CHAPTER XVII THE WAR POWERS OF CONGRESS for military power The experiences of the Revolution had shown the necessity constituof giving the central government adequate power in time of tional grants war. In the Constitution this grant of power is found in Article I, Sect. viii, and, arranged in logical sequence, gives Congress the following powers: (1) the right to raise and support an army and navy; (2) the right to make rules and regulations for the government of the same; (3) the right to provide for the organizing, arming, and disciplining of the militia of the states; (4) the right to utilize this militia to execute the laws, suppress insurrections, and repel invasions; (5) the right to declare war and make rules for captures on land and sea; (6) the right to make all laws necessary and proper to carry into effect these powers. Article I, Sect. x, clauses 1 and 3, prohibits the states from exercising their military power in a way to hamper the federal government; while the Second Amendment recognizes the necessity of a militia and forbids Congress to pass laws prohibiting the right to bear arms. It is also necessary to remember that Congress in the prosecution of war may exercise to the full all the general powers granted to it, among which are the powers to levy taxes, borrow money, or coin the same, as well as those granted by the clause just quoted, which gives Congress the power to pass all laws necessary for the prosecution of the war. With these grants Congress has almost unlimited power, undivided with the states, and Congress must meet and bear the responsibility. Enough power is granted to make the United militaristic States the most militaristic nation in the world. But the traditions of the country have been absolutely against such a development. Hatred of standing armies alike characterized the Puritans of New England, the Dutch and Quakers of the middle colonies, and the Cavaliers of Virginia; and many of the early immigrants came to escape the burdens so imposed. Reliance upon a citizen Why the gov ernment has not become The regular army Army legislation, 1916 militia, as an Anglo-Saxon institution, was firmly rooted in the original colonists and quickly adopted by the immigrants. Consequently the regularly organized standing army of the United States, while excellent in character, has been pitifully small and inadequate for a country so large. THE ARMY Acting upon the constitutional grant, the first Congress, on September 29, 1789, took over the troops which had been raised under a resolution of the Congress of the Confederation. In 1790 was passed the first army organization act, which provided for a regular standing army, officers and men, not to exceed 1216.1 Since that time there have been frequent reorganizations; the most important in recent times being in 1901, 1916, and 1917. The reorganization of 1901 was made under the administration of Secretary Root, and provided for a definite number of regiments for each service and a fixed number of officers. The number of privates was left to be fixed by executive order and congressional appropriation, at a number between 60,000 and 100,000. Thus there always existed a skeleton organization of an army of 100,000, while the actual number varied from about 60,000 to 80,000. In addition Secretary Root organized the General Staff, which was expected to secure the coördination of the various branches of the service.2 In 1916, owing to the outbreak of the war in Europe and the consequent agitation for "preparedness" in this country, a great increase in the standing army was demanded. Proposals of all kinds were submitted to Congress, which in the main looked towards three lines of increase: a larger standing army; a very large force of volunteers known as the "Continental Army," part of which was to be kept in active service and part in reserve; and the "federalization of the militia." The Secretary of War, L. M. Garrison, favored the first and second of these plans, but encountering the opposition of Mr. Hay, chairman of the House Committee on Military Affairs, and failing to secure the support of the president, he resigned. The House then prepared 2 See Chapter X. 1 U. S. Stat. at Large, Vol. I, p. 119. a bill which, as far as the regular army was concerned, provided for a force of about 143,000, and adopted the plan for the further federalization of the militia. The Senate increased the number of the regular army to 178,000 and adopted the Garrison plan for a continental army, and agreed, with some modifications, to the House plan for a federalized militia. In conference, the federal volunteer force, or the continental army, was dropped, but the Senate succeeded in fixing the size of the army at 175,000, while the plan for the federalization of the National Guard was retained. tional limita tions for the army It should be remembered that this plan is subject not merely Constituto legislation by future Congresses but to a constitutional limita- tions upon tion as well. Fear of standing armies was so strong in 1787 appropriathat Congress was forbidden to make any appropriation for the support of the army for a period longer than two years. Hence, although a future Congress might repeal this legislation, every subsequent Congress must take affirmative action in order to continue the system. It is thus impossible for Congress to adopt a program for more than two years for the army, although this may be done in the case of the navy. THE MILITIA tional grants "To provide for organizing, 'arming, and disciplining the Constitumilitia, and for governing such part of them as may be employed in the service of United States." 