of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effèct is refuted by its mere statement.

Affirmed.

2. GOLDMAN v. UNITED STATES.

(Supreme Court of the United States, 1918. 245 U. S. 474, 38 Sup. Ct. 166, 62 L. Ed.

-)

In Error to the District Court of the United States for the Southern District of New York.

Emma Goldman and Alexander Berkman were convicted of an offense and they bring error. Affirmed.

Mr. Chief Justice WHITE delivered the opinion of the Court.

Because of the constitutional questions involved the plaintiffs in error prosecute this direct writ of error to reverse a criminal conviction and resulting sentence imposed upon them. The indictment upon which the conviction was had charged them with having, in violation of sections 37 and 332 of the Criminal Code (Comp. St. 1916, §§ 10201, 10506), unlawfully conspired together and with others unknown to induce persons who by the Selective Draft Law of May 18, 1917, (Public No. 12, 65th Congress, c. 15, Stat.) were under the duty to register, to disobey the law by failing to register. Five specified overt acts were in the indictment charged to have been committed in furtherance of the alleged illegal conspiracy.

Seven grounds of error were assigned at the time of the allowance of the writ: (1) The refusal of the court at the request of the defendants to dismiss the indictment on the ground that the formation of a conspiracy to induce persons not to register as they were required. under the law to do and the performance of overt acts to carry out the conspiracy constituted no offense. (2) The action of the court in refusing to grant a motion in arrest of judgment on the same ground. (3) The refusal to set aside the verdict because the facts proved did not constitute an offense against the United States. (4) The denial of a motion to dismiss the prosecution at the request of the defendants on the ground that the Selective Draft Law upon which the alleged duty to register depended was repugnant to the Constitution and void, there being numerous specifications on this subject involving at challenge of all power in Congress to have enacted the law and moreover upon the assumption of some power an assertion of the repugnancy of the statute to the Constitution resulting from various provisions which the act contained. (5) The denial by the court of a motion made at the close of the case to dismiss the indictment on the ground that it stated no offense as previously insisted and upon the further ground that in any event there was no proof of the alleged conspiracy or the averred overt acts or of any act adequate to show guilt. (6 and 7) The refusal of a motion to set aside the verdict and in arrest of judgment because the verdict was contrary to law and un

supported by evidence upon grounds which had been previously urged and overruled.

Putting aside the multiplication which results from urging the same ground several times because when once made it was adhered to and reiterated at different stages of the trial, it is clear that the assignments embrace only three propositions: (1) The failure to dismiss the prosecution because of the repugnancy of the Selective Draft Law to the Constitution for the reasons relied upon. (2) The refusal to dismiss because the indictment stated no offense. (3) The refusal to dismiss because there was no proof of conspiracy or of any overt acts adequate to have justified the submission of the case to the jury. Indeed in the elaborate argument at bar all the assignments of error are treated as embraced under the propositions thus stated and we therefore come to dispose of the case from such point of view.

1. The grounds here made the basis of the charge that the Selective. Draft Law is repugnant to the Constitution are so far as they concern the question of registration provided for by that law, identical with those which were urged in Arver v. United States, 245 U. S. 366, 38 Sup. Ct. 159, 62 L. Ed. -, L. R. A. 1918C, 361, Ann. Cas. 1918D, 856, and were there adversely disposed of. The ruling in that case therefore also adversely disposes of all the relevant constitutional questions in this. The duty nevertheless remains to consider the other questions. Brolan v. United States, 236 U. S. 216-218, 35 Sup. Ct. 285, 59 L. Ed. 544.

2. The contention that the indictment stated no offense proceeds upon the assumption reiterated in various forms of statement that no crime results from an unlawful conspiracy to bring about an illegal act joined with the doing of overt acts in furtherance of the conspiracy unless the conspiracy has accomplished its unlawful purpose by causing the illegal act to be committed. This, however, but disregards the settled doctrine that an unlawful conspiracy under section 37 of the Criminal Code to bring about an illegal act and the doing. of overt acts in furtherance of such conspiracy is in and of itself inherently and substantively a crime punishable as such irrespective of whether the result of the conspiracy has been to accomplish its illegal end. United States v. Rabinowich, 238 U. S. 78, 85, 86, 35 Sup. Ct. 682, 59 L. Ed. 1211, and authorities there cited.

