6. The exemptions from military service in the strict sense made by the selective draft provisions of the Act of May 18, 1917

(40 Stat. at L. 76, chap. 15, Comp. Stat. § 2044a), in favor of the members of religious sects as enumerated, whose tenets exclude the moral right to engage in war, does not violate the prohibition of U. S. Const. 1st Amend., against the establishment of a religion or an interference with

the free exercise thereof.

[For other cases, see Constitutional Law, IV. d, in Digest Sup. Ct. 1908.] Constitutional law

involuntary serviSelective Draft Act. 7. The exaction by Congress of en. forced military duty from citizens of the United States, as is done by the Act of May 18, 1917 (40 Stat. at L. 76, chap. 15, Comp. Stat. § 2044a), does not render that statute repugnant to U. S. Const. 13th Amend., as imposing involuntary servitude. [For other cases, see Constitutional Law, IV.

h, in Digest Sup. Ct. 1908.]

[Nos. 663, 664, 665, 666, 681, and 769.]

Argued December 13 and 14, 1917.

FOUR

cided January 7, 1918.

v. United States, 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429; Hodges v. United States, 203 U. S. 1, 51 L. ed. 65, 27 Sup. Ct. Rep. 6; Bailey v. Alabama, 219 U. S. 219, 55 L. ed. 191, 31 Sup. Ct. Rep. 145; Butler v. Perry, 240 U. S. 328, 60 L. ed. 672, 36 Sup. Ct. Rep. 258; United States v. Sanges, 48 Fed. 78; State ex rel. Erickson v. West, 42 Minn. 147, 43 N. W. 845.

This act and the regulations prescribed thereunder are in conflict with the terms and provisions of art. 1, § 1, and art. 1, § 8, of the Constitution of the United States, in that Congress attempts to delegate legislative power to the President of the United States and other United States or state officials.

Stoutenburgh v. Hennick, 129 U. S. 141, 32 L. ed. 637, 9 Sup. Ct. Rep. 256; Marshall Field & Co. v. Clark, 143 U. S. De- 649, 692, 36 L. ed. 294, 309, 12 Sup. Ct. Rep. 495; United States v. Blasingame, 116 Fed. 654; United States v. Keokuk Const. Lim. chap. 5, p. 137; Cooley, & H. Bridge Co. 45 Fed. 178; Cooley, Const. Law, p. 87; 6 Ops. Atty. Gen. 10; 10 Ops. Atty. Gen. 413; Bryce, Am. Com. P. 165; Wilson, Const. Government, pp. ist, chap. 69, p. 515. 57-59; Webster's Works; The Federal

OUR WRITS OF ERROR to the District Court of the United States for the District of Minnesota to review convictions of violations of the Selective

Draft Act. Affirmed. Also.

Two
WO WRITS OF ERROR to the Dis-
trict Court of the United States for
the Southern District of New York to re-
view similar convictions. Affirmed.

The facts are stated in the opinion.

Mr. T. E. Latimer argued the cause, and, with Messrs. Herbert L. Dunn and Frank Healy, filed a brief for plaintiffs in error in Nos. 663, 664, 665, and 666: The Selective Draft Act and the regulations prescribed thereunder are in conflict with the terms and provisions of art. 1, § 8, of the Constitution of the United States.

Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. ed. 1233; Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97; 3 Annals of 13th Congress, 807; Kneedler v. Lane, 45 Pa. 238.

This act and the regulations prescribed thereunder are in conflict with the terms and provisions of the 13th Amendment to the Constitution of the United States, which prohibits involuntary servitude.

Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394; Civil Rights Cases, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct. Rep. 18; Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935, 4 Am. Crim. Rep. 283; Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; Robertson v. Baldwin, 165 U. S. 276, 41 L. ed. 715, 17 Sup. Ct. Rep. 326; Clyatt

This act and the regulations prescribed thereunder are in conflict with the terms and provisions of art. 4, § 4, of the Constitution of the United States, and the 10th Amendment to the Constitution of the United States, in that Congress attempts to require state officials to do that which is prohibited to the states themselves.

Collector v. Day, 1 Wall. 124, 126, 20 L. ed. 125, 126; M'Culloch v. Maryland, 4 Wheat. 405, 4 L. ed. 601; Scott v. Sanford, 19 How. 401, 15 L. ed. 699; Worcester v. Georgia, 6 Pet. 570, 8 L. ed. 504; Kohl v. United States, 91 U. S. 372, 23 L. ed. 451; United States Reese, 92 U. S. 214, 23 L. ed. 563; United States v. Harris, 106 U. S. 629, 27 L. ed. 290, 1 Sup. Ct. Rep. 601; Martin v. Waddell, 16 Pet. 410, 416, 10 L. ed. 1012, 1015.

