Army Staff College Theses (1908)

8/9/2019 Army Staff College Theses (1908)

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LIBRARY

j Accession Number----4 --------Class NumberAccession CardAuthor Card----------------------- --- ------TteCard

Published Tinder R. C. M. W. No.____"New Books Received"For Review See: R. C. M. W. No.-----------------Title Cards Completed----------------For Translation See Class-------------------------

99-G. S. Schs., Fort Leavenworth-8-15-27--25M


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STAI} CLASS THESES

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The Fourth. Article f Tr,

Aheourth Article of War deals with the discharge of enlismen fm te military' ervice of th e United States. Pr^pa~t"ry tI n~o~er;)icn ofC ~+ +t17r WP1 reur':$*ebmer+ it+ s n~ry to~~~at frth thoe al- toxt- ofI -he airlo;.n1o enlisted man,duly sworn,ehall be discharged from theservice without a discharge in writing,signed by a field officerof the regiment to which he belongs,or by th e commanding officer,when no field officer Is present;and no discharge shall be givento any enlisteld man beforehis term of service has expired xceptby oter of the President,the Secretary of Tar,the conmanding of-ficer of a department ,or by sentence of a general court-martial *Practically th e same ground is covered by the Army Regulat-ions in the following language,;--A oldieron his discharge from the service,will be givena certificate of discharge signed by a field officer of h~s re-giment or corps,or by th e commanding officer,when no field officeis present."' ( .R.5,98.)

XAn enlisted marw.ll not be discharged before th e expir-ation of his term of service except:.1.By order of the Pres -de t off' Secretary of War.

2.By sentence of a gen ra or ll itary commission.3.On certificate ' of disability,or under rules governingdischarge by. vtrchase,by direction of the coriander of aterritorial department or army...in th field.


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pertinent first to enquire whether the two paragraphs4rove quotedo notby the differences already pointed out,enter th e field ofstatute law and thereby in those respects at least become invalidPrima facie of course they do not.Otherwise they would not havereceived th e stamp of official approval. Nevertheless,it must beadmitted that the clear and precise wording of th e article and ituse of the word "shall" give an impression that it was the, inten-tion of the legtslatureo cover the whole ground and leave noth-ing fo r regulation.To determine this becomes the more important when the inportance of th e subject matter is realized.In discussing whether adischarge certificate is necessary to a discharge the Judge-Advocate General eport Jan.2,1901)holds that the Fourth Article isdirectory,by which is meant that th e acts referred to therein arnot necessarily rendered invalid by reason of the fact that therules prescribed for carrying them out are not followed.It isclear from the context of th e report that th e Judge-Advocate General only had in mind the first clause of the article. It cannotbe doubted that the second clause of the article is mandatory--that the acts therein directed. are void unless its provisionsare complied with.From this it appears that if an enlisted man is ,dischargedwithout a discharge in writing or if such discharge in writing isigned by another than th e field officer or th e commanding officeas the case may be, th e discharge is none the loss valid al-though the law has in fact been disobeyed. On the other hand,eve


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a corps while the Field Artillery should be organized into regi-ments. The art i l lery,Coast and Field, had already,before theseparation,been declared,by the act of 2,1901, part of theline of the rmy. There is no doubt therefore that field officersof the Coast Arti l lery Corps,like field officers of th e Corps ofEngineers,are properly included withing the meairng of th e word,"corpsias used in paragraph 145.The only other organizations of the/ fmy to which the term" corps" is ever apllied are the Signal Corps and the now so-callMedical Corps,to which the Hospital Corps consisting of enlisted_men only,io permanently attached by law. se are distinctly stafdepartments and th e word "corps" is not used in connection withthem in the same sense in which it is used in th ,.16th paragraphThey differ in status in no respect from the Ordnance,Quartermaste% and Subsistence Iepar tments to which the term"corps" is properly,'applied.They are not a part of the line of th e a rmy and their fieldofficers can not be assimilated to field officers of regiments.The difference between ,them and th e field officers of the Corps oEngineers and th e A rtil lery Corps is at once apparent.Consequent-ly it is not difficult to decide that when field officers of th eSignal Corps and the Medical Corps are serving at places wherethey are not come landing officers ,they have no authority to signth e discharge sertificates of th e enlisted men of their respectivcorps and it is not the intention of the regulations to invest, . t,.a 1. th such authority. rPFinally if it be enquired why the word corp was not insert


