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

 STAI} CLASS THESES

IL0
-O 9.

DEPAHRTME;TT OF L, A

APJVIY SERVICE SCHOOLS

THE FO0U R T H RlT I C L

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I
 The Fourth. Article f Tr,

Fourth Article of War deals with

the discharge of enlisted
Ahe

men fm te military'service of the United States. Pr^pa~t"ry t

I n~o~er;)icn ofC ~+ +t17r WP1 reur':$*ebmer+ it+is n~ry to~~
~at frth thoefal- toxt- ofIt-he airlo;.
n1oenlisted man,duly sworn,ehall be discharged from the
service without a discharge in writing,signed by a field officer
of the regiment to which he belongs,or by the comm
. anding officer,
when no field officer Is present;and no discharge shall be given
to any enlisteld man beforehis term of service has expired , except
by oter of the President,the Secretary of Tar,the conmanding of-
ficer of a department ,or by sentence of a general court-martial *
Practically the same ground is covered by the Army Regulat-
ions in the following language,;
--
"A soldieron his discharge from the service,will be given
a certificate of discharge signed by a field officer of h~s re-
giment or corps,or by the commanding officer,when no field officer
is present."' ( .R. 45,98.)
XAn enlisted marw. ill not be discharged before the 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 governing
discharge by. pvtrchase,by direction of the coriander of a
territorial department or army...in th field.
4.Jy order of the commanding general,Philippines. Division,
as authorized by paragraph 125.
5.In compliance with an order of one of the United States
courts,or a justice or a judge thereof,on a writ of habeas
corpus:(A.R.138,19O8.) %
A comparison of these two paragraph with4the corresponding
parts of the article makes it clear, in part at least, that the for-
mer have been frmed with intent to insure the due execution of the
latter. This is of course a legitimate exercise of an executivefmrvnction
conferred on the resident by the Constitution.
The regulations however gourther than is strictly required
to secure exact compliance with the terms of the article. For
example, where the article authorizes field officers of regiments
to sign discharges,the regulations extend the authority to field
officers of corps. Where the article states specifically that dis-
charges shall not be given prior to expiration of term of service
except by order of the Presidert,the Secretaryof War,the command-
ing officer of a department or by sentence of a general court-
martial,the authority is nevertheless vested further in the sen-
tencing power of military comissions;under certain circumstances
in the commander of an army in the fielf;in the particular case of
a captured deserter found unfit for military service,in the con-
manding genral,Philippines Divisicn;and finally,it is stated that
an enlisted man may be discharged prior to expiration of his term
of service in compliance with an order from one of the United
States courts,or a justice or a judge thereof,on a writ, of habeas
corpus. On the other hand,where we would expect from a reading of
the article to find the corimanding officer of a department exer-
cising concurrent jurisdiction with the President and the Secre-
tary of Whar over the subject of discharges of this particular kind,
it is found that the regulations limit his authority to two special
classes of casesdischarges on certificate of disability and dis-
charges granted by purchase.
Because of the fact that when questions of administration
arise,the ,rmy itself does not appeal so much to the general terms
of the articled as to the more detailed statements contained in
the regulations,it is necessary to assume that the Fourth Article
cannot be profitabl discussed without also considering those
parts O1 the rgul yi ons bear on the same subject.
Therefore,ince it ~s understood that egulatins mst not
contrae~ne existing law and ust not themselves legislate,it is
 pertinent first to enquire whether the two paragraphs4rove quoted
do notby the differences already pointed out,enter the field of
statute law and thereby in those respects at least become invalid.
Prima facie of course they do not.Otherwise they would not have
received the stamp of official approval. Nevertheless,it must be
admitted that the clear and precise wording of the article and its
use of the word "shall" give an impression that it was the, inten-
tion of the legtslatureo cover the whole ground and leave noth-
ing for regulation.
To determine this becomes the more important when the inpor-
tance of the subject matter is realized.In discussing whether a
discharge certificate is necessary to a discharge the Judge-Advo-
cate General (eport Jan.2,1901)holds that the Fourth Article is
directory,by which is meant that the acts referred to therein are
not necessarily rendered invalid by reason of the fact that the
rules prescribed for carrying them out are not followed.It is
clear from the context of the report that the Judge-Advocate Gen-
eral only had in mind the first clause of the article. It cannot
be doubted that the second clause of the article is mandatory--
that the acts therein directed. are void unless its provisions
are complied with.
From this it appears that if an enlisted man is,,discharged
without a discharge in writing or if such discharge in writing is
signed by another than the field officer or the commanding officer,
as the case may be, the discharge is none the loss valid al-
though the law has in fact been disobeyed. On the other hand,even
if the discharge is valid when the law is disobeyed,it does not
is his coisti-
t the President,in view of the fact that itexecuted,has
ty seem t1
tutionaT4 ^to take care that the laws be faithfully
any right to take the responsibility for the violation of a law
by issuing a regulation authorizing it.
With regard to the second clause,it is evident that only
those authorities indicated have a right to terminate tkcontract
of enlistment before it has legally expired. If other agents of the
United States assume torhu1 termi °te the contract then they
have exceeded their powersthe . is void and the man still
belongs to the military service.
Granting that the Army Regulations are always entitled to
such a construction of meaning as will permit them to perform their
proper function of ensuring the due execution of those laws re-
lating to the military and assuming that where such a construction
is possible or at all reasonable it is the one intended,it is proper
now to determine just how far the regulations have over-stepped
the boundary,if indeed they have done so at all.

May a field officer of a corps legally sign a discharge cer-

t ificate?
This is evidently mere & question of what construction is
placed on the word, ccrps' If by"field officer of his corps" is
meant a field officer belonging to the line of the 4rmy whose
character and duties correspond in all respects to those of field
officers of reginents,then it appears that here the regulations
have not altered the sense of the article bgt have merely elabor-
ated and explained it.
Of the field officers of corps who fulfill these requ rements
the first to be mentioned are those of the ngineers orps erv-
ing with the battalions of Engineers By the act approve ar 2,
1899,and subsequently reenacted on e,9Ol,the battalions of
engineers and the officers serving therewith are constituted a
part of the line of the rmy. Hence,fleld officers of engineers
serving with angineer troops at posts where they are not also
comr-nanding officers are to sign the discharge certificates of all
enlisted men of their corps. As commanding officers they are to
sign them in any event.
Similarly,by the act approvedQ. 25 ,1907,it was provided
that the Coast Artillery and the Field Artillery should be per-
mnanently sparated and that the
:Coast Alrtilery should constitute
 a corps while the Field Artillery should be organized into regi-
ments. The artillery,Coast and Field, had already,before the
separation,been declared,by the act of 2,1901, part of the
line of the rmy. There is no doubt therefore that field officers
of the Coast Artillery Corps,like field officers of the Corps of
Engineers,are properly included withing the meairng of the 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-called
Medical Corps,to which the Hospital Corps consisting of enlisted
_men only,io permanently attached by law. se are distinctly staff
departments and the word "corps" is not used in connection with
them in the same sense in which it is used in th, .16th paragraph/'
They differ in status in no respect from the Ordnance,Quartermaster,
% and Subsistence Iepartmentsto which the term"corps" is properly
,'applied.They are not a part of the line of the army and their field
officers can not be assimilated to field officers of regiments.
The difference between ,them and the field officers of the Corps of
Engineers and the Artillery Corps is at once apparent.Consequent-
ly it is not difficult to decide that when field officers of the
Signal Corps and the Medical Corps are serving at places where
they are not come landing officers ,they have no authority to sign
the discharge sertificates of the enlisted men of their respective
corps and it is not the intention of the regulations to invest
,.. t,.a 1. th such authority.
Finally if it be enquired why the word corp rPwas not inserted
in the article in the first. place,it is only necessary to point
out that in 1874 when then statute was first passed,or,rather,
when it was last passed in its present firm, there were no corps
belonging to the line of the/ rmy. It is4 general proposition that,
while the articles are too inelastic and difficult to change,the
regulations can be modified at every hand-turn. But the latter
is sometimes an advantage because it permits the1( to be kept up
to correspond to the latest legislation on any subject;which is
no more than was done in this case.
wi
How does it coma about that the regulations authorize en-
listed rtenj to be discharged by sentence of military commissions
while the article confines the power to general coutts-martial,
especially in view of the fact that both courts were in exis-
tence when the statute was last passed?
The military commission,having been grafted into our system
of military courts,is well recognized by Congress,by the Executives
ani by the Judiciary. It uthorized by the aw of War and may per-
haps best be consideredas the complement of the general court-mai-
tial,taking up the burden of administering justice where the
latter,on account of the narrow restrictions placed upon it by
the Articles of Waris compelled to lay it down.
In the absence of any statute prescribing by whom military
colmmissions shall b~e constituted,they have been constituted in
practice by the same commanders as are empowered by Articles 72
and 73 to convene general courts-martial;'to wit,commanders of
departments ,armies ,divisions, and separate brigades.4inthrop,
Vol.2,page 12 Their metho dsof procedure follow% as nearly as
practicable of the general court-martial.Hence,the sentence
of th, military commissIon is likewise to be looked upon as
simply a recommendation to the convening authority which,by nec-
essary implication from Article 104,requires his approval before
it becomes operative,the same as is the case with
any other mili-
tary court. The force of the regulation concerning the military
commission,similarly to the for~ce of the article concerning the
general court-martial,is merely to invest exactly the same comman-
ders with the power to order the discharge of soldiers prior to
the expiration of their terms of serviceunder circumstances
which
in either case may be regarded as the same.
In view of the fact thatrhile the military
never been especially authorized by CongressIts ,commissionexistece
has
has so
many times received th~f~ Conrssional aPrvoval,it seems that here
the regulaticii 5 havre done no more than draw~ 'fom another source6
 than the Fourth Article of War the wished of Congress respfecting
the discharge of enlisted men prior to the expiration of their
terms of service and set then down along with the others.
Can the regulations authorize the commander of an army in the
f ield to discharge soldiers prior to expiration of their terms of
service,even in the two classes of cases mentioned?
Likewise,can the com nding general,Philippines Division,be
authorized to discharge apprehended deserters when they are found
unfit for service?
is it possible for the regulations to limit a department
commander's authority to discharge to discharges on certificate of
disability and discharges by purchase?
With regard to the first two questions,it may be said that
only the most narrow construction of the words.._"by order of the
President" ermits the conclusion that only those discharges by
order of the President are allowable where the President himself
has acted on the case and has ordered the discharge.
That the President,as Commander in Chief,may depute a portion
of his authority,under such rules as he may see fit to prescribe,
is well recognized and established. Otherwise,if he retained in
his own hands all the powers with which he is invested by the
Constitution and laws of the United States,it would not only be
practically impossible to administer army affairs but practically
impossible, as well,to make use of theirmy either in peace or war.
That this deputation of, power to the proper subordinate is
sanctioned by Congress is illustrated in numerous instances in
the Revised Statutes,,especially ' n those places where the Pres-
ident is authorized or directed to make use of the land and naval
forces of the United States for the accomplishment of a given
objet. Here,it never seems to be doubted but that the President
will depute the authority reposed In him to some duly authorized
military subordinate. Besides this,when the President orders a
subordinate to do a special aet,it is in fact the act of the
President himself performed by and through that subordinate.
We think that these matters will find firm footing on these
grounds and that by fair inference it may be concluded that in
the two cases under consideration the President has, through
necessity or because it was deemed expedient or proper to do so,
legitimately conferred a portion of his power to order discharges
prior to expiration of term of service upon two of his qualified
representatives ,the commiander of an army in the field and the cor-
ma.nrding general ,Philippines Division.
With the third question it is somewhat different. No person
can of course be deprived by regftlation of any right or title
vest d. in him by law;but this can only refer to personal or prop-
erty rights. The department commander's right to order discharges
while not apparently limited by the article,pertains solely to
his office as department dommander. As such he is an executive
instrument and subject to the control of the President as Com-
mander in Chief. Having authority to use and control this instru-
ment,the President also has the authority to limit its action to
what is deemed for the best interests 6f the Government and that
is all that he can be said to have done in this case. The law,
by leaving the limit of the department commander's power undefined,
cannot.be construed to have thereby intended that it should remain
so but will rather be considered to have intentionally left the
field open that the confines might be set at the discretion of the
President.
The last of these points has to do with the discharge of
/ enlisted mien prior to expiration of term of service as a result
of a writ of habeas corpus issued by a United States court,etc.
The-writ of habeas corpus would,n the case of a soldier,
ordinarily be issued where it was claimed that he was unlawfully
held in military custody or was illegally held to military service.
It.:would require that the body. of the man be brought before the
court in order that his case be determined. In the case of a
United States court or judge or justice,the military muswt obey thel
writ.The court wil then summarily proceed to deteri-.ine the mratter;
by/~hearing etinn and rgument,and thereupon will dispose of
 of the party as law and justice require ec .76lR.S),That is to
say, if the soldier is found in fact to be illegally restrained of
his liberty the court will order him discharged from the service
or fyf cL s tody,as the circumstances may demand.
The appearance of this authority in paragraph 138 is but
another instance of whereethe regulations have been framed to in-
clude not only the substance of the Fourth Article but every other
enactment of Cosir ss bearing on the subject ,no matter when passed.
It is evident that this greatly facilitates business in the Army
and is therefore justifiable for that reason if for no other. And
in this case,the authority for-the premature discharge is of equal
rank with that contained in the Fourt Article.