1 "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." 2 "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." 3 rity the These clauses show the importance which the framers of the Main secuConstitution attached to the militia. Standing armies were con- militia trary to their habits, and even the hard experience of the Revolution had not weaned them from their belief that the militia. should be the main security of a free state. This idea not only 1 The Constitution of the United States, Article I, Sect. viii, clause 16. 2 Ibid., Amendment II. 3 Ibid., Article I, Sect. viii, clause 15. The militia act of 1792 Deficiencies of militia act of 1792 found expression in the Constitution but was developed in legislation as well. The regular establishment called for but 1200 men, consequently it was evident that Congress was to depend upon the militia for the performance of the greater part of the military duties. Nevertheless no law was passed until 1792 for the arming and disciplining of the militia.1 Section I of this law provided for universal military service of all white, able-bodied citizens between the ages of eighteen and forty-five. All such were to be enrolled by the commanding officer of the district. Members of the militia must furthermore provide their own arms and equipment, together with the necessary powder and ball. The fact that the democratic system of universal service was adopted, together with a system of territorial recruiting, seemed of such vital importance in the eyes of a trained observer that all the other defects of the law were considered as secondary. But there were certain very fundamental defects. Instead of having one small national army supported by indirect taxation, there were thirteen or more state armies supported by direct contributions of the citizens of each state. Even this might have been tolerated had the militia been well disciplined and well trained; but as it was they were "totally ignorant of the first principles of military art."3 Finally, this law contained no penalty, and the citizens might or might not comply with its provisions. The democratic principle of universal service turned out to be a scheme for the organization and training of their own militia, with the result that the militia was neither well regulated nor uniform throughout the country. This law remained in nominal force for over a hundred years, although practically obsolete a few years after its passage. The militia of the states, as such, has not always proved a very effective force. For example, in the War of 1812 the governors of Massachusetts and Connecticut refused to call out their militia when summoned to do so by the president of the United States. Although the Supreme Court of the United States overruled 1 U. S. Stat. at Large, Vol. I, p. 271. 2 Emory Upton, Military Policy of the United States, p. 85. the Supreme Court of Massachusetts and held that the president was the sole judge of the exigency, there seemed no method by which an unwilling state could be compelled to call out its militia. legislation, 1903, 1916 Attempts have been made at various times to reorganize and Revised improve the militia, the most important of which were in 1903 and in 1916. By these laws every able-bodied citizen between the ages of eighteen and forty-five is considered a member of the militia, which is divided into two classes, the organized, known as the National Guard, and the unorganized, or the Reserve Militia. Enlistment in the National Guard is voluntary. Of still greater importance are the provisions for a uniform equipment and armament. On occasions in the past the militia has sometimes been found of little value because its arms and equipment were such that it could not be used with the regular troops. Delay has resulted in obtaining the proper equipment. The fed- Federalizaeral government now furnishes the arms and equipment and in return has the privilege of inspection and discipline. Most important of all, the militia can be summoned directly by the president without the intervention of the state governor. By the reorganization of 1916 the militia is still further federalized. Pay is given. to the officers and men provided they are drilled a certain number of hours and attain a certain standard, which is enforced by frequent inspections by federal officers. It is expected that within five years this force will reach a minimum of four hundred and twenty-four thousand. Under the terms of the new act the militia will be required to give three years of active service and three years in the reserve, subject to certain calls. In 17921 Congress passed a statute regulating the right of utilizing the militia. By this act Congress vested in the president the power of calling upon the militia of the states most concerned. This was repealed in 1795 when another act of similar import was passed, and although subject to frequent revisions, still the principle remained the same until the Reorganization Act of 1916. By the act of 1795 Congress intrusted to the president the decision of utilizing the militia to suppress domestic disturbances, nothing being said concerning his right to utilize 1 U. S. Stat. at Large, Vol. I, p. 264. tion of the militia The utilizamilitia act of 1795 tion of the |