Quaker Enoch Lewis threw everything he had, rhetorically, at the Pennsylvania militia system. The excerpt I include below is only part of his argument against the state militia and compulsory service therein, that he put forth in his booklet Some Observations on the Militia System, Addressed to the Serious Consideration of the Citizens of Pennsylvania:
“If military preparations and a military spirit can be kept up only by the coercion of the consciences of the peaceful class, we can hardly acquit the system of the charge of doing evil with a design that good may come of it”
How then stands the law? Every able bodied white man, between the ages of 21 and 45, certain classes excepted, is to be enrolled as a militia man; no matter what his scruples with regard to bearing arms may be. If he does not attend at the place of training, he is noted as an absentee, and fined as a delinquent. Then in case he refuses to pay the fine, and property to answer it cannot be found, he is to be committed to the jail of the county, to expiate, by separation from his friends and business, the enormous crime of supposing he had a conscience which was not to be moulded by the legislature. Although the man who is conscientiously scrupulous of bearing arms is not to be compelled to do so, yet his refusal, however conscientious it may be, is visited with as severe retribution as would be extended to the cases where compulsion is directly authorized. The exaction of fines, with the accompanying train of seizure and imprisonment, must be designed for one of the following purposes: 1st, to drive those to the place of training who would not otherwise attend; 2nd, to punish an imputed delinquency; or 3rd, to raise a revenue.
If the first is the object in view, the process is compulsory; and when applied to those who refuse compliance on conscientious grounds, a direct violation of the very article of the constitution which is brought forward to sustain the procedure. It will probably be said that the fines are small, and that imprisonment for nonpayment is not very common. I am speaking of the law as it stands, not of the mildness or severity with which it is executed. It is not so much the amount of the fine or the length of imprisonment, to which I object, as the principle of them. If a small fine, and a short imprisonment, may be constitutionally imposed, merely for refusing to violate the conscience, the penalty may be augmented at the discretion of the legislature. If the constitutional barrier is once overleaped, where are we to stop? If the legislature has a right to compel the citizens to learn the art of war, the declaration of the constitution to the contrary notwithstanding, it appears to be a necessary concomitant of this right, that authority should be possessed to increase the penalty of noncompliance to a sufficient extent to operate as an efficient compulsion. Would not a law directing the delinquent militia man to be shot be as defensible on constitutional ground as the law in force? We have indeed no cause to fear the enactment of such a law in this state. No Pennsylvania legislature would allow such a bill to pass to a second reading. Besides there would be lean picking from its execution, if it could be enacted. But still, if those who are liable to militia service, and cannot, for conscience’ sake, comply with the requisitions, suffer no great inconvenience from the operation of our present militia system, it is not owing to the provisions of the law itself, but the opinions and habits of the community. A man who is enrolled, and does not when called appear in the field, is liable to be annually called upon for a fine, which, if not large, is still large enough, in case it is not paid, and property cannot be found, to send him to jail, and detain him there during thirty days. A twelfth part of a year, spent within the walls of a prison, if annually repeated by the same individual, would be no trivial waste of existence. And, in fact, imprisonment on that account, is not a rare occurrence. I am acquainted with a young man of respectable family, who, though only about twenty-four years of age, has been three times imprisoned for refusing to pay the fines imposed on account of absence on the days of training. And this was done in the city of Philadelphia, when neither war, nor the prospect of war, offered any excuse for disturbing the peaceful citizens in their usual avocations. Nor is this a solitary instance. Will our legislature continue to support a system, which frequently exposes our young men, not only to the hardship, but to the contaminating influence of a prison, for no offence but an adherence to their religious principles? While strenuous efforts are making in various parts of the Union to abolish imprisonment even for just and unquestionable debts, must Pennsylvania lag so far behind in the march of civilization as to incarcerate her sons for presuming to exercise a right which is solemnly declared to be inherent and indefeasible?
If the object is to punish a delinquency, it savors very much of persecution, when the conduct punished is the result of conscientious persuasion. The rights of conscience are declared inviolable, and the scruple to bear arms is expressly tolerated, and therefore cannot, within the meaning of the constitution, be considered as a crime. Besides the very design of punishment merges this object in the former, and becomes a compulsory process for driving men to the field of training.