V.

This act and the regulations prescribed thereunder are in conflict with the terms and provisions of the 5th Amendment to the Constitution of the United States, providing: "Nor shall any person be deprived of his life, liberty, or property without due process of law."

Re Debs, 158 U. S. 594, 39 L. ed. 1106, 15 Sup. Ct. Rep. 900; Boyd v. United States, 116 U. S. 635, 29 L. ed. 752, 6 Sup. Ct. Rep. 524; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 154, 41 L. ed. 671,

17 Sup. Ct. Rep. 255; Fairbank v. United States, 181 U. S. 301, 45 L. ed. 870, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135.

Mr. Edwin T. Taliferro argued the cause, and, with Mr. I. M. Sackin, filed a brief for plaintiff in error in No. 769: No power is expressly granted by the

Constitution of the United States to Congress to pass a Selective Draft Act or other conscription or forcible service act. Such an act is in violation of the Constitution of the United States and of the sovereign right of the citizen. Kneedler v. Lane, 45 Pa. 238.

The act is unconstitutional because it authorizes the President of the United States to "raise an army," while this power is alone conferred on Congress. M'Cullough v. Maryland, 4 Wheat. 415,

4 L. ed. 603.

Martin v. Mott, 12 Wheat. 19, 6 L. ed. 537.

Our entire fabric of civil liberty rests upon the principle that this is a government of law, as contradistinguished from a government of functionaries.

Lieber, Civil Liberty & Self-Government, p. 91; Dicey, Const. p. 183; United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240.

Every part of the Constitution which is taken directly from the English is interpreted in the light of its history in the mother country.

Rhode Island v. Massachusetts, 12 Pet.

657, 9 L. ed. 1233; Income Tax Cases, 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; United States v. Wong Kim Ark, 169 U. S. 279, 42 L. ed. 890, 18 States, 233 U. S. 604, 58 L. ed. 1115, 34 Sup. Ct. Rep. 456; Gompers v. United

Words and phrases implied in a stat-Sup. Ct. Rep. 693, Ann. Cas. 1915D,

ute are to be read in their natural and ordinary sense according to good and approved usage.

1044.

Mr. Walter Nelles also filed a brief as amicus curiæ:

The framers of the Constitution meant to protect the right to think and believe, regardless of association with Church or Deity.

Reynolds v. United States, 98 U. S. 145, 163, 164, 25 L. ed. 244, 249, 250; 8 Jefferson's Works, 13; 1 Jefferson's Works, 45.

The Constitution of the United States

Black, Constr. & Interpretation of Laws, 143; Wadsworth v. Boysen, 78 C. C. A. 437, 148 Fed. 771; Schaeffer v. Burnett, 120 Ill. App. 79; Huber v. Robinson, 23 Ind. 137; McFarland v. Missouri, K. & T. R. Co. 94 Mo. App. 336, 68 S. W. 105; People ex rel. McNeile v. Glynn, 128 App. Div. 257, 112 N. Y. Supp. 695; Norfolk & P. Traction Co. v. Ellington, 108 Va. 245, 17 L.R.A. (N.S.) is a law for rulers and people, equally 117, 61 S. E. 779; People ex rel. Lich-in war and in peace, and covers with the tenstein v. Langan, 196 N. Y. 260, 25 shield of its protection all classes of men, L.R.A. (N.S.) 479, 89 N. E. 921, 17 Ann. at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of the government. Such a doctrine leads directly to anarchy or despotism.

Cas. 1081.

The act is unconstitutional because it clothes the President with the power of creating courts of justice.

Mr. Harry Weinberger argued the cause and filed a brief for plaintiff in error in No. 681.

Messrs. Hannis Taylor and Joseph E. Black filed a brief as amici curiæ:

Down to 1908 the English Constitution forbade, as it had for a thousand years, the transportation of the militia abroad even after it was "embodied," that is, converted "for the time being into a regular army."

Dicey, Const. pp. 287-288.

This court has recognized two distinct systems of militia,-one state, one national.

20.

Houston y. Moore, 5 Wheat. 7, 5 L. ed.