Being now in the possession of all the rules governing dis-

charges and being assured that we can permit ourselves to be
governed by those additional ones' contained in the regulations
without any more reason to fear that we are doing an unlawful or
an invalid act than if we stand to the strict wording of the Fourth
Article itself,we are better prepared to enter more detailed
discusion of the main matter under consideration.
:-----With this end in view it may not be improper tofirst briefly
examine the contract of enlistment,since the discharge is merely
the final
-: official act pertaining thereto.
A contract of enlistment fulfills the definition of the or-
dinary contract in that it is an agreement the fulfillment of
whose promises is enforceable at law(6 Smith's El.Law,page 225
It is usually express but it may be implied from any act or acts
which indicate an undertaking,on the part of a person legally cam-
petentto do so, to render military service to the United States
and the acceptance on the part of the Government of such service.
Dig.Op.J.A.G.note,page 349, The oath prescribed to be taken is
not essential to the enlistment 1Dig.Op.J.A.G.,par.25J3, but is now
an invariable part of it. Therefore, the oath is to be regarded
merely asfan especially solemn fwvm of written agreement,eviden-
cing the fact that the contract to serve as a soldier has been
entered upon. Any other evidence of the offer of service,the ac-
ceptance of the same,and of the fact that both parties proceed
to perform those acts ordinarily done when a contract of enlistment
444 K=' - _, L is entered upon,may generally be regarded as legal
evidence of such contract and as equivalent to a formal written
agreement when no such agreement exists.On the part of the enlistd.
man,such evidence would. usually consist of his performance of the
duties of a soldier,of his acceptance of pay and allowances,of
hi :j bedience to the orders of his officers and in general of con-
du' -cam permits a reasonable inference on the parts of those
who are acquainted with him .that he is in fact a soldier. On th6
part of the Government such evidence would consist of the accepS
tance of the man's services as a soldier,of the proffer of pay
and allowancesor of any other act that could be construed as a
recogn&tion of the military status of the person. Moreover,if
any such evidence exists it effectually estops not only the man
but the Government as well from denying that the contract does in
fact exist. This matte-r can of course have a practical application
only in case the oath of enlistment is lost or destroyed or is,
for any reason,invalid;because the is indeed the best evi-
dence thatathe contract does exist,which .fact is seldom if ever
in any case denied.
The contract of enlistment possesses nevertheless several
features 4.e: distinguish it from the ordinary contracts of bus-
iness li~e. It requires of course, " meeting of the minds', which
implies that no contract can take place where the parties,by reas-
on of drunkenness,insanity,or other mental condition in which com-
mon intelligence is absent,are incapable of giving intelligent
assent. But another requisite for the "meetig,that the arties
be o~ legal consent~ig agc, is lacking,frof the law allows men? be-
tween the ages of ~i and g to enlist ,povded they have the
written consent of parent or guardian.
Tfhe enlistment contmact ,mor~over,is8 one ofr those special
kinds w~ee the status is charngeand where that happns no breack
of contact destroys the new status or relieves from the obli-
 gations which its existence imposes. 4WygBy enlistment the cit-
izen becomes a soldier.His relations to the state and the public
,are changed.He acquires a new status,with correlative rights and
duties;and although he may violate his contract obligations,his
statuel$- as a soldier is unchanged. He cannot of his ownv lition
thro off the garments he has once put on,nor can hetne tae not
objectingnenounce his relations and destroy his status on the
plea that ,tf he had disclosed truthfully the factsthe other party,
the State,would not have entered into the new relations with him
or permitted him to change his status.Un re Grimley,L 7 U.S.147,1561.
Having entered into a contract of enlistment it is therefore
not sufficient,in order to throw off the status,that thet soldier
shall then merely execute the obligations thenby assumed. A for-
mal di chaXge is required before the contract can be considered as
fihall y,and the status of soldier divested.

A discharge from the military service may therefore be defined

as that formal official act by which an enlisted man's contract of
enlistment is terminated and which not only signifies but also
effects,...the divestment of his status as a soldier and his return
to his previous status as a civilian.
The enlisted man is,inkeneral,entitled at the end of his term
of enlistment to such formal discharge but it is evident that -
he cannot discharge himself by simply leaving the service at
such
time. If he should take the matter into his own hands he would
of
course 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
that the soldier's title to his discharge at the expirat ion of his
service is a legal right and that it cannot be set at naught by
simply retaining him in the service.If this should be gtempted
he would be protected by the Federal civil courts e would not
hesitate to release him from the service on a writ of habeas car-
puswithout any regard to a military discharge. (Report J.A.G.,
Jan. 2,90. Nevertheless this in no sense precludes the retention
of a soldier in the military service beyond the date of the ex-
piration of his enlistment, if military jurisdiction attaches to
him by reason of the fact that he has committed some military Of-
fense. Nor can he be removed from military custody if he is serv-
ing the sentence of a military court on that date,notwithstanding
that his discharge may already have been made out, so that it amounts
to holding him without pay of allowances from the date of discharge
to the date of dismissal from the guard house.(See A.R. 155,908).
A discharge,once made out and notice thereof given to the
soldier,is not,unless obtained by reason of fraud~subject to be
revoked or in any manner changed. Mere mistake on the part of the
officer executing it WX±U or a misapprehension of the facts in
the case by the authority competent to order the discharge will
not justify revocation nor the withdrawal of the discharge actual-
ly given with the view of substituting another of a different
character. However it has been held,in the case of a soldier
obtained his discharge by secretly changing his descriptive list who
so t at the term of enlistment appeared to be years instead
of 5 years as it really was,that the discharge might be revoked
any e soldier broug o trial under the, -&-A-. before a court-
martial.Dig.op.J.A.G.par.ll42 This dec ision is very old ay,
1866) but still holds good because the reasons upon
which it un-
doubtedly was based still apply. In this case the discharge
was
given by the regimental commander and was in factsa discharge
given prior to expiration of term of service,although made to
appear otherwise by the fraud of the soldier. Oonsequently,the
regimental commander:: ot being authorized to discharge
enlisted
prior to expiration n term of service,the discharge was per se men
null and void and of no effect when given. It must have
been
otherwise,in this particular instance, had the authority
granting
the discharge been authorized by law to discharge prior to
piration of service,no miatter wthether the discharge was obtained'
through fraud or not.
if>
t
Except in the cases provided for in the Article of War,
and in three of the sections of the Revised Statuteswwhich lat-
ter are of no especial importance,a soldier's amenability to the
Articles of War for offenses committed while a military person
ceases the instant his discharge is executed and notice thereof,
actual or constructive,is received by him. And it may be said
also that he does not upon reenlistment generally become amenable
for 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 throughout
the latter terr without apprehension he would probably receive an
honorable discharge which would in the event that he was later
captured as a deserter relieve him from amenability for the of-
fense of fraudulently enlisting for the second period. Neverthe-
less he might be amenable for the offeys of desertion from the
first enlistment. The point is that i so/'ar as the first enlist-
ment is Acre erne military jurisdiction attaches but with regard to
the later does not so attach and the honorable discharge is
irrevocable. He retains in the one case his military status while
in the other he has been remanded to the status of civilian 4Zee
Jig.Op.J.A.G. par. 1145)' The statute of limitations would be all
that would protect him from the punit ment due him for the first

