James Madison Papers

Militia, [24 December] 1790


[24 December 1790]

Livermore, Jackson, and Giles opposed JM’s amendment. Laurance approved of the principle of the amendment but thought it vaguely worded.

Mr. Madison admitted that his proposition might not be designated with the most desirable accuracy; but he conceived its imperfection might be overlooked, if it was considered, that the whole bill was intended to be given to a select committee for arrangement and correction. But if the test was not satisfactorily designated, he thought it might have been expected of the candor and ability of the gentleman, that he would have amended it, rather than have made it a reason for voting against a proposition, the principle of which was approved. I do not know, continued he, what better criterion can be suggested; some criterion must, however, be had. If we do not take the declaration of the party, we must, perhaps, depend upon a certificate from the religious society of which he is a member, or other voucher, to satisfy the magistrate with respect to the scruples of conscience. Now, I will submit it to the gentleman, whether we can confine our exemption to this or that particular sect; or whether, because a man happened to be dissevered from a meeting of the Quakers, he ought not to be equally excused if he had really the same scruple. If this would be improper, then our criterion must apply to individuals, and not to societies. If it should be found by experience, that the operation of the law was evaded by any person under such pretexts, as had been conjectured, the legislature will always be at hand to redress the evil. We do not presume to consider our regulations as perfect: if we get as near that desirable point as is practicable, at present, we ought not to despair of approximating more and more, as experience shall point out.

With respect to the alliance which the gentleman from New-Hampshire pleases himself in having formed with my colleague, I cannot but observe, that if he is right in his principles, his ally must be wrong. Yet his ally has incontestably shewn, that the power of designating the militia resides absolutely in the United States. Whether the probable object of the convention be considered, when they proposed to take away the power of regulating the militia from the state governments, and to place it in the hands of the federal government: or whether we examine the nature and construction of the term itself, we cannot but be convinced, that the authority was intended to be given us for the establishment of an effective militia—a militia that hitherto was not so effectually established as to ensure a sufficient defence against foreign invaders: or efficient enough to destroy the necessity of a standing national force: or in case of such a force being raised, and turned against the liberties of our fellow citizens, adequate to repel the hostile attacks of mad ambition. Let us not, by a false construction, admit a doctrine subversive of the great end which the constitution aimed to secure, namely, perfection to the union, the means of insuring domestic tranquility, and providing for the common defence.

If then it belongs to the general government, to provide for the establishment of a militia, it should be done by us, in the best manner possible. Now, whether that may be by making the exemption in the manner proposed, by exempting and laying an equivalent or fine, is the question. Instead of denominating it a punishment, for a crime, let it be the effect of compassion, to an unfortunate, not a vicious class of the society. When this is done, and the mode of appropriation and collection both made convenient, there will be no apprehension of oppression, or cause of complaint.

Dunlap’s Am. Daily Advertiser, 7 Jan. 1791 (reprinted in Fed. Gazette, 10 Jan. 1791). JM’s amendment was defeated by a vote of 39 to 10. The House went through the remainder of the amendments to the bill and recommitted it (see Dunlap’s Am. Daily Advertiser, 5, 6, 7, and 10 Jan. 1791). A new bill was presented on 4 Jan. 1791 but did not pass beyond a second reading at this session (DHFC description begins Linda Grant De Pauw et al., eds., Documentary History of the First Federal Congress of the United States of America (3 vols. to date; Baltimore, 1972—). description ends , III, 655, 656).

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