Now when the colonists came to this country they brought with them a very clear conception of their rights, among them being "the right of the people to keep and bear arms,' so that when King George and his Tory Parliament attempted to tax them without representation, and to enforce his levy by a seizure of the arms at Concord, the militia at Lexington were called out. The Revolution followed. Bodies of militia, estimated at from sixty to one hundred thousand were raised in the colonies to supplement the continental army. Though endowed with neither more nor less personal courage than other men, they proved to be conspicuously inefficient and unreliable. There were several reasons for this, but only two of these need be mentioned here -first, the fact that they were amenable only to the sovereignty of their own colony, and second, the fact that there was no uniformity of organization and armament.

When the war closed it was only natural that the people should regard with suspicion the establishment of a new central government that might, as England had done, oppose their interests. The traders of New England, the Dutch of New York, and the planters of Virginia had little in common. There were, however, two sides to the question, and under the leadership of Hamilton they came to realize that the maintenance of thirteen little nations, each required to support an army, and perhaps a navy, would be more intolerable than the oppression of a central govgovernment, whose head had no hereditary powers. The adoption of the Constitution followed. By it the States yielded to the National Government part of their sovereignty, the several States retaining complete sovereignty in all matters not specifically delegated to the National Government. In other words, the anomaly of a double allegiance was established—an allegiance to the State and to the Nation, for the power of the National Government is applied not merely to the States as members of the Union, but to the individuals within their borders. This is the foundation fact on which our system of government is built.

For the convenience of the reader I have grouped together all the clauses of the Constitution relating to the military powers of Congress, the President and the States:

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;

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;

To . . . exercise

authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, .. and other needful buildings; . . .

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers,

Sect. 10. . .

.

No State shall, without the consent of Congress, or ships of war in time of peace, .

ARTICLE II.

Sect. 2. The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States . .

Sect. 3. . . . he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States

ARTICLE IV.

Sect. 4. The United States shall guarantee to every State in this Union a republican form of government and shall protect each of them

against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence .

ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES.

ARTICLE II.

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

ARTICLE V.

No person 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 or naval forces, or in the militia, when in actual service in time of war or public danger; ..

No question was more thoroughly discussed by the Constitutional Convention than the military power to be entrusted to the National Government, because the two facts most keenly impressed on its members led to opposite conclusions. On the one side loomed the fact that the centralized unsympathetic power of England's King and Parliament had been responsible for the War of the Revolution; on the other, the fact that the absence of a centralized authority in the colonies had been responsible in large measure for the enormous cost of that war. It was therefore a matter of considerable importance so to harmonize and balance these dangers that liberty would not be sacrificed to efficiency or efficiency to liberty. A compromise was necessary. Congress was given the power to "raise armies." It was also given the power to provide for the organization and armament of the state militia, but to the States was delegated the power to execute its regulations by the appointment of the militia officers. It should also be observed that the National Government was given power to

call out the state militia for certain purposes and to govern such part of them as may be employed in the service of the United States, subject to the limitation already referred to -the power to appoint the officers; but the clauses of peculiar interest in this discussion are those which provided that no "State shall without the consent of Cognress keep troops. . . in time of peace," and the Second Amendment which deprived Congress of this power by providing that no State should be denied the right to maintain its militia.

The first two questions relating to the military power of the National Government to come before the Supreme Court grew out of incidents in the War of 1812, under the militia clauses of the Constitution, one in the case of Houston v. Moore, reported in 5 Wheaton (U. S.) 1, and the other in the case of Martin v. Mott, reported in 12 Wheaton (U. S.) 19. By the Act of 1795, Congress had provided 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 orders for that purpose, to such officer or officers of the militia as he shall think proper." The fourth section of the Act provided that a militiaman who has entered into the service of the United States shall be subject to the same rules and articles of war as the troops of the United States;" and the fifth section that "every officer, non-commissioned officer or private of the militia" who shall refuse to enter into the service of the United States shall be subject to fine-a penalty much less severe than that prescribed by the fourth section for no more serious an offense when in the service.

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The reason for the adoption of the fourth and fifth sections should be noted at this time, although the importance of the point will be more fully appreciated later. From the time the feudal system disappeared a soldier has occu

pied a peculiar status, so that he is subject to the rules of the civil and criminal law only so far as they do not conflict with the rules of the military law. By the old English acts authorizing a volunteer army, the status was created by the submission of the recruit to the authority of an officer and the receipt of pay; but the Supreme Court in commenting upon this question under the articles of war (Title XIV, Chapter Five, of the Revised Statutes) in the case of United States v. Grimley, 137 U. S. 147, stated "that the taking of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier." To have applied the summary punishment prescribed by the articles of war as provided by the fourth section to a man who had not yet assumed the status of a soldier would have violated the Fifth Amendment of the Constitution. It is perhaps too evident to require comment that the existence of the status is dependent only on the will of the sovereign, so that a law drafting a subject into the service may establish the condition on which it will exist-as, for example, the call of the President. In this connection it may be of interest to observe that the military law of the sovereign to which a soldier owes allegiance follows him beyond the territorial limits of the country. To this extent the military law of English speaking peoples resembles the civil law of France and other continental countries.

The facts in the case of Houston v. Moore are very clearly set forth in the dissenting opinion of Justice Story. The State of Pennsylvania had passed an act containing substantially the same provisions as the fifth section of the Act of Congress already referred to. As Justice Story put it: "There can be no reasonable doubt that the legislature of Pennsylvania meant to punish by its own Courts Martial, an offence against the United States created by their laws, by a substantial re-enactment of those laws in its own militia code." Houston, a private, enrolled in the Pennsylvania militia and a member of a detachment or