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pay officers and men. See Brightly's Digest, 55-90 and notes; 2 Id. 9-50. During peace as well as war. Story's Const. § 1186


124. "ARMIES."-Collections or bodies of men, armed for war, Define and organized in companies, battalions, regiments, brigades and armies. divisions, under their proper officers. Webster's Dic. Army. All the military in the service of the United States are called the ARMY of the United States. The power to raise large bodies of men and divide them into "ARMIES" has only been exercised three times since the formation of the government, viz.: In the war with Great 117, 118. Britain, 1812, with Mexico, 1846, and during the late rebellion.


The Army of the United States consists of five regiments of What is the artillery, ten regiments of cavalry, forty-five regiments infantry, present the Professors and Corps of Cadets of the United States Military Academy, and the officers and men of the different departments and corps, under the control of the War Department. The ranks of the commissioned officers of this army are: General (Ulysses S. Grant); Lieutenant-General (William T. Sherman); Major-General (five); Brigadier-General (ten); Colonel; Lieutenant-Colonel; Major; Captain; Lieutenant, first and second. 14 Stat. 332; and see the Reports of Sec. of War, 1866 and 1867; and the Army Register. At the close of the rebellion, the army consisted of over a million of men, rank and file, which had been raised by enlistment, drafts, and bounties. The power is unlimited, being an indispensable incident to the power to declare war. See Story's Const. $1178-1192, and the references; 2 Elliot's Debates, 285, 286, 307, 308, 430; Federalist, Nos. 23, 24, 25, 28. See 1 Brightly's Dig. 55-90; 2 Id. 9-50.



125. Congress has a constitutional power to enlist minors, in What is the the navy or army, without the consent of their parents. United power of enlistment? States v. Bainbridge, 1 Mass. 71; Case of Emanuel Roberts, 2 Hall's L. J. 192; United States v. Stewart, Crabbe, 205; Commonwealth v. Murray, 4 Binn. 487; Commonwealth v. Barker, 5 Id., 423; Commonwealth v. Morris, Phil. R 381; Ex parte Brown, 5 Cr. C. C. 554. Public policy requires that a minor shall be at liberty to enter into a contract to serve the State, whenever such contract is not positively forbidden by the State itself. Commonwealth v. Gamble, 11 S. & R. 94; The King v. Rutherford Grays, 1 Barn and Cress, 345. The act of 21st June, 1862, § 2, 12 Stat. 140, 141. 620, repealed the act of 28th September, 1850, which required the consent of parents or guardians for the enlistment of minors, since which repeal minors, between the ages of eighteen and twenty-one, may be enlisted without the consent of the parent or guardian. Follis's Case, 10 Leg. 276. But see United States v. Wright, 2 Leg. Int. 21, and Commonwealth v. Carter, Id.; Henderson's Case, Id. 187, where it is held that the act of 1802 is still in force, and that such enlistment is void. In Shirk's Case, however, a discharge under similar circumstances was refused 20 Leg. Int. 260. The oath of enlistment, though conclusive upon the recruiting officer, is not so upon the courts. Webb's Case, 10 Pittsburg, L. J. 106. Contra, United States v. Taylor, 29 Leg. Int. 284; Jordan's case,

What right

does war give over

the citizen?


Define the


11 Am. L. R. 749. A prisoner of war, paroled by the enemy, is not entitled to his discharge, although a minor, until exchanged. Henderson's Case, 20 Leg. Int. 181; 2 Brightly's Dig. p. 24, note.

Each individual in a republic, as in a monarchy, can be required to perform military duty without his consent, if the demand is made by a proper exercise of the national will. Ex parte Coupland, 26 Tex., 394. This follows from the unrestricted power to declare war. Id. (Cites Hurd. on Habeas Corpus, 8; United States v. Bainbridge; Mass. 71; Federalist, 187.) "Militia" is not synonymous with "arms-bearing men;" and it was held that when the citizens were conscripted into the "Confederate States" service (under the same clauses), they had no right to choose their officers. Id. 396, 397. When a citizen goes into the army raised by Congress, either voluntarily, or in obedience to the law requiring him to do so, he does this as a citizen, and not a militia-man. Id. 397. Paschal's Annotated Digest, 217-220, p. 88-91.

For the time being, the right of the State government over him ceases. The opinion endeavors to reconcile this view with the doctrines of States Rights, and held the Confederate conscript law to be constitutional during the necessity. Id. 397-405. Mr. Justice Bell reviewed the 41st, 29th, 45th and 4th numbers of the Federalist, and denied the constitutionality of the law. Id. 405-430.

This power has led to the establishment of the War Departwar department, presided over by a Secretary and Assistant Secretary of War, to which are attached the following departments, the heads of which have the rank of Brigadier-General, viz.: Adjutant-General, Quartermaster, Subsistence, Pay, Medical, Ordnance, and Bureau of Military Justice; there are four Inspectors-General, with the rank of Colonel, and also an Engineer and Signal Corps. The Chief of Engineers has the rank of Brigadier-General, and the chief signal officer ranks as Colonel of cavalry.

