[May 2, 1792]
[May 8, 1792]
[Feb 28, 1795], revisions to act of May 2, 1792..]
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.
Sec. 3. Provided always, and be it further enacted, That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, and previous thereto, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.
Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall receive the same pay and allowances, as the troops of the United States, who may be in service at the same time, or who were last in service, and shall be subject to the same rules and articles of war: And that no officer, non-commissioned officer or private of the militia shall be compelled to serve more than three months in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to which be belongs.
[TOP]
[BOTTOM]
[May 8, 1792]
[Feb 28, 1795]
[Militia Deficiencies]
[HOME]
Sec. 5. And be it further enacted, That every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: and such non-commissioned officers and privates shall be liable to be imprisoned by the like sentence, or failure of payment of the fines adjudged against them, for the space of one calendar month for every five dollars of such fine.
Sec. 6. And be it further enacted, That court martial for the trial of militia be composed of militia officers only.
Sec. 7. And be it further enacted, That all fines to be assessed, as aforesaid, shall be certified by the presiding officer of the court martial before whom the same shall be assessed, to the marshal of the district, in which the delinquent shall reside, or to one of his deputies; and also the supervisor of the revenue of the same district, who shall record the said certificate in a book to be kept for that purpose. The said marshal or his deputy shall forthwith proceed to levy the said fines with costs, by distress and sale of the goods and chattels of the delinquent, which costs and manner of proceeding, with respect to the sale of the goods distrained, shall be agreeable to the laws of the state, in which the same shall be, in other cases of distress; and where any non-commissioned officer or private shall be adjudged to suffer imprisonment, there being no goods or chattels to be found, whereof to levy the said fines, the marshal of the district or his deputy may commit such delinquent to gaol, during the term, for which he shall be so adjudged to imprisonment, or until the fine shall be paid, in the same manner as other persons condemned to fine and imprisonment at the suit of the United States, may be committed.
Sec. 8. And be it further enacted, That the marshals and their deputies shall pay all such fines by them levied to the supervisor of the revenue, in the district in which they are collected, within two months after they shall have received the same, deducting therefrom five per centum, as a compensation for their trouble; and in case of failure, the same shall be recoverable by action of debt or information in any court of the United States, of the district, in which such fines shall believed, having cognizance therefor, to be sued for, prosecuted and recovered, in the name of the supervisor of the district, with interest and costs.
Sec. 9. And be it further enacted, That the marshals of the several districts and deputies, shall have the same powers in executing the laws of the United States, as sheriffs, and their deputies in the several states have by law, in executing the laws of their respective states.
Sec. 10. And be it further enacted, That this act shall continue and be in force, for and during the term of two years, and from thence to the end of the next session of Congress thereafter, and no longer. APPROVED, May 2, 1792.
[TOP]
[BOTTOM]
[May 2, 1792]
[Feb 28, 1795]
[Militia Deficiencies]
[HOME]
The Militia Act of 1792, Passed May 8,
1792, providing federal standards for the
organization of the Militia.
An ACT more effectually to provide for the National
Defence, by establishing an Uniform Militia
throughout the United States.
I. Be it enacted by the Senate and
House of Representatives of the United States of
America, in Congress
assembled, That each and every free able-bodied
white male citizen of the respective States,
resident therein, who is or shall be of age of
eighteen years, and under the age of forty-five
years (except as is herein after excepted) shall
severally and respectively be enrolled in the
militia, by the Captain or Commanding Officer of
the company, within whose bounds such citizen shall
reside, and that within twelve months after the
passing of this Act. And it shall at all time
hereafter be the duty of every such Captain or
Commanding Officer of a company, to enroll every
such citizen as aforesaid, and also those who
shall, from time to time, arrive at the age of 18
years, or being at the age of 18 years, and under
the age of 45 years (except as before excepted)
shall come to reside within his bounds; and shall
without delay notify such citizen of the said
enrollment, by the proper non-commissioned Officer
of the company, by whom such notice may be proved.
