Evening star., 1898-04-01
RIGHTS OF MILITIA
Cannot Be Sent Outside the Coun-
try.
II DEPENDS ON TEE CONSTITUTION
Oath Taken by the Soldier is I'm
material.
MAJOR MoRR1soN's VIEW

Major J. N. Morrison. the principal as
sistaht Of tie judge advocate general of
the army, has recently made careful
study Of the question Of the obligations Of
national guardsmen to service in the ma
ti0nal defense in case Of actual war. A
Star reporter had talk with him on the
subject today, in the course of which he
made several interesting observations.
Lack Of uniformity in many of the
states in the matter Of the requirements
and obligations attached to the enroll
ment or enlistment in the militia" he
said, cannot affect the question as to
hcw far some of the states would consider
themselves legally bound controlled by
the Presidents authority; nor Is this
question affected by the fact that the oath
taken by the organized militia in some of
the states Is an oath of allegiance merely
to their respective states, while in others
the oath includes also allegiance to. the
United States. The states are legally
be und in this matter, not by their own
statutes at all. but by the federal Consti-
tuition, and the statutes enacted by Con-
gress pursuant thereto. The Presidents
power to call the militia of the states into
the service Of the United States Is not i'm
piled from the fact that the Constitution
gives him authority over the militia when
called into the service. The power Is ex-
pressly given to him by federal statute
enacted pursuant to the provision of the
Constitution that gives to Congress power
to provide for calling forth the militia.
Congress, when it came to exercise this
power so given it, selected the President
the proper person and expressly pro-
vides by statute that he might call forth
the militia of the states into the service of
the United States and use them for the
purposes mentioned in the Constitution.
viz, to enforce the laws OF the United
States. SUPPRESS iQSllrrectiOn. and reDel In
INVASION And the states and the people
of all the states are bound by these laws
and the Constitution. and must obey them
without regard to what their own state
statutes may be.
The Oath Immaterial.
1.-THE oath taken by the militiaman, or
whether he takes any oath at all or not.
is absolutely immaterial to the matter un-
der consideration. In fact, the oath is
immaterial anyway. and unnecessary.
When the militia of the states are taken
into the service of the United States they
are simply ordered in. and asked no ques-
tions. They, or at least many of them.
are often entirely willing, and in such
cases they are delighted to receive the
order. But they are. nevertheless, taken
alcng and not consulted as to their wishes;
and If all of them were to refuse to take
any oath at all it would be all the same.
They would be taken along anyhow. And |
it would probably make no difference in |
their SerV1ce. IQe Oath Is merely formally
calling God to witr.ess the mans prom |
ise that he will do certain things that he is |
already under obligation to do as citizen |
of the country and soldier in its service. |
II Is no part of any contract to serve. The |
law makes the militiaman's contract for |
him.
Rights of MiIitiamen.
"Whether the President could force the |
militia of the states to go to Cuba or Spain |
invading army is not a military, but
a constitutional question: question of the |
constitutional rights Of the citizen and SOL |
dier. and of the constitutional power of |
the President over him. If the order |
should be given for the militia to go and
no one among them should decline to obey, !
the question would not of course be raised; |
but if any should decline to obey the queS-
ton would arise as to the power to force |
them to do so, or to punish them for dis |
obedience. The authorities are to the ef- |
feet that the power does not exist 1t is
held that the civilian soldier is only for |
the three purposes mentioned by the Con- |
stitution-to enforce the laws, suppress in |
surTection and repel invasion-and that
there is power in the national govern |
ment to use him otherwise. And each mill |
tiaman can claim his rights separately and |
on his own volition; and this makes the |
state militia, used as such by the United
States, an unsatisfactory part of an army |
in a war with a foreign nation, except that |
for temporary use in the commencement Of
the trouble they might prove invaluable,
owing to the promptness with which they
can be utilized to repel invasion and to Or
ganize a volunteer army.
whether particular militia would go
beyond what the law required of it would
not necessarily be determined by its state,
the governor Of its state or its militia OFF,
GERS. AS already Indicated each man could
and would determine for himself when the
occasion arose. 1t Is therefore, it seems to
ne. not safe to depend on them for any
thing except what the law requires OF
them. My observation and reading have
led me to believe that they are as apt to
fall a little short of their full duty under
the law as they are to go beyond it-tflat
is. to go beyond it by practically unani-
nous consent; and IL they are not prac-
tically unanimous in such matter and
under such circumstances they are worse
than useless as military force. That has
been fully demonstrated several times in
this country. In one notable instance that
may be mentioned large body of the mill
tia Of Pennsylvania declined, under extra
ordinary circumstances, to do what the
law plainly required of them, and If 1t had
not been FOR the tact and resourcefulness
or President Lincoln their declination
would probably have led to serious trouble
and possibly to great damage to the fed
eral forces.
The Unwilling Pennsylvaninns,
1T was on the occasion of the invasion
of Pennsylvania by the confederate army
In the summer of 1868. One would have
thought that no loyal citizen of Pennsyl-
vania would have raised any legal bubble
at such time; ard great many did not.
But there was considerable number. rum
ning well up into the thousands, of the
Pennsylvania militiamen who refused to
go into the service of the United States to
repel that INVASION when they were called
out for that purpose by the governor, June
10, lS6S pursuant to call made by the
President on the same day. They were
willing to take up arms to repel the in
vasion. but they preferred to do it in the
service of the state for fear that IL they