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than th e Fourth Article of War the wished of Congress respfectingth e discharge of enlisted men prior to th e expiration of theirterms of service and set then down along with the others.Can the regulations authorize th e commander of an army in tf ield to discharge soldiers prior to expiration of their terms oservice,even in the two classes of cases mentioned?Likewise,can the com nding general,Philippines Division,beauthorized to discharge apprehended deserters when they are foununfit for service?

is it possible for the regulations to l im it a departmentcommander's authority to discharge to discharges on certificatedisability and discharges by purchase?With regard to the first two questions, i t may be said thatonly the most narrow construction of th e words. _" y order of thePresident" ermits the conclusion that only those discharges byorder of the President are allowable where the President himselfhas acted on the case and has ordered the discharge.That th e President,as Commander in Chief,may depute a portiof his authority,under such rules as he may see fit to prescribeis well recognized and established. Otherwise,if he retained inhis own hands all the powers with which he is invested by theConstitution and laws of the United States,it would not only bepractically impossible to administer army affairs but practicallimpossible,as well,to make use of theirmy either in peace or wThat this deputation of, power to th e proper subordinate issanctioned by Congress is illustrated in numerous instances inth e Revised Statutes,,especially ' n those places where the Pres-


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of th e party as law and justice require ec .76lR.S), hat is tosay, if th e soldier is found in fact to be illegally restrained ofhis liberty th e court will order him discharged from th e serviceor fyf cLstody, s the circumstances may demand.The appearance of this authority in paragraph 138 is butanother instance of whereethe regulations have been framed to in-

clude not only the substance of the Fourth Article but every otherenactment of Cosir ss bearing on the subject ,no matter when passed.It is evident that this greatly facilitates business in the Armyand is therefore justifiable for that reason if for no other. Andin this case,the authority for-the premature discharge is of equalrank with that contained in the Four t Article.

Being now in th e possession of all th e rules governing dis-charges and being assured that we can permit ourselves to begoverned by those addit ional ones' contained in th e regulationswithout any more reason to fear that we are doing an unlawful oran invalid act than if we stand to th e strict wording of the FourthArticle itself,we are better prepared to enter more detaileddiscus on of the main matter under consideration.:-----With this end in view it may not be improper tofirst brieflyexamine the contract of enlistment,since the discharge is merely

-: the final official act pertaining thereto.A contract of enlistment fulfills th e definit ion of th e or-dinary contract in that it is an agreement the fulfillment ofwhose promises is enforceable at law(6 Smith's El.Law,page 225It is usually express but it may be implied from any act or actswhich indicate an undertaking,on the part of a person legally cam-


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gations which its existence imposes. 4WygBy enlistment th e cit-izen becomes a soldier.His relat ions to the state and th e public,are changed.He acquires a new status,with correlative rights andduties;and although he may violate his contract obligations,hisstatuel$- as a soldier is unchanged. He cannot of his ownv litionthro off the garments he has once put on,nor can hetne tae notobjectingnenounce his relat ions and destroy his status on th eplea that ,tf he had disclosed truthfully th e factsthe other partythe State,would not have entered into th e new relations with himor permitted him to change his status.Un re Grimley,L 7 U.S.147,15Having entered into a contract of enlistment it is thereforenot sufficient,in order to throw off the status,that thet soldiershal l then merely execute the obligations thenby assumed. A for-mal di chaXge is required before th e contract can be considered asfihall y,and the status of soldier divested.

