The Constitutional Militia Clause, the Militia Act of 1792 and the Rise of a Nation Brig. Gen. Kennard R. Wiggins, Jr. (DE ANG Ret.) firstname.lastname@example.org
Among the first issues that must be addressed by any nation is how to defend itself and maintain public safety and national security. At the onset of the American experiment in representative democracy the answer seemed obvious. America would rely primarily upon its militia of citizen soldiers. It resembled a uniform system of conscription for all free able-bodied males aged 18-45 in time of need. This solution, as we shall see, was flawed and fraught with problems large and small. This notion, of a militia based defense was founded in a Jeffersonian agrarian society symbolized by Daniel Chester French's Minuteman statue of the citizen laying aside his plow to take up his musket. It was deeply rooted. After all, hadn't the militia cast off the yoke of the monarchy in 1775? It remains an ideal of a sort, that we continue to pursue today, but in a highly modified form. Our citizen soldier of today is the result of over two hundred years of evolutionary change to a model our forefathers would now barely recognize.
The United State Constitution formalized the long standing colonial practice of maintaining a Militia. Delaware dates its militia from the early Swedish settlers of 1655 attempting to defend themselves from the Dutch. A “Militia Clause” was included in the constitution as a hedge against standing armies that were viewed with suspicion in light of the recent War of Independence. The standing army was referred to as “the Engine of arbitrary power, which has so often and successfully been used for the subversion of freedom” according to Luther Martin. Elbridge Gerry added, “If a regular army is admitted, will not the militia be neglected and gradually dwindle into contempt? The Constitution gives Congress the ability to “raise and support armies”, but attempts to circumscribe the regular force with appropriations of monies for a term of no more than two years. The document also tasks the congress “to provide and maintain a navy”. It then goes on to specifically delineate a Militia in Article 1, Section 8, it calls for the Congress to:
“Provide for calling forth the Militia to execute the Laws of the union, suppress Insurrections, and repel Invasions. Also 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 for training the Militia according to the discipline prescribed by Congress.”
The second amendment states that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Modern interpretation defines this as an individual right, but in the context of the times, it is clear there was a relationship between bearing arms and “a well-regulated Militia” that is sometimes overlooked today, but was critical at our nation’s founding. It was added at the insistence of the anti-federalists to prevent the federal government from disarming the militia. Three years later, the Militia Act of 1792 would further expound upon this perceived need, and offer specifics.
This constitutional language remains the guiding charter for today’s National Guard, the modern version of the Militia. There is still a dual responsibility to both State and Nation for the modern day militiamen of the National Guard. This federal/state relationship was codified almost at the onset of our nation, and it has been refined ever since.
The Militia Act of 1792
The Post-Revolutionary War Delaware Militia served under the Governor of Delaware, who was its commander in chief, according to the State Constitution adopted in 1792. This organization could be called into federal service by the President in the event of war. An Adjutant General would be appointed by the governor to oversee the training, discipline and administration of the organization, as well as enact the orders of the governor.
Perpetuating colonial practice, the Militia of the national period was defined in the federal Militia Act of May 8, 1792 was comprised of all free able-bodied males aged 18-45. All fifteen states enacted new militia laws, each of which reaffirmed the state government’s power to conscript. This cohort was labeled the “Enrolled Militia” and the members were expected to provide their own arms and equipment. This scheme amounted to universal military service for almost all men. The reality was that this design was difficult to put into practice without monies for pay, equipment or training. Further, there were no sanctions for non-compliance. Its success was predicated mostly on the political will and the pocketbook of the individual states.
The Militia Act specified an organizational scheme that specified, “each brigade shall consist of four regiments; each regiment of two battalions; each battalion of five companies; each company of sixty- four privates.” Each unit would have a number assigned by the State. In reality there was variation from state to state, and from unit to unit that would be dictated by geography and local demographics.
The Act also described in some detail, some of the auxiliary functions and specialties required in addition to the line infantry of the organization. It specified:
“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.”
The Adjutant General’s report to the Governor for 1810 listed three numbered Delaware brigades consisting of ten numbered regiments as well as assorted specialties such as companies of artillery, and troops of horse. The Delaware population at that time supported 8356 officers and men in her Militia of three brigades.
Manning and Rank Structure
The Militia Act of 1792 also specified a rank structure to accompany the organization. It specified: “To each division one 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 sergeants, 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.”
The senior leadership of the Militia was appointed by the governor including most senior and field grade officers. This made the process subject to political pressures. General officers were not paid, but it was a very prestigious position for those with political ambition. Many a governor or elected official boasted a Militia commission in his resume.
