The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-03-31

Territorial Limits OF the united
states as lie May Designntc--so
Asserts the War Department--Judge
Advocate Generals Opinion.
In view Of the doubt expressed in the
recent communication from Colonel
Hitchcock as to the presidents legal
rights to order the National Guard to
do military duty outside the state, and
with view to setting this point at
rest, we print below the full text of the
pamphlet issued by the War depart
ment at Washington and embodying
what by its official sanction must be
considered the operative law in the
premises:
The following memorandum was pre-
pared for the military Information dlVl-
sion of the adjutant generals Office, by
Lieutenant Colonel George Il. Davis
deputy Judge advocate general, proEes-
sor of law at the L. S. Military acau-
envy. in response to the following ques-
tions:
l, If the president of the United States
should call out the militia Of nc state
for duty in another, would II be ne ,2ssatN
that it lie mustered into the general ser
vice by any oath olher than that ad-
mnistered TO the II en- as militia'uc ~
their own staCe?
2 Does the call of the president noccs-
sarily have to be through the governor or
the state?
g. In calling out the mi \ would 1t
be within the powers of the president 10
designate certain organizations, or would
he have to limit himself merely to making
a rcqustion for a certain number OF
men?
MEMORANDUM.
The existing militia organization in the
United States dates from the act of
May 8. 1892 Il Stat at Large 21; sec.
1925 Rev. Stat), an enactment due 10
the pressure occasioned by the Indian
war in Ohio. which terminated in the
disastrous Cefeat inflicted upon the forces
under General St. Clair, at the headwat-
ers of the Wabash river, on November
4, 1871. The question thus forced upon the
attention of congress was one extremely
difficult of solution, las well on ac-
count of the conflicting claims of the
states and the general government, as
by reason of obstacles to be overcome In
establishing any system that would pro-
duce an effective force QHildreth, Hist.
L. s., Vol ", p. 3l0). The statute thus
enacted, however, as modified in some re-
spects by the act of February 2S, 1895 q
Stat. at Large, 42i; Secs 1912. 1914, 1916,
1919, Rev. Stat), "still remains, in spite
of numerous attempts to amend 1t. the
basis of the militia system of the Uni
ted States Nv Hildreth, 31O).
Before attempting to answer the ques-
tOns proposed, it will be well, perhaps,
TO discuss somewhat briefly the nature
and character of the military force Gre
ated by the enactments above cited. In
all modern states a military force is OBJ
tained by resort to one, or both, of two
systems: (a) the enlistment of volun-
teers; (bD compulsory military service.
In some states a combination of these
methods obtains to limited extent; a
portion of the personnel of the army be-
inG obtained by voluntary enlistments,
and a larger portion by conscription-a
method resorted to wherever a compul-
sorry system of military service prevails.
Such a combination of methods, how
ever, Is usually regarded wherever 1t eX-
lists, as a matter of eApediency or policy;
the general practice being to resort to
one of the above methods, to the more
or less complete exclusion of the other,
as a means of maintaining an adequate
military establishment. The militia law
of 1892 is an example of the compulsory
method; the personnel of the military
force thus created being declared to con-
SiSt of "every able-bodied male citizen
of the respective states, resident there
in, who is of the age of eighteen years,
and under the age of forty-five years.
and this body of citizens, the statute
goes on to say "shall be enrolled in the
militia" (Act May s. 1872. l Stat. at
Large, 27D.
VOLUNTARY ENLISTMENT.
The methods of obtaining military
force which have been described differ
materially in their application. If the
method by voluntary enlistments be re-
sorted to. recruits are obtained by means
of agreements, voluntarily entered into
to which the government and the recruit
are tho contracting parties. These
agreements are called enlistment con-
tracts, and the nature Of the undertaking
is such that an oath of allegiance OF
fidcljt! is everywhere deemed essential to
their validity and completeness: this
for the reason that the persons who thus
voluntarily enter the military service are
not in thus enlisting performing the
duty OF defense which is incumbent upon
al citizens, as consequence of their
allo ogiance, but are voluntarily establish.
inc a Contractual relation with the state
which they propose to serve, which is
quite Independent of the duty of defense
above referred to- and is for that reason
rc-erforced and supported by the solemn
sanction of an oath of allegiance ol
fidplit.
Mnere the compulsory method is re,
sorted to. the obligation of the citizen &c
render military service, in return fo- In,
protection which the state affords hin
both in person and property, is every
where regarded as the basis of the an
thCr'ty for requiring from the individua
the performance Of military duty. This
prime iTle undeTlieS all constitutional pro
| visions, and is the basis of organization
| of ali modern states. In the seVera
statutes constituting the militia this oh
legation is recognized in the declarat tior
| hat the militia shall consist "of every
| able-l odied male citizen of the respectiv,
| states, resident therein, who is of IN,
| age of eighteen years. and under the ag,
| of forty-iive years. and i'm the additiona
| requirement that such persons shall b,
| enrolled in the militia" (Act Ma,
| s, 1882 / Stat, at Large, 27D. 1t viii
| be observed that nothing is left to tn,
| initiative of the individual, or is mad
| to depend, in the slightest degree, upol
| the discretion of the citizen: the prln
| clple of compulsory service Is explicit,
| recognized, and method of requiring th
| performance of such service is provided
| by law. Bearing i'm mind what has beer
| said as to the mutual relations whicl
| exist between the individual citizen an,
| the state or body corporate of which N
| IL member, II would seem clear that ;
| formal oath of allegiance or fidelity coul,
| add nothing to the obligation to defenC
| the state, by rendering it military ser
| vice which IL indicated and made in
| cumbent upon citizens of the Unite,
| States by the statutes above cited.
| NO NEW OATH REnIrI1prTn