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mission of inquiry, to be instituted by an arrangement between the parties to the controversy. Finally, the conference agreed upon the establishment of a permanent court of arbitration to consist of not more than four persons from each country, selected by the respective nations from among their citizens, “of recognized competence in international law, enjoying the highest moral reputation.” Whenever two powers are in a controversy, they may submit the issue to a tribunal selected from this long list of eminent jurists. In common with the other powers of the world the United States has concluded with many countries arbitration treaties, agreeing to submit to arbitration questions which do not affect national independence or honor.'

The results of the first Hague conference led President Roosevelt, in 1904, to propose a second meeting of the powers; but he yielded the honor of issuing the call to Nicholas II, who in the following year invited the nations of the world to participate in the discussion of certain important questions, including the peaceful settlement of international disputes and the regulation of warfare on land and sea. The conference (1907) could not agree upon any plan for reducing military and naval expenditures or establishing general compulsory arbitration. It devoted itself largely to the regulation of the actual conduct of war, the treatment of prisoners, the bombardment of towns, the rights of neutrals, etc., and dismissed the question of limiting armaments by a resolution declaring that "it is highly desirable that the governments should resume a serious study of the question."

* See Readings, p. 305, for an illustration.

CHAPTER XVII

NATIONAL DEFENCE

CONGRESS enjoys an unlimited power to raise and support armies, subject to the constitutional requirement that military appropriations shall not be for a longer term than two years. Under this power, Congress has provided a land force of two great branches: the Army of the United States and the Militia.

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The Army and Militia of the United States

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1. The Army of the United States, commonly known as the regular or standing army, is organized under acts of Congress" which provide the maximum number of men and officers, the term of service, the various ranks and grades, the strength of the regiments and other divisions, and, in a word, the most elaborate details of the system. The total enlisted strength of the army is fixed by law at not more than 100,000 men,' and the number in actual service, subject to this restriction, is determined by the President. According to the report of the Secretary of War for the year 1908, the regular army was composed of 4116 officers and 68,512 enlisted men, making a grand total of 72,628.4

This branch of the army is recruited by volunteers who enlist for a term of three years' service.

For the defence of the whole American empire the regular army is distributed among nine continental departments and the Philippines tlivision. Each of these great departments has its headquarters and its fortifications, barracks, and military stations at various points, and is in command of a Brigadier-General

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See especially the acts of February 2, 1901, January 25, 1907, and April 23, 1908.

? For an illustrative extract, see Readings, p. 309. 3 Exclusive of officers.

* This army is organized into fifteen regiments of cavalry, six regiments of field artillery, thirty-one regiments of infantry, a coast artillery corps, three battalions of engineers, a staff corps, and departmental organization. or Major-General to whom troops are assigned according to the exigencies of defence.

2. The second branch of the land force of the United States is the Militia, established by Congress under the constitutional provisions authorizing it to organize, arm, and discipline the militia, govern such parts as may be employed in federal service, prescribe its discipline, and call it into the service to execute the laws of the Union, suppress insurrections, and repel invasions.

Under this power, Congress passed on January 21, 1903, and May 27, 1908, two noteworthy acts designed to bring all the available men legally within the service of their country, and to make the organized militia of the several states, territories, and the District of Columbia more immediately and generally serviceable in time of need. Under these laws all able-bodied citizens of the states, territories, and the District of Columbia, between the ages of eighteen and forty-five, are declared to be members of the militia and are divided into two classes: the organized militia, known as the National Guard (or such other names as the states may give to their respective quotas), and the Reserve Militia.? Enlistment in the National Guard is purely voluntary, and many men join for social purposes. The ordinary citizen does not even know that he is in the Reserve Militia.

It is further provided by this new legislation that the Secretary of War may issue to the organized militia of the several states military stores of all kinds and arrange for its active participation in the manœuvres and field practice of the regular army. The federal authorities detail officers to attend encampments of the state militia; and in 1907 they inaugurated a plan of having the militia participate with the regular troops in their exercises at certain places. Thus we have established a combination of a regular army, always on duty and ready for service, with a state militia, which may be, in time of peace, disciplined and prepared to take its place in the federal system. It is now hoped that, in case of an outbreak of hostilities, the confusion, delays, and readjustments which have accompanied the beginnings of every war in our history, may be obviated; and that the members of the state militia, having acquired definite previous experience

See Report of the War Department for 1908, Vol. I, pp. 33 ff. * Readings, p. 308, for an extract from the law.

under federal supervision will be able at once to assume their duties in the regular line of defence. However, some claim that the new system is no considerable improvement.

This great force is not only at the disposal of the federal government in case of invasion or war with a foreign nation or rebellion against the authority of the United States. Whenever the President is unable, with the regular force at his command, to execute the laws of the Union, he may call out such number of the militia of any state or territory or the District of Columbia as he may deem necessary to meet the situation. He does this under authority of an act of Congress.

This unquestionably puts a large power in the hands of the President, for it is left to his discretion to determine when it is necessary to call out the militia and the extent to which it may be employed. “The power thus confided by Congress to the President is doubtless of a very high and delicate nature," said Justice Story, commenting on an earlier statute of a similar character. "A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. ... By whom is the exigency (as to the necessity of using the militia) to be judged of and decided ? Is the President the sole and exclusive judge whether an exigency has arisen? ... We are all of the opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President and that his decision is conclusive upon all other persons. We think that this consideration necessarily results from the nature of the power itself and from the manifest object contemplated by act of Congress.”

Another branch of the army of the United States in war time has been composed, heretofore, of special volunteers. Every one acquainted with history knows how, in the War of 1812, the Mexican, the Civil, and the Spanish wars, great reliance was placed upon the citizen soldiers called into service by proclamation of the President under authority of acts of Congress." It has been the usual practice to accept, in the first instance, members of the state militia who desired to join the army, and then call for volunteers who had not even been members of the militia. The high service rendered by these soldiers is unquestioned; according to Brigadier-General Carter, the world never saw better armies than those composed of the volunteers of 1861-65. Under the present national military system, however, the organized militia or National Guard can be readily called into action, and owing to the previous training under federal supervision, described above, it ought to be available for effective work without all the usual delays in drilling and equipping. Nevertheless, in a long war, going beyond the strength of the regular army and the organized militia, the special volunteer method would doubtless be again employed; and resort might be had to drafting, as in the Civil War.

1 The total number of the organized militia, including commissioned officers and enlisted men, is estimated (1909) at 110,941, and unorganized reserve militia at 14,987,011. 2 Martin v. Mott, 12 Wheaton, 19.

3 Readings, p. 310.

Under its constitutional authority, Congress has provided an elaborate set of regulations for the Army of the United States. Soldiers in military service are under special rules designed to preserve discipline and good order in time of peace as well as war.

The enforcement of military law is placed in the hands of special military courts known as courts-martial. A court-martial is not regarded as a portion of the federal judiciary, but belongs to the executive department of the government, and is not limited by those provisions requiring indictment by grand jury and trial by jury, as in ordinary cases. “With the sentences of courts martial, which have been convened regularly and have proceeded legally and by which punishments are directed, not forbidden by law or which are according to the laws and customs of the sea, the civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtually administer the rules and articles of war irrespective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal or jurisdiction of any kind has been given to the civil magistrates or civil courts. But if a court martial has no jurisdiction over the subject-matter of the charge it has been convened to try or shall inflict a punishment forbidden by the law,

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