Article 1, Section 8, Clause 16

Document 3

Records of the Federal Convention

[2:330; Madison, 18 Aug.]

Mr. Mason moved as an additional power "to make laws for the regulation and discipline of the Militia of the several States reserving to the States the appointment of the Officers". He considered uniformity as necessary in the regulation of the Militia throughout the Union.

Genl Pinkney mentioned a case during the war in which a dissimilarity in the militia of different States had produced the most serious mischiefs. Uniformity was essential. The States would never keep up a proper discipline of their militia.

Mr. Elseworth was for going as far in submitting the militia to the Genl Government as might be necessary, but thought the motion of Mr. Mason went too far. He moved that the militia should have the same arms & exercise and be under rules established by the Genl Govt. when in actual service of the U. States and when States neglect to provide regulations for militia, it shd. be regulated & established by the Legislature of U. S. The whole authority over the Militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power. He thought the Genl Authority could not sufficiently pervade the Union for such a purpose, nor could it accommodate itself to the local genius of the people. It must be vain to ask the States to give the Militia out of their hands.

Mr Sherman 2ds. the motion.

Mr Dickenson. We are come now to a most important matter, that of the sword. His opinion was that the States never would nor ought to give up all authority over the Militia. He proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia.

Mr. Butler urged the necessity of submitting the whole Militia to the general Authority, which had the care of the general defence.

Mr. Mason-- had suggested the idea of a select militia. He was led to think that would be in fact as much as the Genl. Govt could advantageously be charged with. He was afraid of creating insuperable objections to the plan. He withdrew his original motion, and moved a power "to make laws for regulating and disciplining the militia; not exceeding one tenth part in any one year, and reserving the appointment of officers to the States."

Genl Pinkney, renewed Mr. Mason's original motion. For a part to be under the genl. and a part under the State Govts. wd be an incurable evil. he saw no room for such distrust of the Genl Govt.

Mr. Langdon 2ds. Genl. Pinkney's renewal. He saw no more reason to be afraid of the Genl. Govt than of the State Govts. He was more apprehensive of the confusion of the different authorities on this subject, than of either.

Mr Madison thought the regulation of the Militia naturally appertaining to the authority charged with the public defence. It did not seem in its nature to be divisible between two distinct authorities. If the States would trust the Genl. Govt. with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force. Those who had a full view of the public situation wd. from a sense of the danger, guard agst. it: the States would not be separately impressed with the general situation, nor have the due confidence in the concurrent exertions of each other.

Mr. Elseworth-- considered the idea of a select militia as impracticable; & if it were not it would be followed by a ruinous declension of the great body of the Militia. The States will never submit to the same militia laws. Three or four shilling's as a penalty will enforce obedience better in New England, than forty lashes in some other places.

Mr. Pinkney thought the power such an one as could not be abused, and that the States would see the necessity of surrendering it. He had however but a scanty faith in Militia. There must be also a real military force--This alone can effectually answer the purpose. The United States had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy.

Mr Sherman, took notice that the States might want their Militia for defence agst invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point-- In giving up that of taxation, they retain [Volume 3, Page 206] a concurrent power of raising money for their own use.

Mr. Gerry thought this the last point remaining to be surrendered. If it be agreed to by the Convention, the plan will have as black a mark as was set on Cain. He had no such confidence in the Genl. Govt. as some Gentlemen possessed, and believed it would be found that the States have not.

Col. Mason. thought there was great weight in the remarks of Mr. Sherman-- and moved an exception to his motion "of such part of the Militia as might be required by the States for their own use."

Mr. Read doubted the propriety of leaving the appointment of the Militia officers in the States. In some States they are elected by the legislatures; in others by the people themselves. He thought at least an appointment by the State Executives ought to be insisted on.

On committing to the grand Committee last appointed, the latter motion of Col. Mason, & the original one revived by Gel Pinkney

N. H-- ay. Mas. ay. Ct no. N-- J. no. Pa ay. Del. ay. Md. divid. Va ay. N. C. ay-- S. C. ay. Geo. ay. [Ayes--8; noes--2; divided--1.]

[2:384; Madison, 23 Aug.]

The Report of the committee of Eleven made Aug: 21. being taken up, and the following clause being under consideration to wit "To make laws for organizing, arming & disciplining the Militia, and for governing such parts of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed"--

Mr Sherman moved to strike out the last member--"and authority of training &c." He thought it unnecessary. The States will have this authority of course if not given up.

Mr. Elsworth doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation of the appointment to offices. He remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject.

Mr. King, by way of explanation, said that by organizing the Committee meant, proportioning the officers & men--by arming, specifying the kind size and caliber of arms--& by disciplining prescribing the manual exercise evolutions &c.

