1321a. Word Territory defined.-The word Territory as used in this Act and in all laws relating to the land militia and National Guard shall include and apply to Hawaii, Alaska, Porto Rico, and the Canal Zone, and the militia of the Canal Zone shall be organized under such rules and regulations, not in conflict with the provisions of this Act, as the President may prescribe. Sec. 62, Act of June 3, 1916 (39 Stat. 198).

(For the provisions of this section preceding this paragraph see paragraphs 1325e, 1325f, 1325g, and 1325h; see, also, paragraphs 1376 and 1377.)

1322a. Composition of.-The militia of the United States shall consist of all able-bodied male citizens of the United States and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall be more than eighteen years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, the Naval Militia, and the Unorganized Militia. Sec. 57, id. 197.

1322b. Composition of the National Guard.-The National Guard shall consist of the regularly enlisted militia between the ages of eighteen and forty-five years organized, armed, and equipped as here

inafter provided, and of commissioned officers between the ages of twenty-one and sixty-four years.1 Sec. 58 id.

1322c. Provisions of Act applicable to land forces only. The provisions of this Act in respect to the militia shall be applicable only to militia organized as a land force and not to the Naval Militia, which shall consist of such part of the militia as may be prescribed by the President for each State, Territory, or District. Sec. 117, id. 212.

1322d. Same-Any State or Territory maintaining Naval Militia may have credit to number of on its quota.-Each State, Territory, or District maintaining a Naval Militia as herein prescribed may be credited to the extent of the number thereof in the quota that would otherwise be required by section sixty-two of this Act. Id.

1323a. Exemptions from militia duty, and exemption as combatants.-The Vice President of the United States; the officers, judicial and executive, of the Government of the United States and of the several States and Territories; persons in the military or naval service of the United States; customhouse clerks; persons employed

Held, that this provision is controlling and limits the ages for qualification as therein specified, and that the provisions in section 27 relating to the ages for enlistment or muster in have no application to the National Guard. (War Dept. Bull. 28. Aug. 18, 1916)

Hackenberg, a native of Austria, who came to the United States in June, 1914, enlisted in June, 1915, in the National Guard of Ohio, declaring himself to be 21 years of age. On July 2, 1916. he took the Federal enlistment oath prescribed by section 70 of the national-defense act, after his company and regiment had responded to the mobilization order of the President for service on the Mexican border. He was mustered out of the Federal service on March 2, 1917. On July 10, 1917, he was called into Federal service, pursuant to the second paragraph of the selective draft act of May 18, 1917. and reported for duty. On July 30 he was placed under arrest, and on August 3 the charge of violating the fifty-fourth article of war by fraudulently enlisting was placed against him. Hackenberg was 18 years of age when he enlisted; his widowed mother, who was in Austria at the time, knew nothing thereof, and is dependent upon him for support. On his behalf one Dostal made application for a writ of habeas corpus. Respondent's answer and the testimony given at the hearing developed the above facts. The court, in dismissing the petition, held as shown in the following headnotes:

“As national-defense act, June 3. 1916, permits the enlisting of a minor over the age of 18 without the written consent of his parent or guardian, where one over 18 and under 21, who had enlisted prior to the passage of that act, subsequently took the Federal enlistment oath prescribed by section 70 thereof, the defects in his original enlistment were immaterial, and any right of the parent or guardian to reclaim his custody or control was extinguished.

"An alien, offering to enlist and accepted as a soldier, can not avoid his contract of enlistment, and thereby escape liability for service or to punishment, especially as Compiled Statutes, 1916, section 1888, providing that no person who is not a citizen, or who has not made a legal declaration of his intention to become a citizen, shall be enlisted for a first enlistment, is limited to enlistments in time of peace.

"There is nothing in the treaty between the United States and the Government of Austro-Hungary invalidating an enlistment by a native of Austria. “National-defense act, section 58 (Comp. St. 1915. sec. 3044), provides that the National Guard shall consist of the regularly enlisted militia, etc. Section 70 provides that enlisted men in the National Guard, whose enlistment contracts contain an obligation to defend the Constitution of the United States and obey the orders of the President, shall be recognized as members thereof, and that

by the United States in the transmission of the mail; artificers and workmen employed in the armories, arsenals, and navy yards of the United States; pilots; mariners actually employed in the sea service of any citizen or merchant within the United States, shall be exempt from militia duty without regard to age, and all persons who because of religious belief shall claim exemption from military service, if the conscientious holding of such belief by such person shall be established under such regulations as the President shall prescribe, shall be exempted from militia service in a combatant ca- . pacity; but no person so exempted shall be exempt from militia service in any capacity that the President shall declare to be noncombatant. Sec. 59, id. 197.

(See par. 1324 for prior law exempting religious sects or organizations.) 1325a. Organization of National Guard units.-Except as otherwise specifically provided herein, the organization of the National Guard, including the composition of all units thereof, shall be the same as that which is or may hereafter be prescribed for the Regular Army, subject in time of peace to such general exceptions as may be

others shall not be so recognized until they have signed the enlistment contract and taken the oath therein provided. Section 111 (Comp. St. 1916, sec. 3045) and selective-draft law, May 18, 1917, authorize the President to draft all members of the National Guard into the military service of the United States. Held, that an order of the President, calling a company and regiment of the National Guard into the Federal service, made a member of such company and regiment, whose original enlistment contract contained the obligation prescribed by section 70, and who, when previously called into the Federal service, had taken the additional oath prescribed by that section, a soldier of the United States Army subject to military trial or punishment, though he had not consented to be mustered into the military forces of the United States under such order.

"Where a minor enlists without the written consent of his parent or guardian an application by his parent or guardian for his release must be made with reasonable diligence after acquiring knowledge of the enlistment, and before an offense has been committed by the minor, and after an offense has been committed, and especially after he has been placed under arrest and charges have been preferred against him, it is too late for the parent or guardian to oust the jurisdiction of the military authorities by an application for a writ of habeas corpus.

"That an enlisted soldier has a mother, of whom he is the only support, does not make void his contract of enlistment.

"One who enlisted in the National Guard, was accepted, took the prescribed oath, and later took the Federal enlistment oath, as prescribed by nationaldefense act, June 3, 1916, chapter 134, section 70, Thirty-ninth Statutes, 201 (Comp. St. 1916, sec. 30441), and received pay and clothing over a long period from State and Nation, is a soldier, subject to the jurisdiction of a military tribunal for any offense committed against military law, though he was under 21 when he enlisted, and enlisted without the written consent of his parent or guardian, and though he was an alien, who had not made the declaration of his intention to become a citizen, and though he had a mother dependent upon him for support.

"If a military tribunal has jurisdiction to try a person charged with an offense against military law, the civil courts can not interfere by writ of habeas corpus." (Ex parte Dostal (Dist. Ct. N. D. Ohio Aug. 15, 1917), 249 Fed. Rep. 664, War Dept. Bull. 67, Nov. 30, 1917.)

'Held, that the exemptions are personal and may be waived, and that a person who waives his exemption by enlisting in the National Guard can not thereafter during the enlistment avail himself of it. (War Dept. Bull. 28, Aug. 18, 1916.)