the taking into the Volunteer Army of any organization of the Organized Militia higher than a regiment; and it is expressly provided in section 5 of the act of April 25, 1914, that no officer above the grade of colonel should be appointed under the provisions of the act.

The national defense act of June 3, 1916, provides for the conversion of the Organized Militia into Federalized National Guard, and, by the method of draft set forth in section 111 of said act, for bringing the Federalized National Guard into the service of the United States in time of war for all purposes for which a Regular Army may be employed. Under its terms not only may the members of a company, troop, battery, battalion, or regiment of the Federalized National Guard be drafted into the service of the United States, but the members of higher units of brigades and divisions may be so drafted and organized into corresponding units. I am of the opinion that the provisions of section 111 supersede the provisions of the proviso above quoted in so far as the Federalized National Guard is concerned, but leave that proviso in force in respect of the Organized Militia still subsisting. It would be necessary, I think, to repeal this proviso to make the act a workable measure for bringing into the service of the United States a force of volunteers under its terms. If it were allowed to remain in and left applicable to surviving organizations and individuals of the Organized Militia, it would, as will hereinafter appear, give this latter force a preferential status in the addtional forces to be raised which no one would suggest or attempt to defend. A further defect of the proviso is found in the fact that the authorization for accepting the Organized Militia as volunteers is limited to a "troop, battery, battalion, or regiment," a terminology which is not inclusive of many organizations exsting under the national defense act, such as sanitary trains, and would be of doubtful application to the bringing into the service of any special units of this character.

3. That the system of raising volunteer forces prescribed by the volunteer act contemplates a priority of use as volunteers of the organized land militia is indicated by the concluding proviso of section 3 of that act, reading:

"That when the raising of a volunteer force shall have been authorized by Congress, and after the organized land militia of any arm or class shall have been called into the military service of the United States, volunteers of that particular arm or class may be raised and accepted into said service in accordance with the terms of this act, regardless of the extent to which other arms or classes of said militia shall have been called into said service."

While, as pointed out (supra), provisions of the volunteer act relating to the organized land militia have been superseded as to the National Guard by provisions of the national defense act, section 111 of which prescribes a special method for the induction of the members of that force into the service of the United States when Congress shall have authorized the use of armed land forces of the United States, requiring the use of troops in excess of those of the Regular Army, there still remains an expiring class-the Organized Militia which the rather obscure provision quoted (supra) seems to imply would have a right to claim a priority of acceptance, such as would preclude the organization of other volunteers until after they had been accepted as volunteers. In view of this consideration it would be necessary, in organizing an army under the volunteer act of April 25, 1914, to repeal the proviso of section 3 of the volunteer act just quoted.

4. Section 6 of the volunteer act, which provides for the appointment of staff volunteer officers, contains a proviso:

"That the total number of such staff officers so appointed, including all such officers of the Organized Militia called into the military service of the United States, shall not exceed the ratio of 1 officer to 200 enlisted men for all militia and volunteer forces called into the military service of the United States." The second paragraph of section 10 of the national defense act, prescribing the organization of the Medical Corps, provides that—

"The total number of such officers shall approximately be equal to but not exceed, except as hereinafter provided, 7 for every 1,000 of the total enlisted strength of the Regular Army authorized from time to time by law."

Since this ratio for the Medical Corps would require 1 medical officer for every 143 enlisted men, the appointment of staff officers so as to provide a number of staff officers corresponding even approximately to the number maintained in the Regular Army would be impossible under the limitation prescribed by the volunteer act. Such a limitation would not permit the appointment of a sufficient number of medical staff officers, even if no officers of other

staff departments were appointed. Since the national defense act contains the latest expression of Congress as to the proper organization of the military forces, line and staff, the intention of Congress not to adopt any such limitation in organizing military forces, line and staff, is plainly indicated. I am therefore of the opinion that it would be necessary to repeal the proviso here quoted in order to permit the appointment of an adequate number of staff officers for an army raised under the provisions of the act in which it occurs.

5. Section 7 of the volunteer act authorizes the President to select volunteer officers from (a) the Regular Army, (b) those duly qualified and registered pursuant to section 23 of the act of Congress approved January 21, 1903, (c) the country at large, and (d) the organized land militia. The national-defense act creates the Officers' Reserve Corps and the Enlisted Reserve Corps and provides in section 39:

"That in time of actual or threatened hostilities, after all available officers of any section of the Officers' Reserve Corps corresponding to any arm, corps, or department of the Regular Army shall have been ordered into active service, officers of Volunteers may be appointed in such arm, corps, or departments as may be authorized by law,"

thus indicating that reserve officers are to be given a priority of employment when forces in addition to those of the Regular Army are required in time of actual or threatened hostilities. It is therefore plain, I think, that it would be necessary, in order to carry out the spirit of later legislation, to amend section 7 of the Volunteer act so as to include officers of the Officers' Reserve Corps in the sources from which Volunteer appointments may be made, giving them priority over all other sources except the Regular Army, and to include also as a source from which appointments may be made the Enlisted Reserve Corps created by the national-defense act.