A discharge from th e military service may therefore be defineas that formal official act by which an enlisted man's contract ofenlistment is terminated and which not only signifies but alsoeffects,...the divestment of h is status as a soldier and h is returnto his previous status as a civilian.The enlisted man is,inkeneral,entitled at th e end of h is termof enlistment to such formal discharge but it is evident that -he cannot discharge himself by simply leaving the service at suchtime. If he should take the matter into his own hands he would ofcourse become a deserter becausearegardless of whether his term,of service has expired or not,the military status cannot be re-moved by his own act. But it is to be observed in thus connection


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if> Except in the cases provided for in the Article of War,t and in three of th e sections of th e Revised Statuteswwhich lat-ter are of no especial importance,a soldier's amenability to theArticles of War for offenses committed while a m ilitary personceases the instant his discharge is executed and notice thereof,actual or constructive,is received by him. And it may be saidalso that he does not upon reenlistment generally become amenablefor offenses committed during a fuvmer enlistment. For example,if a soldier who had deserted the service should reenlist in an-other organization and serve honorably and faithfully throughoutth e latter terr without apprehension he would probably receive anhonorable discharge which would in the event that he was latercaptured as a deserter relieve him from amenability for the of-fense of fraudulently enlisting fo r th e second period. Neverthe-less he might be amenable fo r th e offeys of desertion from th efirst enlistment. The point is that i so/'ar as the first enlist-ment is Ac e erne military jurisdiction attaches but with regard tth e later does not so attach and th e honorable discharge isirrevocable. He retains in the one case his military status whilein th e other he has been remanded to the status of civilian 4ZeeJig.Op.J.A.G. par. 1145)' The statute of limitations would be allthat would protect him from the punit ment due him for th e first

offense. the usual case,a soldier omitted a militayoffense wfr was discovered prior to , th e time when his discharge.was to be effected would be confined and held in th e service untilhis case had been settled by a court-martial under the authority


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While diffident about setting u Minion in the face ofsuch authority,the writer is cor~trained to sat that he believesthe consti tutionali ty of that pa t of th e 60th Article under dis-cussion can be upheld on other grounds. Of-course if it were dis-covered eforc discharge that the soldier had committed one of toffenses mentioned inr 60,then the usual rule would be fol-lowed and he would not be discharged until the case had beens8$tled by court-martial.There is no question here of amenabilltybecause there4s no apparent gap ih th e dontinuity of m ili taryjurisdiction.Now,suppose,on th e other hand, that one or more ofthe offenses mentioned in Er760 are committed by the soldier andthe same not being discoverehe arrives at th e end of his termof service and receives his discharge. So far as the officer

giving the discharge knows,the discharge is valid and finally separates the soldier from th e service,nothing to th e contrary havinyet appeared.Nevertheless the Moment th e offense was committed thlast part of Ar.60 commenced to apply. The soldier,by his own acand as yet w it out the knowledge of an Jother personhas broughtabout a state of affairs whidh sets th e provisions of th e articlein operation 'against him. It cannot be said that th e law does notapply to a crime which no one,except the perpetrator,knows hasbeen committed. Therefore,that particullar section of the articlewhich covers the offense continues in operation until the dayof th e man's discharge.At that time he receives his discharge,toall appearances legal and in due fvrm.Yet exactly at that samemoment,the alas t sentence of r _60 comes into operation and ren-ders th e discharge nul l and void.


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It is hardly possible to lay down any rule that would alwaysassist in determining the honesty and faithfulness of a man'sservice.Each case must be determined on its own merits.But it maybe remarked in this connection that a man's service is honest andfaithful unless it is affirmatively shown to be otherwise.Unlesssome condition is fulfilled that wil l result ,by the provisionsfound in the law or the regulationsin the neeessity of charac-terizin;_g th-e soldier's service as not honest and faithful,as forOxample,where he has been finally discharged from an enlistmentduring which he dedjrted and was restored. to duty without trilal,orunless th e company commander is able to prove,under A.R.l46,19O ,to th e satisfaction of a board of three officers that th e man'sservice has not been honest and faithful ,then it becomes,nolensvolens,ervice honest and fai thful , regardless of its real char-acter. In complying with the act of June 16,1890,26 Stat.L.,157~which st tcd that at th e end of three years from the date of hi~Qtxvh gm enlistment every soldier whose antecedent service hadbeen honest and faithful would be entitled to receive a furloughfor three months and that in time of peace he would be entitledto receive his discharge upon his own application at the' end ofsuch furlough,etc. ,and furlber that the Secretary of War woulddetermine what misconduct was to constitute a failure to renderhonest and faithful service within th e meaning of the act, theSecretary decided that in the following cases there had been afailure to render such honest and faithful service:t44

