September 13, 1863, The Missouri Republican,
Spirit Of The German Press”

The Nene Zeit has a long article on the provisional regiments and the Enrolled Militia, in which it says:

It is, indeed, hard to decide what is more to be admired, the shameless impudence with which the provisional State government of Missouri, in absolute defiance of all constitutional enactments and all existing laws, seeks to lead the people by the nose or the patience and forbearance with which the people submit to such swindles. It is now a considerable time since those citizens of Missouri who do not belong to the volunteer regiments in the service of the United States have been bothered with military services as so-called Enrolled Missouri Militia, after Governor Gamble had succeeded in his incessant endeavors to remove almost all United States troops of volunteer regiments in the service of the United States from Missouri. The people of Missouri, in their exceedingly pure and generous devotion to the cause of the common country, did not take time to reflect about the right or wrong of a measure concocted by the State government, if only its necessity for the general welfare was advanced as the motive. Thus the citizens of Saint Louis have repeatedly, for instance, left their business and their families, and, following the call of the Governor, however hateful he must be to every well-meaning citizen of Missouri, have taken up arms in the good faith that they made a sacrifice to the general welfare of the State. How the citizens of Missouri fulfill, under such circumstances, what they conceive to be their duty has been amply demonstrated at the time of Marmaduke's invasion and on other occasions, and it places them beyond the possibility of suspicion for disloyalty. But if the Government, in scornful despotism, treads upon the rights of the people; if circumstances gain the appearance as if it were intended to create an armed power which might protect, in case of necessity, the self-constituted State government against the expressly declared will of the sovereign people of Missouri, it is not only the right but the duty of every citizen to ask what right that government has to infringe thus upon that personal liberty of the citizen which the republic guarantees. The principle of general military duty is so old and of such universal-application that it is not necessary to say a word about it; the difference is only in the execution of that principle, according to the political condition of each State. While in monarchies the will of the prince rules absolutely, in a republic it is the people who regulate their affairs by laws; and the executive power here called the Governor has no right to assume a military power which the law does not confer upon him, How is it in this respect in Missouri? The first law we find in relation to this subject is in Article IV of the State constitution, and reads as follows:

SECTION 1. Field officers and company officers shall be elected by the persons subject to militia duty within their respective commands. Brigadier-generals shall be elected by the field officers of  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 officers 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.


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.


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