Wilmington journal., 1868-08-14
species of force, by whatever name it may be
alled, which has the characteristics of standing

species of force, by whatever name it may be
aled, which has the characteristics of standing
army.
In my opinion, the force proposed to be raised
by this bill has all the characteristics OF stand
ing army, and the Executive is subject to no
control as to the time or place whom where
within the limits of the State it Is to be used he
is clothed with the power, as its commander to
keep it ever io arms, and quartered wheresoever
he may think fit TO place II. He is the sole Judge
of the occasion or occasions, which to call
it forth, and he may use it for unlawful as well
as for lawful purpose He may march it or
camp it, in one body, or by detachments, lust in
| the same manner as the President may the stand
| ing army Of the United States.
| In my opinion, the state can keep no such BODY
of troops IN time of peace without tie consent of
| Congress directly given.
| The only form of military force which the State
under it's present Constitution can pretend to
create, Is militia and the state Constitution
while it expressly denOunces a standing body of
troops, fully provides for militia, under article
II.
In this article it is expressly declared that all
able bodied male citizens Of the State of North
Carolina, between the ages Of twenty-one and for
| ty years who are citizens of the United States
shall be liable to militia duty, unless exempted
| for ecrupes against bearing arms. And that 1.-The
General Assembly shall provide for the org ani-
zlng, armlng, equlpplnS and discipline of the mi
,a ad,9na and for paying the same when called into
| Comm ander in-chief aud have power to call out
the militia to execute the law, suppress riots Or
| llSuIrectlODs, ana repcl INVASION,
| NOW. supposlng the provisions IN the present
State Constitution to be lawful, it is manifest that
this is the only military organization which Ca n
have any constitutional existence in the State, in
| time OF peace, and the only military which
the Executive can wield to suppress internal dis
orders and preserve the peace ; and it is the Cnly
| one which the President of the United States can
| appeal to for similar purposes.
Ii it be lawful to raise the force proposed by this
! bill, it is equally 80 to organize many bodies of
| armed men, called by different names, aud spread
I 2 IL, 49,
constituting the material, of which the Legisla-
| ture is commanded to form the militia, shall be
consumed IN separate standing armies.
The Constitutions, both Federal and State, re-
| cognize standing troops and militia as the only
bodies of armed men intended to be allowed and
indeed, however artful may be the devices CT a
law proposing to embody any other kind of force
the organization. after ALL will te either stand
ing army. or body of militia men.
The force proposed by this bill cannot be mill
tia, because, even II We dlyest 1t OF it's standing
army features, still it cannot be militia for the
men to be selected and appointed by the Ere
cadice and not constituted OF the masses of the
citizens. Il is, III my opinion, unconstitutional to
constitute the militia of one parcel uf men, while
Others of like ages, and equally able-bodled are
excluded from service. And it is equally at vari-
with the Constitution of the State to require
any qualifications for the militia man, other than
those expressly declared in that instrument. 1t
is therefore unconstitutional to require of mill
tia man that he should have the qualification of
All elector, Or take the oath prescribed for an
elector. One qualification of an elector is resi-
dence in the State of twelve months under the
State Constitution. days residence of any cti-
Zeu of the United States qualities man for mill
tia duty.
[ have predcated my remarks upon the assump-
ton, that the provisions If the State Constitution
are valid and consistent with the Cons tuition of
the United States. But should do injustice to
the question am investigating if should fail to
call your attention to what follows.
The trainers Of the recently made Constitution
seem to have been ignorant OF the power of the
Federal Government over the militia and to
have assumed that the State might at all times
- provide for ganlzlng, arnling, equipping and
discipline Of the militia - whereas this very power
is given in the Identical words (omitting the word
equipping) by the Constitution Of the United
States Art l, Sec. 8.
It is true, that this power belongs to that class
which are called c0ncu11e1lt-concerningt the eXer
else of which by State, the question WAS "wheth
O. State Legislature had any concurrent power
remaining after Congress had provided, in it's dis
cretion for the case, and the conclusion was, that
when the Legislature of the Union has exercised
it's powers on given subject, the State power over
that same subject. which had before been concur
rent, was, by that exercise, prohibited" Kent
Com. part 2, Sec. s, p. 800.
Early after the adoption of the Federal Consti-
tuition, the act Of Congress OF May 8, 1892, was
passed, which prescribed that every free
able bodied white male citizen of the respective
and 45 should be enrolled in the militia and
that act proceeded to organize, arm and equip the
militia, and to prescribe its discipline. This act OF
Congress adopted by this State in December,
and all subsequent Legislation upon the subject of
the militia by the State was, and has been, merely
to enforce the act of Congress and Sin subordi
nation thereto"
The Federal Government has always main
tanned its authority to exercise the power of
" organizing, arming and dsciplining the militia"
The Constitution OF the State, therefore, Is as
powerless to abrOSate or modify any constltu-
tiOnal act of Congress in relation to the militia,
as is an act of the Legislature of the State. 1t
may be justly conceded however, that all legal
provisions by the Constitution respecting the
militia are capable of being suspended only by
Federal legislation, and bind the State Legislation
until they suspended by the legislation OF Con-
gress. Then State legislation, heretofore 1t has
done, may aid the Federal Government in carry
ing out it's organization &c. The Federal
legislation, which prescribes the age of militia
men, cannot be controlled by any State Constitu
ton. Every man, therefore, between the ages OF
18 and 45, who resides iu the State, yea. even
foreigner becoming resident, belongs to the
militia, unless he be exempted by Congress. Con-
sress has prescribed its exemptions, and they
cannot be increased or diminished without the
consent Of Congress. None are excluded by rea-
son of being ineligible to vote, by refusing to
| take any required oath, and none be where
Congress is silent.
All attempts of State to evade the provisions
of Congress by raising State Police force, or
select militia, other than that raised and organ
lied by Congress, are gross and palpable attempts
to set aside and override the just powers of the
Federal Government.
I have forbOrne in my argument to go step
beyond the que ston of the cOnstitutionalty OF the
measure proposed, because you have not request
ed it but | cannot omit to declare 1t as my most
solemn opinion that, if passed into law, it will
spread terror over tho State and produce much
moro bloodshed than it will prevent, and
open and aggrayate wound now nearly closed.
[ am truly yours,
3. F. MOORE
For the Journal