Author’s Introduction: I originally completed this article in 1986, but it appeared only in an obscure, now-defunct (I believe) libertarian publication, Rampart Individualist (Summer 1988). I have long intended to revise it for some more prominent forum, but have never found the time. I offer it again, with only slight stylistic revision, because of the recent public action of Michael A. Bellesiles’s controversial book, Arming America: The Origins of a National Gun Culture.1 Bellesiles’s most arresting claim, and the one for which he has drawn the most criticism, is that very few Americans owned firearms prior to the Civil War. In reaching this conclusion, Bellesiles makes some equally dubious assertions about the insignificance and incompetence of the American militia of the era. His denigration flies in the face of what military historians, whatever their ideological inclinations, have long known about the pervasive historical role and operations of the militia. Thus, I present this article as a mild corrective. If I were to revise it, I would primarily take notice of many of the relevant books and articles that have appeared in the intervening fifteen years. But very few of the scholarly gaps in the literature I identified then have yet been fully filled, and almost none of my overall conclusions require the slightest modification.

According to established mythology, American citizens were not conscripted until the Civil War.

First the Confederacy and then the Union resorted to the draft to fill their depleting armies. Prior to that, this mythology holds, no draft existed in the United States. The U.S. government fought the American Revolution, the War of 1812, and the Mexican War solely with volunteers. Toward the end of the War of 1812, the Madison administration did call for conscription, but this request failed due to Daniel Webster’s stirring and frequently reprinted denunciation of the draft on the floor of Congress.2

Unfortunately, this halcyon portrait is false in nearly every respect. The only U.S. war fought without conscripts before the Civil War was the Mexican War. American governments, state or national, drafted men not only to fight the Revolution and the War of 1812, but also to wage Indian wars and to suppress the Whiskey Rebellion. Because they employed decentralized militia drafts, however, this fact has often escaped notice. Military experts privy to the compulsory nature of the militia and the implications of such arcane phrases as “calling forth the militia” have failed to communicate their knowledge to outsiders. Indeed, the militia’s coercive elements lasted until they were discontinued during the Jacksonian era.3

The Colonial Period and the American Revolution

The militia system was originally transplanted to the American colonies from England.4 At the outset, it was grounded in the principle of universal obligation. Practices differed widely from colony to colony, but everywhere the militia had two coercive elements. First, it enrolled every able-bodied male between certain ages (usually sixteen to sixty), with only a few exemptions. Colonial governments required those enrolled to furnish their own arms (no small expense) and to muster for regularly scheduled training. Failure to do so resulted in fines. Initially, this mandatory training could be as frequent as once a week or more, but, as the Indian threat receded, most colonies reduced the number of training days to approximately four per year. The militia thereby provided a compulsory system of universal military training.

The second coercive element evolved when the militia was called forth for active military service. Only in dire emergency, and only for a short period, would a militia district deploy its enrolled manpower in toto. Normally, when a colonial government called upon its militia for a military campaign, it would set quotas for each district. The districts would then try to fill the quotas with volunteers, and sometimes the colonies would encourage volunteering with bounties. However, if volunteers were insufficient, the districts would then meet their quotas through drafts. Generally, the only legal ways of avoiding such militia drafts were by either paying a stiff fine or hiring a substitute. Thus, the threat of conscription lurked behind every resort to the seemingly innocuous power to call out the militia.

Enforcement of the militia’s coercive elements was sometimes lax. Moreover, there were hallowed restrictions upon employment of the militia draft. Colonial governments were not supposed to send drafted militiamen outside the colony, and the draftee’s term of service was usually limited to three months. Consequently, if colonial governments planned long, offensive military expeditions, they generally relied upon militia volunteers who specifically contracted for such expeditions. On occasion, some colonies even established quasi-standing military forces independent of the militia.

