Or more precisely, what exactly at the time legally distinguished USA militia who were summoned to duty from conscripts pressed into an army? The latter was of course near universal in Europe during the French/Napoleonic era. Documents from the time such as the text of the 1793 Militia Act appear to use the term “troops” to refer to army regulars, those who were enlisted in the federal army. The states were by the letter of the federal constitution’s Compact Clause forbidden to have “troops and ships of war”- i.e., a standing professional army or navy. Militia are typically said to be non-regulars, those who aren’t making service in arms their full-time profession. But to my mind that distinction gets fuzzy when one is involuntarily summoned to armed duty and paid a stipend while doing so.
What I’d like to know is what at the time firewalled mustered militia from being synonymous with conscripted troops; especially what would have shielded a state government against a charge of having violated the Compact Clause? Limitation of service time? Prohibitions against service out of the country? What exactly?
As I understand it, militias were voluntary, although many (most?) able-bodied men were part of the militia because most communities needed the degree of self-protection that a militia afforded them.
Part of that voluntary obligation was that you could be called to service by the authorities when needed. There were consequences for not showing up, but you agreed to be bound by that agreement ahead of time.
Conscripts on the other hand, are essentially people who’ve been involuntarily compelled to be in the military. They send you a letter and if you don’t show up, you have legal consequences.
It’s the difference between being part of the National Guard and being drafted, if you want a modern example.
The original police (“Bobbies” or “Peelers” in London) started in the early 1800’s, so there was a limited level of law enforcement before that - Sheriff? Also confuses the issue of state “troops” (troopers?)
There were Federal Marshalls going back to the Washington administration. They were the were the Federal police force before the FBI gained greater status. I believe they were mostly appointed by Federal judges and often had carte blanche authority in the US territories prior to statehood. They were definitely not military in a legal sense.
To be clear, the Justice Department’s Bureau of Investigation was not formed until 1908.
And Federal Marshalls were not a police force. There is no federal police force.
The first federal agents were the Secret Service, originally formed by Lincoln to combat forgery (that’s why the got the job of protecting the president. At that time, there were no other federal agents who were armed as part of their job)
They were exclusively appointed by federal judges. The federal Marshall’s are the enforcement arm of the judiciary. And they were in fact created by the same law that created the federal courts (The Judiciary Act of 1789)
In theory any able-bodied man could be involuntarily called to muster. Hence my question about what exactly in legal theory made this different from being conscripted as “troops”. AIUI, the federal government’s move against the Whiskey Rebellion was hampered by the number of people who disobeyed the summons to muster.
ETA: in fact, according to the Anti-Federalist Papers, that was one reason why there was opposition to giving the Federal government co-authority with the state governments over summoning the militia: being involuntarily mustered into armed service to the federal government looked dangerously similar to conscripted troops, the latter of which at the time were considered little better than slaves of the government.
Correct. I intended to say something about them acting like a federal police force or sheriff’s dept. under the control of judges. As I mentioned, in the territories they sometimes provided the only law enforcement.
I agree with Lumby’s comment.
Regarding what the term militia meant back in the day, I read an interesting book (collection of letters) by Thomas Jefferson.The letters were a series of descriptions of the territory of Virginia in response to some European thinkers who were claiming that the act of living in Virginia (the new world) resulted in progressive regressions in stature. That is, the Europeans claimed life in Va. was smaller than animals and people in Europe. This was written right after the American Revolution but referred extensively to conditions prior to and during the revolution.
One comment caught my eye. For Jefferson, the term militia was synonymous with male residents. That is, every male resident of a certain age range living in a county was a member of the militia by definition. Training was optional, they were expected to provide their own weapons, and the military leadership was the leader (often a judge) in the county. One didn’t join the militia, the militia joined you.
As I read this explanation, the purpose behind the second amendment is simply to make sure that a) every male has a gun, and b) knows how to use it. Reaching those two goals does not require that gun ownership or transport be unrestricted, only that the laws support the concept that when necessary every (male) person be ready to serve in a military militia. Think Switzerland, not Texas. But modern American society will continue to bend the language and history to support their ideas and trample other ideas. Regardless of what was meant at the time.