1. Desertion.2 ,When th e soldier is in confinement under a general court-


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"service not honest and faithful" on dischrge.Thus,in cases wherethe soldier has been discharged from an enlistment during which hedeserted,where he received a discharge without honor,and evenwhere he has been dishonorably discharged, in either of which in-stanceehe would of course be classed as having rendered servicenot honest and faithful,it was held that the Secretary,while hecould not under the act of g 1,1894,permit reenlistm- whileth e service was considered no honest and faithfulwas competentto reconsider the case) and authorize reenlistment by determiningthat the former service had in fact been honest and faithful.(SeeDig.Op.J.A.G.1,pars.l ll9,'2G7, nd 126~~As already stated, an honorable discharge cannot be revoked wthe view of retaining the man in th e service or of substitutingtherefor anotheilischarge of a different character.The contract ofenlistment to which it pertains is finally executed and' the statusof civilian is just as fully resumed as if the man had never beena soldier,with the exception that this kind of a discharge attacheto him certain privileges as to reenlistment not necessary tomention here. He is further entitled without abridgement or de-duct' on to all the pecunary benefits provided by law for a sol-di e on i g .

le k The discharge without honor is used to terminate th e contractof enlistment in those few cases where,for ohe reason or another,an honorable discBrge is not given,or where,on account of th efact that the discharge is not executed as part of a punishment,the same can-not be considered as dishonorable.


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reasons is in no manner different from that given for any othoxxof the [email protected] any case the separation from the service isfinal,just as in honorable discharge,and divests th e m ilitarystatus to th e same extant. Its effect on th e soldier ,howevor, isdif erent,in that he is deprived of th e privilege of reenlist ing.It might seem from this that th e discharge without honor passesover into the man's status as a civilian and to a certain extentvitiates it,inasmuch as he,not being agxix prileged e againenter th e army,is not the same as a civilian who is.Neverthelesshas been held to be not a right of citizenship and hence this de-privation does not prevent the civilian status from being completTfhere th e enlistment contract which is terminated by th e discharge without honor,is not vitiated by fraud at its commencement,it is the general rule that th e soldier is entitled on such dis-charge to all th e accrued pay and allowances due him,just as tfthe discharge were honorable.To have it an y other way would changthis discharge into a punishment which is not permissbile in viewof th e fact that it anot the res-lt of the sentence of a gen-eral court-martial of m ilitary commission.In the days of ret* dpay this was forfeited,not however because of such discharge butbecause of the soldier's failure to render honest and faithfulservice.The man is entitled to his travel allowances,to moneydue him for clothing not drawn in kind,and to th e pay still due.

v- The clothing already drawn by the soldier is not forfeited andmay properly be delivered to him unless his clothing account isoverdrawn ,when so much of it as is necessary may be retained andturned over to th e Quartermaster to balance the account,unlessindeed th e deficiency is made up by charging the amount against t


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&vo that he is not compelled to answer for offenses committed in priorenlis tments .The whole matter undoubtedly rests in th e characterof this discharge as a punishment.Dishonorable discharge is prima facie evidence that serviceduring th e enlistment which it terminated was not honest and faithful.It is however within the discretion of the Secretary of War

to determine fo r the purpose of reenlistment whether such term washonest and fai thful and he nay decide on the facts in th e casethat it was,even where there has been dishonorable discharge.(dig. Op.,J. A GCparr .i268Under the 12 4rticle of War,every officer authorized toorder a general "co r .,-martial shall have power to pardon or mit-igate any punishment adjudged by it,etc. It has been held,however,that a reviewing officer,other than th e President,was not empowereby this article to commute a punishment;that th e pardon herespecified.was remissior~which,unlike the Pardoning power vested inth e President, d1dnot include commutation or condit ional pardon.So,held that a rev;rwing commander was not authorized to commutethe punishment of dishonorable "discharge and that,as such pun-ishment was not susceptible of mitigation,it could not legally bereduced under this article.The substi tution of the punishment ofdishonorable discharge,imposed by sentence of a court-martial,would not of course be authorized by way of mitigation,which can-not change the nature of the punishment,but may be effected by acommutation of th e sentence by th e President.(nig.Op.J.A.G.