The prevailing Jeffersonian philosophy of this time was “the supremacy of the civil over the military authority” and faith that the militia would “be our best reliance in peace and for the first months of war until the Regulars may relieve them”. Mistrust of the standing army remained, as Jefferson cut its ranks while promoting his militia policies. The nation would rely almost solely upon the militia for its primary defense in time of war.
The "Calling Forth Act"
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. 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. The problem of maintaining participation in the militia was even more difficult in peacetime. Without an external threat, there was little sense of urgency.
This was a frustrating process in practice. Many pages of militia records from the Delaware Military archives are devoted to the detailed accounting of who was present or absent for musters of militiamen, court martial proceedings and fines. The Adjutant General, John Stockton wrote to Governor Bassett in 1799:
Wilmington, December 30th, 1799 “Sir, Herewith I transmit the returns of Several Brigades, making one division of Militia in the State of Delaware; tho’ not compleat, as much so, as in my power; owing to my not receiving the returns of company in the Second Brigade & one Troop of Horse in the first Brigade, and some inaccuracies in other returns, which I could not get in time…
From the trouble and expences attendant on this business, in collecting and arranging the returns, Summoning & attending on General Court Martials; I am disposed to think some compensation should be allowed by the Legislature, as is done in other States; but if, upon consideration, the Legislature be of opinion no allowance ought to be made for such services, I shall request you to accept of my resignation.”
JNO STOCKTON, Adjt. Genl.
With no immediate foreign threat, and little danger from Native Americans in Delaware, the Militia became a phantom army that appeared to be formidable on paper, with thousands of soldiers and arms, but in fact suffered from neglected training, deteriorated weapons, and lackadaisical leadership. Some were excused entirely from Militia service including elected officials, the clergy, pilots and mariners, customs and postal officers, critical workers such as ferrymen, gunsmiths and ironworkers as well as the politically well-connected. Others could pay substitutes to stand in their stead. This was typically a device used by the wealthy. The poor were simply fined for non-participation but collecting was problematical and half-hearted in execution.
The biggest failure of depending upon the militia was the over-reliance upon civic virtue. Without proper controls and sanctions, without resourcing and leadership, the average citizen did what his forebears did. He shirked his civic duties and responsibilities. Human frailty was left out of the equation when congress drafted the Militia Act of 1792. It is not surprising that many citizens failed to arm and equip themselves at their own expense, nor fail to appear for training when there were more pressing concerns.
Nevertheless, the militia musters, proposed at approximately twice per year, were among the largest gatherings in the community, particularly in isolated and rural communities. More often, the muster was a once per year affair, usually held after the fall harvest or in conjunction with a holiday, especially Independence Day. It was a social community gathering as much as a military function. It provided an opportunity for the men in the area to swap horses, play at politics, discuss land prices, seek votes, and get caught up on news. It was also accompanied by plentiful alcohol and celebration as local dignitaries tried to win over the favor of the militiamen.
The annual muster helped to serve as a unifying force in the community. It was a more inclusive gathering than the more frequent and typical gatherings of fraternal organizations. The Muster was a cementing force for democracy and an agent for the transformation of society, economically, socially and politically. However, as a military function, the annual militia muster, if it was held at all, was a thing of little value. It was too short in duration, too infrequent and too distracted by other happenings to contribute much to the readiness of the 19th century soldier.
Training and Equipment
Training, if it was accomplished, was done according to the doctrine of Baron Von Steuben from his 1799 Manual of Discipline and Formation. The musters also were an opportunity to inspect the men and their equipment and to note the readiness of each individual in meeting the requirements of possessing:
“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 powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; 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.”
The Militia Act of 1792 was twice amended: in 1803 to require Adjutant Generals to file an annual report to the War Department, and in 1808 to finally provide for an annual distribution of $200,000 in arms to the states apportioned according to the number of soldiers enrolled. This sum was far too little to be of practical value. In summary, the Militia Act of 1792 was a true expression of the sentiment of the time and the belief in a militia nation as the Jeffersonian response to national security threats. As we shall see, in the War of 1812, the readiness of the militia force left much to be desired. Jim Dan Hill in “The Minute Man in Peace and War” compares the Act to an elaborate accounting system, not unlike the modern Selective Service System. While useful as a ledger of possibilities, it proved to be of little practical value as a form of national defense. The lack of training, equipment and discipline as a result of years of neglect, resulted in a very weak and ineffectual force. On paper, it gave the nation a formidable manpower pool, but despite its specificity, there was little accomplished without federal and state penalties, enforcement, and the fiscal resources to support the desires of the legislators.
