The Indianapolis journal., 1898-04-07
MILITIA AND THE PRESIDENT.
His Authority to Call 1t Into Service
and Control It's Movements.


The Army and Navy Journal has reopened
the discussion as to whether or not the
President has the authority to call into
active service as an organization the Ma
tional Guard, and it quotes some excellent
authorities on the subject.
Every man between the ages of eighteen
and forty-fve, and who is not included in
the exemptions provided for by law, is
national militiaman, subject to the orders of
the chief executive of the Nation whenever
he thinks proper to issue them. This paper
says:
Col James NJ. Rice, of Illinois, who has
given much attention to this subject, holds
tonal Guard is just the kind of organization
that was meant in the Constitution by the
term militia, and that all members of the
National Guard are mlitiamen The ex-
emption from service in time of peace pro-
vided for by the laws of the United States
include, as Colonel Rice thinks, all but the
emption by entering the service, are sub
ject to the orders of the President when
called for. Colonel Rice says: Neither he
nor the State can so amend the Constitu-
ton and laws of the United States that he
can be a member of the State militia for his
own private ends and the ends of the State,
but not member for national purposes
Many of these questions were most care
fully discussed by the ableSt of jurists in
the tn case of Dunno VS., the People, in Vol. q.
Ill. Supreme Court Reports. PIP. 40 to AL
In that case the court says: Our under
standing is the organization of the active
militia (National Guard) of the State con-
given of militia. Authorities to sustain this
decision are innumerable, which is the only
reason they are not cited here Whatever
the respective States have made their or
ganized militia to be, that is the militia that
the President may call into the service Of
the United States, and he can call no other.
That in my State is the National Guard.
. Some of our correspondents advise us
that constitutional lawyers do not agree
with u.s. SO much the worse for the consti-
tutional lawyers. We remember that these
interpreters of the Constitution, North and
south, during our civil war. held that pret-
" much everything that was done was un-
eonstitutional-but it was done all the same.
Ihe precedents from England of two or
cited, have no application Aside from the
TACT that they are out of date. they cannot
apply to laws enacted by the American
congress, and clearly interpreted by the
Supreme Court of the United States"
Another point in the discussion is that of
the authority, OF the President to send the
militia outside the limits of the United
states for service, and it has been asserted
that the militia could only be used after
they had formally volunteered for such
services. The Army and Navy Journal says
that there is no such provision in the stat
utes and that when the militia passes into
the service of the United States it comes
under the military law, and that it is solely
within the discretion of the constitutional
commander in chief to determine what it
shall do and where it shall go. The paper
says:
TT is held that in matter which the law
We the sa of he Hg he or nre
er head of a department on any question
of fact involved is conclusive and is not
subject to review by any authority in the
United States. If the President calls the
militia and if he or any officer acting in his
name decides that, in order to repel inva-
sion, it is necessary to send militiamen out
of the country, who is to review that con-
clusion of fact? We again repeat, therefore,
that once in the service, militamen are
subject in all respects to the same control
as the men of the regular army. In the
case of Fleming VS.. Page, Howard, 6O3-6l5.
mander in chief. is authorized to direct the
movements of the land and naval forces
placed by law under his command, and to
employ them in the manner he may deem
most effectual to harass and conquer and
subdue the enemy. He may invade the hos
tile country and subject it to the sover-
eighty and authority CT the United States.
These conclusions of the Army and Navy
Journal agree with the opinions of the best
informed army officers who have been
quoted recently on this subject, although
for many years national guardSmen have
asserted that they were enlisted for service
in their own State alone, and that any serv
ice outside of the State must be purely vol
untary.