The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-03-31
PRESIDENTS POWER
TO COMMAND GUARD
concluded from Page 81

1iton precedent to the rendition of the
service; there is certainly moth
ing in the statutes which makes the ad-
of any form of oath neces-
sary. Nor is there any requirement OF
statute which makes it obligatory upon
the president of the war department to
require the administration of an oath of
allegiance to troops of the militia upon
their entry into the mInCary service OF
the United States. 1.-THE president has
no original authority over the militia by
right of his office. He can only call them
out when congress provides for his doing
SO as the agent of the United States for
such purpose. When the call is complied
with. the militia becomes national mill
tia, and he becomes their commander in
chief" Oig. ]. A. Gen. 5l9, par. %
The practice of the war department,
however, has not been in accordance with
what has been said above in respect to
the necessity of administering an oath
of allegiance. At the outbreak of the
War of the Rebellion a portion of the
militia was called into the service of the
United S'ates in pursuance of the proc
lamation of the president of April II,
1861, the details of execution of which
were left, by the words of that instru-
mcnt, to the war department by which
agency they were to be communicated to
the respective states. In the exercise of
the discretion thus conferred upon it, the
war department required CT the several
militia organizations of The United States
and directed that an oath of allegiance
should also be administered to the in
dividuals composing the militia organiza-
tions thus called into the service of the
general government
OATH Is CUSTOMARY.
Without attempting to discuss the
mony or function, peculiar to the milf
tary service, it is sufficient to say, at
this point, that the administration of
an oath of allegiance or of office, formed
an essential part of the ceremony, ana
the requirement that the militia so mus
tered In should take an oath of allegiance
was one imposed by the department, IN
the exercise of a discretion which wSs
doubtless wise and necessary. in view
of the circumstances of the time, but
which was nevertheless not required 1r
contemplated by existing law. The Ie-
quirement of the war department, in re-
spoct to the administration of the oath
of ALLEGIANCE, will be found set forth i'm
considerable detail in the official In
strUctions to Mastering officers and 9th
ers of Kindred Duties" published in 1851
aud re-published with some additions in
1SC2.
The practice received an indirect legis-
iatve sanction in the act of July 2i 1861,
az Stat at Large, 1853. for the relief of
certain regiments of hiO volunteers.
The practice thus inaugurated may also
be said to have received more direct
sanction in the act of'July II, 1862, which
extended the period of service to nine
months and. required the militia so called
forth to "be mustered in" 1t has been
authoritativoly held, however. that 1T is
not essential for n militia organization
that there should he a formal muter-in
Of militia being directory only" zig j.
A. Gen, 5l9. par. - l will now proceed
to reply 10 the inquiries contained in your
letter Of December %, 1897.
PART OF DISCIPLINE
The first inquiry in order is: IF the
president of the United States should
call out the militia of one state fJr duty
in another would IL be necessary that 1t
be mustered into the general service by
any OATH other than that aum nistered
in their own state?" TO this inquiry my
reply is that, under the practiCe cstab-
lished by the war Departmental practice
however neither required nor expressly
sanctioned by law-an oath of aAegiance
is essential to the muster-in Of militia
troops under the act of July II, 1862. Be
ing a condition imposed by order or reg
ulatiOn merely, and not statutory re-
quiremert, it is subject to change, or
modification, by the same authority. 1t
Is proper TO observe, however that one
of the chief reasons for the imposition
of the oath of alegiance--tu test the 10y
atty of the individual members OF the
militia, upon their being mustered into
the service of the United States-still
exists, and would serve the same useful
purpose in the future that it has served
in the past.
PRESIDENTS AUTHORITY.
To the second inquiry, /. e., docs the
call of the president necessarily have to
be through the governor Of the state, or
is it only a matter of courtesy" I make
the following reply: The only statutory
restriction upon the authority of the
president, in respect to calling forth the
militia Is that contained in the act of
July II, 1852 Il Stat. at Large, SOD, which
requires that "when the militia of more
than one state is called into the actual
service of the United States by the presi-
dent he shall apportion them among such
states according to representative popu-
lotion"
on the other hand the act If February
2S, l795, conferred authority upon the
president "to call forth such number
of the militia of the state or states most
convenient to the place of danger, OF
sary to repel such invasion, or to sup.
press such rebellion, and to issue his or.
ders for that purpose to such officer of
the militia as he may mink proper
The manner of calling out the militia by
the president under the act Of February
2S, 1875 (Section 1642, Revised Statutcs)
is indicated by the supreme court i'm the
leading case of Houston VS.. Moore q
Wheaton, 15), where II is observed thai
1.-THE presidents orders may be given tc
the chief executive magistrate of the
state, or to any militia officer he may
think proper" The call would ordinarily
be addressed to the governor, who. T.
most states, Is made the commander II
| chief of the active militia of the sta e
| Such, indeed, has been the practice of tn,
| executive since the formation of the gov
| ernment under the constitution. Dig. j
A, Gen, $40, par. %
PRESIDENT CAN CHOOSE.
To the third inquiry, "In calling ou
| the militia would ii be within the power
of the president TO designate certain or
| ganizatiOns, or would he have TO limi
himself merely to making a requisitiol
| for a certain number Of men?" | repl!
| that under the authority conferred b!
| the act of February 2S, 1875, it would b
| entirely within the discretion the pres
| ident to designate certain organization
| for service under the call.
If there be lno organized militia in tn
state pointed out by the act of July II
1862 as the bne from which the miltii
should be drawn, the power to designat
] becomes impossible OF execution, and Tn