Chapter: Concerning the Militia

From the New York Packet. Wednesday, January 9, 1788

HAMILTON

To the People of the State of New York:

THE power of regulating the militia, and of commanding its services in
times of insurrection and invasion are natural incidents to the duties
of superintending the common defense, and of watching over the internal
peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity
in the organization and discipline of the militia would be attended with
the most beneficial effects, whenever they were called into service for
the public defense. It would enable them to discharge the duties of the
camp and of the field with mutual intelligence and concert an advantage
of peculiar moment in the operations of an army; and it would fit them
much sooner to acquire the degree of proficiency in military functions
which would be essential to their usefulness. This desirable uniformity
can only be accomplished by confiding the regulation of the militia to
the direction of the national authority. It is, therefore, with the most
evident propriety, that the plan of the convention proposes to empower
the Union "to 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, RESERVING TO THE STATES RESPECTIVELY THE
APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA
ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS."

Of the different grounds which have been taken in opposition to the
plan of the convention, there is none that was so little to have been
expected, or is so untenable in itself, as the one from which this
particular provision has been attacked. If a well-regulated militia be
the most natural defense of a free country, it ought certainly to
be under the regulation and at the disposal of that body which is
constituted the guardian of the national security. If standing armies
are dangerous to liberty, an efficacious power over the militia, in the
body to whose care the protection of the State is committed, ought, as
far as possible, to take away the inducement and the pretext to such
unfriendly institutions. If the federal government can command the aid
of the militia in those emergencies which call for the military arm in
support of the civil magistrate, it can the better dispense with the
employment of a different kind of force. If it cannot avail itself of
the former, it will be obliged to recur to the latter. To render an army
unnecessary, will be a more certain method of preventing its existence
than a thousand prohibitions upon paper.

In order to cast an odium upon the power of calling forth the militia
to execute the laws of the Union, it has been remarked that there is
nowhere any provision in the proposed Constitution for calling out the
POSSE COMITATUS, to assist the magistrate in the execution of his duty,
whence it has been inferred, that military force was intended to be his
only auxiliary. There is a striking incoherence in the objections
which have appeared, and sometimes even from the same quarter, not much
calculated to inspire a very favorable opinion of the sincerity or fair
dealing of their authors. The same persons who tell us in one breath,
that the powers of the federal government will be despotic and
unlimited, inform us in the next, that it has not authority sufficient
even to call out the POSSE COMITATUS. The latter, fortunately, is as
much short of the truth as the former exceeds it. It would be as absurd
to doubt, that a right to pass all laws NECESSARY AND PROPER to execute
its declared powers, would include that of requiring the assistance of
the citizens to the officers who may be intrusted with the execution
of those laws, as it would be to believe, that a right to enact laws
necessary and proper for the imposition and collection of taxes would
involve that of varying the rules of descent and of the alienation of
landed property, or of abolishing the trial by jury in cases relating to
it. It being therefore evident that the supposition of a want of power
to require the aid of the POSSE COMITATUS is entirely destitute of
color, it will follow, that the conclusion which has been drawn from it,
in its application to the authority of the federal government over the
militia, is as uncandid as it is illogical. What reason could there
be to infer, that force was intended to be the sole instrument of
authority, merely because there is a power to make use of it when
necessary? What shall we think of the motives which could induce men of
sense to reason in this manner? How shall we prevent a conflict between
charity and conviction?

By a curious refinement upon the spirit of republican jealousy, we are
even taught to apprehend danger from the militia itself, in the hands of
the federal government. It is observed that select corps may be formed,
composed of the young and ardent, who may be rendered subservient to the
views of arbitrary power. What plan for the regulation of the militia
may be pursued by the national government, is impossible to be foreseen.
But so far from viewing the matter in the same light with those who
object to select corps as dangerous, were the Constitution ratified, and
were I to deliver my sentiments to a member of the federal legislature
from this State on the subject of a militia establishment, I should hold
to him, in substance, the following discourse:

"The project of disciplining all the militia of the United States is
as futile as it would be injurious, if it were capable of being carried
into execution. A tolerable expertness in military movements is a
business that requires time and practice. It is not a day, or even a
week, that will suffice for the attainment of it. To oblige the great
body of the yeomanry, and of the other classes of the citizens, to
be under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well-regulated
militia, would be a real grievance to the people, and a serious public
inconvenience and loss. It would form an annual deduction from the
productive labor of the country, to an amount which, calculating upon
the present numbers of the people, would not fall far short of the whole
expense of the civil establishments of all the States. To attempt
a thing which would abridge the mass of labor and industry to so
considerable an extent, would be unwise: and the experiment, if made,
could not succeed, because it would not long be endured. Little more
can reasonably be aimed at, with respect to the people at large, than to
have them properly armed and equipped; and in order to see that this be
not neglected, it will be necessary to assemble them once or twice in
the course of a year.

"But though the scheme of disciplining the whole nation must be
abandoned as mischievous or impracticable; yet it is a matter of the
utmost importance that a well-digested plan should, as soon as possible,
be adopted for the proper establishment of the militia. The attention of
the government ought particularly to be directed to the formation of a
select corps of moderate extent, upon such principles as will really fit
them for service in case of need. By thus circumscribing the plan, it
will be possible to have an excellent body of well-trained militia,
ready to take the field whenever the defense of the State shall require
it. This will not only lessen the call for military establishments, but
if circumstances should at any time oblige the government to form an
army of any magnitude that army can never be formidable to the liberties
of the people while there is a large body of citizens, little, if at
all, inferior to them in discipline and the use of arms, who stand ready
to defend their own rights and those of their fellow-citizens. This
appears to me the only substitute that can be devised for a standing
army, and the best possible security against it, if it should exist."