The tiny professional regular army that was permitted by the Congress (under 12,000 soldiers) was understandably vexed with its lot and resentful of the militia. A mutual mistrust began almost from the very start, which reverberates even today.
It was more efficient and less expensive to train and organize select units of volunteer militia of more immediate utility, and these were termed the “Organized Militia”. In September 1792 a battalion of militia was raised and sent to reinforce the United States Army remaining in service until the last day of 1792.
In 1797 an arsenal was constructed in an open field in Wilmington by order of the United States government in the block bounded by Washington Street between Eighth and Ninth Streets today. Major Cass with a detachment of regular army commanded the facility in 1800. The long one-story brick structure occupied about one acre and was used for storing weapons, cannon and ammunition by the War Department. During the War of 1812 it was a rendezvous for the volunteer militia companies of the town as well as Army Regulars.
The militia of that time was composed of combinations of light infantry, light dragoons, (mounted infantry) light horse and grenadiers (grenade throwers, usually chosen from among the tallest and strongest men). Light infantry were lightly armed soldiers who could fight on foot or on horseback. The primary difference between dragoons and light horse was that dragoons were trained to fight on either foot or horseback, while light horsemen were trained to fight exclusively while mounted.
The principle advantage of mounted forces was mobility and speed. The term “light” usually refers to the absence of armor. The missions of the light cavalry were primarily reconnaissance, screening, skirmishing, raiding, and most importantly, communications.
Scharf’s "History of Delaware" lists a number of colorful volunteer militia organizations from that time:
The Republican Blues, of the Third Delaware Regiment and the Second Troop of the Light Dragoons, gave a farewell dinner at Cantwell’s Bridge in 1802 and then disbanded. Most of the members had been Revolutionary War patriots.
Veterans Corps (composed of soldiers of the Revolution, Captain Allen McLane, 1st Lt. Edward Roche, 2nd Lt George Monro, 3rd Lt. David Kirkpatrick.
Wilmington Troop of Horse, Captain John Warner, 1st Lt. Joseph Stidham, 2nd Lt. James Gardner, Cornet N. G. Williamson, privates - forty three. Wilmington Light Infantry, Captain Frederick Leonard, 1st Lt. Samuel Carnahan, 2nd Lt. Alexander Porter, Privates - fifty two.
First Artillery, Captain C.A. Rodney, 1st Lt. Archibald Hamilton, 2nd Lt. Allan Thomson, rank and file – fifty eight.
Second Artillery, Captain David C. Wilson, 1st Lt. Benjamin H. Springer, 2nd Lt. John W. Robinson, privates – fifty.
Militia (two companies) Captain, William Shipley, 1st Lt. G. James Wolfe, Ensign Solomon Beckley, non-commissioned officers and privates – two hundred fifty. Captain Perry Sheward, 1st Lt. Benjamin Bracken, Ensign Abraham Tilton, non-commissioned officers and privates two hundred.
In 1807, H. Dearborn of the War Department requested the Governor of Delaware to render an annual report on the state of the Delaware Militia every December to the President of the United States and to the Congress. (It had been a requirement since the Militia Act was amended in 1803). Jesse Green, Adjutant General sent his report to his Commander-In-Chief, the Governor in 1808. According to his report the strength of the Delaware Militia at the time was 10,665 enlisted men, including 100 artillerymen, 220 cavalry, 94 grenadiers, 875 light infantry, 61 riflemen, 8579 infantry and 11 pieces of ordnance. There were 16 men in the general and field staff and 110 men in the field offices and regimental staff.
By comparison, the contemporary Delaware National Guard in a much more populous 21st century state has only about 2600 Army and Air National Guardsmen on its rolls.
These annual reports were drafted by the Adjutant General and his staff and were addressed to the Governor, then presumably forwarded to the War Department. They possess a great deal of detail, including rosters of the officer leadership of the organizations, their rank and date of commission, military specialty such as surgeon, paymaster or adjutant, (mostly being infantry or grenadiers), as well as their unit of assignment. The report also lists the enlisted men and equipment on hand as a measure of readiness including non-commissioned officers broken down by sergeants and corporals, drum and fifers, and rank and files (by number assigned but not by name.) It includes numbers of firelocks fit for service, bayonets, cartouche (cartridge) boxes, and stand of colors. Finally, the report offers a description of the uniforms of the respective units, which varied from regiment to regiment. An example from the 1st Brigade Cavalry: Blue Coats faced with Red, red Cuffs & Capes yellow buttons with yellow cord buff vestcoats & Small Cloath Leather Caps hare skin red feathers blue sash Longboots & spur Blk Stocks.