Colonial governments nonetheless made frequent recourse to militia drafts during the Indian wars and in imperial wars against France and Spain. If necessary, they passed special legislation obviating the militia draft’s restrictions, or directly impressed men not from the militia rolls but from the lower strata of society, as was commonly done in Britain. In addition, the militia functioned as a standby local police force. (American cities did not establish their first professional forces of armed police until the 1850s.) The New England colonies merged the militia with the night watch while the Southern colonies assigned it the mission of slave patrolling. Governments in every locale depended on the militia to suppress insurrections. All such additional militia tasks imposed further compulsory duties upon the citizens.5

Within this fundamentally coercive system, a volunteer component did emerge. Alongside the common militia, just described, was what came to be called the volunteer militia, consisting of privately recruited military units. The earliest such unit was the Ancient and Honorable Artillery Company of Boston, organized in 1636 and still in existence. At first, these volunteer units were completely independent of the common militia. Later, colonial governments and successor state governments integrated them into the general militia systems. Volunteer units provided much of the cavalry, artillery, and elite infantry within the militia. Men could gain exemption from the common militia by joining a volunteer unit. But many of these units still remained private fraternities with exclusive memberships. Furthermore, the total number and aggregate size of such units remained relatively small for most of the eighteenth century.6

Everything noted so far about the compulsory nature of the colonial common militia is well known. Less well known is the fact that the common militia persisted without serious alteration through the Revolution. As the colonies made the revolutionary transition to states, they refurbished their militias to better maintain order, fight the British, and suppress Tories. The new militia systems, however, incorporated both of the old system’s coercive elements. Even before the Battles of Lexington and Concord, the colonies increased the number of required training days, tightened exemption lists, and stiffened fines. In Frederick County, Virginia, during the spring of 1775, for instance, the patriot committee increased the frequency of mandatory training days for every male between sixteen and sixty to one per month. Compulsory militia preparations of this sort were far more widespread than the famed contingents of minutemen, who volunteered to be ready at a moment’s notice.7

When the states put active military forces into the field, they eventually fell back upon militia drafts. The Continental Army, the military force of the new national government, was initially composed entirely of volunteers. But, as the war dragged on, manpower shortages became acute, despite the monetary bounties and land grants offered by both the Continental Congress and the individual states. The Continental Army bid for recruits against the active forces of the thirteen state militias. Massachusetts began employing conscription in the early summer of 1776. New Hampshire followed in 1777, and most remaining states fell in line upon recommendation of Congress later that year. The states used these drafts not just to man their own forces but also to fill their quotas for the Continental Army.8

Revolutionary conscription remained decentralized, varying from state to state. Some states used conventional militia drafts; others impressed vagrants and transients. In general, only single males were drafted for short terms, and they could avoid service through the traditional mechanisms of paying a fine or finding a substitute. Nevertheless, at least in some locations, the draft’s compass was wide. A local study of Concord, Massachusetts, found that half the males under fifty received at least one draft notice during the war. Some notices went to women, and others even to the old and crippled.9 In some counties of Virginia, militia drafts provoked rioting. The worst, at Northumberland Court House in 1780, resulted in several deaths.10

Although no one seems to know the precise number of actual draftees serving in the Revolutionary forces, several studies have determined the relative number of hired substitutes. Within the active militias of Lancaster and Northampton Counties in Quaker Pennsylvania, 38 and 54 percent respectively of those serving were substitutes, while 20 to 40 percent of the New Jersey Line in the Continental Army were draft substitutes.11Some authorities have concluded from these high percentages that the draft laws were designed primarily to raise substitutes, and that in practice, very few conscriptees were forced to serve.12

Actually, the large number of hired substitutes implies that many others must have been conscripted outright. Unless militia drafts discriminated in operation, calling upon only those who could afford to hire substitutes, leaving everyone else exempt, men from the population of potential substitutes could not have avoided occasionally being drafted themselves. Once called, they could hardly have bought their way out. Thus, these percentages undoubtedly would be higher still if draftees who could not afford substitutes were included.