That every citizen, so enrolled and notified,
shall, within six months thereafter, provide
himself with a good musket or firelock, a
sufficient bayonet and belt, two spare flints, and
a knapsack, a pouch, with a box therein, to contain
not less than twenty four cartridges, suited to the
bore of his musket or firelock, each cartridge to
contain a proper quantity of power and ball; or
with a good rifle, knapsack, shot-pouch, and
power-horn, twenty balls suited to the bore of his
rifle, and a quarter of a power of power; and shall
appear so armed, accoutred and provided, when
called out to exercise or into service, except,
that when called out on company days to exercise
only, he may appear without a knapsack. That the
commissioned Officers shall severally be armed with
a sword or hanger, and esontoon; and that from and
after five years from the passing of this Act, all
muskets from arming the militia as is herein
required, shall be of bores sufficient for balls of
the eighteenth part of a pound; and every citizen
so enrolled, and providing himself with the arms,
ammunition and accoutrements, required as
aforesaid, shall hold the same exempted from all
suits, distresses, executions or sales, for debt or
for the payment of taxes.
II. And be it further
enacted, That the Vice-President of
the United States, the Officers, judicial and
executives, of the government of the United States;
the members of both houses of Congress, and their
respective officers; all custom house officers,
with the clerks; all post officers, and
stage-drivers who are employed in the care and
conveyance of the mail of the post office of the
United States; all Ferrymen employed at any ferry
on the post road; all inspectors of exports; all
pilots, all mariners actually employed in the sea
service of any citizen or merchant within the
United States; and all persons who now are or may
be hereafter exempted by the laws of the respective
states, shall be and are hereby exempted from
militia duty, notwithstanding their being above the
age of eighteen and under the age of forty-five
years.
III. And be it further
enacted, That within one year after
the passing of the Act, the militia of the
respective states shall be arranged into divisions,
brigades, regiments, battalions, and companies, as
the legislature of each state shall direct; and
each division, brigade, and regiment, shall be
numbered at the formation thereof; and a record
made of such numbers of the Adjutant-General's
office in the state; and when in the field, or in
serviced in the state, such division, brigade, and
regiment shall, respectively, take rank according
to their numbers, reckoning the first and lowest
number highest in rank. That if the same be
convenient, each brigade shall consist of four
regiments; each regiment or two battalions; each
battalion of five companies; each company of
sixty-four privates. That the said militia shall be
officered by the respective states, as follows: To
each division on Major-General, with two
Aids-de-camp, with the rank of major; to each
brigade, one brigadier-major, with the rank of a
major; to each company, one captain, one
lieutenant, one ensign, four serjeants, four
corporals, one drummer, and one fifer and bugler.
That there shall be a regimental staff, to consist
of one adjutant, and one quartermaster, to rank as
lieutenants; one paymaster; one surgeon, and one
surgeon's mate; one serjeant-major; one drum-
major, and one fife-major.
IV. And be it further
enacted, That out of the militia
enrolled as is herein directed, there shall be
formed for each battalion, as least one company of
grenadiers, light infantry or riflemen; and that
each division there shall be, at least, one company
of artillery, and one troop of horse: There shall
be to each company of artillery, one captain, two
lieutenants, four serjeants, four corporals, six
gunners, six bombardiers, one drummer, and one
fifer. The officers to be armed with a sword or
hanger, a fusee, bayonet and belt, with a cartridge
box to contain twelve cartridges; and each private
of matoss shall furnish themselves with good horses
of at least fourteen hands and an half high, and to
be armed with a sword and pair of pistols, the
holsters of which to be covered with bearskin caps.
Each dragoon to furnish himself with a serviceable
horse, at least fourteen hands and an half high, a
good saddle, bridle, mail-pillion and valise,
holster, and a best plate and crupper, a pair of
boots and spurs; a pair of pistols, a sabre, and a
cartouchbox to contain twelve cartridges for
pistols. That each company of artillery and troop
of house shall be formed of volunteers from the
brigade, at the discretion of the Commander in
Chief of the State, not exceeding one company of
each to a regiment, nor more in number than one
eleventh part of the infantry, and shall be
uniformly clothed in raiments, to be furnished at
their expense, the colour and fashion to be
determined by the Brigadier commanding the brigade
to which they belong.
