The National tribune., 1902-11-06
DEPARTMENT NEWS.

p 7@MILITIA-FIRST CALL OF 1861
PENSION TITLE.-In the general law
pepsIon case of the widow of Daniel b.
g,yler it was held by the Pension Bureau
that the disability resulting in soldier
death was incurred in the Baltimore riot,
April 80, ISL, while the soldier was
member of the 9th Mass. Militia, and the
War Department holding that he was not
then in the service Of the United states,
fhe widow could not be regarded as pen
sionable under the general law. Inc de-
cisipn on appeal tAsst. Secy. Campbell,
june Z. 1862 says:
..Tbe material issue in this case is as to
whether or hot this soldier has pension
Rtle status as a Corporal IN Co. u, oth
Mass. Vols, and the fundamental law
applicable thereto is section 1858, Revised
Statutes. the first subdivision of which
is as follows, and refers to the persons
entitled as benehciaries under the preced-
ing section:
:..Eirst. Any officer of the Army, in
Guiding regulars, volunteers, and militia,
or any officer in the Navy or Marine corps,
or any enlisted man, however employed,
in the military or naval service of the
United States, or its Marine Corps,
whether regularly mustered or not, dis
abled by leason of any wound or INJURY
received, or disease contracted, while IN
the service cf the United States and IN
the line of duty.
! IAN exhaustive discussion Of the scope
CT this section of the Revised Statutes
,yas had in the opinion of the case of Ran
dolph NJ Manley g p. D., 300, it being
therein held that said section included,
for pensionabIe purposes, ali officers and
enlisted men who were in the military ser
vice of the United States, and that the
terms of the statute expressly included an
enlisted man IL the militia. provided he
was in the United States military service.
This opinion received the sanction of the
Assistant Attorney General of the United
States 80 OPP. Att.-Gen., 322).
while the Manley case and the one
under discussion are not identical at all
points, yet there is much in cor mon to
them both. 1t is demonstrated in said
opinion that the President of TIL United
States has the power to call I'll militia
of the several States into the service of
the United States. and that requisition
calling forth the militia is, in legal intend
ment, an order, and must so be inter
preted. For the soundness of this view
reference is made to the opinions Of the
Supreme Court of the United States in
the cases of Martin V. Mott Q2 Wheat,
19) and Houston v. Moore q Wheat, 30;
see also Story on the Constitution of the
United States, section 1912 That Presi-
dent Lincoln did call forth the militia Of
the State of Massachusetts into the ser
vice of the United States by his prOclama-
tion of April 10, 1861, can not, under the
facts herein set forth, be denied; neither
can it be denied that the 9Th Mass. Vols.
responded to the call, and that the said
Massachusetts regiment was assaulted by
a mob while enrOute from Boston to
Washington, while obeying the orders of
the Governor of Massachusetts,, the said
orders of the said Governor being in obe-
dience to the orders of his superior officer.
the President of the United States. and
the COmmander-in-C Chief of the military
md naval forces of the United States.
The facts unqualifiedly show that the sol
dier herein was member of the State
militia of Massachusetts, and when in Bal
timore. on the 18th day of April, he was
there pursuant to the orders of the PreSi-
dent of the United States.
'.All of the above being true, he has q
persionable status under the general la
unless barred tberefrom by some other
law. That he was mustered into the ser
vice of the United States as a member of
Co. ID, Gth Mass. Vols, is admitted; but
such fact is of no special moment, for the
subdivision of section 1858, Revised Stat.
utes, quoted herein, expressly states that
muster in is not essential to create pen.
sionable status. That muster in is not
essential is concusively demonstrated in
the opinion in the Manley case, supra
as well as in the opinion in the case OF
james l.. Hicks Is Z. d., 51S), wherein il
is held:
''Provided that the said militia or mill
tary organization was called into the ser
vice by the President, said organization
was then part of the Federal army, ant
gaIIization is entitled to the same benefit.
of the pension laws as though he were reg
ularly mustered
1T is Interesting to note, in view o
the holding of the War Department il
the case at bar, the opinion of the Act
ing Judge-Advocate-Gen Of the army
dated Jan. 49,. 1890. and addressed to th
Commissioner of Pensions, wherein b.
says:
In the case of militia organization
1t is not absolutely necessary that Their
should be this formality (muster) in orde
to place it in the actual service of tn
United States. There seems to be goo,
reason for this. The volunteer, before hi
muster in, has not bound himself TO an
service: the militiaman is already enrolle,
in the service of the State, and is simpl
transferred for certain time and for
certain purpose to that of the Unite,
States. 1t might be that in
case of great emergency no formal mus
ter in could be had, but that the militi
We're, nevertheless, received by the author
tiles of the United States, placed unde
the command of its officers. and used TO
its purpose. 1t could hardly be held tina
they were not in the service OF the Unite
States because this formality had not beel
complied with. So l am of the opinion
that this requirement of the act Of 1856
should properly be regarded as director
only, and that in the case under considera
ton the fact that there was no muster il
would not, Of itself, absolutely preclude it
being held that the 18th Regiment Penn
syiyania Militia was in the actual servic