pars .347,34 jTher fore,where a soldier has been sentenced todishonorable discharge by a general court-martial or militarycomission,the reviewing commander is confined to a choice be-


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trial for fraudulent enlistment or whether he is brought to trialfor fraudulent 'enlistment aa is sentenced to dishonorable dischargIn the first case A.R.1400,l906,states that th e enlisted man isnot entitled to pay and allowances.In th e second case,it has beenheld that,inasmuch as th e dishonorable discharge is not intendedas a rescission of th e contract but as a punishment for an of-fense,the soldier is entitled to all pay and allowances due him ondate of his dishonorable discharge,unless specifically sentenceto forfeit th e same,with thQ. ne exception of trav1 pay which hefr- n a s by operation of law ig.Op.J.A.G par .423EiBeyond th e penalties just adescribed and the f ct that he isdebarred from reenlistment,not indeed by the fact of dishonorabledisc rge but by th e former service not being honest and faithful,the solier suffers no further disabilities by the fact of such dicharge.He is not prevented from accaepting civil employment underth e United States,if such bez offered him.Tnig.Op..J.A.G .0 .11491The discharge itself,if to take effect forthwith,should bedated as of the day on which the order is received and the soldieris entitled to pay,etc., to include that day if the same be notforfeited. The discharge cannot be executed until th e order pub-l ishing the sentence has been r ceived at th e place "i ere:thesame is in fact to be executed. Big.Op.J.A.Gpar.1155 A sen-tence adjudging a dishonorable discharge,to take effect at suchperiod during the term of confinement as mr be designated by thereviewing authority,is illegal A R.983,1908 and the time at whichsuch discharge is to take eff ct as fixed by th e sentence can notbe postponed by the reviewing officertA.R.984,19O8t


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The reason or cause of the discharge generally determinesclass to Which it belongs but not always,because of two men whoare to be discharged by reason of expiration of service,one mayby reason of honest and faithful service,rective an honorable dcharge,whil th e other ,for th e reverse reason,may be dischargedWithout honor. But if the soldier is discharged without trial oaccount of fraudulent enlistment ;without trial on account ofhaving become disqualifled ,physically or in character,throughhis own misconduct;on account of imprisonment under sentence ofcivil court; or, in th e case of a captured deserted ,when he is nophysically fitted for service;then his discharge must just as ncessarily be without honor as where such discharge is orderedby the Secretary of Wlar for some other reason. Similarly,the setence of a general court-martial or a m ilitary commission cannever direct anything else but a dishonorable discharge and tobe discharged pursuant to such sentence means to be dishonorabldis charg ed.

These considerations are not important to the service at las th e matter is only within the jurisdiction of the highercorianders or the Secretary of War and the order directing thedischarge will scarcely ever fail to direct the kind of a dischto be given where it is not patent that the soldier is entitledto an honorable discharge.Of scarcely greater importance is a consideration of any othe special reasons for discharge,such as purchase or dischargecertificate of disability contracted in line of duty. These tworeasons especially are governed by special rules liable to chanat any time and the discharge given on account of them is perha


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ropm,where it awaits his return;or,where an enlisted man it.sentenced to dishonorable discharge and confinement and th e dEsdischarge certificate is delivered to the officer in charge ofpristners;or where, for any reason,there is such a change in th esituation as in legal effect imports a change aof the p sessionof the discharge aertificate.The receipt of ar a. ecting aman's discharge will never consti tute such notice,either actualor constructive;nor can the discharge take effect except on thedate and at th e place where the soldier receives a notice,orisat least legally chargeable with notice,of th e fact of his dis-charge. He is therefore entitled to his pay and allowances untilthat time and his travel pay,should he be entitled to any,iscomputed with reference to the place where th e notice was receiveregardless of whether he should have properly have been dischargeat some other.The details of th e discharge certificate are unimportant,inasmuch as blanks for each kind are furnished,so arranged as tomake it self-evident what th e sertificates must contain.Nor isany consideration of the character nor of th e final statementsnecessary,for these matters are merely side issues,forming nopart of the discharge proper.It has perhaps already been sufficiently explained who are tproper parties to sign the discharge certificates.It is now onlynecessary to say that no matter from whom th e authority for th edischarge must come,the same is always actually executed by afield officer of the soldier's regiment or corpsor by'the com-manding officer,wrien no field officer is present;and further that


