The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-03-28

Is the National Guard of the several
states subject to the call of the presi-
dent of the United States for active
service in case of war?
In the present condition OF affairs the
above question has been so frequently
propounded to me personally and is SO
much in evidence in the newspapers,
that 1 beg an opportunity TO answer it
through the columns of The Tribune.
in doing SO I wish it clearly understood
that my remarks are addressed to the
legal merits of the question exclusive
ly. That the National Guard is com
posed of a body of noble patriotic
young men, who would gladly respond
to the call of the president in case of
emergency, 1 do not for a moment
doubt. They ought not and would not
ask the question above suggested.
Nevertheless the proposition as r. le-
gal question remains, and l discuss 1T
from that standpoint. with the purpose
of correcting a grave misrepresentation
as to the relations of the Guard to
the general government and a hope
that in so doing the way may be paved
for such remedial legislation on the
part of congress and the several states
as will put his splendid body of troops
or footing to be available for the
needs of the general government in
cases of emergency.
We have recently been formed with
the views of Major Morrison, Judge
advocate general, United States army,
wig, following almost identically the
views published year of two ago by
Lieutenant Colonel Tyler, judge advo-
cate general, division National Guards
of Pennsylvania, who holds that the
IL .laaV.
of the president at all times. The ar
guments of both of these officers has
gone astray from one common point,
viz: their failure to distinguish the
National Guard from the state Mill
tia" Major Morrison quotes the act
, of congress which defines the militia
TO be every able bodied male citizen
b of the respective states between the
ages of Is and AS" The acts of assem-
bly, of Pennsylvania and most of the
other states follows this definition.
THE NATIONAL GUARD.
The members of the National Guard,
in the language of Major Morrison, are
taken from "that great body of people
the militia-from which the armies
of the United States are made up"
But so are the members of the fire COM
panies of all our municipalities. the
private military companies and the
various semi-mlitary societies. Are
all these organizations subject to the
orders of the president for active SER
vice in case of war, because forsooth
their members belong to the militia?
An able-bodied citizen between the
nages of 1S and As in the uniform of a
National Guardsman is no more sub
sect to such military duty as a mill
tiaman, than he would be in citizen
clothes; no more than is a fireman or
any other citizen. What is the Ma
tional Guard?
1t is a body of men serving under a
contract of enlistment under certain
state laws which prescribe their term
of service and the character and limits
of their duty. The terms of this con-
J tract and the character of the service
are defined, prescribed and limited by
the \act Of assembly under which the
Guard is created and organized The
act of the general assembly of Penn
sylvania of 18th April, 1887 under
which the present National Guard Of
Pennsylvania exists, prescribes in Sec
ton 81 when this body of troops can be
called out for active service: when
an invasion of or insurrection in the
state is made or threatened ="
tUlS WIOIt ACT IIluSL DS itdu lIltO the
contract of enlistment of every man in
the National Guard of Pennsylvania.
Nothing can be added to it or taken
from it without violation of the con-
tract, which would be abborrent to one
of the most vital provisions of our
organic law, viz: the impairment of
a contract. The term of enlistment, as
provided by the above act, is three
years. No one would for a moment
claim that the state could by act OF
assembly, or in any other manner in
crease the length of this term, and
hold the men against their consent
This would be despotic violation OF
their contract of enlistment. If the
contract cannot be violated in one di-
rection, how can it be in another? II
would be no more an invasion of the
contract to arbitrarily enlarge the term
than to enlarge the scope and charac-
ter OF their service?
THERE IS NO LAW
But where is the law which enlarges
the scope of this service from state t.
national, conceding for the sake of the
argument that it can be done? Takinl
Pennsylvania as an example for all
the answer must be there is none
State legislation must necessarily bt
limited by state boundaries. The only
statutes of the United States, the Ac
of 1895 and it's various amendments, al
apply exclusively to the militia. NJ
man. enlists in the militia. He is
member of it by virtue of his citizen
ship. He is bound to its service, unless
exempted by law whether he will Of
no. There is not a syllable upon ou
statute books authorizing the presiden
to assume command of these various
bodies OF state volunteers in cases o
emergency. There has never been al