Figures from the Civil War offer a crude way of estimating the possible Revolutionary ratio of actual draftees to draft substitutes, because the Union’s 1863 draft law similarly allowed for hired substitutes and exemption fees. The first two calls garnered 13,297 draftees and 119,646 substitutes—approximately one draftee for every nine substitutes—with 84,966 paying the exemption fee.13 Overall, 537,672 men entered the Union army during the period of these calls, most of them direct volunteers. Paid substitutes constituted only 22 percent of the total, a proportion at the lower end of those known for the Revolution. This would suggest that, at a minimum, actual draftees accounted for 2.5 percent of total Revolutionary troops—the same proportion as under the Union’s first two calls.

During the Union’s third call, the relative number of draftees increased to 26,205, as compared with 58,086 substitutes—almost one draftee for every two substitutes—and 1,298 exemptions. The exemption fee, however, had been abolished for all except conscientious objectors, driving up the price of substitutes. Overall, 272,463 men entered the Union army during this period, maintaining the proportion of substitutes at approximately the same level, 21 percent. But the proportion of draftees was now at nearly 10 percent, which gives a good upper-bound estimate for the Revolutionary period.

The Federalists and the Early National Period

With the winning of independence, the Continental Congress rejected George Washington’s proposal for a peacetime standing army supported by a nationally uniform militia with universal conscription.14 It discharged all of the Continental Army except for a remnant of eighty men and a few officers. As an alternative to a national army, the states retained full control over the militias. However, the common militia’s compulsory nature remained intact. Hence, in 1786, when Virginia commissioned Revolutionary hero George Rogers Clark to lead a military campaign from what became Kentucky against the Indians, militiamen were drafted into his force, touching off widespread evasion, and then organized mutiny.15

Although Congress virtually disbanded the Continental Army, national acquisition of the Northwest Territory during the Revolution had shifted the burden of policing that area from the states to a national force of some kind. Consequently, the Continental Congress authorized in 1784 a small frontier constabulary to be raised voluntarily from the state militias for one year. (The Southwest Territory, as yet unceded by the states, got along without Congressional attention.) When the original enlistments expired in 1785, Congress converted this small force into a semi-standing army of regulars by authorizing new three-year recruits, without any direct reference to state militias. In 1786, in reaction to Shay’s Rebellion in western Massachusetts, Congress voted to enlarge this frontier army from 700 to 2,000 men. Recruitment, however, failed to produce many additional soldiers.

Federalists such as Washington found these military arrangements unsatisfactory. They desired a national military strong enough to rival those of the European states and to quell domestic disturbances. They succeeded in putting their military ideas into the new Constitution. “Though the point has not often been noticed,” Walter Millis wrote in his classic study of U.S. military policy, “the Constitution was as much a military as a political and economic charter.”16 It granted the central government unequivocal authority both to create a standing national military and to nationalize state militias.

Once the Constitution took effect, the Washington administration used trouble with Indians in the Northwest Territory to justify a national army that numbered nearly 4,000 regulars by 1795. Congress, however, hesitated to authorize a force of this size too precipitately, and actual recruiting lagged behind authorizations. Congress, therefore, delegated to the President the emergency power to call out the state militias for frontier defense.17Consequently, the national government, when preparing its first Indian campaign under General Josiah Harmar in 1790, supplemented the regulars with 1,500 militia from Kentucky and Pennsylvania—most of them raised by state militia drafts. Both Harmar’s expedition, three-fourths militia, and a subsequent mixed expedition under General Arthur St. Clair, went down to ignominious defeat at the hands of the Indians.