6. The only authority for the use of retired officers and enlisted men, either with their rank on the retired list or under volunteer appaintments, is contained in section 11 of that act, which limits the employment of retired officers to those not above the grade of colonel and authorizes their appointment as officers of Volunteers in not more than one grade higher than that held by them on the retired list. The authority contained in that section for the employment of retired officers is also limited to the organization of a recruiting system, and provision is made therein that retired officers and enlisted men thus employed shall not be eligible for transfer to field units. Retired enlisted men may be employed with increased noncommissioned grade or as Volunteer officers not above the grade of first lieutenant. It is provided in section 24 of the nationaldefense act

"That in time of war retired officers of the Army may be employed on active duty in the discretion of the President."

It is plain that the provisions of section 11 of the Volunteer act, restricting the use of retired officers, are inconsistent with this provision of section 24 of the national-defense act authorizing unrestricted use of retired officers. In the organization of a large army, such as is now contemplated, there will be uses for which retired officers above the grade of colonel may be utilized, and also it would be detrimental to the efficiency of such a large force to limit the Volunteer appointments of retired officers to one grade above that held by them on the retired list, for the reason that many retired officers of the grade of captain and below are more competent to fill Volunteer offices above the grade of major than the inexperienced men from whom many appointments for such positions will necessarily be made. It will be necessary therefore, I think, in order to secure, in the organization of a large army under the volunteer act, the unrestricted use of retired officers and enlisted men contemplated by the national-defense act, to repeal section 11 of the volunteer act or modify it in such a manner as to permit the unrestricted employment of retired officers. The same consideration would dictate the repeal of the provision limiting the volunteer appointments of retired enlisted men to grades not higher than that of first lieutenant.

Judge Advocate General.

Mr. SHALLENBERGER. Mr. Secretary, in regard to the number of men to be called, when you first appeared you stated that the total call would be for 614,000 men in the two arms of the service; that is, the National Guard and the Regular Army. Now, some figures have

been given here, 280,000 for one arm of the service, and the difference there would be 334,000. Now, it has been stated that the number to be called is 203,000, and I would like to get those figures straight.

Secretary BAKER. The first figure that was given by Maj. Nolan was the estimate of the number of men within the power of the President to call under the language of this bill, assuming that the President would exercise that power to the full and call all of the increments of the Regular Army. The second figure is the figure which shows the present intention of the department with regard to the exercise of that power.

Mr. SHALLENBERGER. How many do you include for the National Guard in that 614,000 men? In other words, how many men does that leave to be raised in the National Guard?

Secretary BAKER. Maj. Nolan can answer that.

Maj. NOLAN. For the 12 divisions complete it will be 336,000.
Mr. SHALLENBERGER. Of the National Guard?

Maj. NOLAN. Yes, sir.

Mr. SHALLENBERGER. How many will you call?

Secretary BAKER. That is the number. That does not include the 11 increments, but it includes only the one increment for the existing year.

Maj. NOLAN. That is, 12 divisions raised to war strength for the National Guard.

Mr. SHALLENBERGER. How many men would there be if they called them all out?

Maj. NOLAN. Three hundred and thirty-six thousand.

Mr. SHALLENBERGER. Mr. Secretary, in the matter of the exemptions, I would like to ask whether it was considered best to make broad exemptions at the outset, so as to eliminate all men, who are married, or extend it only to those with dependents?

Secretary BAKER. It was not intended that the fact of marriage should itself constitute an exemption, but the fact of marriage when coupled with dependence should constitute an exemption. That is to say, if a man, taking a perfectly gross illustration, has an income of $15,000 or $20,000 a year and has a wife and one child, that case does not present the difficulty of dependence at all.

Mr. SHALLENBERGER. The reason I ask that question is because the administration of this selection or elimination feature is going to create, I think, a great deal of dissatisfaction. It will be difficult to administer it. The British act first declared that every man of military age should be conscripted into the service, except those who were married six months before the act was passed and widowers with children dependent upon them. Therefore they have eliminated all of that at the very outset, and I wondered if you had considered that phase of it, and whether you have not thought it abvisable to do that here?

Secretary BAKER. No, sir; I have not.

Mr. SHALLENBERGER. In the administration of this act and in the conscriptions and selections to be made under it, you do not define any definite policy as to how you will do it. In the British act to which I referred, which is an act longer than this one, they go into all the details of the administration of the act. In other words, the

act itself gives the public notice of what the rights of each man shall be under the act.

Mr. GORDON. Is it left to the determination of the civil courts?