State militia in the service of the United States, as well as national militia, are exempt from service abroad.

Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281.

Solicitor General Davis argued the cause, and, with Mr. Robert Szold, filed a brief for defendant in error:

Congress may compel citizens to serve in the land forces under the power "to raise and support armies."

M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579.

The history of the times shows that a prime object of the Constitution was to cure the impotence of the Continental Congress directly to require military service from the citizens of the states.

The Federalist, Nos. 22, 23, pp. 143, 152, 153; 7 Sparks, Writings of Washington, pp. 162, 167.

Burroughs v. Peyton, 16 Gratt. 470; Kneedler v. Lane, 45 Pa. 238.

Members of the National Guard are called not as militiamen, but as citizens of the United States.

United States v. Sugar, 243 Fed. 423. Assuming, arguendo, that plaintiffs in error are called as militiamen and are ordered abroad, they cannot obtain relief in the courts.

Martin v. Mott, 12 Wheat. 19, 31, 32, 6 L. ed. 537, 541.

The Selective Draft Law imposes neither slavery nor involuntary servitude.

a

The draft of a citizen into the armed | 1916, chap. 134, 39 Stat. at L. 211), and forces of the United States infringes no maintaining their organizations to their reserved right of the states over the full strength; third, by giving the Presimilitia. i dent power in his discretion to organize | by volunteer enlistment four divisions of infantry; fourth, by subjecting all male citizens between the ages of twenty-one and thirty to duty in the national army for the period of the existing emergency after the proclamation of the President announcing the necessity for their service; and fifth, by providing for [376] selecting from the body so called, on the further proclamation of the President, 500,000 enlisted men, and second body of the same number should the President, in his discretion, deem it necessary. To carry out its purposes the act made it the duty of those liable to the call to present themselves for registration on the proclamation of the President so as to subject themselves to the terms of the act, and provided full Federal means for carrying out the selective draft. It gave the President, in his discretion, power to create local boards to consider claims for exemption for physical disability otherwise made by those called. The act exempted from subjection to the draft designated United States and state officials as well as those already in the military or naval service of the United States, regular or duly ordained ministers of religion and theological students under the conditions provided for, and while relieving from military service in the strict sense the members of religious

Butler v. Perry, 240 U. S. 328, 60 L. ed. 672, 36 Sup. Ct. Rep. 258; Claudius v. Davie, - Cal. -, 165 Pac. 689.

The act is not unconstitutional on the ground that state officials aid in its enforcement.

Claudius v. Davie, supra; Dallemagne v. Moisan, 197 U. S. 169, 49 L. ed. 709, 25 Sup. Ct. Rep. 422.

The act does not delegate legislative authority to administrative officials.

First Nat. Bank v. Fellows, 244 U. S. 416, 61 L. ed. 1233, L.R.A.1918C, 283, 37 Sup. Ct. Rep. 734.

The act does not infringe the provisions of the Constitution concerning the judicial power.

Zakonaite v. Wolf, 226 U. S. 272, 57 L. ed. 218, 33 Sup. Ct. Rep. 31.

Mr. Chief Justice White delivered the sects as enumerated whose tenets excludopinion of the court:

ed the moral right to engage in war, nevertheless subjected such persons to the performance of service of a noncombatant character, to be defined by the President.

The proclamation of the President calling the persons designated within the ages described in the statute was made, and the plaintiffs in error, who were in the class, and, under the statute, were obliged to present themselves for regis

We are here concerned with some of the provisions of the Act of May 18, 1917 (Public No. 12, 65th Congress, chap. 15, 40 Stat. at L. 76, Comp. Stat. -, § 2044a), entitled, "An Act to Authorize the President to Increase Temporarily the Military Establishment of the United States." The law, as its opening sentence declares, was intended to supply temporarily the increased military force which was re-tration and subject themselves to the quired by the existing emergency, the war then and now flagrant. The clauses we must pass upon and those which will throw light on their significance are briefly summarized.

law, failed to do so and were prosecuted under the statute for the penalties for which it provided. They all defended by denying that there had been conferred by the Constitution upon Congress the The act proposed to raise a national power to compel military service by a army, first, by increasing the regular selective draft, and if such power had force to its maximum strength and there been given by the Constitution to Congmaintaining it; second, by incorporating ress, the terms of the particular act, for into such army the members of the Na- various reasons, caused it to be beyond tional Guard and National Guard Re- the power and repugnant to the Constiserve already in the service of the Unit-tution. The cases are here for review ed States (Act of Congress of June 3, because of the constitutional [377] ques

tions thus raised, convictions having resulted from instructions of the courts that the legal defenses were without merit and that the statute was constitutional.