The Federalists did not finally subdue the Northwest tribes until 1794, after they had enlarged the standing army enough to mount an expedition consisting primarily of army regulars under General “Mad” Anthony Wayne. Ever since, Wayne’s victory at the Battle of Fallen Timbers has been cited as proof of the militia’s military inferiority. However, because most of the militia in the previous campaigns had been drafted, whereas the regulars were volunteers, his victory could as logically prove the inferiority of conscription. The fact that Wayne’s command also included a significant contingent of Kentucky militia—but militia that were well-paid mounted volunteers rather than draftees—gives additional support to this alternate interpretation. Indeed, the frequent condemnations of the American militia by professional military officers, from Washington forward, assume a whole new meaning in light of the extensive resort to militia drafts during early
U.S. history.18

At the same time the Federalists created a standing army, they also attempted to consolidate control over the state militias. Henry Knox, President Washington’s Secretary of War, submitted to Congress a plan for national training and supervision of the militia. At the heart of Knox’s plan was a scheme for classifying the state militias on the basis of age. The “advanced corps” of those aged eighteen to twenty would receive ten to thirty extra days of federal training per year, much like modern reservists and members of the National Guard, except that membership would be mandatory for every male in the age bracket. Service in the advanced corps would, in fact, become a prerequisite for citizenship. The advanced corps could then be continuously ready for immediate mobilization.19

Congress rejected most of Knox’s plan, but, under the pressure of St. Clair’s devastating defeat—the worst for U.S. arms until Custer’s last stand at Little Big Horn—it did pass the Uniform Militia Act of 1792. Although military historians have tended to denigrate this act because it failed to go as far as Knox wished, the Uniform Militia Act firmly etched into national statute the principle of universal military obligation. It required the enrollment of every free, white, able-bodied male citizen between eighteen and forty-five (with some exemptions, to which the states could add) in the militia of his state. Each citizen was to equip himself at his own expense. In response to this act, all fifteen states enacted new militia laws, each of which reaffirmed the state government’s power to conscript.20

A second Congressional measure that passed at the same time, the Calling Forth Act, specified the general conditions under which state militias could be called into national service. In a clause all but ignored by historians, the Act instituted heavy fines for failure to report when drafted for national service. Just as when responding to state calls, each militia district had a quota to be filled first by volunteers and then by draftees. Because the Act still left the actual drafting to the states, fines became the dual responsibility of both levels of government. State militia courts-martial would assess fines, and the national government would collect them.21

The Federalist State first found use for its new militia legislation in 1794, when it smashed the Whiskey Tax rebellion in western Pennsylvania. For this demonstration, Washington called up from four state militias no fewer than 12,950 men—more than he had usually commanded during the Revolution. Militia drafts proved necessary to raise this overwhelming force, and hostility to these drafts sparked further disturbances in eastern Pennsylvania, Virginia, and Maryland.22 With this experience behind them, the Federalists in 1795 slightly modified the Calling Forth Act to eliminate some of its procedural safeguards against putting the militia under national control.23

Liberal provisions of various states for exemptions and substitutes made the conscription inherent in the two national militia acts far from universal. Historians have therefore tended to view these acts as minor and inconsequential. Even Arthur Ekirch, who is a thoroughgoing anti-militarist, holds that the Uniform Militia Act

added little to the nominal service traditionally required of the citizen militia in England and American colonies. … [T]he militia duty of the early days of the republic bore slight resemblance to the type of military service actually exacted later in the United States under the conscription and selective service laws.24

Because militia service could be avoided by paying a fine or hiring a substitute, some economic historians have treated compulsory militia duty as a mere tax-in-kind infrequently substituting for what should be considered a monetary tax.25

There is no doubt that America’s militia drafts of the late eighteenth and early nineteenth centuries could not match twentieth-century drafts in effectiveness and ruthlessness. Exemptions, fines, and substitutes clearly made conscription less onerous. Yet, the Civil War drafts of both Union and Confederacy started out with exemption fees and substitutes, and no one has ever argued that these were not true drafts. Even if viewed as a tax, militia fines and substitutes were a regressive one. In addition, research by John Mahon indicates that, in amount, the fines were far from nominal. The authorities could seize and sell all of a man’s property to satisfy these fines. And, as this was a period in which imprisonment for unpaid debts—especially unpaid debts to the government—was standard, prison was, in fact, the ultimate penalty for evading militia service. As Mahon concludes, “militia duty had to be taken into account directly by one-tenth of the entire population, or, counting families of militiamen, by two-fifths. No other governmental relationship except taxpaying touched so many individuals.”26

