Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-04-09
"obssrved BY these courts is detailed with

all necessary perspicuity," P. 10.
Now it is to be observed that the learned
and distinguished Justice refers to no law
OF Congress, and relies upon none 10 which
specific provisions are made :" for drafting
: detacbing and calling forth the State
"quoias, cohen required by the President"
He evidently considers that this power is
included in the more extensive one of
calling forth the militia. Otherwise he
could not say that provision had been made
tor drafting, detaching and calling forth
the militia. unless the execution of draft
and prescribing the manner ID which it
should be made was Incidental to the pow
er OF calling forth.
Mr.. Justice johnson who concurred in
the decision of the court, but for some
what ditfenent reasons than those assigned
by Mr.. Justice Washington, makes use in
his opinion of the following: have no
doubt, that under the powers given the
President by the act OF 1895, and under
" the restriction contained In the 4th sec
"tion of that act, it was in the power of
"the President to have issued orders TO
"the Adiutant General Of Pennsylvania
"to bring into the field this quota of militia
sand to hare prescribed the manner in
"aohich they should be drafted and de-
" tached, and had this been done, every
"thing would have been sensible and con-
"sistent, and the exigencies of both these
claws would have been satisfied. 1t is
"obvious, that the act of 1914 recognizes
"the construction which makes the draft
sang and detaching as necessary to pre-
"cede the calling forth and if the power
to Gail forth existed in the President
alone, it would seem that the other sub
" ordinate, but necessary ancillary powers
{" to which this act has relation, must nave
$ existed 10 him also, and could be exer-
"cised by him under his authority only"
p. 43,
The act of April Is, 1914, here referred
to 6 .. s. s. at large 1874, ch. S2,) was
one in addition to that of February 2Sth,
1895. 1t prescribed the manner of con-
Quoting court martials assembled for the
trial of offences committed by "mil-
"itia drafted, detached and called
"forth for the service of the United
=" States But how was this militia
drafted or detaohed9 We're they not to
be drafted and detached under some law
of Congress? There is nothing in this
law or any other that designates the
drafting. and detaching, or calling forth,
there expressed as the grounds of iuris-
diction as a drafting &C., under the
laws of state" And to our minds it
| is clear that the act of 1914 was in
tended to provide for the punishment of
offences committed by militia drafted un-
der the law of 1875. And Congress must
have supposed that the President under
| that act had the power to draft and detsch
the militia, or it would not have referred
to them in the terms it has in the act of
1914. 1t is true Mr. Justice Story and an
| other Justice dissented from the decision of
the court in Houston vs.. Moore, but not
upon grounds or for reasons which weaken
its force upon the point we are nov consid-
eriDg. Justice Story held in effect that
Congress having acted upon the subject
and executed the power conferred upon it
by providing for the organization, arming
and disciplining the militia, and for calling
them forth, that this legislation was su.
preme and exclusive, and state power over
the subj ect prohibited. But this view, by
the csesrest implication, comedies the pow
er of the President to detach, draft and
call out the militia under the act of 1895.
A careful examination of Houston vs..
Moore will abundantly show that the judi
cial exposition of the legislation of Con-
gress upon this subject is not misappre-
hended.
Chancellor Kent speaking of the decis-
ION In that case says: The case of Hous-
ton vs.. Moore settled some important
questions, arising upon the national au-
" thority over the militia. The acts of
Congress already referred to, and the
g act OF Sth May, 1892 for establishing
g uniform militia, were considered as GOV
ering the whole ground of Congressional
Legislation over the subject. The man
ner in which the militia were to be or.
gained, armed, disciplined and gov
I" erned was fully prescribed; precision
q soas made for drafting, detaching and
calling forth the state quotas, when re
"quested by the President. His orders
we're to be given to the chief executive
6 magistrate, or to any militia officer he
might think proper. Neglect or refusal
g. to obey his orders was declared to be
"public offence, and subjected the offender
to trial and punishment, to be adiudged
by courS-martial, and the mode OF pro-
ceeding was perspicuously detailed" 1
Kent, p. 295, Eighth Ed.
Now if the construction placed upon the
act OF 1895 by the Supreme Court be cor
rect, then it follows as a necessary result
that no new or additional powers were
conferred upon the President by the clause
in the act of 1862 to which strong obiec-
tion is taken. For, according to that con>
struction, the Presideet as incident to the
power of calling forth the militia, or, In
| other words, there is included in that DOW
er the one to detach and draft the militia
and bring them TO the support and defense
of the United States. And this the Pres
ident may do without the aid or machine
RI Of any state legislation upon the sub
Ject whatever, by virtue of the provisions
of the act Of 1875. The federal govern
ment is clothed with ample powers of self
preservation and self defence, whether as
sailed by traitors at home or enemies
abroad. Full authority in respect to the
creation and direction of the national
forces Is conferred upon Congress. This
power has been as fully executed as Con-
gress deemed necessary by the enactment
of the law of 1895, and 1862.
If this view be rect the Question
may be asked why Congress INCORPORATED
such clause In the act of 1862? IF it
gave the President no new or additional
power III respect to drafting and calling
forth the militia, why incumber the statute
books with it, 1t is useless and idle and
can have no possible effect given it. The
reply to this objection is, that the clause
is not wholly useless, for by it Congress
clearly indicates an Intention that the
PRESIDENT should execute the draft accord
Ing 10 The state laws where any existed
h.