offense. the usual case,a soldier omitted a militay

offense wfr was discovered prior to, the time when his discharge.
was to be effected would be confined and held in the service until
his case had been settled by a court-martial under the authority
contained in A.R .155 ,1908 .Under the circumstances the forcible
deprivation of his right to a discharge at the expiration of his
service would be legal and ,military jurisdiction having already
attached for the purpose of trial for a military offense for
which charges had been preferred,civil jurisdiction,under the
Grafton decision,woud be suspended for the time being. Nor could
a discharge on a writ of habe ,e obtained.
Amenability under the tArticle of War has already been
mentioned. In this article it is stated that if any person,being
guilty of the offenses aforesaid,while in the military service of
the United States,receives his discharge,or is dismissed from the
service,he shall continue to be liable to be arrested and held for
trial and sentence by a court-martial,in the same manner and to
the same extent as if he had not received such discharge nor been
dismissed.
From what has already been said concerning status and amen-
ability to thetrticles of rthe constitutionality of this part
of the t4rticle may well be doubted because the Constitution
says (Arr.II and Amendments V and VI,)that the trial of zximnx all
crimes,except in cases of impeachment,shall be by jury;that no perik-~
shall be held to answer for a capital or otherwise infamous crime,
unless on a presentment or indictment of a grand jury,except in
cases arising in the land and naval forces;and that in all crim-
inal prosecutions,the accused shall enjoy the right to a speedy
and public trial,by an impartial jury of the state and district,
wherein the crime shall have been committed.In Winthro,Vo1JJl)
page 143, appears the statement that the provisions of Art"6O
under consideration was a war measure,intended apparently to be
but temporary in its operation.But since it has remained on the
statute books,Winthrop,while expressing his judgement that a stat-
ute cannot be framed by which a civilian can lawfully be made
amenable to military jurisdiction in tie of peace,says that 4f-4
the constitutionality of this lawand others under consideration,
can be sustained on any grounds whatever it must be under and by
virtue of a combination of the two powers " to raise armies" and
" govern the land forces". " That is to say",he continues," they
must be regarded as placing or retaining these persons"t,those
entoned inO,for instance,"otithstnding that they have
become civiliansj~intthe rmy for a tem~EoraryT or special urpoe ,an d, Q'
by the samie act, roviding for their goern~ent while so placed
or retaine,so that their offenses sall be punishable as 'cases
arising~ in the land forces'
 While diffident about setting u Minion in the face of
such authority,the writer is cor~trained to sat that he believes
the constitutionality of that pa t of the 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 the
offenses mentioned inr 60,then the usual rule would be fol-
lowed and he would not be discharged until the case had been
s8$tled by court-martial.There is no question here of amenabillty
because there4s no apparent gap ih the dontinuity of military
jurisdiction.Now,suppose,on the other hand, that one or more of
the offenses mentioned in Er760 are committed by the soldier and,
the same not being discoverehe arrives at the end of his term
of service and receives his discharge. So far as the officer
giving the discharge knows,the discharge is valid and finally sep-
arates the soldier from the service,nothing to the contrary having
yet appeared.Nevertheless the Moment the offense was committed the
last part of Ar.60 commenced to apply. The soldier,by his own act,
and as yet wit out the knowledge of an Jother personhas brought
about a state of affairs whidh sets the provisions of the article
in operation f'against him. It cannot be said that the law does not
apply to a crime which no one,except the perpetrator,knows has
been committed. Therefore,that particullar section of the article
which covers the offense continues in operation until the day
of the man's discharge.At that time he receives his discharge,to
all appearances legal and in due fvrm.Yet exactly at that same
moment,the alas t sentence of r _ 60 comes into operation and ren-
ders the discharge null and void. <The military status,though appar -
ently thrown off,is not really set aside nor is the civilian status
in reality resumed.Congress has created a condition which removes
from the power of the officers ordinarily authorized to execute
discharges,the ahility to discharge in such cases. That Congress 1s-has
the power to create such a condition by law can scarcely be doubted
because it is vested with full authority to make rules for the
governt of the land forces.Moreover,the legislature practically
says Athe applicant for enlistment,"If you fulfill the require-
ments you my enlist for three years. But if you commit an offense
under the 6tt Article of War your term of service will last un-
til the offense is discovered'and you re tried and sentenced by
a court-martial,and any discharge u ou receive in the mean-
time shall be null and void." The applicant is at liberty to enter
a conract of enlistment on these terms or note as he sees fit.
From this it seems evident that,in the case in hand,military
jurisdiction does not in fact terminate on discharge but is held in
aaeyance pending the discovery of the offense when,if the statute
of limitations does not intervoene,it resumes full sway. The gap
is not real but apparent only.And furthermore,it must be conceoded
that the intentions of Congress were to some such effect as this
or else Congress is open to the charge of having deliberately
enacted and permitted for many years to remain on the statute
books a rule for the government of the army which is palpably
4-4 and uncompromisingly unconstitutional.

Passing now from the consideration of discharges in general

let us notice the three classes into which they are divided.
The first of these,the honorable discharge,marks the termin-
ation of the contract of enlistment where the service has been
honest and faithful and the man has earned the right to remain
in
the service by reenlistment. It is perhaps the usual method
of
divesting the military status where the term for which the
solie.
enlisted has expiredlbut with the assent of proper authority it
may be given at any time before that without affedting its char-
The condition that the service be honest and faithful
is the
L ;ina gL non of an honorable dischargeno matter whether given on
account of expiration of service or,for other revson,before"
on the oth:Cr handciv~ the conditions that a soldier's serice
has been honest and faithful and that none of the technifcal reasons
for a discharge without honor or a dishonorable discharge exist,
then he is legally e~titled to an honorable discharg,reardles
of when or for Nhat given.
 It is hardly possible to lay down any rule that would always
assist in determining the honesty and faithfulness of a man's
service.Each case must be determined on its own merits.But it may
be remarked in this connection that a man's service is honest and
faithful unless it is affirmatively shown to be otherwise.Unless
some condition is fulfilled that will result,by the provisions
found in the law or the regulationsin the neeessity of charac-
terizin;_g th-e soldier's service as not honest and faithful,as for
Oxample,where he has been finally discharged from an enlistment
during which he dedjrted and was restored. to duty without trilal,or
unless the company commander is able to prove,under A.R.l46,19O ,
to the satisfaction of a board of three officers that the man's
service has not been honest and faithful ,then it becomes,nolens
volens,ervice honest and faithful,regardless of its real char-
acter.
In complying with the act of June 16,1890,26 Stat.L.,157~
which st tcd that at the end of three years from the date of hi~
Qtxvh gm enlistment every soldier whose antecedent service had
been honest and faithful would be entitled to receive a furlough
for three months and that in time of peace he would be entitled
to receive his discharge upon his own application at the' end of
such furlough,etc.,and furlber that the Secretary of War would
determine what misconduct was to constitute a failure to render
honest and faithful service within the meaning of the act,the
Secretary decided that in the following cases there had been a
failure to render such honest and faithful service:t44
1. Desertion.
2 ,When the soldier is in confinement under a general court-
martial sentence expressly imposing imprisonment until or beyond
the expiration of his torm;when discharged under sentence of a
general court-martia; when discharged by order from the War De-
partment specifying forfeiture,or because of imprisoni.t by the
civil$ authority.
3. When the soldierlis discharged for minority concealed at
enlistment,or for other cause involving fraud on his part in
enlistment,or for disability caused by his own misconduct.
4.Upon the approved finding of a board of officers called
under par.148(now l466A.R.that the soldier has not served honest-
ly and faithfully to the date of discharge.
While this decision was made with a special and limited pur-
pose in view,it seems to cover the ground with considerable thor-
pughness and uhdoubtedly still furnishes a good guide to assist
in the determination of what is required to render service not
honest and faithful and by process of exclusion,will make it
evident what service must be taken as honest and faithful.
Along this same line,it is to be observed that. an honorable
discharge ,service honest and faithful, and character at least
"good"appear to be to a certain extent interdependent. Injgoneral,-
if the soldier is entitled to any one of the three,he thereby
becomes entitled to all of them. But this jI not always true.
War Department orders forbid a soldier who has deserted during
an enlistment from receiving the remark," Service honest and
faithful", on his discharge,yet there is nothing to prevent
his recwivng the c erracte r,,good." r better) and this has in fact
occasionally been k A.R.859,1908 however ,pievents the enlist-
ment or acceptance with the view to enlistment
whose service during the last term of enlistmentofwas former soldiers
not honest
and faithful,and par.871 forbids the enlistment of former soldiers
who have been discharged with character other than good or its
full equivalent.Congress also,in the act of ul,894,
providced that no soldier shall be again enlisted whose
service
during his last preceeding enlistmdnt was not honest and faithful
and it has been held that,in t:i case a military offense
consti-
tute the basis for a conclusion to the effect that an enlisted
man's service was not honest and faithful,then not even a pardon
ould operate to change the chaacter of that service to honest
and £gvhfu4Dig.opJ.A..G. par l72~)
Neverteless,wile a rsegular d~ischvarc canot be re-voked
wth the viewi of substituting therefor one or a dicf~Jerent ch~ar-
acter ,the Scetary of Watr is clothed with disetionary roer i~
a t ter of reconsieri the case whe!na soldier has been iven
 "service not honest and faithful" on dischrge.Thus,in cases where
the soldier has been discharged from an enlistment during which he
deserted,where he received a discharge without honor,and even
where he has been dishonorably discharged, in either of which in-
stanceehe would of course be classed as having rendered service
not honest and faithful,it was held that the Secretary,while he
could not under the act of g 1 ,1894,permit reenlistm- while
the service was considered no honest and faithful ,was competent
to reconsider the case) and authorize reenlistment by determining
that the former service had in fact been honest and faithful.(See
Dig.Op.J.A.G.1,pars.l ll9,' 2G7,and 126~~
As already stated, an honorable discharge cannot be revoked with
the view of retaining the man in the service or of substituting
therefor anotheilischarge of a different character.The contract of
enlistment to which it pertains is finally executed and' the status
of civilian is just as fully resumed as if the man had never been
a soldier,with the exception that this kind of a discharge attaches
to him certain privileges as to reenlistment not necessary to
mention here. He is further entitled without abridgement or de-
duct' on to all the pecunary benefits provided by law for a sol-
d i er o nd ischar ge .

