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the Regular Forces, the Organized Militia shall be called into service in advance of any volunteer forces.
In case of war quotas of the number of men needed would be apportioned amongst the different States according to their respective representative populations, and the War Department would then make requisitions accordingly upon the governors of the States.
When called into the service of the United States only such of the Militia as is deemed physically fit for military service shall be ac cepted. In such States as have adopted the standard of physical examination for enlistment and reenlistment prescribed by the Secretary of War, the Militia would be considered "fit for military service,” and would be accepted without examination.
The officers would not be required to stand a mental examination. Should any officer or enlisted man, upon being called forth for service, refuse or neglect to present himself for muster, he would be courtmartialed.
While in the service of the United States the Militia receive the same pay and allowances as Regulars and are subject to the Rules and Articles of War. However, the majority membership of courts-martial for the trial of officers or enlisted men must be composed of Militia officers.
The annual appropriation made by Congress for the maintenance of the Organized Militia under Section 1661, Revised Statutes, is apportioned amongst the various States according to representation in Congress.
After it shall appear from the reports of the inspections made annually, by officers detailed by the War Department, that the Organized Militia of a State is sufficiently armed, uniformed and equipped for active duty in the field, the Secretary of War is authorized, on requisition of the Governor of the State, to pay to the Quartermaster General thereof, or to such other officer of the Militia of the State as the Governor may designate, so much of the State's allotment as shall be necessary for the payment, subsistence, and transportation of such portion of the said Organized Militia as shall engage in actual field or camp service for instruction. A State's annual allotment may also be used for the promotion of rifle practice, including the acquisition, construction, maintenance, and equipment of shooting galleries and target ranges; for the hiring of horses and draft animals for the use of mounted troops, batteries, and wagons; for forage for the same, and for such other incidental expenses in connection with encampments, maneuvers, and field instruction, as the Secretary of War may deem necessary. The appropriation is also available for the purpose of supplying arms, uniforms, equipment, materials of war, publications, and such other supplies as are furnished to the Regular Army by any bureau of the War Department.
The annual appropriation made by Congress, under the Act of May 27, 1908 (Section 13 of the Militia Law), is apportioned among the various States according to the organized enlisted strength of the militia as shown by the reports of the inspection made by officers of the Regular Army in the spring of each year under Section 14 of the Militia Law. The amount of this appropriation is specified by the Act of Congress to "not exceed two million dollars in any fiscal year."
This appropriation is to enable the Secretary of War to procure, by purchase or manufacture, and to issue to the Organized Militia under such regulations as he may prescribe such of the United States service uniforms and accessories and such other accouterments, equipments, uniforms, clothing, equipage, and military stores of all kinds required for the Army of the United States as are necessary to arm, uniform, and equip all of the Organized Militia.
Under the authority conferred upon him by Congress, the Secretary of War has decided that the issues to be made from this appropriation shall be limited to articles needed for the equipment of enlisted men for field service.
Upon application of the governors, it is customary for the War Department to detail officers of the Regular Army to attend encampments of the Organized Militia for the purpose of instructing the officers and men.
It is also customary for retired officers of the Army to be detailed for permanent duty with the Organized Militia of the various States.
Upon the request of the governors of the several States and Territories concerned, officers of the active list of the Army may be assigned to duty as inspectors and instructors of the Organized Mili tia in numbers not to exceed one to each regiment and separate battalion of infantry or its equivalent of other troops. (G. O. 33 March 11, 1911.)
According to the present (July, 1911) policy of the War Department, one officer will be detailed with the Militia of every State and Territory, the detail to last two years and be subject, upon the request of the governor, to renewal for two years more. The officers so detailed extend from the grade of first lieutenant to that of colonel. In addition to these officers, a number of officers on the retired list are also detailed for duty with the Organized Militia.
Whenever Army maneuvers, camps of instruction or coast defense exercises are held for the Regulars, the War Department always invites a certain part of the Organized Militia to participate. The Militia so participating receives the same pay, subsistence, and transportation as the Regulars, but they are not considered as being in the service of the United States and consequently are not subject to the Articles of War.
