James Madison Papers

Militia, [23 December] 1790


[23 December 1790]

Laurance objected that JM’s amendment did not properly belong in the first section of the bill. JM accordingly withdrew it, “as he was not disposed to sacrifice substance to form.” Sherman’s motion was then defeated, 34 to 17, and the original words of the first section remained. On Williamson’s motion, all of the second section relating to state officers and conscientious objectors was struck out.

Mr. Madison then brought forward a clause, for exempting all persons conscientiously scrupulous of bearing arms, who should make a declaration thereof before a magistrate, or who should produce a certificate of their belonging to a religious society, who profess such tenets: that for this exemption, they should pay an equivalent in money, to be collected as hereafter provided, and appropriated to the purposes, to which the revenue, arising from the post-office, was appropriated. He again repeated, it was his opinion, that this exemption should be made gratuitous, if justice to other sects did not demand an equivalent. He hoped, gentlemen would not object to form, as his object was to decide the principle.

Dunlap’s Am. Daily Advertiser, 4 Jan. 1791 (also reported in Fed. Gazette, 4 Jan. 1791, and Gazette of the U.S., 29 Dec. 1790).

[23 December 1790]

Jackson and Smith (South Carolina) argued that exemptions should be left to the states.

Mr. Madison had heard no reason, why the business of exemption should be left to the states, except that from local circumstances they would be better able to designate those, whom they thought entitled to such exemption. This is far from being satisfactory, in a case, where uniformity is in a high degree necessary. If this object be important, it is incumbent on us to make the regulation. It was objected, that the equivalent should not be for the national use, but for that of the particular states. This opinion does not seem well warranted by the reason of things. For whose benefit is the militia organized, armed and disciplined? For the benefit of the United States. If the services are for the benefit of the United States, why shall a particular state receive the money, which is taken as an equivalent? We will put a case: Suppose one state in the union consists altogether of such persons, as are the object of this clause: their fines are all to go into their state treasury. So then the United States not only lose their proportion of personal service, but the equivalent likewise; for it is taken for granted, that each state ought to contribute her proportion towards the common defence. The more this argument is examined, the more gentlemen will perceive, that this money ought to come into the treasury of the U. States.

It may be asked, why make a difference between the quantum of money laid as an equivalent for an exemption from personal service, and what is laid as a fine for non-attendance on muster days—when the nation in each case sustains an equal loss of public service? To this it may be replied, that there is an essential difference between an omission of a duty from scruples of conscience, and a breach and open infraction of the law, proceeding from want of respect, motives of disloyalty, selfish indulgence or gratification.

He did not however wish the house to come to an immediate decision. As it was possible, that his amendment was not clearly expressed, he would not oppose any modification of it, that would give more general satisfaction, whilst it retained the principle.

Dunlap’s Am. Daily Advertiser, 4 Jan. 1791 (reprinted in Fed. Gazette, 6 Jan. 1791). The House adjourned without coming to a decision. See Dunlap’s Am. Daily Advertiser, 1 and 4 Jan. 1791, for the fullest report of this day’s debate.

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