Mandatory Purchase of Private Goods

[Jason Mazzone]

In response to Professor Lash's question about enforcement: 

There was no mechanism under the Act for the federal government to penalize militiamen who failed to comply with the arming requirement. The operation of the law depended on the willingness of states to enforce the provision against their own militiamen. Some states passed laws imposing fines against militiamen who failed to equip themselves. However, because of the persistent shortage of arms, these fines produced little benefit. The ineffectiveness of the law produced constant complaints from Secretary of War Henry Knox, who authored the "Report of the Secretary of War respecting the difficulties attending the execution of the act establishing a uniform militia throughout the United States (Dec. 10, 1794)" on this problem.  By 1798, Congress had abandoned the requirement and equipped militiamen itself. 

Jason Mazzone
Gerald Baylin Professor of Law
Brooklyn Law School
250 Joralemon Street
Brooklyn, NY 11201
(718) 780-7514
jason.mazzone at brooklaw.edu
www.brooklaw.edu/Jason_Mazzone
________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Kurt Lash [Kurt.Lash at lls.edu]
Sent: Sunday, December 19, 2010 2:22 PM
Cc: conlawprof at lists.ucla.edu
Subject: Re: Mandatory Purchase of Private Goods

Yes, and the first congress established chaplains at government expense and many of these same folks passed the alien and sedition acts.  I'm not sure what this gets us in terms of textual interpretation.  Is the claim that this act establishes the original understanding of the ratifiers regarding congressional power to force commercial actions under any enumerated power?  How would that theory work?

It certainly does not effect the general claim that there is no judicial precedent on this issue.  In fact, I'm not sure these provisions were ever enforced (indeed, was there any enforcement mechanism?).  This may have been nothing more than "if you've got the proper equipment, please bring it."  Absent an instance of congress (or any official) punishing a failure to purchase, I don't think this even counts as evidence of Congress' understanding of its own power, much less the original understanding of the ratifiers.

Kurt Lash
Alumni Distinguished Professor of Law
Co-Director, Program on Constitutional Theory, History and Law
University of Illinois College of Law




----- Original Message -----
From: "Eric M. Freedman" <Eric.M.Freedman at hofstra.edu>
Date: Sunday, December 19, 2010 9:46 am
Subject: Mandatory Purchase of Private Goods
To: "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>

> (From a colleague who heard about it on a recent PBS program that I have been unable to track down so far) -E.
> 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 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. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; 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.