Losing, spoiling, etc., military stores. 15 Art. of War. Selling ammu nition. nished, and which have been the subjects of any such 1647. Any officer who, willfully or through neglect, suffers to be lost, spoiled, or damaged any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service. Fifteenth Article of War. 1648. Any enlisted man who sells or willfully or through 16 Art. of War. neglect wastes the ammunition delivered out to him shall be punished as a court-martial may direct. Sixteenth Article of War. Selling, etc., horse, arms, etc. 1649. Any soldier who sells or through neglect loses or 17 Art. of War. spoils his horse, arms, clothing, or accouterments shall be punished as a court-martial may adjudge, subject to such limitation as may be prescribed by the President by virtue of the power vested in him. Seventeenth Article of War. Act July 27, 1892 (27 Stat. L., 277). See also section 1242, Revised Statutes. Held, that the provisions of section 23 of the act of March 3, 1863, prohibiting the sale, etc., of their arms, etc., by soldiers, and declaring that no right of property or possession should be acquired thereby, etc., were not limited in their operation to the period of the war, but were still in force, (a) and that an officer of the Army would therefore be authorized to seize arms, etc., disposed of contrary to such prohibition, whenever and wherever found. But inasmuch as there have been sundry authorized sales of arms and other ordnance stores since the end of the war; Advised, that officers, before making seizures, should assure themselves that the parties in possession have not acquired title in a legal manner. Dig. Opin. J. A. G., par. 2273. See as to method of recovery, par. 2275, ibid. A person who illegally purchases army clothing from a soldier can not now be proceeded against for merely purchasing or receiving, under the existing law (secs. 1242 and 3748, Rev. Stat.), but if, in so purchasing, he aids a soldier to desert, he is subject to trial and punishment under section 5455, Revised Statutes. Ibid. p. 2274. a See these provisions as now incorporated in the Revised Statutes, in sections 1242 and 3748. The further provision of the original act making punishable with fine and imprisonment persons purchasing from soldiers their arms, equipments, clothing, etc., has not been retained in the Revised Statutes. CHAPTER XXXV Par. THE MILITIA-THE MILITIA OF THE DISTRICT OF COLUMBIA THE TERRITORIAL MILITIA. THE MILITIA. 1650-1655. Composition and enrollment. 1656-1661. Organization. 1662-1663. Instruction and discipline. 1669-1674. Active service of the militia. Par. 1650. The militia. Par. 1681-1684. Pay, rations, etc. 1685-1687. Half pay, pension, etc. 1688-1690. Courts-martial, fines, etc. 1691-1706. Armament and equipment. 1707-1776. The militia of the District of Columbia. 1777-1781. The Territorial militia. COMPOSITION AND ENROLLMENT. 1651. Who liable to enrollment. 1652. Enrollment by captains. Par. 1653. Notice of enrollment. 1650. A well regulated militia, being security of a free State, the right of the and bear arms shall not be infringed. the United States, second amendment. Second amend necessary to the The militia. people to keep ment to ConstiConstitution of tution. 1 The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government. Ú. S. v. Cruikshank, 92 U. S., 542. The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without and independent of an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They can not be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the State and Federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States, independent of some specific legislation on the subject. It can not be successfully questioned that the State governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States; and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power, by the States, is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine. Presser v. Illinois, 116 U. S., 252, 267; U. S. v. Cruikshank, 92 U. S., 542; New York v. Miln, 11 Pet., 102, 139. Who to be enrolled in the militia. May 8, 1792, c. 1651. Every able-bodied male citizen of the respective States, resident therein, who is of the age of eighteen July 17, 1862, c. years, and under the age of forty-five years, shall be en201, s. 1, v. 12, p. rolled in the militia. 33, s. 1, v. 1, p. 271; 597; Mar. 2, 1867, c. 145, s. 6, v. 14, p. 423. Houston v. Moore, 5 Wh., 1. Sec. 1625, R.S. Enrollment, by whom. C. 33, s. 1, v. 1, p. 271. 1652. It shall be the duty of every captain or commandMay 8, 1792, c. ing officer of a company to enroll every such citizen residSec. 1626, R.S. ing within the bounds of his company, and all those who may, from time to time, arrive at the age of eighteen years, or who, being of the age of eighteen years and under the age of forty-five years, come to reside within his bounds. 1653. Each captain or commanding officer shall, without May 8, 1792, c. delay, notify every such citizen of his enrollment, by a Mar. 2, 1803, c. 15, proper non-commissioned officer of his company, who may Sec. 1627, R.S. prove the notice. And any notice or warning to a citizen Notice of enrollment. 33, s. 1, v. 1, p. 271; s. 2, v. 2, p. 207. Arms and accouterments. 33, s. 1, v. 1, p. 271; enrolled, to attend a company, battalion, or regimental muster, which is according to the laws of the State in which it is given for that purpose, shall be deemed a legal notice of his enrollment. 1654. Every citizen shall, after notice of his enrollment, May 8, 1792, c. be constantly provided with a good musket or firelock of a Mar. 2, 1803, c. 15, bore sufficient for balls of the eighteenth part of a pound, Sec. 1628, R.S. a sufficient bayonet and belt, two spare flints, and a knap s. 2, v. 2, p. 207. Persons ex empt. 33, s. 2, v. 1, p. sack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shotpouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutered, and provided when called out to exercise, or into service, except that when called out on company days to exercise only he may appear without a knapsack. And all arms, ammunition, and accouterments so provided and required shall be held exempted from all suits, distresses, executions, or sales for debt or for the payment of taxes. Each commissioned officer shall be armed with a sword or hanger and spontoon. EXEMPTIONS. 