In the early national period, both national and state governments turned frequently to the common militia. After the Whiskey Rebellion, the national government not only called up the militia to put down resistance to other national laws,27 but also passed at every foreign crisis special acts ordering the states to prepare militia detachments for instant mobilization.28 States called out the militia on their own (although sometimes with national reimbursement) to battle Indians on the Southwest frontier, enforce national neutrality laws and trade embargoes, stand guard over the coast, capture criminals and fugitive slaves, control city riots, enforce quarantines, and perform various other chores.29 If conscription was not actually implemented in all these instances, it was at least always legally imminent.

The Republications and the War of 1812

When the Jeffersonian Republicans came to power in 1801, they proceeded to dismantle the Federalist State. In particular, they slashed expenditures on the army and navy. However, this made their attachment to the coercive militia system even more pronounced than that of the Federalists. Whatever its alleged dangers, the national standing army that the Federalists created was composed entirely of volunteers. Thomas Jefferson, however, denounced this dependence upon “pauper hirelings.” He spoke of the “necessity of obliging every citizen to be a soldier.” “We must train and classify the whole of our male citizens,” he wrote, “and make military instruction a regular part of collegiate education.”30

President Jefferson and his Republican successor, James Madison, desiring a classification scheme similar to Knox’s rejected plan, repeatedly called for militia reorganization. In effect, they hoped to conscript a massive reserve of citizen soldiers, as was done in Switzerland. Throughout this period, whenever the idea of militia classification was resurrected, it was simply a code that, in modern terminology, meant a national system of universal military training.

Congress proved as indifferent to Jefferson’s classification scheme as it had been to Knox’s. The only concrete steps it took toward militia reorganization were: (1) in 1803, to require annual militia reports from each state’s adjutant general; (2) to lengthen intermittently the militia’s maximum term, when called into national service, from three to six months; and (3) to pass an 1808 measure appropriating $200,000 annually to help arm state militias. (The appropriation was the first grant-in-aid in U.S. history. The original bill was introduced, ironically, by John Randolph of Roanoke, a stalwart Republican opponent of centralization. It called for a much larger annual amount.) Jefferson also secured the power to use state militias in the routine, day-to-day imposition of his hated and widely resisted embargo.31

Subsequently, during the War of 1812, when volunteers yielded only enough manpower to raise the regular army to slightly more than half its authorized strength of 63,000, James Monroe, Madison’s Secretary of War, proposed conscripting an army of 100,000. Monroe offered two possible ways of doing this: either the national government could draft men into the regular army for two years, or it could classify and directly draft the militia into national service for two years without going through state governments. Monroe’s second conscription plan was similar to what Jefferson and Madison had in mind all along.32

Because the war ended before national conscription could pass, this has left the mistaken impression that the U.S. fought the War of 1812 without conscription altogether. On the contrary, state governments continuously relied upon drafts to raise more than 200,000 soldiers who served in the militia at various moments and for various durations. Sometimes states drafted the militia in response to national calls, in which case they generally adhered to the “Rules with Regard to Militia Draughts” set forth in official army regulations of May 1, 1813. At other times, states drafted the militia to meet their own military needs. Many of the Maryland militia who failed to defend the U.S. capital at the battle of Bladensburg, to give just one example, were conscripts.33

A third plan that Monroe suggested, in the event that Congress refused to consider national conscription in any form, confirms the importance of these militia drafts. Men who could provide another to volunteer for the regular army would receive exemptions from state militia service. Congress eventually instituted this alternative method of bringing U.S. forces up to 100,000. Obviously, such exemptions would have been valueless if militia drafts had been rare or nonexistent.34

The organization of the militia is an act of public authority, not a voluntary association. The service required must be performed by all, under penalties, which delinquents pay. …
The [conscription] plan proposed is not more compulsive than the militia service, while it is free from most of the objections to it. The militia service calls from home, for long terms, whole districts of the country. None can elude the call. Few can avoid the service; and those who do are compelled to pay great sums for substitutes.35