The Several Brigades of Delaware Militia, November 27, 1810, commanded by Major General Thomas Robinson, reported by the Adjutant General Jesse Green.
1st Brigade (New Castle Co.): Commander, Brigadier General John Stockton 1st Regiment, Commander Colonel John Caldwell, 1133 men 2nd regiment Commander Colonel Archd. Alexander576 men 3rd Regiment Commander, Colonel Joshua Carter, 759 men Captain John Bird’s Artillery, 48 men Captain John Crow’s Troop of Horse, 41 men Captain Nathan Covinton’s Troop of Horse, 45 men 2nd Brigade (Kent Co.): Commander, Brigadier General Isaac Davis A troop of cavalry Capt. Holland’s Artillery Company Capt. Davis’s Artillery Company, 4th Regiment, Commander, Colonel Robert Hopkins, 750 men 5th Regiment, Commander, Colonel Henry M. Ridgley, 950 men 6th Regiment Commander, Colonel John Woods, 678 men 3rd Brigade (Sussex Co.): Commander, Brigadier General Thomas Fisher Captain Thomas Rodney’s Artillery Company, 44 men Captain William Shanklin’s Troop of Cavalry, 35 men 7th Regiment, Commander, Colonel John Wilson, 629 men 8th Regiment, Commander Colonel Thomas Carlisle, 603 men 9th Regiment, Commander Colonel Michell Kershaw, 768 men 10th Regiments, Commander Armwell Long, 536 men Included in the list of officers in the several brigades were details of the uniforms worn. An example from the 1st Brigade Cavalry: Blue Coats faced with Red, red Cuffs & Capes yellow buttons with yellow cord buff vestcoats & Small Cloath Leather Caps hare skin red feathers blue sash Longboots & spur Blk Stocks.
In summary, until the War of 1812, the nation relied upon the enrolled militia as its primary means of defense. Its few (less than 12,000) professional soldiers were out of sight and out of mind scattered on the frontiers of the young nation. When war came, the under-trained under-equipped and unready enrolled militia simply was not up to the task. The War of 1812 revealed the weakness of relying upon this unwieldy concept, despite many exceptional and heroic individual successes. The system first put into law in 1792 was allowed to decline into disuse. Delaware abolished mandatory service in the enrolled militia in 1831.
The militia concept lived on however, in the form of the "organized" or volunteer militia. This model would be the basis for the future modern National Guard.
To learn more about the Delaware National Guard during the War of 1812 click here.
The United States Constitution
Militia Acts of 1792
"History of Delaware: 1609-1888", John Thomas Scharf, 1888, L.J. Richards & Co., Philadelphia
History of the Militia and the National Guard, John K. Mahon 1983, MacMillan Publ. New York
“I am the Guard”, Michael Doubler 2001, U.S. Army Pamphlet No. 130-1, US GPO
“Delaware Militia” An unpublished manuscript by Raymond Wilson. 1940, Delaware Military Heritage and Education Foundation Archives
Delaware State Budget, FY 2012
“The Delaware Militia in the War of 1812”, Henry C. Peden attempts to list the name of every Delawarean recorded who participated in the War drawn from unit rosters, return of fines, courts martial and other archival documents. It is the most comprehensive available source for researching individual names.
Delaware Archives, Military Volume IV
A Brief History of the Militia and the National Guard, Renee Hylton-Greene, Major Robert K. Wright, 1986, Depts. of the Army and Air Force Historical services branch, National Guard Bureau.
Would you like to know more? We recommend the following book available at local Delaware bookstores and from Arcadia Publishing.
Delaware Army National Guard The Delaware National Guard traces its roots to 1655, when the Swedish Colonial government formed a militia to defend itself. That tradition carried through Dutch and then English control of the colony. The militia served in all five French and Indian Wars and then distinguished itself during the Revolutionary War as the First Delaware Regiment of the Continental Army, earning its "Blue Hen" nickname. The Delaware militia continued to serve in every major war, and currently it remains in the forefront. Images of America: Delaware Army National Guard presents images of this fabled organization that survived from the Spanish-American War to the present. The people, places, equipment, and facilities of the Delaware National Guard are illustrated in this compilation of historic photographs from the collection of the Delaware Military Heritage and Education Foundation.