le k The discharge without honor is used to terminate the contract

of enlistment in those few cases where,for ohe reason or another,
an honorable discBrge is not given,or where,on account of the
fact that the discharge is not executed as part of a punishment,
the same can-not be considered as dishonorable.
No matter how disgraceful a discharge without honor may be,
it cannot be regarded in the technical sense as dishonorable.It is
rather to be considered as the negative of the honorable discharge
--bthe with-iolding of some essential constituent of the honor-
able discharge whereZby the dischhrge becomes one without honor.
In fact,a discharge wt Zxtxkxmor is without honor simply because
it is not honorable while a dishonorable discharge is such for
far different reasons.But Winthrop,Vol.2,page 848,regards the dis-
tinctions between dishonorable discharge and discharge without
honor as fanciful and unreal and states that it is open to dis-
cussion whether the discharge without honor is authorized under
the Fourth Article.He says further In all cases,the cause or
occasion oa su'mary disc... gay properly be set forth in the
body of the discharge certificate,and the material thus furnished
for any future adjudication in the event of a legal question be-
ing raised upon the effect of the discharge.The so-called discharge
without honor is thus believed to be as unnecessary as it is of
dou.tful - authority .-
The discharge without honor is nevertheless a well establish-
ed feature of our system of military administration and is sharply
distinguishable from the dishonorable discharge by reason of the
fact that it is never a punishment, while a dishonorable discharge
cannot be given except as a punishment for an offense on the duly
approved sentence of the proper military court. For instance,
a soldier was tried by court-martial for offenses which upon con-
viction,would have justified his discharge,but having been ao
quitted by the court,held,that his discharge without honor,prt
marily on account of said alleged offenses would not be proper.
Cig.Op.J.A.G,,par.ll37r On the other hand,the discharge without
honor has been given upon the remission of a sentenceealso where
a sentence was set aside on account of a fatal defect in the r-
cord.(Dig.Op.J.A.G.,page 319,note )
The discharge without honor is given,as follows:
l ithout trial,on account of fraudulent enlistment.
2. Without trial,on account of having become disqualified
for service,physically or in chhacter,through his own
misconduct.
3.On account of imprisonment under sentence of a civil court.
41here the service
- has not been honest and faithful,thTat is
~i~ where the service does not warrant his renlistent.
5~iihn dis-charge withoult honor is specially ordleredl by the
Secretaiy of War for any oth~r reaso.
Tho1 ~ischarge itsolf,give- for any one or mioe of' thie above
 reasons is in no manner different from that given for any othoxx
of the otherS.44@4.In any case the separation from the service is
final,just as in honorable discharge,and divests the military
status to the same extant. Its effect on the soldier ,howevor, is
dif erent,in that he is deprived of the privilege of reenlisting.
It might seem from this that the discharge without honor passes
over into the man's status as a civilian and to a certain extent
vitiates it,inasmuch as he,not being agxix prileged e again
enter the army,is not the same as a civilian who is.Nevertheless
has been held to be not a right of citizenship and hence this de-
privation does not prevent the civilian status from being complete.
Tfhere the enlistment contract which is terminated by the dis-
charge without honor,is not vitiated by fraud at its commencement,
it is the general rule that the soldier is entitled on such dis-
charge to all the accrued pay and allowances due him,just as tf
the discharge were honorable.To have it any other way would change
this discharge into a punishment which is not permissbile in view
of the fact that it asnot the res-lt of the sentence of a gen-
eral court-martial of military commission.In the days of ret* d
pay this was forfeited,not however because of such discharge but
because of the soldier's failure to render honest and faithful
service.The man is entitled to his travel allowances,to money
due him for clothing not drawn in kind,and to the pay still due.
v- The clothing already drawn by the soldier is not forfeited and
may properly be delivered to him unless his clothing account is
overdrawn ,when so much of it as is necessary may be retained and
turned over to the Quartermaster to balance the account,unless
indeed the deficiency is made up by charging the amount against the
wt pay,~.e him.
With a man discharged for fraud in connection with his en-
listment the case is different.No matter what the cause of the
1. fraudhe is not entitled to pay or allowances of any kind even
to those accruing prior to the time the fraud was discovered.In
this case the deprivation can not be considered as a punishment
but merely the witbhold.ing of that to which the man is not le-
gally entitled.It has been decided that a soldier discharged
without honor by reason of conviction of some offense at the
hands of the civil authorities is not entitled to pay,allowances
or to travel pay,
The question of service not honest and faithful has already
been considered.Tt is enough to note here that par.146,A.R.,1908,
prevents the company commander,on his own initiative,from. so
characterizing any soldier's service until the matter has been
submitted to a duly appointed board of officers and their finding
has been approved.But such a course of action is not necessary
if there is to be found in the law or the regulationsauthority
Sunder which the soldier can be discharged without honor.
-4-4
The dishonorable discharge is a punishment ,the same as con-
_- finment,forfeiture of pay or other like inflictions and can-
not,on that account,be used to terminate the enlistment contract
unless it should be specifically so directed in the sentence of
a general court-martial or military commission,approved by the
proper commander.
The dishonorable discharge differs from the other two kinds
in that it does not relate-!t any particular enlistment but is a
complete expulsion from the 4riny and covers all.unexpired terms
of service. A soldier once dishonorably discharged cannot be made
amenable for desertion or any other military offense committed
under a Prior enlistment,except as provided in the Oi lArticle.
Nor would a subsequent enlistment after such dishonorable discharge
operate to revive the amenability of the soldier for such offences.
(ig.Op.J.A.G lpar .1167
Dishonorabl.e discharge is thus seen to be even a more com-
plete and final divestment of the military status than the honor-
able discharge or the discharge without honorinasmuch as neither
of the two latter. refer to any enlistment contract except the
imedate one in which the soldier is srving.It is difficult to
sbce anyi reason for this. It may even seem a~n advrantage wh-ich the
dishonorably dis chared soldier enjoys over thoe not 50 dischagedC~
&vo that he is not compelled to answer for offenses committed in prior
enlistments .The whole matter undoubtedly rests in the character
of this discharge as a punishment.
Dishonorable discharge is prima facie evidence that service
during the enlistment which it terminated was not honest and faith-
ful.It is however within the discretion of the Secretary of War
to determine for the purpose of reenlistment whether such term was
honest and faithful and he nay decide on the facts in the case
that it was,even where there has been dishonorable discharge.
(dig. Op.,J. A GCparr .i268
Under the 12 4rticle of War,every officer authorized to
order 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 the President,was not empowered
by this article to commute a punishment;that the pardon here
specified.was remissior~which,unlike the Pardoning power vested in
the President, d1dnot include commutation or conditional pardon.
So,held that a rev;rwing commander was not authorized to commute
the punishment of dishonorable "discharge and that,as such pun-
ishment was not susceptible of mitigation,it could not legally be
reduced under this article.The substitution of the punishment of
dishonorable 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 a
commutation of the sentence by the President.(nig.Op.J.A.G.
pars .347,34 jTher fore,where a soldier has been sentenced to
dishonorable discharge by a general court-martial or military
comission,the reviewing commander is confined to a choice be-
tween two alternatives,namely,the approval of the sentence,which
per se gives effect to the discharge,or the disapproval of the
sentence or the remission of that part relating to the discharge,
whereby said discharge cannot be given.
It may be well to remark in passing,what perhaps is self-
evident,that the summary court is not empowered to impose the sen-
tence of dishonorable dischar-ge.Such punishment is not in terms
authorized ,by Art,8 ,to be adjudged by regimental or
garrison courts and is restri ed to general courts-martial by the
Fourth Article of War. (Dig.Op.J.A. G .par 2402
The effect of the dishonorable discharge upon the soldier is
in a measure different from that of either the honorable discharg
or the discharge without honor.The act of March 1,19 01,provides
in effect that an enlisted man discharged by way of punishment for
an offense shall receive no travel pay.Other than this however it
does not appear that any other disabilities are incurred by the
soldier simply by reason of the dishonorable discharge.Forfeiture
of pay and allowances is in itself a punishment quite distinct
from that of dishonorable discharge and neither necessarily in-
volves the other.Pay and allowances cannot therefore be forfeited
by Implication nor can they be forfeited by misconduct,however
grave,other than desertion or absence without leave,unless the
soldier be brought to trial and expressly sentenced to such for-
feiture.The distinction between "forfeiture" and"stoppagetis
sufficiently evident. No other punishment imposable by a court-
martial involves per se a forfeiture or a deprivation of any part
of the pay or allowances due the party at the time of the approval
or taking effect of the sentence.Jig. Op.J.A.G. 4 par.38 aonsequent-
ly,forfeiture of pay and allowances,except trvel pay,donfinement,
hard labor, etc.,must be--separately and specifically adjudged by
the court,in addition to the dishonorable dischargeor they can-
not be imposed upon a soldier sentenced to suffer that punish-
ment,either by order or otherwise. Moreover, it is quite within the
jurisdiction of the court to direct the forfeiture of only a spec-
if part of the soldier's pay or allowancesother than yd travel,
which must in any event be forfeited.,in which case the balance due
the soldier on date of dishonorable discharge would legally be
payable to him,unless he was indebted tb the United States in an
eqrual or greatr amount.
In this cOnnctin,it is interesting to note a difference that
exits,dpening upon hethor a solier i~ dischcrged3 without
 trial for fraudulent enlistment or whether he is brought to trial
for fraudulent 'enlistment aa is sentenced to dishonorable discharge.
In the first case A.R.1400,l906,states that the enlisted man is
not entitled to pay and allowances.In the second case,it has been
held that,inasmuch as the dishonorable discharge is not intended
as a rescission of the contract but as a punishment for an of-
fense,the soldier is entitled to all pay and allowances due him on
date of his dishonorable discharge,unless specifically sentence d
to forfeit the same,with thQ. ne exception of trav1 pay which he
fr- f n a s by operation of law ig.Op.J.A.G par .423Ei
Beyond the penalties just adescribed and the f ct that he is
debarred from reenlistment,not indeed by the fact of dishonorable
disc rge but by the former service not being honest and faithful,
the solier suffers no further disabilities by the fact of such dis-
charge.He is not prevented from accaepting civil employment under
the United States,if such bez offered him.Tnig.Op..J.A.G .0 .11491
The discharge itself,if to take effect forthwith, should be
dated as of the day on which the order is received and the soldier
is entitled to pay,etc., to include that day if the same be not
forfeited. The discharge cannot be executed until the order pub-
lishing the sentence has been r ceived at the place "i ere:the
same is in fact to be executed. Big.Op.J.A.Gpar.1155 A sen-
tence adjudging a dishonorable discharge,to take effect at such
period during the term of confinement as mr be designated by the
reviewing authority,is illegal A .R.983,1908 and the time at which
such discharge is to take eff ct as fixed by the sentence can not
be postponed by the reviewing officertA.R.984,19O8t
Finally,when a soldier has been legally sentenced to be dis-
honorably discharged and such sentence has been duly executed,it
is beyc the power of the Executive,whatever the merits of the case,
to substitute an honorable in lieu of the dishonorable discharge.
The latter,having gone into effect, can not be undone.(Dig.0p.J.A.G.)
par 1150~.