Not the legal difference between the regulars and the militia, but a sartorial aside. As mentioned in the thread on multiple Wells streets in Chicago, the War of 1812 was launched as a maritime affair without considering all other areas of conflict. Out in the Old Northwest, Winfield Scott did manage to collect a force of combined regulars and frontier militia, and did a good job of training them too. But the supply of blue uniforms was inadequate, so he received gray. The Battle of Chippewa established that the regulars would wear blue and the militia gray. (The gray uniforms of the West Point cadets were modeled on their French equivalent and had nothing to do with this).
After John Brown’s raid on Harper’s Ferry, the slave states went crazy with fears of a massive slave revolt, and then fear of forced abolition under the new Lincoln administration. In response they raised huge militias, and so the CSA would wear gray. A few of their old units (and Thomas Jackson himself) were in blue, and some Northern militias were in gray, but were replaced according to the norm once they wore out.
Since by the mid-nineteenth century the government apparently abandoned any effort to see to it that the populace at large was ready to be called to fight in an emergency, what would you suggest?
P.S. Pre-Civil War, what happened to the requirements of the two Militia Acts of the 1790’s? Were they simply ignored?
They have no area of general jurisdiction (a “beat”) that they patrol, and they have no general arrest power (that’s not to say that they can’t make arrests, but it’s going to be in furtherance of executing an arrest warrant issued by a judge. Most arrests made by the police are warrantless arrests).
As mentioned, notionally “the militia” extends nominally to all able bodied free men of service age, and in the Constitution it is stated that the militia may be called to federal service to repel invasions and suppress insurrections. Further, it is specified that the federal military may be funded for no longer than 2 years at a time. It was all of course based on the Founders’ distrust of standing armies which led to the “regular” Army being in peacetime a force smaller than what you’d expect, and often than what you needed, until WW2.
A condition of being an individual person directly conscripted into US Army service did not really arise under the Constitution until the Civil War, and then not again until WW1. Before that whenever the federal troops were not enough or not in the right place, you either summoned militia units or, in wartime, you raised Regiments of Volunteers to supplement the regulars (these continued to be used up to the Spanish-American War).
Well as I mentioned there was the Whiskey Rebellion and iirc the War of 1812.
I’m a little unclear on just what happened during the American Civil War. Yes men were conscripted but I thought they were conscripted under the authority to summon the militia; that the draft law simply federalized the process of inducting militiamen, and that even at the height of the war the federal government had to let “Ninety Day Men” go home after their term was up- hence the practice of encouraging as many men as possible to take signing bonuses to enroll as regulars.
World War One was utterly different in that the US government flatly inducted men directly as regular troops into the federal army, which the Supreme Court of the time upheld as an innate authority of government, doubtless making the Anti-Federalists spin in their graves.
But in practice there were official militias with actual members on the books, and they’d drill and what-not.
It’s the involuntary nature that defines conscription vs. everything else I believe. Even now, all able bodied men between 17 and 45 are considered part of the “Unorganized Militia”, and I’d bet that’s the legal foundation for conscription.
As far as the Federal/State power of summoning the militia; I get the impression that the Founding Fathers generally opted for more local control when there was a question, as they were deeply suspicious of powerful centralized governments. THAT was the reason, not some sort of disdain for conscripts.
Actually not. The legal foundation for modern conscription is the Supreme Court ruling Selective Draft Law Cases - Wikipedia, which upheld that a general authority to conscript men directly into the army in time of war was an inherent power of government. Something that the Anti-Federalists back in the late Eighteenth Century considered tyranny.
AIUI, common-law precedents from English and colonial history about militia service held that militia could not be drafted “for the duration”, or serve out of country- both necessary conditions of fighting in WW1.
ETA: the 1917 draft law was just one part of the incredible jingoism of the era, along with persecution of German-American minorities and the criminalization of any dissent from the war.