If raising a revenue is the object or enters into the motive, it is a pity but that object was distinctly avowed in the preamble. Would the citizens of this commonwealth tolerate a law for raising a revenue out of the conscientious persuasions of a part of the community? Might we not as well be taxed for refusing to attend the theatre, or to purchase tickets in the state lottery, provided that refusal is a conscientious one? A law imposing a tax or fine on either of these accounts, would have one thing to recommend it which our militia law has not, it would not directly violate an express provision of the constitution.
But it will be urged that the constitution declares, that those who conscientiously scruple to bear arms, shall pay an equivalent for personal service, and, therefore, the legislature has no authority to grant the exemption for which I contend. But will it be pretended that the legislature must require every man who conscientiously scruples to bear arms, to pay an equivalent for personal service? The duties of the legislature are always construed with a grain of allowance. This article must convict every legislature of this state, during the last forty years, of neglect of duty, or be construed as indicating what may be, rather than what must be done. If laws must be made requiring the freemen of the commonwealth, who are conscientiously scrupulous of bearing arms, to pay an equivalent for personal service, that law must be general and include them all, for no exception is made in the constitution. But no such complete inclusion is to be found in any militia law ever enacted under this constitution. But does our present militia law require an equivalent for personal service, and for personal service alone? For we observe, that the authority is confined to that equivalent, and has no application to any thing but personal service. Can personal service be required or rendered in time of peace? What is personal service? It certainly requires no great share either of learning or sagacity, to distinguish between training as practised in time of peace, and actual service. And yet it is only by confounding them that the sixth article of the constitution can be pressed into the service of our militia system, as now applied in time of peace to those who are religiously restrained from bearing arms.
In the constitution of the United States, art. i. sec. 8, congress is authorized to “provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” This is their service. And in the next paragraph, “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 of training the militia according to the discipline prescribed by congress.” In the second article, second section, “the president is made commander in chief of the army and navy of the United States, and of the militia of the several states when called into the actual service of the United States.” Here training according to the discipline prescribed by Congress, and the service of the United States, are clearly distinguished and placed under different authorities.
The militia law of , now in force, after prescribing the course to be pursued in the organization and training of the militia, with the assessment, collection, and disposition of fines, proceeds at length in section sixty-one, &c. to describe the process, in case they should be required, for the service of the state or of the United States. In that event a particular classification is required. The occasions on which the governor may call the militia into actual service are also stated, in section sixty-two, to be, a rebellion or an actual or threatened invasion of this or a neighboring state. It therefore appears, upon the very face and front of this militia law, that no authority can be derived from the constitutional provision, that those who conscientiously scruple to bear arms shall pay an equivalent for personal service, to make such demand from that class of citizens in time of peace; for the militia are only to be called into service in case of a rebellion, or threatened or actual invasion of this or a neighboring state. If the legislature possessed authority to order fines to be assessed and collected from those who, from conscientious motives alone, absent themselves from the field on the days of training, that authority must be drawn from some other source than the sixth article of the constitution.
It is indeed difficult to conceive, that such a company of talented men as those who formed the constitution, would prohibit the legislature from compelling their peaceful citizens to learn the discipline of war; and yet in the same paragraph require, not merely permit, the adoption of a course towards the same class of citizens, substantially the same as one described in another part of the same instrument as a compulsory process.
The absurdity of confounding militia trainings with personal service appears from other considerations. Where there is a debt there must be a creditor. But to whom is the equivalent in this case properly due? It cannot be to those who attend on the days of training; for on the principles assumed they are required to learn the discipline independent of pecuniary compensation, and in fact never are paid for the time thus employed. It cannot be due to the government; for the government incurs no expense in consequence of the absence of those who are enrolled. A large amount, it is true, is annually drawn from the public treasury for the support of this system, but that expenditure would not be diminished by increasing the number of militia men actually present on the days of training. But supposing the government to be admitted as the creditor, not of right, but because no other can be found, still a difficulty remains. How shall we assess the debt? Where an equivalent is demanded, it would appear that something had been given or withheld on which that equivalent was estimated. Shall we include in the account the loss of time, the neglect and consequent derangement of business, the actual disbursements, the injury to health and morals, always attendant upon military reviews; adding a reasonable percentage for those who attend merely as spectators; and from these data compute the amount saved by each enrolled militia-man who remains at home in the sober pursuit of his usual avocations? If these are the data upon which the equivalent is to be computed, the usual estimate is certainly too low. Those who withhold the service and pay the fine, one dollar per diem, do not pay an equivalent. If we estimate the equivalent by computing the value of the military science usually acquired, or which can be acquired, under the existing militia system, during the time allotted to these exercises, the estimate is unquestionably much too high.
