The question who shall act on courts-martial for the trial of offenders belonging to the various branches of the army of the United States is one entirely for Congress to determine.

McClaughry v. Deming, (1902) 186 U. S. 69, 22 S. Ct. 786, 46 U. S. (L. ed.) 1049.

Dismissal of officers. The Act of July 17, 1866, providing that in time of war the President may dismiss an officer from the service at any moment and for any cause, and that in time of peace he may dismiss him for cause with the co-operation of a court-martial, or remove him with cause with the consent of the Senate, was neither in conflict nor in pari materia with the Act of July 15, 1870, providing for the reduction of the army, but was an exercise of the legislative power "to make rules for the government and regulation of the land and naval forces."

Street v. U. S., (1889) 24 Ct. Cl. 230.

Restoration of dismissed officers.- Section 12 of the Act of March 3, 1865, providing that "in case any officer of the military or naval service, who may be hereafter dismissed by authority of the President, shall make an application in writing for a trial, setting forth under oath that he has been wrongfully dismissed, the President shall, as soon as the necessities of the public service may permit, convene a court-martial to try such officer on the charges on which he was dismissed. And if such court-martial shall not award dismissal or death as the punishment of such officer, the order of dismissal shall be void. And if the court-martial aforesaid shall not be convened for the trial of such officer within six months from the presentation of his application for trial the sentence of dismissal shall be void," falls within the power conferred on Congress by the clause. It does not invade or frustrate the power of the President to dismiss an officer, but, on the contrary, it proceeds upon an admission that the power of dismissal belongs to the President. It is simply a regulation which is to follow a dismissal, providing, in certain contingencies, for the restoration of the officer to the service, and leaving the dismissal in full force if those contingencies do not happen.

Restoration of Dismissed Military, etc., Officers, (1866) 12 Op. Atty.-Gen. 4.

ARTICLE I, SECTION 8

"The Congress shall have power *

to provide for calling forth

the militia to execute the laws of the Union, suppress insurrections, and repel invasions."

Giving President authority to call forth militia. It is within the authority of Congress under this clause to provide "that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the state or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper; " and under such a statute the authority to decide whether the exigency has arisen belongs exclusively to the President, and his decision is conclusive upon all other persons.

Martin v. Mott, (1827) 12 Wheat. 29, 6 U. S. (L. ed.) 537. See also Luther v. Borden, (1849) 7 How. 45, 12 U. S.

(L. ed.) 581; Insurrection in a State, (1856) 8 Op. Atty.-Gen. 11.

Power to establish militia bureau.— The relations of the national government to the state militia before they are called into actual service are not such as to authorize the President, without legislation, to establish in the war department a bureau to supervise and control the militia.

Power of President to Create a Militia Bureau in the War Dept., (1861) 10 Op. Atty. Gen. 17.

Power to provide against danger of invasion. The power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion as the necessary and proper means to effectuate the object.

Martin v. Mott, (1827) 12 Wheat. 29, 6 U. S. (L. ed.) 537.

Power to guard against renewal of insurrection. The National Constitution gives to Congress the power, among others, to declare war and suppress insurrection. The latter power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently rightful authority to guard against an immediate renewal of the conflict, and to remedy the evils growing out of its rise and progress.

Raymond v. Thomas, (1875) 91 U. S. 714, 23 U. S. (L. ed.) 434. See also Stewart v. Kahn, (1870) 11 Wall. 506, 20 U. S. (L. ed.) 176.

Trial of delinquent militiamen by courts-martial. In the power to provide for calling forth the militia is necessarily included the power of inflicting a penalty on delinquents by the judgment of some court of the United States, and of carrying the judgment into effect by an execution. It is not an infringement of the rights of citizens of a state to proceed to the trial of delinquent militiamen by courts-martial.

Duffield v. Smith, (1818) 3 S. & R. (Pa.) 593.