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authorizin~ him to parole Gannon,emrploying \im in a pack traineither at os Banos or Cabuyoa. When the par r reached Los Banos,the Comnaning Officer,Capt .Cheever,returned ' t to brigade head-quarters at ting that at the.expiration of Ga non's term of ser-vice,Feb.20 he had,under th e provisions of A._ .l.69,1901 , nowpar.155 ,been discharged and that, as he did not'belong to any or-ganization,he had been left at Balayan ,when hi former troopchanged stati n,in order to complete his sentece . The CommandingOfficer at Bal yan was thereupon authorized to oarole Gannonin order that 'e might work in a packtrain. Under the date of Ju19,1902,this officer repl ied, that in view of pa .l 3.0.111,1902,of th e brigade the man had been released and ha' left Balayan onJune 8,1902,,to ljoin h is troop which by that tim had been sentto Cabuyoa.In th e m ntime the proceedings of the gen ral court martiby which Gannon had been tried had gone on to Washington and hadfinally reached the office Of the Judge Advocate4Geteral of th eArmy. Here it was discovered that the, sentence w s vaid and inoperative becausethe Commanding General of the brigade had takenfinal action inthe casethe sentence of which wal below th e l imprescribed by the local lat. The Cammanding Gener .l,having beenduly advised of his by endorsement on th e original proceedings,thereupon issued par.l,S .0.11 , bove referred to, nnouncing thatthe sentence was for these reasons void and inopex 'ative and direing that Gannon Abe set at l ibdrty.While en rote from Balayan to Cabuyoa to joi his troop,Gannon passed thi ugh Batan.as where the Headquart "rs of th e bxigbrigade were loca ed,and a ied in person to the Adjutant Genera

1- f


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the view of turning them ove: to him anc finally completing th edischarge. It was then discovered that a though they were madeout as of the ate of the man's expiratlo. of service,Feb.20,they were sign d by Lieut.Strikor who,on at day,was neither thesoldier's troo _ co^mmander nor his post couvander,nor was he evenon duty in the $hilippines.In an effort to 'discover the where-abouts of the o iginal discharge papers,inq iry was made ofLiout.Read,ho oFeb.20 was Gannon's troop commander. Licut.Read informed th adjutant General,by telegram dated Los Banos,Nov.18,1902,that to the best of his recollec ion he did notmake out the man's discharge and final state ents on Feb.20,as th e soldier was in confinement on that dt',butintended to waiuntil he was rele sed;that this intention was never carried outon account of the fact that he, Lieut.Read,had eft Balayan beforethe release occur~~d. Neverthelessnot only the morning report ofFeb.2lst but also the next muster roll of th e troop bore completeremarks concerning Gannon as if he had been disharged,whichcould not in any c se have been true. On Aug.22,Gannon rut in anplication to be al~owed to return home but thiswas disapproved.In order to clpse th e case ad i allow the m0n -o go home,a discharge without\honor was finally made oft ad signed by LieuRead,pursuant to the verbal directions of Genera. Bell.lIt wasdated Feb.20th,1902, and,together with th e final tatements, wasdelivered to Private Gannon on December 4th,1902 /

The following i. the opinion of Oaptain Herb rt A. White,11th Cavalry,who revsiwed the case as Acting Judge Advocate of thbrigade;---


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18An attempt\was made by the Adjutant General,who now became

Gannon's comman ng officer,to.seure th discharge certificateand a telegram w s sent to the commianding officer of Troop "G",6th Cavalry. In r ply to this telegram th #re was forwarded a d0-dument purporting to be a discharge without honor for Gannon.But what is it? A aper signed some time i June,1902 by a certainLieut.Striker, ho 1as never been in Balaya ,theplace of Gannon's

confinement ,who ha never been Gannon's co nmanding officer,whosigned the discharge not as commanding offi r but as troop cor.-mander,and who dates th e discharge tO xasx m back to Feb.20th,1902,a time whem said Lieutenant was not in th e PhilippineIslands.So it is con dered that Gannon is still in the service.Such a documentknot being a legal disc .arge,and as an of-ficer or a soldier act ally serving to a giv n date cannot belegally discharged as f prior date ,Dig. 0p.J.A.G.1L54,Gannoncannot now be discharg~ on Feb,both,1902.

