War of the Rebellion: Serial 033 Page 0561 Chapter XXXIV. CORRESPONDENCE, ETC. - UNION.

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their respective brigades, and major-generals by the brigadiers and field officers of their respective divisions, until otherwise directed by law.

SEC.2. General and field officers shall appoint their officers of the staff.

SEC.3. The Governor shall appoint an adjutant-general and all other militia whose appointments are not otherwise provided for in this constitution.

As far as we know, no amendment to the constitution repealing these provisions has ever been made, and hence they are still in full force. Besides this, there are only two other laws on the subject, a law of December 31, 1859, as far as its terms do not conflict with an ordinance of the convention, dated October 17, 1861, and this ordinance of October, 1861. These two laws agree in the most important point under discussion, the organization of the militia.

Paragraph 2 of Article II of the law of 1859 says:

The military forces of this State shall be raised and kept up by voluntary enlistment.

The ordinance of October, 1861, says:

1. All able-bodied free white male inhabitants of this State between the ages of eighteen and forty-five years shall be liable to military duty under this ordinance, and, when, enrolled, shall constitute and be known and designated as the "Missouri State Militia."

2. When the Missouri State Militia shall be called into the actual service of their State, the officers and men shall be subject to the same rules and regulations and articles of war that govern the armies of the United States.

ORGANIZATION.

3. The commander-in-chief shall have power to call troops into actual service by volunteer enlistments, according to such regulations as he may prescribe.

How the State militia can be called into active service under these provisions, in the manner in which is now being attempted, we cannot conceive. Neither of the above laws mentioned one word of compulsion, under penalty of a certain fine, for instance, much less of compulsion by brutal force of arms; and the only lawful means by which the Governor can call the militia into active service is by voluntary enlistments. The total disregard of the constitutional provision regarding the election of officers by the militia does not take away from the character of unlawfulness which colors the whole proceedings. Now, as far as the provisional regiments are concerned, we cannot hesitate to express our conviction that not a shadow of a legal pretext can be discovered which orders or merely permits the formation of such military organizations. Our limited space does not allow us to treat this important question as thoroughly as it should be treated, nor do we claim infallibility. We have merely taken pains to submit the legal question to the public, leaving the decision to our judicial authorities, who will, doubtless, conscious of their position as protectors of civil liberty, do their full duty whenever they are applied to.

[Inclosure No. 14.]

FROM JEFFERSON CITY-HIGHLY IMPORTANT DECISION OF JUDGE R. W. WELLS, OF THE UNITED STATES DISTRICT COURT-THE ENROLLED MISSOURI MILITIA AND THE PROVISIONAL REGIMENTS AMENABLE TO THE UNITED STATES AUTHORITIES-HOW THE "LEADING LOYAL CITIZENS" OF JEFFERSON TALK.

JEFFERSON CITY, September 14, 1863.

The United States district court has been in session the past week. The grand jury, having probably certain transaction in view, propounded the following question to the court, Honorable R. W. Wells:

"Is the Enrolled Missouri Militia amenable to the United States authorities?"

The court having taken the question under advisement, and consulted the General Orders taking on the subject, decided substantially as follows:

The Enrolled Missouri Militia and the Provisional Army are in the actual service of the United States to all intents and purposes; they are under the command of the department commander, who is a United States officer, who has been, and still is, issuing his orders to them; the United States clothe, feed, arm, and equip them, though they are paid

36 R R-VOL XXII, PT II