V. And be it further
enacted, That each battalion and
regiment shall be provided with the state and
regimental colours by the Field-Officers, and each
company with a drum and fife or bugle-horn, by the
commissioned officers of the company, in such
manner as the legislature of the respective States
shall direct.
[TOP]
[BOTTOM]
VI. And be it further
enacted, That there shall be
an adjutant general appointed in each state, whose
duty it shall be to distribute all orders for the
Commander in Chief of the State to the several
corps; to attend all publick reviews, when the
Commander in Chief of the State shall review the
militia, or any part thereof; to obey all orders
from him relative to carrying into execution, and
perfecting, the system of military discipline
established by this Act; to furnish blank forms of
different returns that may be required; and to
explain the principles of which they should be
made; to receive from the several officers of the
different corps throughout the state, returns of
the militia under their command, reporting the
actual situation of their arms, accoutrements, and
ammunition, their delinquencies, and every other
thing which relates to the general advancement of
good order and discipline: All which, the several
officers of the division, brigades, regiments, and
battalions are hereby required to make in the usual
manner, so that the said adjutant general may be
duly furnished therewith: From all which returns
be shall make proper abstracts, and by the same
annually before the Commander in Chief of the
State.
VII. And be it
further enacted, That the rules of
discipline, approved and established by Congress,
in their resolution of the twenty-ninth of March,
1779, shall be the rules of discipline so be
observed by the militia throughout the United
States, except such deviations from the said rules,
as may be rendered necessary by the requisitions of
the Act, or by some other unavoidable
circumstances. It shall be the duty of the
Commanding Officer as every muster, whether by
battalion, regiment, or single company, to cause
the militia to be exercised and trained, agreeably
to the said rules of said discipline.
VIII. And be it further
enacted, That all
commissioned officers shall take rank according to
the date of their commissions; and when two of the
same grade bear an equal date, then their rank to
be determined by lots, to be drawn by them before
the Commanding officers of the brigade, regiment,
battalion, company or detachment.
IX. And be it further
enacted That if any person
whether officer or solder, belonging to the militia
of any state, and called out into the service of
the United States, be wounded or disabled, while in
actual service, he shall be taken care of an
provided for at the publick expense.
X. And be it further
enacted, That it shall be
the duty of the brigade inspector, to attend the
regimental and battalion meeting of the militia
composing their several brigades, during the time
of their being under arms, to inspect their arms,
ammunition and accoutrements; superintend their
exercise and maneuvres and introduce the system of
military discipline before described, throughout
the brigade, agreeable to law, and such orders as
they shall from time to time receive from the
commander in Chief of the State; to make returns to
the adjutant general of the state at least once in
every year, of the militia of the brigade to which
he belongs, reporting therein the actual situation
of the arms, accoutrement, and ammunition, of the
several corps, and every other thing which, in his
judgment, may relate to their government and
general advancement of good order and military
disciple; an adjutant general shall make a return
of all militia of the state, to the Commander in
Chief of the said state, and a
duplicate of the same to the president of the
United States.
And whereas sundry corps of artillery, cavalry and
infantry now exist in several of the said
states, which by the laws, customs, or usages
thereof, have not been incorporated with, or
subject to the general regulation of the militia.
XI. Be it
enacted, That such corps
retain their accustomed privileges subject,
nevertheless, to all other duties required by this
Act, in like manner with the other militias.
[TOP]
[BOTTOM]
[May 2, 1792]
[HOME]
[Act of February 28, 1795, made small revisions
in Sections 2, 4, 5, and 10 of Act of May 2, 1792.
Mention of these revisions were not included in
Appendix C of the Potowmack Institute's amicus
to the Fifth Circuit in U.S. v. Emerson. They are
provided here for information and because the 1795
act was the authority for ruling in
Houston v.