Thus differently from the adversaries of the proposed Constitution
should I reason on the same subject, deducing arguments of safety
from the very sources which they represent as fraught with danger and
perdition. But how the national legislature may reason on the point, is
a thing which neither they nor I can foresee.

There is something so far-fetched and so extravagant in the idea of
danger to liberty from the militia, that one is at a loss whether to
treat it with gravity or with raillery; whether to consider it as a mere
trial of skill, like the paradoxes of rhetoricians; as a disingenuous
artifice to instil prejudices at any price; or as the serious offspring
of political fanaticism. Where in the name of common-sense, are our
fears to end if we may not trust our sons, our brothers, our neighbors,
our fellow-citizens? What shadow of danger can there be from men who
are daily mingling with the rest of their countrymen and who participate
with them in the same feelings, sentiments, habits and interests? What
reasonable cause of apprehension can be inferred from a power in the
Union to prescribe regulations for the militia, and to command its
services when necessary, while the particular States are to have the
SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible
seriously to indulge a jealousy of the militia upon any conceivable
establishment under the federal government, the circumstance of the
officers being in the appointment of the States ought at once to
extinguish it. There can be no doubt that this circumstance will always
secure to them a preponderating influence over the militia.

In reading many of the publications against the Constitution, a man is
apt to imagine that he is perusing some ill-written tale or romance,
which instead of natural and agreeable images, exhibits to the mind
nothing but frightful and distorted shapes--

                "Gorgons, hydras, and chimeras dire";

discoloring and disfiguring whatever it represents, and transforming
everything it touches into a monster.

A sample of this is to be observed in the exaggerated and improbable
suggestions which have taken place respecting the power of calling for
the services of the militia. That of New Hampshire is to be marched to
Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of
Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch
are to be paid in militiamen instead of louis d'ors and ducats. At one
moment there is to be a large army to lay prostrate the liberties of the
people; at another moment the militia of Virginia are to be dragged from
their homes five or six hundred miles, to tame the republican contumacy
of Massachusetts; and that of Massachusetts is to be transported an
equal distance to subdue the refractory haughtiness of the aristocratic
Virginians. Do the persons who rave at this rate imagine that their
art or their eloquence can impose any conceits or absurdities upon the
people of America for infallible truths?

If there should be an army to be made use of as the engine of despotism,
what need of the militia? If there should be no army, whither would
the militia, irritated by being called upon to undertake a distant and
hopeless expedition, for the purpose of riveting the chains of slavery
upon a part of their countrymen, direct their course, but to the seat
of the tyrants, who had meditated so foolish as well as so wicked a
project, to crush them in their imagined intrenchments of power, and
to make them an example of the just vengeance of an abused and incensed
people? Is this the way in which usurpers stride to dominion over
a numerous and enlightened nation? Do they begin by exciting the
detestation of the very instruments of their intended usurpations? Do
they usually commence their career by wanton and disgustful acts
of power, calculated to answer no end, but to draw upon themselves
universal hatred and execration? Are suppositions of this sort the sober
admonitions of discerning patriots to a discerning people? Or are they
the inflammatory ravings of incendiaries or distempered enthusiasts?
If we were even to suppose the national rulers actuated by the most
ungovernable ambition, it is impossible to believe that they would
employ such preposterous means to accomplish their designs.

In times of insurrection, or invasion, it would be natural and proper
that the militia of a neighboring State should be marched into another,
to resist a common enemy, or to guard the republic against the violence
of faction or sedition. This was frequently the case, in respect to the
first object, in the course of the late war; and this mutual succor is,
indeed, a principal end of our political association. If the power of
affording it be placed under the direction of the Union, there will
be no danger of a supine and listless inattention to the dangers of
a neighbor, till its near approach had superadded the incitements of
self-preservation to the too feeble impulses of duty and sympathy.

PUBLIUS

 Hamilton address criticisms of the constitution's provisions for federal control of the militia. Specifically, the constitution empowers the union "to 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, reserving the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." Hamilton defends this provision by stating that it will reduce the need for large standing armies, which were widely viewed as a threat to liberty. He furthermore rejects the criticism that the authors of the constitution intended to create a system in which military force would be the primary instrument for enforcing legislation. The critics based their claim on the fact that the constitution lacks any provision for magistrates employing the use of the posse comitatus, which is the authority of a magistrate to enlist the services of able-bodied men to assist him in enforcing the law. Essentially, the critics are claiming that by not specifically authorizing posse comitatus, the constitution is setting up a system under which the government would have to resort to military forces to execute its duties rather than relying the citizens themselves. However, Hamilton points out that the authority granted to congress to "pass all laws necessary and proper to execute its declared powers" would include the authority to require citizens to help officers enforce the law. Hamilton also suggests how the national government may choose to regulate the militia. He suggests that most militiamen would only muster once a year to ensure that they are properly armed and equipped. In addition there would be a select force that would be more highly trained and stand ready to quickly take to the field whenever the defense of the state required it. Hamilton furthermore dismisses the claim that granting the federal government authority over state militias would lead to the government using these militias as instruments of tyranny. In particular, critics claimed that one state militia would be used to oppress the people of a different state. Hamilton argues that state militias would never be willing to do such a thing and would instead overthrow the tyrants who issued such orders. Furthermore, the states would retain the right to appoint the officers of the militia, which would guard against them becoming instruments of tyranny. Finally, Hamilton asserts that federal control over the militia would allow the national government to deploy state militias to different states in times of war. If the national government did not have the authority to do this, then some states might end up bearing a disproportionately high burden during wartime.