For how long may the appropriation be?


Define to


122, 123.

126. BUT NO APPROPRIATION TO THAT USES HALL BE FOR A LONGER TERM THAN TWO YEARS. Congress may vote the supplies for but one year or a shorter period, but, imperatively, no appropriation shall be for a longer period than two years. (Federalist, Nos. 26, 41; 2 Elliot's Debates, 93, 308, 309.) Story's Const. § 1188, 1189, 1190.

The English Parliament is not thus restricted. 1 Black. Com. 414, 415; Tucker's Appendix, 271, 272, 379; Federalist, No. 41; Story's Const. § 1190.

[13.] To provide and maintain a navy.

127. "TO PROVIDE AND MAINTAIN," in this clause, is about provide and equivalent "to raise and support," in the preceding clause. The present splendid navy of the United States, with its immortal history, is the best refutation of the arguments which were urged against this necessary branch of the service. See Articles of Confederation, Art. IX. ante p. 14. See Federalist, Nos. 11, 24, 29, 41; 2 Elliot's Debates, 319-324; Virginia Resolutions and Report, 7th and 11th Jan., 1800, pp. 57-59; 5 Marshall's Life of Washington, 523-531, Story's Const. § 1193-1198,


128. "NAVY;" [Navigation-from Navis, a ship.]-"To build Define navy. and equip a navy." Articles of Confederation, ante Art. IX. p. 14. The present words are more broad and appropriate. Story's Const. 1194. It practically means not only to build and equip, but to organize, provide, and maintain a naval department, naval school, coast survey, naval armament, merchant marine; and it is the strongest arm of our harbor defenses, as well as a powerful engine of attack and offensive warfare. 1 Brightly's Digest, 657-680; 2 Id., 315-387.


It is the natural result of the sovereignty over the navy of the United States, that it should be exclusive. Whatever crimes, therefore, are committed on board of public ships of war of the 110, 116. United States, whether they are in port or at sea, are exclusively cognizable and punishable by the government of the United States. The public ships of sovereigns, wherever they may be, are deemed to be extra-territorial, and enjoy the immunities from the local jurisdictions belonging to their sovereign. (See United States v. Bevans, 3 Wheat. 336, 390. The Schooner Exchange, 7 Cr. 116.) Story's Const. § 1168.

This grant of power has been developed in the organization of a Navy Department, over which presides a Secretary of the Navy (at present GIDEON J. WELLES), an Assistant Secretary of the Navy, and other appropriate officers of the bureau.

The ranks of the Naval officers are: Admiral, Vice-Admiral, Commodore, Captain, Commander, Lieut.-Commander, Lieutenant, Master, Ensign, Midshipman. 2 Brightly's Digest, 315, 316, 318; 14 Stat., 515, 516.

[14.] To make rules for the government and regula- How to tion of the land and naval forces.

govern the forces?

129. "To MAKE RULES," in this connection, means to pre- Define to scribe the rules of conduct; that is, to enact the necessary laws make rules? "for the government and regulation of the land and naval forces." 138, 238, 240. This Congress has done by the enactment of the rules and articles of war, which are always in the hands of military and naval offi- 120-127. cers, and have become exceedingly familiar to our volunteer civilians during the late war.

For these "Rules "" see Brightly's Dig. pp. 73-83, ch. XVI. Arts. I-CL; 2 Brightly, 24-27; 2 St. 359; 12 St. 316, 330, 339, 354, 589, 595, 598, 735, 754; 13 St. 145, 356, 489.

over the

[15.] To provide for calling forth the militia to exe- What power cute the laws of the Union, suppress insurrections, militia? and repel invasions.

130. MILITIA.-The national soldiery of a country, as distin- Define miliguished from a standing military force, consisting of the able-bodied tia? male inhabitants of a prescribed age, who are enrolled, officered, mustered, and trained according to law, but are called into active service 234, 235. only on emergent occasions, such as to suppress insurrections and repel invasions, for the public defense. (Act of Congress, 8 May,


234, 235.

1792; 1 Kent's Com. 262, 266.) Burrill's Law Dic., MILITIA; 1 Brightly's Dig., 619, 624, and notes; 2 Id., 299; 525-597.