3. Sifting out of the arguments advanced to support the proposition that there was no evidence whatever tending to show guilt, contentions based upon the misconception as to the law of conspiracy which we have just adversely disposed of, and, moreover, contentions concerning an asserted misuse of discretion by the court below in ruling on an application to postpone the trial, which as we have seen, were not even remotely referred to in the assignments of error, we think all the arguments rest upon the assumption that the power to review embraces the right to invade the province of the jury by determining questions of credibility and weight of evidence and from the residuum of evidence resulting from indulging in and applying the results of such erroneous assumption drawing the conclusion as to no evidence. relied upon. While this statement suffices to dispose of the case without going further, we nevertheless say without recapitulating the evi

dence that after a review of the whole record we think the proposition that there was no evidence whatever of guilt to go to the jury is absolutely devoid of merit.

It follows that the judgment below must be and it is
Affirmed.

3. In re LARRUCEA.

(District Court of the United States, Southern District of California, Southern Division, 1917. 249 Fed. 981.)

BLEDSOE, District Judge. Pursuant to petitions filed, an order to show cause why writs of habeas corpus should not issue was entered.

Upon the hearing it developed that the above-named petitioner, with three of his countrymen, are citizens of the Kingdom of Spain; for some years they have been domiciled within the United States, and each of them has heretofore filed his declaration of intention to become a citizen of the United States under the naturalization laws thereof; they were arrested off the shore of Mexico by a United States war vessel and are now detained under appropriate process by the marshal of the district as for evading the conscription act hereinafter referred to. Petitioners claim that when taken into custody they were proceeding on their way to Spain. There is no issue as to the facts, and the single question presented is whether or not the petitioners are subject to the provisions of the conscription law. Their claim in that behalf is that owing to a treaty between Spain and the United States they are exempt from all forms of compulsory military service in the United States, and under the undoubted law of nations had the right, in spite of the conscription law, to leave the United States and return to the land of their nativity. Moore, International Law Digest, vol. 4, p. 52.

The existing treaty between Spain and the United States, proclaimed April 20, 1903, provides in article 5 (33 Stat. 2108): "The citizens or subjects of each of the high contracting parties shall be exempt in the territories of the other from all compulsory military service by land or sea and from all pecuniary contributions in lieu of such, as well as from all obligatory official functions whatsoever." Malloy's Treaties and Conventions, vol. 2, p. 1701.

The claims of petitioners are resisted by the Government of the United States on the ground that the conscription law provides in express terms for their subjection to compulsory military service. and that being later in date than the treaty with Spain it controls, and that in consequence they should be remanded for trial. With this contention, upon a careful reading of the law, I am constrained to

concur.

Article 6 of the Federal Constitution provides that "this Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made under authority of the United States shall be the supreme law of the land." It has long been the rule of decision in the United States, however, that

in so far as the judicial department of the Government is concerned a treaty occupies no position of superiority over an act of Congress. They are on a parity in so far as the provisions of the Constitution are concerned, and, like other expressions of the legislative will, when inconsistent or irreconcilable, the latest in point of time must control. Cherokee Tobacco Cases, 11 Wall. 616, 621, 20 L. Ed. 227; Head Money Cases, 112 U. S. 580, 598, 5 Sup. Ct. 247, 28 L. Ed. 798. In the event, then, of a conflict between an earlier treaty and a later act of Congress the courts are bound to accord to the act of Congress compelling authority and remit one who claims rights or privileges under the treaty which are denied to him by the act of Congress to the political department of the Government. Tobacco Cases, supra. In other words, in such an exigency, if the country with whom the treaty has been ratified is dissatisfied with the action of the legislative department of our Government, it may present its complaint to the executive head thereof and take such other measures as it may deem necessary for the protection of its interests. The courts thereof, however, which are bound to act in conformity with the constitutional mandates of Congress, can afford no redress. Whitney v. Robertson, 124 U. S. 194, 8 Sup. Ct. 456, 31 L. Ed. 386.