The time othe termination of a soldier's contract of enlist-

ment by discharge has no effect on the character of the discharge
given him.In any case the same must be either honorable,dishonor-
able or without honor. The honorable discharge is the usual me-
thod'where discharge is given by reason of expiration of service but
it will frequently happen that such discharge will be given for one
reason or another before expiration of service. The discharge with -
out honor is occasionally given at the expiration of the term of
service where the service has not been honorable and faithful but
as before seen,it may be given at any time before that for prorr
cause. It will rarely happen that the date of an enlisted man's
dishonorable discharge will coincide with the date of the expir-
ation of his service.
Whether a soldier is discharged on or before the expiration
of his period of enlistment becomes important,therefore, only in-
sqfar as it is necessary to arrive at a correct conclusion as to
t e authority who must grant the discharge. Under this view it
becomes very important because,as already stated,the last clause
of the Fourth Article is mandatory and,while it does not apply
to any discharge given by reason of expiration of term od service,
it will nevertheless render null and void any discharge given prior
to that time in which its provisions have not been complied with.
When the discharge is given by reason of expiration of term
of service and thereby becomes purely a motter of routine official
business,it is executed by the field officer of the regiment or
corps,or by the commanding officer,when no field officer is pre-
sent,but,on accouht of the directory nature of the first cUse
of the Fourth Artia le, the discharge is not renddred invalid by
reason of being executed by some officer not therein authorized.
On the other hand,if the discharge is executed prior to ex-
piration of service,it must,to be valid,be ordered by one of the
authorities noted in A.R.138,l908. It ould be useless repett-
_,a ion to note thoPise agian.
,I<

¥
 The reason or cause of the discharge generally determines the
class to Which it belongs but not always,because of two men who
are to be discharged by reason of expiration of service,one may,
by reason of honest and faithful service,rective an honorable due-
charge,whil the other,for the reverse reason,may be discharged
Without honor. But if the soldier is discharged without trial on
account of fraudulent enlistment ;without trial on account of
having become disqualifled ,physically or in character,through
his own misconduct;on account of imprisonment under sentence of a
civil court; or, in the case of a captured deserted ,when he is not
physically fitted for service;then his discharge must just as ne-
cessarily be without honor as where such discharge is ordered
by the Secretary of Wlar for some other reason. Similarly,the sen-
tence of a general court-martial or a military commission can
never direct anything else but a dishonorable discharge and to
be discharged pursuant to such sentence means to be dishonorably
dis charg ed.
These considerations are not important to the service at large
as the matter is only within the jurisdiction of the higher
corianders or the Secretary of War and the order directing the
discharge will scarcely ever fail to direct the kind of a discharge
to be given where it is not patent that the soldier is entitled
to an honorable discharge.
Of scarcely greater importance is a consideration of any of t
the special reasons for discharge,such as purchase or discharge on
certificate of disability contracted in line of duty. These two
reasons especially are governed by special rules liable to change
at any time and the discharge given on account of them is perhaps
always honorable,

Attention has frequently been directed to the fact that the

first clause of the Fourth Article has been held to be directory
only; so also is that part of the 45 'agrap of the Regulat-
ionsirecting that every soldieron his discharge from the ser-
vice,b6 given a discharge in wbiting,etc. The practical applica-
tion of this principle here is that,wh le the military discharge
in writing is prescribed as a regular procedure in terminating
the service of an enlisted man,and its issuance is therefore an
act done in the performance of a public diuty,a certificate of dis-
charge is not essential to a discharge but a soldier may be dis-
charged without a certificate or before he is furnished with a
certificate,upon notice actual or constructive of the fact of dis-
charge .Report J.A.AG .Tan. 2,190;)
The discharge certificate is thus seen to be merely a written
instrument evidencing the fact that the soldier's contract of eml.
enlistment has been legally terminated..It remains in the posses-
sion of the soldier and furnishes him with a ready means of
estab-
lishing the fact,should. it ever bejbrought into question.
It also
generally serves as a notice,upon actual or constructi e elivery
to the soldter,of the fact of his discharge and thu" him
as a basis upon which he may conduct his future actions.However,
it is not necessary for this purpose..As far as the soldier is con-
cerned,any other official notice would properly give him sufficient
grounds for considering himself discharged.
The soldier is nevertheless entitled,as of right,to
a dis-
charge certificate in the prescribed form and signed as required
by law. Under the rule settled by the United States courts (Black's
Const.Law,page 84)a writ of mandamus will apparently
lie to com-
pel the proper officer to issue such a certificate
when the man
has been refused it.
As above remnarked ,the certificate usually serves as notice
of the fact of discharge and ,although a soldier
is in general
entitled to be formally discharged at once upon the completion
of his term of service,he may not therefore assume that-,because
said term has expired ,he is in fact dischrgd.He must receive
the notice,but that may be either actual or construc~iv. It is
actual shere the man is handed his discharge papers or is offic-
lallh infoaz~ed,either verbally or in writing,of the fact of dis-
charge, It is cntructive x'iherve, for examle3,the man is absent on
nis ihwn account and the? certificate is dly signed at, thec proptr
time and denoited. in the usual l~ac,ay the compiany orderly
ropm,where it awaits his return;or,where an enlisted man it.
sentenced to dishonorable discharge and confinement and the dEs
discharge certificate is delivered to the officer in charge of
pristners;or where, for any reason,there is such a change in the
situation as in legal effect imports a change aof the p session
of the discharge aertificate.The receipt of ar a. ecting a
man's discharge will never constitute such notice,either actual
or constructive;nor can the discharge take effect except on the
date and at the place where the soldier receives a notice,oris
at least legally chargeable with notice,of the fact of his dis-
charge. He is therefore entitled to his pay and allowances until
that time and his travel pay,should he be entitled to any,is
computed with reference to the place where the notice was received 1
regardless of whether he should have properly have been discharged
at some other.
The details of the discharge certificate are unimportant,
inasmuch as blanks for each kind are furnished,so arranged as to
make it self-evident what the sertificates must contain.Nor is
any consideration of the character nor of the final statements
necessary,for these matters are merely side issues,forming no
part of the discharge proper.
It has perhaps already been sufficiently explained who are the
proper parties to sign the discharge certificates.It is now only
necessary to say that no matter from whom the authority for the
discharge must come,the same is always actually executed by a
field officer of the soldier's regiment or corpsor by'the com-
manding officer,wrien no field officer is present;and further that
the term " commanding officer" is not synonomous with "company
commander" but means always the officer in chief command of the
separate body of troops With which the soldier is serving,as,
. 9r exam le the~pos rne