The act of 1795, which confers power on the President to call forth the militia in certain exigencies, is constitutional; and the President is the exclusive and final judge whether the exigency has arisen. Martin v. Mott, 12 Wh. 19; Vanderheyden v. Young, 11 Johns. 150. The power to repel invasion includes the power to provide against the attempt or danger of invasion. Martin v. Mott, 12 Wh. 19; 6 Cond. 417. Those called out according to law are subject to court-martial. (Houston v. Moore, 3 Wh. 433.) Martin v. Mott, 6 Cond. 421; Moore v. Houston, 3 Serg. and R. 167; 1 Kent's Com. 267; Bates on Habeas Corpus, 5th July, 1861. The President cannot exercise this power. Bates, 18th April, 1861. What are the It belongs exclusively to the President to judge when he has the president's authority to call forth the militia, and his decision is conclusive powers? upon all others. Martin v. Mott, 12 Wheat. 19; 1 Kent's Com. 279; and see the same, 241-250; Story's Const. § 1210-1215; Bates on Habeas Corpus, 5th July, 1861.


When do the militia become national?

Define laws


And also upon the Courts of the United States. Luther v. Borden, 7 How. 1.

The power is to be exercised upon sudden emergencies, upon great occasions of State, and under circumstances which may be vital to the existence of the Union. Luther v. Borden, Iow. 18, 19, 31, 32; Story's Const. § 1211.

The President may make his requisitions directly upon the executives of the States, or by orders directed to any subordinate officers of the militia. Houston v. Moore, 5 Wheat. 15-16; see 1 Kent's Com. 277-279.

The militia is the militia of the States, respectively, and not of the United States. When called into the service of the General Government, they become national militia after they are mustered at the place of rendezvous designated by national authority, and not until then. (Houston v. Moore, 5 Wheat; Martin v. Mott, 12 Wheat. 19.)

131. LAWS OF THE UNION.-This Constitution, and the laws of the Union. of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. Art. 6, cl. 2. The laws of the Union are of course this supreme law; and the execution of this power is coextensive with the whole subject of constitutional legislation. But the exigency can only arise when there is an actual or threatened resistance to the laws of the United States. See Bates on Habeas Corpus, 5th July, 1861.

Define insurrection. 234, 235.

132. INSURRECTIONS.-It has often been contended that insurrection here only means that "domestic violence" mentioned in the fourth section of the fourth article, and hence that the power can only be exercised when the legislature or executive of a State demands it.

But insurrection seems to have been treated as resistance to law by a force too strong for the ordinary posse comi'atus. (2 Elliot's Debates, 292-309; Federalist, No. 29.) Story's Const.

$1201. It doubtless has reference to the violences of a domestic faction, or sedition, as contradistinguished from invasion by a foreign enemy. Id. And the insurrection may as well be against United States as State authority.

In the Southern States, the word "insurrection" was almost exclusively confined to "risings" by the slave population.

Insurrection is synonymous with sedition, rebellion, revolt. Webster's Dic., REBELLION.



133. "INVASIONS" is here doubtless coupled with the guaranty Define invaof the United States "to protect every State against invasion." sion? (Art. IV. sec 4.) But the invasion" would be none the less so 234, 235. if invited by State authorities, or if no call should be made by the legislature or governor of an invaded State. The act of 1795 seemed to restrict the idea to invasions by a foreign enemy, as in the wars of 1812 and 1846. 1 St. 424; 1 Brightly's Dig. 440 and


power as to

the militia?

[16.] To provide for organizing, arming, and disci- What is the plining the militia, and for governing such part of them organizing as may be employed in the service of the United States; reserving to the States, respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.

134. This "ORGANIZING, ARMING, AND DISCIPLINING THE MILITIA," What does would include the whole legislation upon the subject. But prac- organizing tically the power has not been fully exercised in time of peace. It &c., include? has indeed generally been left to the States, except as to the tactics and the distribution of arms, by quotas among the States. See Act of 8th May, 1792, ch. 33, 1 St. 271; Act of 12th May, 1820, ch. 97; Act of 1821, ch. 68, 3 St. 577; Story's Const. § 1208; 1 Brightly's Dig. 619-624. 2 Id. 299 and notes. MILITIA here means the body Define miliof arms-bearing citizens. as contradistinguished from the regular tia? army. Webster's Dic. MILITIA. See Coupland, ex parte, 26 Tex. 411, 412. For the discussions upon this subject, see 2 Elliot's Debates, 301-318; Luther Martin, 4 Elliot's Debates, 34, 35. If Congress neglect to exercise this power, the States have a concurrent right to do so. Houston v. Moore, 3 Sergt. and Rawle, 369. See Houston v. Moore, 5 Wheat. 1-56. And see Luther v. Bordea, 7 How. 1; Story's Const. § 1207.

The militia of the several States are not subject to martial law Is conscrip unless they are in the actual service of the United States. Mills tion constiv. Martin, 19 Johus. 7. And this does not commence until their tutional? arrival at the place of rendezvous. Houston v. Moore, 5 Wh. 20. 118, 124. So far as Congress has provided for organizing the militia, the legislative powers of the States are excluded. Id. 51; Houston v. Moore, 3 S. & R. 169. But a State legislature may lawfully provide for the trial, by courts-martial, of drafted militia who shall re

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