Mr. SHALLEN BERGER. It is administered in a general way by the Crown or Government, but it states exactly how the soldier shall be drafted and the people know from the act itself just what their rights are. Now, have you considered whether or not that might be a good thing in this bill?

Secretary BAKER. It was carefully considered, and I would be glad to have the Judge Advocate General state the reason for adopting this plan.

Gen. CROWDER. In all the exemption legislation we have had, including the act of 1792, the act of 1863, the act of 1903, and the act of 1916, we have had but one class of exemptions—that is, legislative exemptions. In the act that is before you we have two classes of exemptions-legislative exemptions and executive exemptions. There are included in the legislative exemptions those classes whose status is determined in such a way that the administrators of this law can take cognizance of that status and eliminate them. There are other classes which are classified as executive exemptions, where a question of fact has to be determined. In the legislation of 1863 the judgment of the board of enrollment provided for in that legislation was made conclusive upon the authorities, notwithstanding which, however, the courts undertook to inquire into the decision of the enrolling boards in granting or refusing exemptions. This bill makes the judgment of such agencies as the President may constitute conclusive upon the questions of fact, so that the courts would not be able to inquire into the findings of fact. There was some question during the Civil War period as to the right of the courts to review the judgment of the board of enrollment on questions of fact, but I take it that since the Chinese-exclusion case and the immigration cases decided by the Supreme Court of the United States there is no longer any question of the right of Congress to delegate to the executive branch of the Government jurisdiction to finally determine questions of fact.

Mr. GORDON. In reference to aliens.

Gen. CROWDER. In reference to anybody whose status is to be inquired into here, like mariners, pilots, etc., that are included here. Now, during the Civil War period, as I have said, the courts went ahead with their inquiries, and the controversy was finally terminated, I believe, by President Lincoln suspending the writ of habeas corpus, thereby saving the execution of the draft act during that period from judicial interference.

Mr. GORDON. But the Supreme Court has held that the act of President Lincoln in suspending the writ of habeas corpus was invalid.

Gen. CROWDER. In suspending the privilege of the writ of habeas corpus?

Mr. GORDON. Yes, sir.

Gen. CROWDER. It remains a controverted question whether the suspension of the right of habeas corpus is an Executive function or legislative function.

Mr. GORDON. The Supreme Court has decided that it is a legislative function.

Gen. CROWDER. I do not think that the latest text writers on the subject so regard the question as authoritatively settled.

Mr. GORDON. The last decision of the Supreme Court so decided it. Gen. CROWDER. In what case?

Mr. GORDON. I can not cite the case now, but I will get it for you. Gen. CROWDER. I think the weight of authority is that way, as you have stated.

Mr. GORDON. I can not recall the case now, but it was certainly decided distinctly by the Supreme Court that the suspension of the writ of habeas corpus was a legislative function.

Mr. SHALLENBERGER. General, what I am asking for is informacion and is not intended as any captious criticism of the bill. I am not expressing any judgment on that. I will not discuss now the right of Congress to delegate this power to the Executive. The question with me is just how far it is best for us to go in that direction. Of course this bill must be passed through Congress, and, as I said before, there will be a great deal of debate over this particular matter. Now, Great Britain is an empire with a king, yet they have not seen fit to delegate this power so absolutely as it is proposed to be done here. They have a specific declaration of law showing what the exemptions are, and when a man appears before the tribunal which determines whether he shall have an exemption or not he has the right of appeal. He has three appeals. I do not mean to go into all of the details of that act, but I simply want to suggest whether you think it advisable for us to attempt, in order to make this bill easier to pass, to define with greater exactness the rights of citizens under this bill than you do here.

Secretary BAKER. I will reply by asking you a question: Does the English law grant an administrative or judicial appeal?

Mr. SHALLEN BERGER. That I do not know.

Gen. CROWDER. I think it is an administrative appeal, and that the administrators of the law retain jurisdiction to finally settle all questions of fact.

Secretary BAKER. Is not the answer really this: That there are two kinds of exemptions. One exemption falls into a perfectly definite class which can be foreseen by legislative action, but the other kind involves exemptions that are more or less varying in their circumstances, or they are exemptions involving varying circumstances which some executive officer in constant touch with the national situation will have to deal with.

Mr. SHALLENBERGER. The point I am trying to make is this: Whether or not the War Department could not in this bill go more into detail concerning the administration of this law? Could you not indicate how you expect to administer the law? Can you not arrange it so that a man will not go out and say, "We are absolutely abrogating all of our rights to the Executive." We all know that the general charge in this country is that we are more and more going in that direction, and the question is whether in this matter it would not be better to define exactly how you are to administer this law, and, also, just what a man's rights under it are to be. I merely offer that as a suggestion.

Now, as to the matter of the general officers that was brought up by Mr. Gordon. I see that in the public press it is stated that in