What, then, it maybe asked, is the meaning of the above quoted section? This section, I acknowledge, does not admit of a construction in perfect unison with the principles announced in the ninth article, but it certainly admits of one consistent with itself. The section taken alone involves no contradiction. It tacitly assumes, what is unquestionably the fact, that a large part of the freemen of the commonwealth are not religiously restrained from bearing arms in defense of themselves or the government. It was undoubtedly designed that among these a sufficient share of military discipline and skill should be maintained to answer the purpose of an efficient defense. Or, in other words, that a competent force should be provided from among the freemen of the commonwealth to support the laws and prevent or repel invasions. The manner of effecting this object was left to the discretion of the legislature. But, assuming again another well known fact, that there are persons within the state who are conscientiously opposed to bearing arms, the legislature was prohibited from laying on them any obligation to learn the art of war. In the exercise of discretion, and the choice of means to arm and discipline the freemen of the commonwealth for its defense, the authority to compel that particular class of citizens to learn the use of arms, was excepted from the powers of government. This relates to a state of peace and preparation for contingencies. In case the militia should be called into service, to fulfill the objects for which the previous exercise was designed as a preparation; those who would not, or who, for conscience’ sake, could not, bear arms themselves, might be required to pay an equivalent for personal service: or in other words, pay the expense of hiring substitutes. There the object and the amount are appreciable. Upon the policy assumed, the men required for the service of government must be had, and if not made up by drafts of the militia, the deficiency must be supplied by those who can be hired for the purpose. The expense thus incurred, is, by this article of the constitution, liable to be thrown upon a class of freemen, who, but for their conscientious scruples, might be called to fill up the ranks.
Inasmuch as those who withhold their support of military measures on religious grounds, are, many of them, equally scrupulous of employing substitutes, this sixth article of the constitution does not, upon the construction here offered, put that class of citizens into complete possession of rights asserted in the ninth article. It is understood that among the inhabitants of Pennsylvania there are some who are scrupulous of bearing arms themselves, but not of employing substitutes. To such as those the constitution appears capable of affording complete relief, without bringing any of its provisions into collision with each other. An equal relief would, it is believed, be afforded in time of peace, to all classes who conscientiously scruple to bear arms, if a just construction was given to the sixth article, without looking into any other part of the constitution. But when we look into the ninth article, already cited, and observe the solemn manner in which the rights of conscience are declared; we cannot fail to admit that those rights are placed beyond the control of the legislature. The power delegated to any branch of government does not include authority to infringe the rights of conscience. If, therefore, the civil power is preserved in time of war as well as peace, the limitations as well as the grant of authority must still be regarded by every department of the government. Consequently, the provisions of the sixth article, whether applied to the state of peace or war, must be subject to the paramount authority of the ninth. Such freemen as cannot be compelled either to bear arms or to pay an equivalent, without infringing the rights of conscience, are, by the general declarations of this article, exempted from such requisitions.
If, however, this construction of our constitutional rights should not be admitted; but a right be asserted to impose upon every class of citizens a share of the burdens of war, when it actually exists; still it may be hoped that the only article of the constitution which appears to authorize the practice, will be no longer tortured to support a procedure which it clearly and pointedly prohibits. If those who conscientiously scruple to bear arms should be no longer compelled, as far as legal compulsion can readily extend, to do so, but be required only to pay an equivalent for personal service, this partial recognition of the rights of conscience would relieve the advocates of universal peace from encountering, during the time of national tranquillity, the burdens and vexations of war. It would permit the supporters of the warlike and pacific policies, respectively, during the time of peace, to pursue their favorite plans; the one class might learn the art and discipline of war, and the other cultivate the arts of peace, without collision. This, we observe, is not a new Utopian project, but a sober exposition of the constitution.