Overall, for evading national service during the War of 1812, militia courts-martial fined nearly 10,000 men a total of $500,000. Still others ignored purely state calls; New York, for example, assessed an additional $200,000 against 4,000 militia resistors. These numbers strikingly belie the common impression that militia drafts were nominal and unimportant. Only the awkward administrative dualism that divided responsibility between the state and national governments, coupled with increasing popular opposition to the militia, prevented the full collection of national fines after the war had ceased. New York apparently collected the entire $200,000, but only at a monetary cost that exceeded that amount by $25,000.36

In other words, the issue that Daniel Webster so eloquently debated on the floor of the House of Representatives was not whether there should be conscription at all, but, rather, who should do the conscripting, states or the national government.37 The measures before Congress at the time were the Giles Bill, which had passed in the Senate, and the Troup Bill, which had been introduced in the House. The Giles Bill was a modified version of Monroe’s second conscription proposal, setting up a national system of militia classification and conscription to raise a force of 80,000 that would serve for two years. The Troup Bill modified Monroe’s first proposal, classified the population, and set quotas for the regular army, but did not authorize a draft. Instead, each class would meet its quota through taxes, proportional to wealth, that would be sufficiently high to pay for volunteers. Thus, the Troup Bill would have established a kind of primitive decentralized income tax to finance a volunteer army. It was an alternative to conscription that the militias of some states had tried during the Revolution.

The House eventually passed its own version of the Giles Bill, but since the two houses could not resolve their differences, they instead passed in January of 1815 an act allowing the national government to accept up to 40,000 special troops organized by the states, plus any privately organized volunteer units that offered themselves, to serve for one year, with the total force not to exceed 80,000. Eight states, with New York at the fore, began creating special state forces. This usually involved modifying militia laws by adding a more effective system of state classification and conscription. Peace came, however, before these forces became fully operational, and the act of January 1815 was repealed.38

This preoccupation with the centralization—as opposed to the extent—of power had already arisen in the war’s most rancorous and fateful militia controversy. The governors of Massachusetts and Connecticut and the legislature of Rhode Island had refused at various times to furnish their state militias for national service, while a newly elected governor of Vermont had ordered his state militia to return home in the midst of a military campaign. Not until 1827 did the U.S. Supreme Court, in Martin v. Mott, finally settle this jurisdictional controversy by endorsing unchecked Presidential discretion in calling state militias into national service.39

Less often cited, but equally significant, was the Supreme Court decision in Houston v. Moore seven years earlier. This virtually unknown militia case actually yielded the first Court ruling on conscription. It involved a Pennsylvania man who had been drafted into the militia during the War of 1812 in response to a Presidential call. When he evaded the draft, a Pennsylvania court fined him under the national Calling Forth Act. The draft resistor challenged the constitutionality of his punishment, arguing that because he had been drafted in response to a Presidential call, only a federal court could fine him. In effect, he denied that Congress had either the authority or the intention to establish a concurrent administration for militia drafts, in which the state governments assessed fines that the national government collected. The Court, however, disagreed and upheld the fine.40

From the War of 1812 to the Civil War

Meanwhile, nearly every subsequent President continued to suggest militia reorganization in his annual messages. President Martin Van Buren’s Secretary of War, Joel R. Poinsett, made the last serious effort to nationalize the state militias in 1840.41 But all these suggestions died from lack of interest. The national government relied for the most part upon a small regular army. Still, during the Second Seminole War (1835–1842)—the first protracted counter-insurgency campaign by the U.S.—large numbers of militia from various states supplemented the regulars, and some of them from the Florida territory itself were drafted.42

Although the state governments continued to depend heavily upon their militias throughout the post-War of 1812 period, the entire militia system by this time was coming under sustained criticism at the state level. Launching these political attacks was a collage of radical Jacksonians, peace advocates, and moralistic reformers. The Workingmen’s Party in New York, precursor of the laissez-faire “Locofoco” Jacksonians, condemned militia fines because they fell unfairly upon laborers and the poor. The common militia also became the butt of an effective campaign of ridicule and civil disobedience. Men would muster for mandatory training with cornstalks, brooms, or other silly substitutes for weapons, giving rise to the derisive sobriquet “cornstalk militia.” In some locations, disgruntled militiamen would elect the town drunk their commander. As a result of these attacks, the compulsory features of the common militia began to ease.