The conscription or selective draft law, being the act "to authorize the President to increase temporarily the Military Establishment of the United States," approved May 18, 1917 (40 Stat. 76, c. 15), “in view of the existing emergency, which demands the raising of troops in addition to those now available," and authorizing the organizing and equipping of more than a million men under arms by selective draft, provided in section 2 thereof that "such draft as herein provided shall be based upon liability to military service of all male citizens, or male persons not alien enemies who have declared their intention to become citizens, between the ages of 21 and 30 years, both inclusive." In section 4 certain Federal, State, and other officers, ministers of religion, theological students, and members of the military and naval service of the United States are declared exempt, and it is also stated that nothing in the act contained shall be construed to require or compel the service of any member of a well-recognized religious sect whose religious convictions are against war, etc. Provision is also made for partial exemption of other named classes.

Section 5 provided that "all male persons between the ages of 21 and 30, both inclusive, shall be subject to registration in accordance. with regulations to be prescribed by the President; and upon proclamation by the President or other public notice given by him or by his direction stating the time and place of such registration it shall be the duty of all persons of the designated ages, except officers and enlisted men in the Regular Army, the Navy, and the National Guard and Naval Militia, while in the service of the United States, to present themselves for and to submit to registration under the provisions of this act. * * Provided further, That persons shall be subject. to registration as herein provided who shall have attained their twentyfirst birthday, and who shall not have attained their thirty-first birthday on or before the day set for the registration, and all persons so registered shall be and remain subject to draft into the forces

hereby authorized unless exempt or excused therefrom as in this act provided." (Italics supplied.)

Section 14, the concluding section of the act, is to the effect that "all laws and parts of laws in conflict with the provisions of this act are hereby suspended during the period of this emergency."

No provision is made anywhere in the act for positive exemptions from service other than those referred to; and no mention at all is made of any exemption because of treaties with any foreign nation. The language of the act requiring all male persons between the stated ages to register and providing that all persons so registered shall be and remain subject to draft, "unless exempted or excused therefrom as in this act provided," makes it impossible for me to conclude that it was intended by the act to exempt citizens of Spain or of other countries possessing similar treaty rights.

The particular claim is made by the petitioners that the language of section 2 to the effect that the draft "shall be based upon liability to military service" is conclusive of an intent upon the part of the congress in the passage of this act to exclude from the operation of the act those who were not liable to military service because of some treaty provision. It is perhaps difficult to appreciate just exactly what Congress had in mind in the use of the phrase "liability to military service," there being no general law to which my attention has been called definitely establishing and fixing "liability to military service" under the laws of the United States. It has been the attitude of our State Department from the time of Mr. Madison, when he was Secretary thereof, that resident aliens not naturalized are not liable to perform military service. Moore, International Law Digest, vol. 4, pp. 51 to 65. Of course, the execution of a mere "declaration of intention" does not constitute naturalization. Moore's Digest, vol. 111, p. 336.

The Congress in the draft law of 1863, however, enacted "that all able-bodied male citizens of the United States, and persons of foreign. birth who shall have declared their intention to become citizens under and pursuant to the laws thereof, between the ages of 20 and 45 years, except as hereinafter excepted, are hereby declared to constitute the national forces and shall be liable to perform military duty in the United States when ordered out by the President for that purpose." By the act of April 22, 1898 (30 Stat. 361, Comp. St. 1916, § 1714), it was provided "that all able-bodied male citizens of the United States, and persons of foreign birth who shall have declared their intention. to become citizens of the United States under and in pursuance of the laws thereof, between the ages of 18 and 45 years, are hereby declared to constitute the national forces, and, with such exceptions and under such conditions as may be prescribed by law, shall be liable to perform military duty in the service of the United States." By the terms of the act passed January 21, 1903, which was subsequent to the negotiation of the treaty with Spain, though prior to its ratification or promulgation, it was provided that the militia should consist of "every able-bodied male citizen" and every "able-bodied male of foreign. birth who has declared his intention to become a citizen" between the ages of 18 and 45. 32 Stat. 775.