Mr. Sherman withdrew his motion

Mr Gerry, This power in the U--S. as explained is making the States drill-sergeants. He had as lief let the Citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the Genl Legislature. It would be regarded as a system of Despotism.

Mr Madison observed that "arming" as explained did not did not extend to furnishing arms; nor the term "disciplining" to penalties & Courts martial for enforcing them.

Mr. King added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury: that laws for disciplining, must involve penalties and every thing necessary for enforcing penalties.

Mr. Dayton moved to postpone the paragraph, in order to take up the following proposition

"To establish an uniform & general system of discipline for the Militia of these States, and to make laws for organizing, arming, disciplining & governing such part of them as may be employed in the service of the U. S., reserving to the States respectively the appointment of the officers, and all authority over the Militia not herein given to the General Government"

On the question to postpone in favor of this proposition: it passed in the Negative

N. H. no. Mas-- no. Ct no. N. J. ay. P. no. Del. no. Maryd ay. Va. no. N. C. no. S. C. no. Geo. ay. [Ayes--3; noes--8.]

Mr. Elsworth & Mr. Sherman moved to postpone the 2d. clause in favor of the following

"To establish an uniformity of arms, exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States"

The object of this proposition was to refer the plan for the Militia to the General Govt. but leave the execution of it to the State Govts.

Mr Langdon said He could not understand the jealousy expressed by some Gentleman. The General & State Govts. were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Govt. is mine, the State Govt is mine--In transferring power from one to the other--I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used.

Mr. Gerry thought it was rather taking out of the right hand & putting it into the left. Will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State?

Mr. Dayton was against so absolute a uniformity. In some States there ought to be a greater proportion of cavalry than in others. In some places rifles would be most proper, in others muskets &c--

Genl Pinkney preferred the clause reported by the Committee, extending the meaning of it to the case of fines &c--

Mr. Madison. The primary object is to secure an effectual discipline of the Militia. This will no more be done if left to the States separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its Militia for that purpose; in like manner as the Militia of a State would have been still more neglected than it has been if each County had been independently charged with the care of its Militia. The Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution.

Mr L--Martin was confident that the States would never give up the power over the Militia; and that, if they were [Volume 3, Page 207] to do so, the militia would be less attended to by the Genl. than by the State Governments.

Mr Randolph asked what danger there could be that the Militia could be brought into the field and made to commit suicide on themselves. This is a power that cannot from its nature be abused, unless indeed the whole mass should be corrupted. He was for trammelling the Genl Govt. whenever there was danger. but here there could be none--He urged this as an essential point; observing that the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline. Leaving the appointment of officers to the States protects the people agst. every apprehension that could produce murmur.

On Question on Mr. Elsworth's Motion

N. H. no. Mas-- no-- Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va no-- N-- C. no. S. C no. Geo. no. [Ayes--1; noes--10.]

A motion was then made to recommit the 2d clause which was negatived.

On the question to agree to the 1st. part of the clause, namely

"To make laws for organizing arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S.".

N. H ay. Mas. ay. Ct. no. N. J. ay. Pa. ay. Del. ay. Md no. Va ay. N-- C-- ay. S. C. ay. Geo. ay. [Ayes--9 noes--2.]

Mr. Madison moved to amend the next part of the clause so as to read "reserving to the States respectively, the appointment of the officers, under the rank of General officers."

Mr. Sherman considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the Most influential officers of the Militia to be appointed by the Genl. Government, every man of discernment would rouse them by sounding the alarm to them--

Mr. Gerry. Let us at once destroy the State Govts have an Executive for life or hereditary, and a proper Senate, and then there would be some consistency in giving full powers to the Genl Govt. but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention agst pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination. And a Civil war may be produced by the conflict.

Mr. Madison. As the greatest danger is that of disunion of the States, it is necessary to guard agst. it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia--

On the Question to agree to Mr. Madison's motion

N-- H--ay -- Mas-- no-- Ct no-- N-- J-- no-- Pa no-- Del-- no-- Md no-- Va no-- N-- C-- no-- S-- C-- ay-- Geo-- ay. [Ayes--3; noes--8.]

On the question to agree to the "reserving to the States the appointment of the officers". It was agreed to nem: contrad:

On the question on the clause "and the authority of training the Militia according to the discipline prescribed by the U. S"--

N. H. ay. Mas. ay. Ct. ay-- N--J-- ay. Pa. ay-- Del. no. Md. ay. Va. no-- N-- C. ay. S. C. no. Geo. no-- [Ayes--7; noes--4.]

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 16, Document 3
http://press-pubs.uchicago.edu/founders/documents/a1_8_16s3.html
The University of Chicago Press

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.