The law prescribes that each State or Territory furnished with material of war under the provisions of the Militia Law, shall have required, during the calendar year next preceding each annual allotment of funds, that every company, troop, and battery of its Organized Militia not excused by the governor, should during the year: (1) Participate in practice marches or go into camp of instruction for at least 5 consecutive days; (2) Assemble for drill and instruction or for target practice not less than 24 times; (3) Be inspected by an officer of the Organized Militia or the Regular Army. A Upon the recommendation of the governors, officers of the Organized Militia may be authorized by the War Department to attend and pursue the regular course of instruction at garrison schools for officers; the Army School of the Line, the Signal School, and the Army Staff College, Fort Leavenworth, Kans.; the Coast Artillery School, Fort Monroe, Va.; and the Army Medical School, Washington, D. C.
Before entering these schools they must stand a physical examination and also the mental examination prescribed by the War Department.
They must also be between 21 and 35 years of age and of sound health, good moral character, and must have belonged to the Organized Militia at least one year.
Furthermore, they must wear their uniforms and sign an agreement to attend and pursue the prescribed course of study and conform to the rules and regulations of the school.
While attending these schools they receive the same travel allowances and commutation of quarters as officers of the Regular Army and commutation of subsistence at the rate of $1 per day.
RELATION OF THE MILITARY TO THE CIVIL
(See corresponding chapter in SUPPLEMENT for additional matter and changes, if any.)
In times of peace officers frequently live and perform their duties in places and under circumstances which require that they shall be familiar with the laws governing their official conduct in relation to the civil communities by which they are surrounded.
The principle that military authority is subordinate to the civil may be taken as a reminder of the fact that an officer or soldier in taking upon himself the additional responsibilities and obligations of the military profession, can not thereby divest himself of his civil responsibilities as a citizen. See 408A.
While the military state is fully governed by its own code, those living in that state are not thereby relieved of civil responsibility for their civil acts.
"From the nature and source of their respective jurisdictions civil and military courts can never have concurrent jurisdiction in the strict sense of the term. The same act or omission, however, may give rise to both a military and a civil trial, but the offense in each case is distinct and separate, one having been created by the Articles of War and the other by the common law, or by statute in the state or district within whose territorial limits it was committed.”—(Davis' Mil. Law, p. 43.)
Thus, an officer kills another officer and is tried and acquitted by a civil court, he may still be tried by a military court, not for the actual killing, but for a violation of one or more of the Articles of War, as, for instance, the 21st or the 61st, or 62d, or any other which may have been violated in the actions which led to the homicide. So, also, a soldier might be tried by a police judge for drunkenness and disorderly conduct in a city, having committed a breach of municipal law, and again be tried by court-martial for absence without leave, or conduct to the prejudice of good order and military discipline. The difference between these offenses committed is well illustrated by the fact that one item under the Executive order limiting punishments provides a limit of punishment for a man tried under the 62d Article of War, where drunkenness and disorderly conduct have caused the offender's arrest and conviction by the civil authorities at a place within ten miles of his station.
Note. In the case of Homer E. Grafton v. The United States, on appeal to the Supreme Court of the United States from the Supreme Court of the Philippine Islands, the court has held, notwithstanding the general doctrine heretofore obtaining in regard to the question of dual jeopardy where officers or soldiers have been tried by civil as well as military courts, that a man could not lawfully be tried for the same offense by two courts of the same sovereignty. In other words, that a soldier triert for homicide by a military court under the 62d Article of War could not be again placed on trial by a court of the Philippine Islands for the same offense, the courts of the Philippine Islands deriving their sole jurisdiction from the sovereignty of the United States. This same rule would be applicable where a soldier tried by a court. martial was again tried for the same offense by a United States court. However, in its opinion the Supreme Court said:
"It may be difficult at times to determine whether the offense for which an officer or soldier is being tried is, in every substantial respect, the same offense for which he had been previously tried.”
It is therefore, of course, impossible to lay down any rule for the determination of the question at this time, but it suggests the extreme importance of attaching military jurisdiction where an offense has been committed, before the civil jurisdiction can take over the case; and all military officers having authority in the premises should be careful, where an offense has been committed by a soldier to at once prefer charges and thus originate military jurisdiction, subject to the later consideration of the case, perhaps, by the civil courts.
The Grafton case was published in full in Cir. 43, W. D., 1907.
It is not within the scope of this article to enter into a minute discussion of the various matters which will be touched upon, and officers should consult and study, as part of their professional education, the very able treatises on the relations