Delaware became the first state to repeal some of its militia fines as early as 1816, and, in 1831, it abolished the common militia system altogether. Massachusetts eliminated all compulsory militia service in 1840, followed by Maine, Ohio, and Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. New Jersey eliminated imprisonment for failure to pay a militia fine in 1844, followed by Iowa in 1846, Michigan in 1850, and California in 1856. In several states, fines were no longer enforced, or became truly nominal. Mandatory training days were already less frequent, and had degenerated into more social than military events.43 Only in the South were the compulsory features of the militia maintained, probably because of their vital connection with slave patrols.44

A remarkable growth in the volunteer militia was concomitant with this decline in the common militia. Expanding steadily since the Revolution, the number of volunteer units exploded during the Jacksonian period. Three hundred sprang up in California between 1849 and 1856. One out of every twenty-nine people in the District of Columbia belonged to a volunteer company. With this burgeoning mass appeal, the volunteer militia was no longer the preserve of a wealthy elite. As Russell Weigley noted in his eminent history of the U.S. Army, units such as “[t]he New England Guards of Boston, the 7th Regiment of New York ‘National Guards,’ the First Troop of the Philadelphia City Cavalry, the Light Infantry Blues of Richmond, [and] the Washington Artillery of New Orleans” were popular and colorful “fixtures of the American scene.” Even in the South, the volunteer militia came to supplant the common militia in size and importance.45

The supplanting was so thorough that some historians call the volunteer component of the pre-Civil War militia the organized militia while designating the common component the enrolled militia. In prior periods, of course, organized units had come from both the common and volunteer militia. In short, the Jacksonian era witnessed nearly total transformation of the militia from a compulsory to a voluntary system. Because many volunteer units were privately organized, recruited, and equipped, the militia became a partially privatized system as well. A third terminological variation clearly reflects this last trait: the volunteer militia became popularly known as the uniformed militia. States rarely provided uniforms to any militia units, so volunteer units purchased their own.

Many military historians have unfairly characterized the transformation to voluntarism as “the decay” of the militia.46 Because of this so-called decay, the Mexican War became the first in U.S. history to be fought solely with volunteers. A remnant of the common militia survived, and Congress gave President James K. Polk the power to call the militia into national service for six months rather than the three months specified in the Calling Forth Act. Early in the war, General Edmund Gaines, commanding at New Orleans, made an unauthorized call for militia from the Southwestern states, and Louisiana’s governor threatened a draft in order to raise his state’s allotment. But the Polk administration quickly relieved Gaines and canceled his call.47

Therefore, Polk could justifiably boast that in, waging the Mexican War,

Unlike what would have occurred in any other country, we were under no necessity of resorting to drafts or conscriptions. On the contrary, such was the number of volunteers who patriotically tendered their services that the chief difficulty was in … determining who should be compelled to remain at home.48

Equally significant, the 60,931 federal volunteers, many from volunteer militia units, who served alongside the 42,374 U.S. regulars, displayed none of the previous military ineptitude of the drafted common militia. Whatever their other shortcomings, they won nearly all their engagements, although usually outnumbered.49

Union and Confederacy during the Civil War

The volunteer militia was so vibrant at the beginning of the Civil War that it brought to each side an enthusiastic influx of units—more units, in fact, than either could process. Civil War historian Kenneth P. Williams has observed that, within four months of the firing on Fort Sumter, the Union army multiplied by an astonishing factor of twenty-seven despite the defection of nearly half the country and of many professional officers. That sharply contrasts with the army’s mere threefold growth, under a rigid system of conscription, during the four months at the beginning of the U.S. entry into World War I. It is doubtful that the Confederacy, which had to turn away as many as 200,000 volunteers during the Civil War’s first year, could have so quickly mobilized a major army from scratch without the foundation provided by the volunteer militia.50

