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Report of the Efficiency and economy committee created under the authoriy of the Forty-eighth General assembly, state of Illinois . online

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a knowledge of warfare. With the development of a military feeling
the National Guard came to look upon itself as a reserve force of the
army, and this spirit has been cultivated by increased assistance
and encouragement from the United States government. The states
have made more and more use of their militias as an internal police
force. F. T. Wilson in his book, Federal Aid in Domestic Disturb-
ances, estimates that the states used their militia no less than 500 times
in the twenty-five years from 1878 to 1903.

As has already been mentioned, with the outbreak of the Spanish
War, the militia were looked upon as a reserve force for the army ;
and the volunteer act of 1898 permitted National Guard bodies to vol-
unteer as such and retain their own officers. While the opinions of
Assistant Attorney-General Boyd indicate that in his view these volun-
teer militia bodies remained militia of the states, called in to the service
of the United States, the more generally accepted view is that they
were to be regarded simply as volunteers.^^

Following the War, efforts were made to make it possible, through
legislation, for the militia to come under the supervision of the United
States and be ready to serve as a second line of national defense,
retaining their status as militia with their own officers and organiza-
tion. The Dick Act of 1903 was directed toward this purpose, but
does not appear to have accomplished it. The amendment of 1908,
however, did provide for making the militia liable to federal service
even in foreign war without losing their status as militia. The act
was declared unconstitutional, so far as it attempted this object, by
Attorney-General Wickersham in 1912, and the policy has now been
revived of leaving the militia, as such, a militia of the states, subject
to call by the United States only in the three cases mentioned in the
constitution (which under present conditions means that they are not
likely to be called out at all by the United States government,) and
entirely distinct from volunteers, who in combination with the regular
army are looked upon as the force of national defense.

By the act of 1914 specific authority has, however, been given
for the use of the naval militia in foreign war.

s^See Report on the Organization of the Land Forces of the U. S., by the General
Staff, 1912, p. 55.



MILITARY ADMINISTRATION,



901



3. CONSTITUTIONAL AND LEGAL CONCLUSIONS.

The Jurisdiction of the United States Government Over the Militia.

The United States Government exercises final jurisdiction in or-
ganizing, arming and disciplining the militia, and the states are bound
by acts of Congress on these points.

The general principle of federal supremacy in the powers granted
by the constitution is sufficient to bear out this point. The opinion of
the Supreme Court in Houston vs. Moore^^ is also authority for this
view. Whiting in "War Powers under the Constitution"^'* offers the
statement that state legislation cannot constitutionally provide for
enrollment in the militia of persons other than those enumerated m
the United States law. The same opinion was expressed in a buUetm
of the division of militia affairs of 1910;^^ and the opinion of the
South Carolina Supreme Court in State vs. Lewis in 1837,2¬Ђ related
somewhat to this point, when it said that in a call of the militia by
the President, only those need to respond who were included in the
militia as organized under the act of Congress. The recent order of
the War department directing a reorganization of the State militia.s
participating in the United States appropriations is another exempli-
fication of this principle.

The United States Government has jurisdiction to govern the
militia in the service of the United States, reserving the appointment
of officers and the actual training to the states. It also has the power
of calling them out in the cases described.

Jurisdiction of the States Over the AJilitia.

The states may exercse a concurrent jurisdiction over the arming,
organizing and disciplining of the militia legislating where the U. S.
government has not acted or so as not to conflict with U. S. laws.

Justice Story's dissent in the case of Houston vs. Moore" is op-
posed to this view ; but the prevailing opinion in that case and the
practice before and since is authority for the statement. The early
United States statutes on the subject expressly left to the states the
power of organizing their militia, simply giving directory rules which
the state might follow if "convenient."

Houston vs. Moore also appears to be authority for the view that
the states exercise a concurrent jurisdiction in "governing such part
of the militia as may be employed in the service of the United States."

It is clear by the constitution that the states have jurisdiction to
appoint officers of the militia and to train the militia according to the
discipline prescribed by Congress, even when the militia are called into
the service of the United States.

In general, the states have power to employ the militia as they see
fit, and exercise complete jurisdiction over them, subject only to the
rights specifically given to the National government in the constitution.

335 Wheaton, 1.

3*P. 480. He refers to 18 Am. Law Rep., 167 and 22 Law Rep., 4



Online LibraryUnknownReport of the Efficiency and economy committee created under the authoriy of the Forty-eighth General assembly, state of Illinois . → online text (page 96 of 110)