conflict with all the great guaranties of the Constitution as to individual liberty, it must be assumed that the authority to raise armies was intended to be limited to the right to call an army into existence counting alone upon the willingness of the citizen to do his duty in time of public need; that is, in time of war. But the premise of this proposition is so devoid of foundation that it leaves not even a shadow of ground upon which to base

The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power "to declare war; .. to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; . . . to make the conclusion. Let us see if this is not rules for the government and regulation of the land and naval forces." Article 1, § 8. And, of course, the powers conferred by these provisions, like all other powers given, carry with them as provided by the Constitution the authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." Article 1, $ 8.

at once demonstrable. It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it. Vattel, Law of Nations, bk. 3, chaps. 1 and 2. To do more than state the proposition is absolutely unnecessary in view of the practical illustration afforded by the almost universal legislation to that effect now in force.1 In England it is certain that before the [379] Norman Conquest the duty of the great militant body of the citizens was recognized

1 In the argument of the government it is stated: "The Statesman's Year-book for

As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice. It is said, however, that since under the Constitution as originally framed state citizen- 1917 cites the following governments as enship was primary and United States forcing military service: Argentine Repubcitizenship but derivative and dependent lic, p. 656; Austria-Hungary, p. 667; Belthereon, therefore the power conferred gium, p. 712; Brazil, p. 738; Bulgaria, p. upon Congress to raise armies was only 747; Bolivia, p. 728; Columbia, p. 790; coterminous with United States citizen- Chili, p. 754; China, p. 770; Denmark, p. ship, and could not be exerted so as to 811; Ecuador, p. 820; France, p. 841; cause that citizenship to lose its depend-mala, p. 1009; Honduras, p. 1018; Italy, p. Greece, p. 1001; Germany, p. 914; Guateent character and dominate state citizen- 1036; Japan, p. 1064; Mexico, p. 1090; ship. But the proposition simply denies Montenegro, p. 1098; Netherlands, p. 1191; to Congress the power to raise armies Nicaragua, p. 1142; Norway, p. 1152; Peru, which the Constitution gives. That p. 1191; Portugal, p. 1201; Roumania, p. power, by the very terms of the Consti- 1220; Russia, p. 1240; Serbia, p. 1281; tution, being delegated, is supreme. Ar- Siam, p. 1288; Spain, p. 1300; Switzerland, ticle 6. In truth, the contention simply 1353." See also the recent Canadian conp. 1337; Salvador, p. 1270; Turkey, p. assails the wisdom of the framers of the scription act, entitled, "Military Service Constitution in conferring authority on Act" of August 27, 1917, expressly providCongress, and in not retaining it, as it ing for service abroad (printed in the Conwas under the Confederation, in the gressional Record of September 20, 1917, several states. Further, it is said, the 55th Cong. Rec., p. 7959); the Conscription right to provide is not denied by calling Law of the Orange Free State, Law No. 10, for volunteer enlistments, but it does 1899; Military Service and Commando Law, not and [378] cannot include the power 1901, p. 855; of the South African Repub§§ 10 and 28; Laws of Orange River Colony, to exact enforced military duty by the lic, "De Locale Wetten en Volksraadsbescitizen. This, however, but challenges luiten der Zuid Afr. Republick," 1898, Law the existence of all power, for a gov- No. 20, pp. 230, 233, articles 6, 28; Constiernmental power which has no sanction tution, German Empire, April 16, 1871, arts. to it and which therefore can only 57, 59; 1 Dodd, Modern Constitutions, p. be exercised provided the citizens con- 344; Gesetz, betreffend Aenderungen der sents to its exertion is in no sub- Wehrpflicht, vom 11 Feb. 1888, No. 1767, stantial sense a power. It is argued Reichs-Gesetzblatt, p. 11, amended by law however, that although this is abstract- Loi sur de Recrutement de l'Armee of 15 of July 22, 1913, No. 4264, RGBI., p. 593; ly true, it is not concretely so be- July, 1889 (Duvergier, vol. 89, p. 440), modicause, as compelled military service is fied by Act of 21 March, 1905 (Duvergier, repugnant to a free government and in vol. 105, p. 133).