The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-05-16
LEGAL STATUS OF TIE ARMY

While discussing the retention of thu
volunteers in the service, after the ex
piration of their term of enlistment
from a sentimental standpoint, it vii
not do to overlook entirely the legal
aspects of their case, since it is from
law that men derive their authority tc
make war. and to uphold the law anC
the constitution that the commander
in-chief and all his subaltern officers
are pledged by oath.
The evil of militarism into which
of England. and, following their ex-
other races seem TO drift, has been the
dread of the Angio-Saxon. The people
not do TO overlook entihely the legal
ample, the people of the United States
have ever been jealous of a standing
army and encroachment of the military
upon the civil power, and of any in
frineement of individual liberty.
In England, from the earliest times,
compulsory levies were forbidden with
out the consent of parliament. The
statutes of I Edward III and % Edward
III declared such levies contrary to the
common law, and in the United States
such levies can only be made by ex-
press authority of an act of congress.
The establishment of an army, the
method of filling il, and the term of its
duration in England has ever been I'M
der the exclusive control of parliament,
and in this country, of congress. The
following is quoted from a celebrated
opinion of Judge Cray, now associate
justice Of the supreme court of the
United States:
After the accession Of William and
Mary. a standing army being found ne
ceSsary. parliament retained the COR
troll OF il by establishing il for only a
year at time: and these annual acts
iiIss made mutiny and desertiOn pun
ishable II the sentence of a court-martial
IN time Of peace. and therefore known as
the :nutiny acts. The earliest of these
was limited To persons being in their
.najesties' service in the army and being
mustered and IN pay as an officer or sol
der" C. ] W. and NJ. c. ), - This
clause was re-enacted IN the same form.
thus requiring both mastering and pay
10 constitute the military character, I'M
I'll carly IN the following reign. when
either was made Sufficient, and the act
extended TO every person being in her
Iaajcsty's service in the army, or mus
tered or in pay as an officer. or listed. or
in nay as q soldier" (Sts. OF Anne
c Is and Anne. c ~ But within five
years after the passage of the first mu-
iiny act. z section was inserted provid-
ing that no person should be esteemed
listed soldier. o. be subject 10 any of the
pains or penalties OK this act. or any
other penalty for his behavior as a sol
der" unless ne should. before a civil
magistrate declare his free consent to
be listed or mustered as a soldier, before
he should be listed or mustered or in
serted on any muster roll of a regiment
troop or company. est. and w. and
NJ. G. l5D And the law of England has
since nv similar provisions required
either enlistment BY military officer.
with fun opportunity to reconsider and
-etract in the case of a soldier or actu-
ally bong mustered or commissioned IN
The case Of an officer. to subject either to
l..iiitary discipline; allowing, however. the
alternative Of being in pay Ito avoid the
necessity of discussing the nature OF the
engagement or mode OF contracting II.
THE articles of war, reported by
a committee OF which Adams and Jeffer-
son were members. and established by the
congress of the confederation in 1Il6.
within three months after the declaration
of American independence. substantially
adopted the provisions of the English mu-
try acts and required every recruit TO
he enlisted by a Military ofncer ana taken
before a civil magistrate and there nave
the articles Of war read to him and take
the oath of allegiance and service
When there is no necessity or author
ity for CONSUMPTION, no man can be
soldier without his own full and free
consent. If the president can indeti-
nitely extend the soldiers term of en-
lisiment without his consent or author
ity of congress- then the control of the
army is taken from the peoples repre-
sentatiyes in congress, where it was
lodged by the constitution.
Senator Hawiey, whose radical Re-