
Massachusetts was not at all uncommon in this regard.[MP]
3.43 "Opinion of the [Massachusetts] Justices of this Court upon a
question referred to them by His Exellency, Edward Everett, Governor
of the Commonwealth, to wit, "whether it be competent to the
State legislature to exempt from enrollment in the militia, all
persons under 21 and over 30 years of age, in virtue of the
general powers of exemption possessed by the States under the
act of congress regulating the militia."
A.This is advisory opinion, which is a way that a state can get in
advance an opinion as to the constitutionality of legislation. In
practice, an opinion such as this disposes of the question
at the level of the Massachusett's courts.
In Opinion of the [Massachusetts] Justices 39 Mass. 571 (1838),
the Court first examines the 1792 Uniform Militia Act and the power
given to states to exempt people from militia and then goes on:
"Under this [power to exempt] provision, the State legislature of this
Commonwealth and as we believe of other States, have made large
additions to the numbers of those exempted from duty, and of course
exempted from enrollment, and this without any question of its legality
or validity. In this State these exemptions have been extended to
...clergymen, schoolmasters, professors and students in colleges,
quakers, engine men, and other large classes of persons...
"The act conferring this power [to exempt] is unlimited in its terms;
it exempts all persons who may be hereafter exempted by the laws of
the respective states...Besides, it is apparent from the whole frame
and spirit of this act of congress [the 1792 Act], that it was
intended to depend upon State legislation to carry it into practical
operation; and in fact, if the State governments should neglect or refuse
to pass the necessary laws, or should exercise many of the powers
unquestionably vested in them by it, with a view to defeat its
operation, it could not be carried into effect. But it is equally
apparent, that trust and confidence were reposed in the State
governments, to do that part of the duty incumbent on them, and
that congress relied upon the fidelity and patriotism of the State
governments, to cooperate with them, sincerely and earnestly, in
promoting the great purpose of the act, that of more effectually
providing for the national defence, by establishing a uniform militia.
"There is, therefore, no grounds to infer that a power conferred upon
the State governments in terms, was limited or restrained by implication.
This is the construction which we think must be given to the act of
congress as it is, an act which has been in force almost fifty years.
But the whole power is with the general government; and if Congress
shall find, from the course of State legislation, from the altered
condition of the United States during this long period, or from any
other circumstances, that the existing laws require modification and
amendment, it is in their power to make such amendment, and to
designate and define the powers of the State governments on this
subject, in such manner as the good of the whole country shall,
in their judgement, require.
"..We are therefore, of opinion, as first above expressed, that
it is competent for the State legislature by law to exempt from
enrolment in the militia, all persons under twenty-one and over
thirty years of age."
And once the Massachusett's Court said that there was no limit to
the power of the states to exempt, exempt they did. This opinion
was given in late 1838. In 1840, Massachusett's ended compulsory
militia service completely.
3.44 Did all parts of the militia system decline equally?
A.No. Ironically, the states with the best militias--New England states,
generally--were the first to go, largely because being the best meant
having the most coercion, which would make them the most unpopular.
Southern and Western state militias, which were always less efficient,
thus lasted longer, though they declined, too. Eventually, whether by law
or simply in practical terms, most states began to rely on a system of
volunteer militia units. In some states, this system was highly regulated
(as in Massachusetts, for instance) and replaced the existing structure.
Other states imposed varying degrees of regulation, while a few _in
practice_ cared little about regulating them (Indiana, for instance). The
volunteer units were often armed by the state government. In some cases,
switching to a volunteer system did not help the militia's decline. For
instance, while the compulsory militia system existed, many people chose
to serve in the volunteer militia instead, because it was less unpopular.
However, once the compulsory system was abolished and the state went to a
volunteer militia system, many people dropped out of the volunteer militia
units because they had only been members as a way to avoid duty in the
compulsory militia (which now no longer existed). The volunteer militia
systems are basically the forerunner of today's National Guard. [MP]
3.45 Could states disband militia units?
A. Authority to disband units is inferred from the organizational powers
granted in the Constitution. Congress is given the authority to organize
the militia. It does so via laws. States therefore not only have the
power but the obligation to disband units that for whatever reason do not
meet the standards of that organization. This was something that they
frequently did, for instance, disbanding volunteer companies that had
shrunk below the minimum number required--despite the willingness of the
remainder to continue training. States also disbanded militia units for
other reasons. For instance,in 1837, Massachusetts disbanded six militia
companies that refused to obey orders. In 1855, Massachusetts disbanded
all militia companies composed largely of Irishmen. [MP]
3.46 There is a notion that amongst the historical militias, the
volunteer companies were self-regulating. Is this correct?
A. Volunteer companies were very common in the pre-Civil War era.
Depending on the state in which they resided, they could be subjected to a
degree of regulation that varied from extreme to very light, with most
cases falling somewhere in the middle. Even those states which basically
did not bother to regulate volunteer companies usually had some
(unenforced) laws on the books.
Historically, some states required self-started militia groups to petition
the legislature for incorporation, others simply to provide a reasonable
justification to the governor for him to accept or refuse, etc. Today,
in the 1990s, no state has any provision for accepting or authorizing a
self-started militia group.
There were volunteer companies that were completely independent of all state
organization and law, but these were a distinct minority, often consisting of
blacks or other people that contemporary society did not like to recognize, or
sometimes the exact opposite--very elite people who ran them as social clubs
rather than military units.
But these organizations were just private armies. This was the case for
many black military units before the Civil War in Northern cities, for
instance. They wanted to become part of the militia, but generally the
states would not let them join. This was very frustrating for them,
because it meant that their units would just be private little armies and
not part of the militia. (See 3.52 below). [MP]
3.47 Example of regulations governing volunteer militia units.
A. The amount of regulation of volunteer units varied by state.
Here are some topic headings from the North Carolina Revised Statutes of
1836-37, which is a state that imposed a medium amount of
regulation on volunteer units, regarding volunteer cavalry units.
"1. Regiments of cavalry, how to be formed, officered, and equipped. (a
page long set of regulations of how volunteer cavalry troops will be
formed, clothed, officered, and equipped]
2. Troops of cavalry when to muster, how returns to be made, etc. (a
paragraph detailing how many times per year volunteer cavalry units will
muster, where they will muster, the fines for not making returns to state
3. Field Officers of Cavalry to review and make returns. (a paragraph
detailing how cavalry will be reviewed and returns made of the reviews)
4. Cavalry Courts Martial. (a paragraph detailing how volunteer cavalry
units will conduct trials)
5. Fines of cavalry officers and privates (a paragraph establishing
fines for the same).
6. How cavalry fines to be appropriated (they will be used first to buy
trumpets, then for other purposes).
7. Duty of the adjutant of the regiments (a paragraph detailing his
duties volunteer cavalry companies were organized into volunteer regiments)
8. Certain sections of this act to apply to the cavalry. (detailing
certain parts of the militia act that applied to the compulsory militia
that also applied to the volunteer cavalry units).
9. When cavalry troop less than required by law (discusses disbandment)."
Just after this provision is another one that begins to detail how
volunteer companies of artillery, light infantry, grenadiers, and riflemen
may form, following which are several pages of regulation of the same.
This law is a typical example of laws that existed in most states. Some were
far more elaborate. [MP]
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