The tradition of the common militia was not dead, however. It was responsible for exemption fees and substitute hiring in both the Confederate and Union conscription systems. As pointed out above, the Southern states had never repealed their compulsory militia laws. As a result, before the Confederate Congress passed a conscription act in April 1862, some of them independently drafted soldiers to meet their manpower quotas.51

Similarly, the first Union conscription law, passed in July of 1862, was only a modification of the old Calling Forth Act. It empowered the President to call out the militia for nine instead of three months, and, if the states failed to meet national quotas, authorized him to administer militia drafts directly, as Monroe’s second conscription plan had requested during the War of 1812. Not until March of 1863 did Congress adopt a national conscription law similar to that of the Confederacy.52 (At least two Northern states, New York and Massachusetts, temporarily reimposed a compulsory militia system during the war.53)

After the Civil War

The Civil War triumph of national conscription eliminated the militia’s raison d’être. In the years after Appomattox, all the states finally buried the common militia. Even the volunteer militia was slow to revive. The peacetime enrollment of volunteer units never approached its pre-war per capita level. As an isolated elite of professionals came again to dominate membership in the organized militia, its connection with government at all levels became increasingly intimate. State governments assumed ever-greater responsibility for organizing, recruiting, and equipping the units, inspired partially by the desire for a reliable force to break labor strikes.

A general effort to more closely identify the organized militia with the national government caused most states to emulate New York in borrowing the French term “National Guard.” Militia officers from around the nation in 1877 organized the National Guard Association, a pressure group to lobby for larger state and national appropriations.54

Finally, in the wake of the Spanish-American War, Congress passed the Dick Act of 1902. Along with supplementary legislation, the Dick Act brought to final realization Washington’s and Knox’s old dream of a federally trained, controlled, and funded militia. The volunteer militia, which already had been de-privatized, was now fully nationalized. The only missing component of Knox’s original scheme was conscription. The Dick Act did restate the principle of universal obligation in establishing what it called the Reserve Militia, but this was primarily a pro-forma vestige from the Federalist Uniform Militia Act. The Dick Act’s substance applied to the wholly voluntary “organized militia, to be known as the National Guard.”55


The birth of modern mass conscription has usually been attributed to the French Revolution. Napoleon’s citizen armies first demonstrated the devastating potential of the levee en masse. But close examination of the traditional militia concept reveals that it had embraced the underlying ideal of universal obligation well before the revolution in France. The militia, therefore, become an important historical antecedent to the French creation of a nation at arms. The early years of the American Republic turn out to corroborate, rather than contradict, the general historical affinity between mass participation in government and mass participation in warfare, between democracy and conscription.56

Conscription not only was inherent in the traditional militia system, but may also have been the hidden factor behind that system’s ill repute. The contrast in military competence between the U.S. citizen soldiers who fought in the War of 1812 and those who fought in the Mexican War is so striking that it has escaped the notice of few observers. Yet, most do not realize that, in the years between those two wars, the militia system underwent a dramatic transformation from compulsion to voluntarism, and none has drawn the obvious causal inference. On the contrary, American military theorists, starting with Washington and Knox and moving on to those of the present, have used the traditional militia’s weaknesses to justify far more extensive conscription and universal military training. Ironically, they have sought more of the very feature that may have been responsible for the militia’s poor military performance in the first place.

If libertarians wish to look to the past for guidelines about a free society’s ideal defense, they must pass over the traditional militia system. Despite its appealing decentralist rhetoric and its close ties with the American Revolution, it was from the very core a coercive system, one clearly inimical to liberty. Instead, they should cast their eyes upon the volunteer militia of the Jacksonian period. Although maligned by military historians, forgotten by all others, and corrupted by post-Civil War statism, it is the one military precedent that most closely embodies libertarian precepts.

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