1655. The Vice-President of the United States; the May 8, 1792, c. officers judicial and executive of the Government of the 272, May 7, 1800, United States; the members of both Houses of Congress, 62: Apr. 30, 1810, and their respective officers; all custom-house officers with their clerks; all postmasters and persons employed in the Sec. 1629, R.S. transportation of the mail; all ferrymen employed at any c. 46, s. 4, v. 2, p. c. 37, s. 33, v. 2, p. 603. ferry on post-roads; all inspectors of exports; all artificers and workmen employed in the armories and arsenals of the United States; all pilots; all mariners actually employed in the sea-service of any citizen or merchant within the United States; and all persons who now are or may hereafter be exempted by the laws of the respective States, shall be exempted from militia duty, notwithstanding their being above the age of eighteen, and under the age of forty-five years. ORGANIZATION. Par. 1656. Divisions and brigades. 1657. How officered. 1658. Rank of officers. Par. 1659. Artillery and cavalry. into divisions, May 8, 272. 1656. The militia of each State shall be arranged into, Arrangement divisions, brigades, regiments, battalions, and companies, bris, 1792, c. as the legislature of the State may direct. Each brigade 33, s. 3, v. 1, p. may consist of four regiments; each regiment of two bat- Sec. 1630,R.S. talions; each battalion of five companies; each company of sixty-four privates. Each division, brigade, and regiment shall be numbered at the formation thereof; and a record of such numbers shall be made in the adjutant-general's office of the State. When in the field, or in service in the State, each division, brigade, and regiment shall respectively take rank according to its number, reckoning the first or lowest number highest in rank.' officered. v. 1, p. 272; s. 3, v. 2, p. 207; 1657. The militia shall be officered by the respective Militia, how States as follows: To the militia of each State, one quarter-May 8, 1792, c. master-general; to each division, one major-general, two Mar. 2. 1803, c. 15, aids-de-camp with the rank of major, one division inspector Apr. 18, 1814, c. 80, v. 3, p. 134; with the rank of lieutenant-colonel, and one division Apr. 20, 1816, c. 64, v. 3, p. 295. quartermaster with the rank of major; to each brigade, Sec. 1631, R.S. one brigadier-general, one brigade inspector, to serve also as brigade major with the rank of major, one quartermaster of brigade with the rank of captain, and one aidde-camp with the rank of captain; to each regiment of two battalions, one colonel, one lieutenant-colonel, one major, and one chaplain; to only one battalion, a major, who shall command the same; to each company, one captain, one lieutenant, one ensign, four sergeants, four corporals, one drummer, and one fifer or bugler. And there shall be a regimental staff, to consist of one adjutant and one quarter 1 For active service organization, see paragraphs 1675 to 1678, post. Officers, how to take rank. C. 33, s. 8, v. 1, p. 273. master, to rank as lieutenants, one paymaster, one surgeon, one surgeon's mate, one sergeant-major, one drum major, and one fife major.1 1658. All commissioned officers shall take rank accordMay 8, 1792, c. ing to the date of their commissions; and when two of the Sec. 1688, R.S. same grade bear an equal date, their rank shall be determined by lot to be drawn by them before the commanding officer of the brigade, regiment, battalion, company, or detachment. Artillery and cavalry. 33, s. 4, v. 1, p. c. 15, s. 2, v. 2, p. 207. Sec. 1632, R.S. 1659. There shall be formed for each battalion at least May 8, 1792, C. one company of grenadiers, light infantry, or riflemen, 272; Mar. 2, 1803, and for each division at least one company of artillery and one troop of horse. For each company of artillery there shall be one captain, two lieutenants, four sergeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers shall be armed with a sword or hanger, a fusee, bayonet, and belt, with a cartridge box to contain twelve cartridges; and each private shall furnish himself with all the equipments of a private in the infantry, until proper ordnance and field artillery is provided. For each troop of horse there shall be one captain, two lieutenants, one cornet, four sergeants, four corporals, one saddler, one farrier, and one trumpeter. The commissioned officers shall furnish themselves with good horses of at least fourteen hands and a half high, and shall be armed with a sword and pair of pistols, the holsters to be covered with bearskin caps. Each dragoon shall furnish himself with a serviceable horse, at least fourteen hands and a half high, a good saddle, bridle, mail pillion, and valise, holsters, and a breastplate and crupper, a pair of boots and spurs, a pair of pistols, a saber, and a cartridge box, to contain twelve cartridges for pistols. Each company of artillery and troop of horse shall be formed of volunteers from the brigade, at the discretion of the commander in chief of the State, not exceeding one company of each to a regiment, nor more in number than oneeleventh part of the infantry, and shall be uniformly clothed in regimentals, to be furnished at their own expense; the color and fashion to be determined by the brigadier commanding the brigade to which they belong. Regimental col ors. 1660. Each battalion and regiment shall be provided May 8, 1792, c. with the State and regimental colors by the field officers, Sec. 1633, B.S. and each company with a drum and fife, or bugle horn, by 33, s. 5, v. 1, p. 273. The governor of the State has no power to depose an officer or interfere with the organization of the regiment to which he belongs after such regiment is accepted and mustered into the service of the United States. X Opin. Att. Gen., 279. |