It will probably be objected, that if every man who professes a scruple with regard to the use of arms, was excused from military requisitions during the time of peace, the military art would be neglected and the nation left without its proper defense. A neglect of the military art might, perhaps, in some places be the consequence; but the experiment has been tried, in other states, without any disastrous result. It was long tried in Pennsylvania, and the colony was not ruined by it. If military preparations and a military spirit can be kept up only by the coercion of the consciences of the peaceful class, we can hardly acquit the system of the charge of doing evil with a design that good may come of it. If on trial this result should follow, the experiment will prove that the military spirit is of artificial growth, requiring the warmth of national excitement for its support. It is also important to remember that with the decline of the military spirit the occasions of war also diminish. A disposition to prefer the arts of peace to the pomp of war and warlike exhibitions, is one of the best securities of national tranquillity. Happily circumstanced as we are in this country, while we maintain peace among ourselves, and extend impartial justice to other nations, we have little to fear from foreign aggression. The rich commerce of the United States must be of more value to other sections of the globe than any thing that hostile invasion can promise to avarice or ambition. But the sound of warlike preparation, and the frequent exhibition of military parades, are of themselves unfavorable to the preservation of peace. They excite an ambition of military fame; and ambition of every kind naturally seeks a field in which to display itself. When the master spirits of a nation become ambitious of military distinction, there is little hope that the people will be long permitted to repose in peace. Causes of dispute are easily found when there exists a high tone of national feeling and military pride.
But to return to the constitutional provision under review. It might be reasonably expected that those who plead this provision as an excuse for the imposition of fines upon the conscientiously scrupulous, as well as others, would be prepared to show that the means adopted for attaining the object proposed by the convention, were suited to the end. Are the freemen who conform in every respect to the requisitions of the militia law, disciplined for the defense of the commonwealth? Do those who attend on the days of training, join the ranks, and perform the evolutions required, actually learn the military art? To urge the obligation of requiring an equivalent from those who are absent, while those who are present neither perform any service nor acquire a capacity for doing it, is to trifle rather than to argue. When we look at our present militia law, so far as it appears applicable to a state of peace, and observe the minuteness of its provisions; the careful formation of the state into military divisions; the organization of brigades, battalions and regiments; the appointments and duties of officers; the pains taken to secure the enrolment of all the citizens liable to perform militia service; the assessment and collection of fines; and all the etceteras running through about forty octavo pages, and then reflect upon the result, even in a military point of view, of all this legislation, this cumbrous and expensive machinery, we may well exclaim, in the language of Horace,
Farturiunt monies nascitur ridiculus mus.
These excerpts can also be found in the book American Quaker War Tax Resistance.
Here, Lewis goes on to demonstrate that the militia musters are “a ridiculous farce” that members of the regular military look on with contempt as a parody of serviceable military training.
If we attempt an estimate of the expense, in a pecuniary point of view, and confine ourselves to the state of Pennsylvania, we shall find it too great to be increased without a strong probability of some important advantage resulting from it. Assuming the report of the adjutant general as a full account of the enrolled militia, or of the number liable to be enrolled, and estimating the value of their time, as the legislature would appear to have done, at one dollar a day, the amount thus appropriated annually would be 366,580 dollars. But militia trainings always draw numbers of spectators, whose time is also lost. The militia men are frequently less fit than ordinary for their usual employments a day or two after their training is over. The actual disbursements, beyond what the usual routine of business requires, are often considerable. If for these various articles we add twenty-five percent, the amount will be 458,200 dollars. This calculation, it is true, is founded on the supposition that all who are enrolled are obedient to the requisition; a supposition confessedly incorrect. But as those who are absent are liable to a fine of the amount first stated; and those fines are often collected at a heavy sacrifice on the part of the sufferers, besides the time employed in assessing and collecting these fines, must be charged to the system; and the absent militia man, if he has no tangible property, may be confined thirty days to a prison as a counterpoise to his two days of training; there appears no reason to reduce the estimate on these accounts to a lower aggregate.
And it just keeps going from there. But I’ve tried to chop it down to the bits that most directly address Quaker aversion to paying militia exemption fines.
Lewis’s argument is a good preview of a debate that would happen when Pennsylvania held a convention to amend its state Constitution. Then, too, the debate over what concessions would be granted to Quaker conscientious scruples against militia service would become tangled up in the debate over whether the militia trainings were worthwhile at all or had become “a ridiculous farce” that should be abandoned.
