Mineral Point weekly tribune. (Mineral Point, Wis.) 1859-1868, 1863-04-08

observed 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
u o0EgfUss xnd 191f1eg p0d n0ne M which
specific provisions are made IS for draf fling
8 eietaching and calling forth the State
= 1s0tds. ssten ssfujAed By the President"
He evidently crusaders that this power is
Included in the more extensive one of
calling firth the militia. Otherwise he.
could not say that provision had beenmadei
for drafting, detaching and calling forth
the militia unless the execution of asdraft
and prescrioingthe manner in 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 diffsnent reasons than those assigned
by Mr.. Justice Washington, makes use in
HE opinion OF the following: have no
" doubt, that under the powers given the
President by the act OF 1875, and under
" the restriction contained in the 4th Sec
" ton of that act, it was in the power of
" the President to have issued orders 10
ssthe Adjutant General of Pennsylvania.
"to bring into the field this quota of militia
sand to haze prescribed the manner in
: sohicA they sAousd be drafted and de-
6 tached, and had this been done, every
"thing would have been ensible and con-
" sisteut, and the exigencies of both these
flaws would have been satisfied. It is
" obvous, that the act of 1914 recognizes
"the construction which makes the draft
" ing and detaching - necessary to pre-.
"cede the calling forth and if the power
ssto call forth existed in the President
"alone, it would seem that the other sub
" ordinate, blt necessary ancillary powers
81 to which this act has relation, must have
6 existed in him also, and could be exer-
"cised by him under his authority only"
p. 43.
The act of April IS, 1914, here referred
to g q. S. 8. at large 134, ch. S2,) was
one in addition to that of February 2Sth,
1895. 1t prescribed the manner of con-
Quoting court martials assembled tor the
trial of offences committed by "mil-
g itis drafted, detached and called
"forth for the service of the United
I" States" But how was this militia
drafted or detached7 We're they not to
be drafted and detached under some law
of Congress- +" There is nothing in this
+" law or any other that dssignates the
" drafting, and detaching, or calling forth,
" there expressed rs the grounds of juris-
Sc diction as drafting &C., under the
" laws of state" And to our mind. 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 1795. And Congress must
have supposed that the President under
that act had the power to draft and dstsch
the militia, or it woulG not have referred
to them in the terms it has in the act of
1914. 1t is true Mr.. Justics Story and an
other Justice disssntsd 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-
ering. 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 c:eArest Implication, comedies the pow
er of the President to detach, draft and
cali out the militia under the act Of 1895.
A careful examination Of Houston vs..
Moore will abundan.ly show that the judi
clal exposition Of the legislation of Con.
gress upon this subject is not misappre-
hended.
Chancellor Kent speaking of the decs-
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 act. of
Congress. already referred to, and the
{" act OF Sth May, 1892 for establishing a
g uniform militia, were considered As GOV
C 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
erned was fully prescribed !; precision
soas made for drafting, detaching and
calling forth the state quotas, when re
quested by the President. His orders
" were to be given to the chief executive
magistrate, or to any militia officer he
" might think proper. Neglect or refusal
" to obey his orders was declared to be a
public offence, and bjectsd the offender
| s to trial and punishHsnt, to be adjadged
Z" by court-martial, and the mode OF pro-
" ceeding was perspicuously detailed"
Kent, p. 2S5, Eighth Ed.
! Now if the construction placed upon the
act % 1895 by the Supreme Court be cor
| rect, then it follows as necessary result
| that no new or additional powers were
| conferred apon the President by the clause
in the act Ct 1862 to which strong objec-
ton is taken. For, according to that con-
struction, the Presdeet as incident to the
power Of calling forth the militia, or, in
other words, there is included in that pow
| 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
ry of any state legislation upon the sub
ject whatever, by virtue Of the provision.
of the act of 1895. The federal govern
ment ia 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 1869. go
If this view be rect the question
may be asked why Congress incorporated
such clause in the act of 1862 If ii
gave the Presidents no new or additional
power in respect to drafting and calling
forth the militia, why incumber the statute
books with it2 1t is useless and idle and
can have no Doasi HE effact pivAp II The