t how remains to illustrate some f the points connected

with cihaarges by a concrete ex'rple.FoT this purpose the Gannon
case is hereto appended.
Waster,F. Gannon was enlisted Feb.2l11899,for the mounted
service nd was duly assigned to Troop "G"'Pth Cavalrywhere in
the cours of time he was made a corporal.D ring the early part
of the,yea 1902 he was serving with his troop in the Third
Separate Br'gadeDepartment North Philippines\Philippine Islands,
which brigad was then commanded by Brigadier eneral J.Franklin
Bell,U.S.Arm In the month of February,l902,Tr 6 op G was stationed
at Balayan,Ba ngas,P.I.,under the command of lkt Lieut.B.A.Read,
6th Cavalry, Cptain B.H.Cheever,6th Cavalry,was thre Post Commtander.
About this time during a drunken soldier row in t.ae town of Taal,
a non-commissionld of another troop was shot and verel~ injured
and Gannon,being of the party,was arrested,tried f the offense of
shooting with inte t to commit murder andon circurn tantial evi-
dence,convicted. Hi sentence,published in S.0.33,19 2,of the
brigade,dated Feb.14a1902,was "to be dishonorably dis harged the
service of the United\-.States,forfeiting all pay and al owances due
him,and to Ie confined \at such place as the reviewing thority
may direct for three yers",but in consideration of a rcommen-
dation for clemency sign. by the members of the court end the
judge-advocate,the punishmznt was mitigated to six months~con-
finement at hard labor and forfeiture of 60.00.Bala an, he
station of the prisoner's tr op,was designated as the place{ of
confinement .The soldier was m&anwhile reduced to the ranks by a
regimental o tier.The sentence b;gan on Feb.l4,l902.
On Feb.20,1902,Gannon's ter" of service expired.On Ail
1902,he put in an application for lemencystating that his fact.
ily was in need of his assistance,a4 that ,if his sentence werAk
remitted,he could obtain employment ~i4h oe of the pack trains, i
stationed at Balayan ,which ould enabal~ hhim to send mneyome.
This application was forwarded throughV"~~ilitary channes.Ijpon
reaching the headqurtes of theF brig&ade:n~ endorsement was placed
upon it,retrning it to the Commanding O~cr,Troop ,whch in
the meantime had changed station to Los BanB,Laguna ,PI.,and
authorizin~ him to parole Gannon,emrploying \im in a pack train
either 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 the provisions of A._ .l.69,1901 , now
par.155 ,been discharged and that, as he did not'belong to any or-
ganization,he had been left at Balayan ,when hi former troop
changed stati n,in order to complete his sentece. The Commanding
Officer at Bal yan was thereupon authorized to oarole Gannon
in order that 'e might work in a packtrain. Under the date of June
19,1902,this officer replied,that in view of pa .l 3.0.111,1902,
of the brigade the man had been released and ha' left Balayan on
June 8,1902,,to ljoin his troop which by that tim had been sent
to Cabuyoa.
In the m ntime the proceedings of the gen ral court martial-
by which Gannon had been tried had gone on to Washington and had
finally reached the office Of the Judge Advocate4Geteral of the
Army. Here it was discovered that the, sentence w s vaid and inop-
erative becausethe Commanding General of the brigade had taken
final action inthe casethe sentence of which wal below the limit
prescribed by the local lat. The Cammanding Gener .l,having been
duly advised of his by endorsement on the original proceedings,
thereupon issued par.l,S .0.11 , above referred to, nnounc ing that
the sentence was for these reasons void and inopex 'ative and direct-
ing that Gannon Abe set at libdrty.
While en rote from Balayan to Cabuyoa to joi his troop,
Gannon passed thi ugh Batan.as where the Headquart "rs of the bxiga
brigade were loca ed,and a ied in person to the Adjutant General
to have his stat 4 deterined.In the absence of tM Brigade Come
mander,the AdjutaMtereupon,under the date of JulJr 7,1902,
wrote the Adjutant l General of the Army,giving the facts in the case,
stating that the s ldier had been dropped from the horning report
of his troop,Feb.2.,as discharged without honor on. eb.20,l902;
that the discharge and final statements had been fo warded on
June 10 to the Corm anding Officer of the station wh ,re the sol-
dier was confined ut that they had not yet been delivered to him;
and requesting to be informed if the man's status ws that of h
having been legallydischarged without honor on Feb 20,l9O2,or
if the fact that hits discharge had been declared a iulity three
months after said discharge was made of record had the effect
of restoring him to the status of a soldier in good Standing so
as to entitle him to an honorable discharge with sugh character as
his immediate commatder might give hilm;if the lattei was decided,
should the discharge bear the date of Feb.20,1902 ,o the date when
the discharge would;actually be accomplished;if the 60.00 for-
feiture should be wi th held from the soldier or paid°him;finally,
if the discharge of Feb.20 was held not to be a lega one wa; the
soldier still to be 4ischar ged without honor.
In reply,it wa stated by the Adjutant General 4f the Army
that the Judge Advocate-General was of the opinion that. Gannion
had been legally discharged on Feb.20,1902,on the expiration of
his enlistment;that t:e forfeiture imposed by the illbgal sentence
should be disregarded end settlement should be made with the man
to Feb.20 as though th. sentence had never been imposed;and that
the discharge aho cert ficate should be delivered to qannon.The
Acting Secretary of WWa concurred in these views.This letter was
dated Sept.18,l902,and as received on Nov.20,1902.
On July 3,1902,the Adjutant General of the brigad ewired the
Commanding Dfficer at B ayan for the discharge and fihal state-
ments of Gannon which th Commanding Officer at Cabuyo had
re-
ported were sent to Balaan on June lOth,1902. The CoM anding
Officer at Balayan repli that,when the soldier had lift that
station on June 8,1902 to join his troop at Cabuyoa,th dis-
charge and final statements had also been sent to Cabuyoa by mail.
The Adjutant General then Vrdered the Comiranding 0ffice at Ca-
buyoa,ho was at that time; 2nd Lieut.G..Strier,6th Cavalry,
to send the apers to BataiC~as at once. hn they were inally
received at Batangas they w~re filed without close exallnation
to await the rely to the ltter o-P -July 7.
At lenth,the ltPr fr' t'e Adjutnt General of te Armiy
was reeai,:To. Gannon's d?.isc~hcqrge nape'rs were then producd with
 1- f

the view of turning them ove: to him anc finally completing the
discharge. It was then discovered that a though they were made
out 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 the
soldier's troo _ co^mmander nor his post couvander,nor was he even
on duty in the $hilippines.In an effort to 'discover the where-
abouts of the o iginal discharge papers,inq iry was made of
Liout.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 not
make out the man's discharge and final state ents on Feb.20,
as the soldier was in confinement on that dt',butintended to wait
until he was rele sed;that this intention was never carried out
on account of the fact that he, Lieut.Read,had eft Balayan before
the release occur~~d. Neverthelessnot only the morning report of
Feb.2lst but also the next muster roll of the troop bore complete
remarks concerning Gannon as if he had been disharged,which
could not in any c se have been true. On Aug.22,Gannon rut in an ap-
plication to be al~owed to return home but thiswas disapproved.
In order to clpse the case adi allow the m0n -ogo home,
a discharge without\ honor was finally made oft ad signed by Lieut.
Read,pursuant to the verbal directions of Genera. Bell.lIt was
dated Feb.20th,1902, and,together with the final tatements, was
delivered 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 the
brigade;---
It has been held that the provisions of the 5ath Artice of
far embrace within the local laws of the Philippine Islands,por-
sons within- the serv1ce of the United States.Ganno. was not dis-
charged on Feb.2th, 102 nor were any papers made o t at that
time.It will be noticei that the letter of the Adjut nt General
of the Brigade to the $djutant General of the Army p obably mis-
led the Judge Advocate4General into the belief that bhe soldier
had been discharged without honor on Feb.20th,1902.Bu the 4th
Article of War lays doewthat no soldier shall be discharged the
service without a dischrge in writing signed b~ a field officer
of his regiment or by h s commanding officer.No such d;cument was
made out'at this time a d none has ever been made out1 oit is
the opinion of this offie that Gannon was not discharged without
honor on Feb.2Oth,1902.0p the proceedings of the court-partial
being declared null and void Gannon was released from c nfinement
but no document of dischrge was given him.It is true tat the
discharge certificate is pot the discharge nor is the delivery of
it,either actual or constpictive,to the soldier the only means of
giving him notice that he has been discharged. Such del rery
Would be propr and effective notice but to in fact release him
from controlwhen he has beon discharged,and inform him verbally
or otherwise,wouid constitite effectIve notice.Dig.Op.J.A.G.
1153.But Gannon s case is dntirely different.He has not been dis-
charge~,d nor has any otceen of the kind mentioned in the sen-
tence above,been given him or has any legal discharge begn made
out for him.The military has. never released control over im.,but
on the contrary he has been eld in Batangas by order of the Ad-
jutant General of the brigad ,speaking for the Brigade Co'mander,
and the department commander in endorsement on
his letter ask-
ing to be allowed to return hpme until his status could be deter-
mined,has passed upon him as hough he were still In the ervice.
The division commander has di approved his request to 'poceed to
his home and there await the csion of his case,thus mos strong-
ly committing the Government o the fact that the Governornt has
not released control of him.Ga non tried his best on his release
to find out if he were still in\ the service but was met onhis
release from confine~ent ,not b1\any notice,ven cff the kin F alludesd
to In the diget ,that the militry had eleaed control of him,
basyt byJ an order from the Post Cornandecr to proceed to join his
troop.Ths order wss reversed b\ thEe Adjutant General,in th1l name
of the I~r iga Commnandr ,and he 8a or~ered to remain in ~atngas.
 18
An attempt\was made by the Adjutant General,who now became
Gannon's comman ng officer,to.seure th discharge certificate
and 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 certain
Lieut.Striker, Who 1as never been in Balaya ,theplace of Gannon's
confinement ,who ha never been Gannon's co nmanding officer,who
signed the discharge not as commanding offi r but as troop cor.-
mander,and who dates the discharge tO xasx m back to Feb.
20th,1902,a time whem said Lieutenant was not in the Philippine
Islands.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 be
legally discharged as f prior date ,Dig. 0p.J.A.G.1L54,Gannon
cannot now be discharg~ on Feb,both,1902.
It may be difficul'\ to determine at time. what "actually
serving"means. But a solier whoon discharge from illegal con-
finement ,in doubt as to hat his status is,a qiestion to perplex
anyone,is confronted by %, order from the Post \Gommander to pro-
ceed to join his troop,cetainly is justified i considering that
he is still in the service. Gannon obeyed this Order and on reach-
Batangas ,Brigade Headquartrs,on his journey,was\ ordered by the Bri-
gade Comander through the'Adjutant General to rmrain in Batangas.
Later he is held in the Phillippines by an order :rom the division
commander. Gannon has obeyed all these orders and has always held
himself in readiness.tbe any and all orders that might be
given him.
Such action on the par:of a. soldier's superi or officers
constitutes,in the opinion o: this office,a service on the part of
the soldier serving thereundersuch as is contemplated in the di-
gest when using the term, "act ally serving". It is 4 espectfully
submitted that Gannon is now ntitled to a discharg?,having served
his three years' contract,such\ discharge to be of t e nature as
his present comramanding officer may see fit to give hfim.