The militia, as citizens, are peculiarly under the protection of the state sovereignty. They compose the only state force, and the genius of our government forbids that they should be subjected to

the military tribunals of the federal government, unless it be during those extraordinary occasions defined in the Constitution of the United States, when the public safety and the high behests of war demand the sacrifice. Mills v. Martin, (1821) 19 Johns. (N. Y.) 24.

A state statute providing that the officers and privates of the militia of that state, neglecting or refusing to serve when called into actual service, in pursuance of any order or requisition of the President of the United States, should be liable to the penalties defined in certain Acts of Congress, and also providing for the trial of such delinquents by a state court-martial, was held to be not repugnant to the Constitution and laws of the United States.

Houston v. Moore, (1820) 5 Wheat. 1, 5 U. S. (L. ed.) 19.

Effect of National Defense Act of 1916.- On the question of how far the Act of 1903, known as the Dick Law and designed to promote the efficiency of the militia, as amended in 1908, was affected by the Act of Congress of June 3, 1916, known as the National Defense Act, it was held that the latter was intended to give greater efficiency and effectiveness to the federal military force, through classification and standardization under military regulations and orders based upon existing rights and obligations, rather than one intended to operate to the end that members of the organized militia, and of the National Guard of the states, who do not see fit to voluntarily enlist for a longer term and assume the broader obligations. which might require them to go beyond the national bounds, should be absolved from the duty of responding to the emergency call of the President and the mobilization orders of the governor in discharge of the obligations into which they had entered, and from the narrower service which they had already assumed under existing laws that of serving a specified term within the national domain under the lawful orders of the President. And that when a person had elected not to enlist for the longer term and for the broader service, though not recognized as distinctly a member of

the National Guard, that he was still in the service for the federal purposes contemplated at the time he enlisted in the militia and took the oath to obey all laws and regulations for the government of the volunteer militia of the state, to obey the orders of all officers, and support the Constitution of the United States.

Sweetser v. Emerson, (1916) 236 Fed. 161.

ARTICLE I, SECTION 8

"The Congress shall have power * * * to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.'

Extent of power of Congress.- Congress has power to provide for organizing, arming, and disciplining the militia, and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by Congress, it may be exercised to any extent that may be deemed necessary by Congress.

Houston v. Moore, (1820) 5 Wheat. 16, 5 U. S. (L. ed.) 19.

The whole power was conferred upon Congress, reserving only to the states the appointment of the officers, and the training of the militia according to the discipline prescribed by Congress. Matter of Spangler, (1863) 11 Mich. 305.

Act of April 22, 1898.-The power vested in Congress by this paragraph of the Constitution is to provide for the organization, etc., of the militia, but the right to appoint the officers, when the militia is organized, is reserved to the states. The Act of April 22, 1898, is in harmony with this constitutional provision, in that it provides that the regimental and com

Concurrent subordinate state power.

pany officers shall be appointed by the governors of the states in which the respective organizations are raised, and, when the organizations are received into the service of the United States, such officers are recognized by the government as holding grades corresponding with their commissions, and the organizations so received into the service become a part of the volunteer army of the United States. The officers so commissioned and so received and recognized by the military authorities of the United States remain in their several grades and positions until vacancies contemplated by law occur, and the governor has no further power of appointment, or removal. Volunteer Army, (1898) 22 Op. Atty.-Gen. 228.

The power of the state governments to legislate on the same subjects having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the states, subordinate nevertheless to the paramount law of the general government, operating upon the same subject. But after a detachment of the militia has been called forth, and has entered into the service of the United States, the authority of the general government over such detachment is exclusive.

Houston v. Moore, (1820) 5 Wheat. 16, 5 U. S. (L. ed.) 19.

When power actually exercised by Congress. The power conferred upon Congress by this clause does not exclude state

legislation upon the same subject, unless the power conferred on Congress is actually exercised. People v. Hill, (1891) 126 N. Y. 503, 27 N. E. 789, wherein the court further said: "The power to control and organize the militia resided in