Moore, 1820. Other revisions were
enacted April 18, 1814]
Sec. 2. And be it further
enacted, That whenever the laws of the United
States shall be opposed or the execution
thereof obstructed, in any state, by
combinations too powerful to be suppressed by the
ordinary course of judicial proceedings, or by the
powers vested in the marshals by this act,
[words requiring notification by an associate
justice or district judge were omitted in 1795
revision. The revision gave the President more
authority] the same
being notified to the President of the United
States, by an associate justice or the district
judge, it shall be lawful for the President of the
United States to call forth the militia of such
state to suppress such
combinations, and to cause the laws to be duly
executed. And if the militia of a state, where
such combinations may happen, shall
refuse, or be insufficient to suppress the
same, it shall be lawful for the President, if the
legislature of the United States be not in session,
to call forth and employ such numbers of the
militia of any other state or states most
convenient thereto, as may be necessary, and the
use of militia, so to be called forth, may be
continued, if necessary, until the expiration of
thirty days after the commencement of the ensuing
session.
Sec. 4. And be it further
enacted, That the militia employed in the
service of the United States, shall receive the
same pay and allowances, as the troops of the
United States, [omitted in 1795: "who may
be in service at the same time, or who
were last in service, and shall be subject
to the same rules and articles of war"]: And
that no officer, non-commissioned officer or
private of the militia shall be compelled to serve
more than three months in any one year, nor more
than in due rotation with every other able-bodied
man of the same rank in the battalion to which be
belongs.
Sec. 5. And be it further
enacted, That every officer, non-commissioned
officer or private of the militia, who shall fail
to obey the orders of the President of the United
States in any of the cases before recited, shall
forfeit a sum not exceeding one year's pay, and not
less than one month's pay, to be determined and
adjudged by a court martial; and such officers
shall, moreover, be liable to be cashiered by
sentence of a court martial: [words added in
1795:] and be incapacitated from holding a commission
in the militia, for a term not exceeding twelve
months, at the discretion of the said
court: and such non-commissioned officers
and privates shall be liable to be imprisoned
by the like sentence, or failure of payment
of the fines adjudged against them, for the
space of one calendar month for every five
dollars of such fine.
Sec. 10. [revised to
read:] And be it further
enacted, That the act, intitled "Act
to provide for calling forth the militia, to
execute the laws of Union, suppress
insurrections, and repel invasions," passed
the second day of May one thousand seven
hundred and ninety-two, shall be, and the
same is hereby repealed.
2. Militia Deficiencies
George Washington, letter to the Continental
Congress, September 24, 1776:
To place any dependence on Militia, is, assuredly
resting upon a broken staff. Men just dragged from
the tender scenes of domestick life; unaccustomed
to the din of Arms; totally unacquainted with every
kind of military skill, which being followed by a
want of confidence in themselves, when opposed to
Troops regularly train'd, disciplined, and
appointed, superior in knowledge and superior in
Arms, makes them timid, and ready to fly from their
own shadows. (— 6 The Writings of George
Washington 110, 112, J. Fitzpatrick, ed.,
1931-44)
Alexander Hamilton, Federalist Paper No.
25:
Here I expect we shall be told that the militia of
the country is its natural bulwark, and would beat
all times equal to the national defense. This
doctrine, in substance had like to have lost us our
independence. It cost millions to the United
States that might have been saved. The facts which
from our own experience forbid any reliance of this
kind are too recent to permit us to be the dupes of
such a suggestion. The steady operations of war
against a regular and disciplined army can only be
successfully conducted by a force of the same kind.
Considerations of economy, not less than of
stability and vigor, confirm this position. The
American militia, in the course of the late war,
have, by their valor on numerous occasions, erected
eternal monuments to their fame; but the bravest of
them feel and know that the liberty of their
country could not have been established by their
efforts alone, however great and valuable they
were. War, like most other things, is a science to
be acquire and perfected by diligence, by
perseverance, by time, and by practice.
(— Rossiter, p. 166)
[May 2, 1792]
[TOP]
[NRA v. Reno (July, 2000)]
[May 2, 1792]
[Feb 28, 1795]
[Militia Deficiencies]
[HOME]
APPROVED, February 28, 1795.
[May 8, 1792]
[Feb 28, 1795]
[Militia Deficiencies]
[PotowmackForum], interactive posting
[HOMEPAGE].
[US v. Emerson PAGE]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
[ARCHIVE]. Potowmack
Institute Files
[RESOURCES].
Newspaper, magazine, journal articles, books, links
© Potowmack Institute