It may be difficul'\ to determine at time. what "actuallyserving"means. But a solier whoon discharge from illegal con-finement ,in doubt as to hat his status is,a qiestion to perplexanyone,is confronted by %, order from the Post \Gommander to pro-ceed to join his troop,cetainly is justified i considering thathe is still in the service. Gannon obeyed this Order and on reach-Batangas ,Brigade Headquartrs,on his journey,was\ ordered by th e Brigade Comander through the'Adjutant General to rmrain in Batangas.Later he is held in the Phillippines by an order :rom the divisioncommander. Gannon has obeyed all these orders and has always heldhimself in readiness.tbe any and all orders that might be


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DEPA T #5 NYT 0? LAW


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Anyone who has nde a caret ul study of th e military history of the UnitedStates, or indeed anyone who has obtained but a casual glance into it, has 4eanedthe fact that the.aj ority of disasters which have befallen our forces., especiallyin our earlier wars, have been due to the general utilization of the milOtiaYet it has not been because the individual man of the militia is ess bravo oreven less capable than the individual regular or volunteer if he were given thesame opportunities and training. He is not a trained soldier, and here some-one says that the volunteer is not a trained soldier, but, a this article 1s nota. discussion on the merits of militia and vlunteers, I Will simply call his attention to the War of 1812 and the Mexican War with their numeBrous critics, althoughthe difference between the results of the two wars is not wholly to be ascribed t


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same year, contrary to the command of the Royal Governor of kassahu tts, th eProvinial ogss of that state met ad passed resolutions for the organzationof militia and comisioned several generz Ilofficers. Comittees were de-putized to aizs the Militia, procure arms and splies, comiion officers.and, when in the field, to direct operations. The Second Provisional, Congress(Mass. ), which met the following year, enlarged on the powers granted the o tetee of safety and authorized it to "ra.ise and support such a military force as itmight dea proper to resist the execution of the Acts of Parliament." Imaediate

ly, r oughout. the colonycc pes and regiments were organized and one-thirdagreed to serve as "iute men." Hardly had th e news of the Battles of Lexing-to n and Concord been received when New England cxbined for defense and organizedtroops by granting the appointment of captain to him who could raise a company


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with the consent of' their colonial legislatures could this ilitia be called out,and, foaowing a provision adopted by Massachusetts., one-fourth wereto hold them-selves voluntarily as minute men. Oing to a fear of disapprobation on thepart of somne colony, ca s" ere only,made for from four to eaight months. Someother, eonalld recommendations, on thesae subject were also made during thisperiod little notice was tken of thonnd consequently they had little efecmt

The nex perod is hrat whic was infoeBsandt~e the~ A~;rtes o Cfe.dera-Tion. These articles were adopted in July 1778nd remained in force until.

our present Constitution became effective. In order to better follow the 2-tia development during this period, it 4ght be interesting to quote a few,etract


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and within the time agreed on- - - . T United States inCoss assb edshafl never engage in war - - a nor acertain te sums and expenses necessaryfor the defense and welfare of the United States, -, nor (agree upon) th enumber of ld and sea forces to he raised, nor appoint a coa nder in chief ofthe Army or Navy, unless nine States assent to the same - -

Under the government of the Continental Congress our mlitary policy hadbeen wreak enough but hare was a retrog amovement HretoforeCongress. araised its own armieas but: now the power was taken away frog the.central gover-ment and Conresrs "could not enlist a soldier, nor levy a tax, nor enforce re-qusition for men or for roney and any letislature could neutralize the power of


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l0 Tode re wara - a4.To raise and support aries aa