Recommy.endations .
It is my belief that the.Jidge Adcocate-General \of the Army
did not have the exact facts bef pre him when rendering his decision
upon which decision the Acting Scretary of War actedA I recom-
mend that Gannon be discharged b his present corm andn g officer,
Capt.M.F.avis,lst Cavalry,Adjutxt General,3rd Brigad ",Bept.of
Luzon,who is Gannon's detachment ommander and his comr anding of-
ficer;that the date of the dischage shall be the date n which it
is signed and that the final stat ents show that Ganno has pay
to that date from the date of his -iast payment;that thi discharge
be honorable if his commanding officer considers his service
honest and faithful but if he consiiers it otherwise he 8 ould be
governed by Army Regulations bearin upon such cases ,nme y,par.
162,1901. But I consider it no morethan fair that the money that
Gannon has received from the Governrent through the Quart, naster
Department since the 1st day of lastsJuly be deducted on h
statements since he is to receive pad as a soldier during tiat
As
final
time,
and I recommend that his final staten ents bear such remark.'

The End.

Captain 6th Infantry.

 DEPA T #5 NYT 0? LAW

THME WLIlJIAACT.
The Constitutional. Power over the Militia and a. History
of how it has been arid will. now b exercise.

by
captain J. K. QWIAM 1

19th nfantry.

-a-40
 Anyone who has nde a caret ul study of the military history of the United

States, or indeed anyone who has obtained but a casual glance into it, has 4eaned
the fact that the.aj ority of disasters which have befallen our forces., especially

in our earlier wars, have been due to the general utilization of the milOtia
Yet it has not been because the individual man of the militia is less bravo or

even less capable than the individual regular or volunteer if he were given the
same 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 not

a. discussion on the merits of militia and vlunteers, I Will simply call his atten-

tion to the War of 1812 and the Mexican War with their numeBrous critics, although

the difference between the results of the two wars is not wholly to be ascribed to
the substitution of national volunteers for the militia. if it is not the train-

ing then it must be the faulty system, and this l'

ds us to two main questions:
let.- Why have we not a larger trained army?

24. - Why are not the faults in the mitia system corrected?

The first needs little consideration here, as our military policy, guided yb

the Anglo waxon ce, has always been against "standing armies as a dagerous
prejdi.

menace to liberty.'" This sound foolish to us today, but even so, when we,,consid
that our statesmen still harp on this mooted question, how much more firmly rooted

must it have been in the minds of our forefathers during the formative 'day of

the Republic. The second quest ion is not so easily disposed of, yet, for proof

that earnest endeavors have been made in this diretion, it is only necessary to

note the numerous militia bills passed by Congress in the last Century, almost

every one of which bears the heading "An Act to increase the efficiency of the

Militia," but by none of these has this "efficiency" been all that was desired,

unless theaom has been reached by our new Militia Act of May 21, 1908. B-
fore discussing this bill, let us start at the beginning, the creation of our

militia system just before the Revolutinary War , and briefly follow its develop-

ment up to the present time.

When an armed conflict with Great Britain seemed inevitable, some of the

colahies commeed preparations accordingly. This was in 17174 and during the
same year, contrary to the command of the Royal Governor of kassahus tts, the

Provinial ogss of that state met ad passed resolutions for the organzation

of 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 te

tee of safety and authorized it to "ra.ise and support such a military force as it

might dea proper to resist the execution of the Acts of Parliament." Imaediate

ly, r oughout. the colonycc pes and regiments were organized and one-third

agreed to serve as "iute men." Hardly had the news of the Battles of Lexing-
ton and Concord been received when New England cxbined for defense and organized
troops by granting the appointment of captain to him who could raise a company

an a colonelc as a. rewad
~ fo gettin togth
er ten suh coinp~ .nes tsyte
is worthy of note, as it has been used in all our ware, oven as- late as 1898#

The First Continental Congress met in 1774 but, as war was not seriously ap-

prehended,*their time was chiefly spnt in drafting adeclaration of colonial

rights" and adopting "articles of assoiation. 4 A few we ks after the Battle

of Lexington the Second Continental Congress assembled. No, it was assured thPt

the conflict would involve other colonies besides those of New ngland and meas-
ires for establishing a civil government were in order. The power of this

body to "raise and support armies" was practically nullified because it could

raise no revenue, by levying taxes or otherwise yet it man-aged to take the little

amy around Boston into the employment of the United Colonies and appoint its

Commander in Chief. 'Without the aid and concurrence of the Colonies not a

single soldier could be created, or maintained, which soon reduced thisongress

to an advisory body* During 1775, the Continental Army was but slowly increas-

ed, yet this was a time of emergency and so recognized by Congress which realized

the necessity o reinforcements . , inJuly,_it .f 'e"to the inhabit-,

ants of the United English Colonies that all able bodiedo effective men, between

16 and 50 years of age be formed into companies to consist of - --- - . That

the officers of each company be chosen by their respective companies." Atten-

tion is invited o another heirloom received by the present generation. Pro-

vision was also wade for the organization of battalions and regiments, but only
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 the

part of somne colony, cals" were only, made for from four to eaight months. Some

other, eonalld recommendations, on thesae subject were also made during this

period little notice was tken of thonnd consequently they had little efecmt,

The nex perod is thrat whic was in foeBsa

undt~e the~ A~;rtes o Cfe.dera-
Tion. These articles were adopted in July and remained in force until.
1778

our present Constitution became effective. In order to better follow the42±-

tia development during this period, it 4ght be interesting to quote a few,etracts

which have paicul bearing*

.g s "- - - - nor shall any body of forces be kept up by any State in

time of peace, xdept such number only as in the judnent of the United States, in
Congress assembled, shall be deemed requisite to garrison the forts necessary for
the defense of such State, butevery State shall always keep up a wellreguae

and disciplined militia, sufficiently

a saarmed and accoutered, and h - - - --

the United States in Congress assembled, unless etc.

r When land forces are rased bya State for the cooron defense a

officers - - - - shall be appointed by the legislature o each State, respectively,

by whom such fores were raised. - -

ak& All
5caairges of war - - - aallowed by the United States in Congress
assembled shall
be defrayed out of a common treasury
- -
kZ A $ The United States in Congress assembled -
shall have authority -

to agree upon the -nuberof land forces and to make requisition 'from each state
for its quota, in proportion to the number of white inhabitants in such State;
which requisition shall be binding, a thereupon the legislature of each .Stte

shall appoint the'regimental officers, rse the Men, and cloths, ar, and equ

them in a soldier-likemner at the expense of the United State nd the of-

ficers and men so clothed, armed, and eqipped, shall mach to thpe appointed
and within the time agreed on- - - . T United States in Coss assb ed
s hafl never engage in war - - a nor acertain te sums and expenses necessary

for the defense and welfare of the United States, -, nor (agree upon) the

number of ld and sea forces to he raised, nor appoint a coa nder in chief of
the Army or Navy, unless nine States assent to the same - -

Under the government of the Continental Congress our mlitary policy had
been wreak enough but hare was a retrog amovement HretoforeCongress. a

raised 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

State" if not indeed defeat the object of the Confederation. With the con-

sent of Con ress, *each St te was able +0 sustain it m n,i. time of pe ce

the powor. to carr on a nationa l war was .ieanert on the assent of at least nine
of the States and any State agent could place his hand in the National Treasury.
Any State could withdraw its forces at any time if its interest,waned or the men

were demaded at hoe. Nine more deliberative bodies, with their indeisii

and delays, were added to that Congress. Two notable instances will be
cited to illustrate how independent the States became under their absolute author-
ity to arm and equip troops. The people of Boston sent an expedition into Iaine

against a British force in May 1779 without the consent of Congress. Alsowhen
Genetl Greene was operating in South Carolina and impatiently awaiting the zi-

litia ordered by Congress, he was calmly informed that the Virginia contingent
had been detained by the Governor for the defense of the State: The questions
of supply were in even a worse state, as can well be imgined.

The adoption of the Constitution ushered in a new era: in so tar as the

federal power over the Militia is concerned Though the power, to raise re-

venue and makeappropriations is a vital one to the military forces, yet these

powersl not be quoted because they are all1, one could, in ?eason, desire, The
folowingextracts bear directly on the militia:-

Section 80: The Congress shall have power .

 l0 Tde
To re wara - a

4.To raise and support aries aa

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

l4. To provide for cai ng forth the Militia to exeoute the laws o the

Uin, suppress insurrections and repel invasions

15. To prode
5Y o organzing alas~rtig, ad di clinin the~J militia;, atnd
for governing such part of thew ts. uy te erlod in tle srve of the
United Satea, reserving to the SCates, reepeootive2.y, the apoirntbe nt of the

offieors nd the authority of trainirg the miltia acc ording the dih
eci-

line;prescribed by Congress

. To make all las Which shl 4 be necessar; ad prps? f o crn

ry t

eecution the f ore 'ing powers, and all other ports eaeted by this Conetitua
laon in~ the Government o the United Sta+tes, or in any Department or o f fie r
thereof.

e 10:s-a4;4
a~- a-, No State shll, without the consent of Congress, a a a

keep roo,r' , or engage in war, unlessa a - *

Article U1
Section 240 The President shall be C der in Chief of the Army and Navy
of the United States, and the militia of the several Sta to. when called into the

actual service of the United States.

Aticle XV.
etin: The United States shalgua rantee to every State in this Union
a republican for of goverment, and shall protect each of they; against invasion,
an on application of the legisature, or of ts executive (when the legislature
can not be convened against dometic violene.

