James Madison Papers

Militia, [17 December] 1790


[17 December 1790]

The second section of the militia bill was still under consideration.

Mr. Madison enquired if the committee had come yesterday to any resolution respecting the exemption of the members of the state legislatures: if they had not, he wished to pass them over, as it was better, in his opinion, to leave the legislatures of the states to make the whole of the exceptions themselves, especially as the clause made only a partial provision on this head. In short the exemptions made by the United States, he would confine to the officers of the United States, and all the exemptions respecting state officers, he would refer to the state legislatures.

Pa. Packet, 20 Dec. 1790.

[17 December 1790]

Laurance moved to strike out the clause authorizing the state legislatures at their discretion to grant exemptions beyond those included in the present bill.

Mr. Madison. I agree that it is extremely desirable to observe uniformity in all our regulations. It is also proper to avoid, as far as it is practicable, the blending of the powers of the national and state legislatures, in the same act. On these principles, I would be inclined to favour the proposition for striking out that part of the section before us, which authorises the legislature of any particular state to grant further exemptions. But I am afraid, that it would lead us into lengthy discussions, without aiming at that accuracy, which is the object of our wishes. Gentlemen seem to lay down, as data, to guide them in making the exemptions, that, in all cases, where the services are incompatible, men should be exempted from the militia duty. But on this subject, the opinions and practice of the several states are widely different. It has been said by a gentleman from Pennsylvania, and repeated by a gentleman from Connecticut, that all the states agree in exempting the members of the legislature from militia duty. This opinion, I presume, they have drawn from the practice of their own states. Had I given an opinion, and derived it from a similar source, it would have been, that no state in the union had made the exception, and that it was therefore an improper one. But, at no period since the revolution, nor at any time during the late war, has such an exemption taken place in the state I represent. On the contrary, the members of the legislature, and the executive officers have uniformly rendered their services in the militia. From these circumstances, I think, it would be better to let the state governments co-operate with the national government, in defining what characters are entitled to exemption. Until we have complete information on this point, I would let the established usage prevail in each state. Nor is this a thing unprecedented: on other occasions, we have been driven to a similar expedient. In the Judiciary Bill, we were obliged to regulate the processes issuing from the federal courts, by the judiciary systems established in each of the states respectively: not that it was an undesirable object to attain to uniformity in that particular, but because we were then incapable of establishing a convenient uniformity.

Pa. Packet, 21 Dec. 1790 (briefly reported in Gen. Advertiser, 20 Dec. 1790). Laurance’s motion passed. The Committee of the Whole agreed to exempt certain other citizens, including (in addition to ministers in charge of congregations) those authorized by their various sects and societies to preach the gospel. JM objected that this “would exempt the whole of some societies, which permitted every member to preach and teach the gospel.” The third section was taken up. FitzSimons moved to transfer the power of arranging the militia into divisions, brigades, regiments, etc., from the state governors to the president of the U.S. JM supported this motion, which was agreed to (Pa. Packet, 21 Dec. 1790; Gen. Advertiser, 20 Dec. 1790). The most complete report of this day’s debate is in the Pa. Packet, 20 and 21 Dec. 1790.

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