13. To make rules for the government and reglation of the land an d aval

l4. To provide for cai ng forth the Militia to exeoute the laws o theUin, suppress insurrections and repel invasions15. To prode o organzing alas~rtig, ad di clinin the~J militia;, atnd5Yfor governing such part of thew ts. uy te erlod in tle srve of theUnited Satea, reserving to the SCates, reepeootive2.y, the apoirntbent of theoffieors nd the authority of trainirg the miltia acc ording the dihci-line;prescribed by Congress

. To make all las Which shl 4 be necessar; ad prps? fo ryrn t


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Under Arile I section 8, paragraph 14.f, abovquoted Congress soon maddue provision by its Act of February 28, 1795, Which reads part "in case ofan insurrection in any state against the government thereof, it shall be Lawfufor the President of the United States, on the application of the legislaturesuch state, or of the executive (when the legislature cannot be convened) to cforth such number of the militia of any other state o states as n be appliedfor, as he may judge sufficient to suppress such insurrection." This act isti11 in force and leaves the power of deciding whether the ezigency has arisefor federal interference strictly up to the President and also for his decisionin case of doubt, as to which is he government within the state. (For SupremeCourt cases on this point see Luther v. Borden,. THow.l, and Martin v. ott,


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All measures adopted by Congress up to and including the Wr of 1812 lookedtoao t exluiv us of en eveart*ngezs u to 16i,19 endeavored.0 _I'e 6toemedy defects in existing laws on this subject.t etion $ of the Act ofeptember 9 1789 aut i te P ident to allotshedeemedee ary against Indian, ith the disstrous results of the )iami expeition

about a year later and GeneralS. lr's expedition 791 About the timeof the iseyRebelion in western Pennsylvania Coneass provided that where themilitia of one state did notrp to a call that the m ilitia ofother statescould b., utilized.

Of the10,0 milia called f or under the .i of April ,101$, aes-ohusette and Connecticut refusex to fr nis their qtotas upon th e foo loing


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orye, so ba tel organized on ., received suh instr uion st thevaIousStateas thought propr, and the rrig of eni stm.et was etifl of shorduration. e Act of La 1? 180 endeavored to establish a "unif or mcode ofdiscipline and field ezerciess "for the mlitia tbroughout. pTheIs cgiven toConres a power "to raise and suppor t r ie es hih was pr otisB ly

limited but, when Washington was thre tened, th e Stese in the i e aevioinity were invited "to hold the milit. ;in readiness to march at amo s enotice"ins tad of. being called at once into the field,

i 186, during the lorida War, th e goernors of nearby Sates were repguest&d to l lrequlsitione for militia which might be ode by ii ta.r :corn-manders to serv afor at least three onth, The question of equip antcasGed


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men and that men temporarily disqua.ified for field service te sent home to vote.This soon led to a general depletion of the forces at tE front, as many of thosethat went home never returned but obtained their discharges through politicalmeans if not by purchase. It is true that this was given its impetus by theLilitary Comittee of the Senate declaring the volunteers to be militia or Statetroops in the service of the United States, but a we look at it today, they wervolunteers*, The Act of July 17,182 provided that "if by reason of defects inexstinLg laws or i$n thes~ exeution of the~i i h several~ Staes or an of themit should be found necessary to "provide for enrolling the militia and otherwiseputting this act into execution," the President should be authorized "in suchcases, to make all necessary rules and regulations." Now suppose any governors


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Vifl take & definite decision of the Supreme Court to inal'ty settle, thougt)s~o nnet. e done on a hypothetical2. question, but must be one. oaatwiljy arisinr: :isduandry that ihas confronted us before but is worsenow as the "ri t6 n aller into the service of the United States in vanceof any volunte

fore *hichi be determined to raise"- our trained soldier might again sa.ti%.unc rtutonal to leave the United States and weamust sit and twiddleour thunt b~ie a deoision is being arrived at or our volunteers suf intlytraied._

Sactsion 7 says that those members who "neglect to prsent" therms elves whecalled shall be tried by court-martial. This is uficient in individual csebut wht if the "neglect" is gsieral? The goveror app oints the court 'whicis probably composed of business men who feel the sre way s the neglectfu o


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Documents

Army Staff College Theses (1908)