Now the so called recomamendations or -appeals to the several states gave way

to acts of Conrss which had the effect and force of law, and, indeed, gave to
the Federal Government every war power a despotic ruler could ask. Congress
now had absolute power, in time of dager, to raise an sp ame aM to

lay its bands upon every and every dollar within the territory of the natiort.
 Under Arile I section 8, paragraph 14.f, abovquoted Congress soon made

due provision by its Act of February 28, 1795, Which reads ± part "in case of
an insurrection in any state against the government thereof, it shall be Lawful

for the President of the United States, on the application of the legislature of

such state, or of the executive (when the legislature cannot be convened) to call

forth such number of the militia of any other state o states as n be applied,

for, as he may judge sufficient to suppress such insurrection." This act is

ti11 in force and leaves the power of deciding whether the ezigency has arisen

for federal interference strictly up to the President and also for his decision,
in case of doubt, as to which isthe government within the state. (For Supreme

Court cases on this point see Luther v. Borden,. THow.l, and Martin v. ott,
12 Wheat. 19).

The nezt paragraph provides for the rganzation and discipline of the miahI

Congress enacts no laws to this end then it remains competent for the individual

State to do so and if Congress sees fit to act then it is the duty of+the State
to carry the laws into execton. 3But when the milit is once enrolled in

the federal service then it is subject to exclusive federal jurisdiction and the

officers, though appointed by the states, are subjset to the orders of the Presi-
dent and such other officers as he may place over them. The militia can only
be called uponfor service withinthe lmis of the United States bee eathe

"laws of the Union" an only be executed therein, neither an insurrection be

suppressed nor irnasion repelled from± without, but there is no provision for-

bidding f e use of the militia of one State within the borders of other State.

ept when in the actual service of the United States the governor is theco-
yander in chief of the militia of that state.

Seatton1 of Article Ii not amed t the militia but refers to such as

constitutea etipendiaz'
ror stad arm;r. This is pried by th partsf the

Onstitution wch recognize the miitia forces of the several states and the

declaration. in the second men ent that "a wefl regulated miitia is necssary

to the secit of a free state.

 All measures adopted by Congress up to and including the Wr of 1812 looked

toao us of en eveart*ngezs u to 16i,19 endeavored

remedy t .0 exluiv
defects in _I'e 6tolaws on
existing this subject.
et etion $ of the Act
of
eptember 9 1789 aut i te P ident to allotshedeemed

ee ary against Indian, ith the disstrous results of the )iami expeition

about a year later and GeneralS. lr's expedition 791 About the time
of the iseyRebelion in western Pennsylvania Coneass provided that where the

militia of one state did notrp to a call that the militia ofother states
could b., utilized.

Of the10,0 milia called f or under the .i

t of April,101$, aes-

ohusette and Connecticut refusex to fr nis their qtotas upon the foo loing

enstit
of hes dto
ex genc
groun
esd*;- t rThe Yd enl Craen t u ion prcv
th d )$ fla t eeever eith er

theiars
of3~P g foie(Act; I, Se:c.& pe.14)~B zh, th mii r ;. e empyed° ,

pirsuantto se act o Congress, in th so? ce of the tbited Sta>e bbut no

power is given tither to the PrvSi ento to the Congress to deterznine that

either o the said exigencies do In tact exist, A this power is not delegated

to the United ttes by e ?eierai Constitution, nor prohibitedi by it to the

States;, it is reserved to the States, respectively; and from. the nature of the

pow er it must be exercised by those with whom the states have, respectively, in
trusted the chief comand of theiliti a." Both states also reised theques-

tioa to whether or not the President had power to appoint fofiers to oomwend
the militia. As far as ascertainable these embarrassing though important qes

tions remained unsettled until 1827, when the Supreme Court of the United States

rendered a decision i the case of rtin v.'ot t,12 Theat,19, to the effect

that the President was the sole judge and his decisra as conclusive. Mother

question arose vhhen som~e of the Ohio militia in General Hull'sa expedition refused

to cross the river at Detroit on the ground that they were not obliged to serve

outside the limits of the United Stats. This was repeated in the expedition
against tort Niagara. (ec 5, Act of ay 1k7#l9O8 endeavors to orrect this and

wil be discussed later). The milti were used with reckless extravaganice
during this war and repaid i kind by their insubordination,. disorderly conduct
and mutiny. The policy of relying amost wholly on the militia led to the

disasters and failures of this c aain, but it. mst be borne in mind that this
orye, so ba tel organized on l., received suh instr uion st the

vaIousStateas thought propr, and the rrig of eni stm.et was etifl of shor

duration. e Act of La 1? 180 endeavored to establish a "unif or mcode of

discipline and field ezerciess "for the mlitia tbroughout. pThe

oIs c

given toConres a power "to raise and support r ie es hih was pr otisB ly

limited but, when Washington was thre tened, the Stese in the i daevioini-
e±

ty were invited "to hold the milit. ;in readiness to march at , msnenotice"
amo

ins tad of. being called at once into the field,

i 186, during the lorida War, the goernors of nearby Sates were rep

guest&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

great desJy and confusion an d uring a paign the miitia bad to be detached

prearaaryo to their discharge. During the tastur ancas on the Canadian bor-

der in 1838 General Scott was given full authority to call on the border States

for such force of militia as he might deem expedient, and . ba the Act of arch 3,
1839 the President wa authorized to eall into serice such militia as he mi ghAt
think sufficient. c
At the outbreak of thee iaWa,
r eerl Taylor at ?ort

Brown wa given a similar authority, but his orders contemplated a possible in-

vasion on his part, thereby L ng him liable to the quetio .of 8 as to

whether the militia would cross the border, but fortunately the nearest governor

was 500 niles away. 1 ii ware called out 1tbut sawvlittle service along the

fo Grande,an volunteers were used to their e clusio. T 'arc rat bulVnrk of

national rcfenSg)' was falling into disuse.

Or the 9th of kril I$61, under uthority of the Act of ebarty p8tE, the

Presildvv, calle for ter. cnies of miitia fro: the istrtrot of Colwbia, but

many refused to be sworn and. others. ould not serve outside ofthe Distriottbough

they finally did without protest. On the 1th ?5,OOO are fledd for three

months, but the governors were controlled by prt affila+±ons Where refusal was
made on their own responiblity, hut when left to the poqpi si.x of these States

fushed 2587 men to the Union.

ndero yte for raising awes, the States on established hospitals

and demanded that their sick and wounded be sent back or they could raise nW
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 those
that went home never returned but obtained their discharges through political
means if not by purchase. It is true that this was given its impetus by the
Lilitary Comittee of the Senate declaring the volunteers to be militia or State

troops in the service of the United States, but a we look at it today, they wer

volunteers*, The Act of July 17,182 provided that "if by reason of defects in

exstinLg laws or i$n thes~ exeution of the~i i th several~ Staes or an of them

it should be found necessary to "provide for enrolling the militia and otherwise

putting this act into execution," the President should be authorized "in such
cases, to make all necessary rules and regulations." Now suppose any governors

through negligence or opposition refused to commission the officers, thes, in

carrying out this act, the President would run counter to Arti Saec8, par.l5
of the Constitution by "otherwise putting this act into execution."

Since the Civil War the militia has enjoyed comparative rest from the feder

government except as regards the numerous bills passed to increase their efficiency3
yet, if we are to judge them by their service when called on by their respective
States, the maximum has not been reached, The militia itself has seen this

as evidenced by the work of the "National Guard Association of the United States"

culminating in the bill named after its able,. earnest and energetic president,
Senator Charles Dica of Ohio. This bill became a law in 1903, but further

amendments were recommended by the "Association" and are incorporated in the Act
of May 27, 1908 (0.0.9, W.t4,June 11,1908) which we call our New Militia Act.

By setion 4 of this act, the governor or the comanxding general of the mi-'

litia is called 'on for the militia. What if a refusal is metitht They have

failed in the grea dieorders of the past and we hae no guarantee that it will

not work the same way in the futures. Section 5 provtdes for th serv'ice of ti

.militia either "within or without the territory of the United States" Is this
provision constitutional and not conflicting with paragraph 14, seotion 8, Arm-
tidle I of the Constitution! Text books on Constitutional law say that the

militia caot be used outside of the United States, yet the question is not a

new one, as it was raised oftein our War of 1812 and in the Mexican War, but
Vifl take & definite decision of the Supreme Court to inal'ty settle, thoug
t)s~o nnet. e done on a hypothetical2. question, but must be one. oaatwiljy arisin

r: aduandry that
:is ihas confronted us before but is worsenow as the "ri tia

6 n aller into the service of the United States in vanceof any volunteer
fore m
*hichi be determined to raise"- our trained soldier might again say

i.unc
.ti% rtutonal to leave the United States and amust sit
we and twiddle

our thunt b~ie a deoision is being arrived at or our volunteers suf intly

traied.«_

Sactsion 7 says that those members who "neglect to prsent" therms elves when

called shall be tried by court-martial. This is uficient in individual cses

but wht if the "neglect" is gsieral? The goveror app oints the court 'which

is probably composed of business men who feel the sre way s the neglectful one

and it amounts to Little or nothing. Section 18 specifies certain exercises

to be performed unless excused by the governor 9 i brings us to the final

point: as long as the reservation to the States, contained in pararaph IS, sec-

tion 8, of Article I of the Constitution, remains in f orce, the militia will be

first, last tcnd all the time a State force and not ranctional one. We have
tried it for over century,aunder every conceivable oircunmetance ad it has not.

worked. The men who compose it have no superiors in brayveryi patriotism and:.
ability, ut the system is fa ulty and the federal government must have absolute

control ovAfits national forces at all times if it expects to use the' wit suc-

cess in tieao of ar. The Constitutional Power over the militia: has not chugd

with the New Bill, and the same embarrassing situations which have occurred in
the past ai4 very 1well happen in the future.

~c~u~sc~U
~t:L SRV:G-E 3filfl