and all members of the National Guard and of the National Guard Reserve."

There, again, a distinction is made between the forces of the United States and persons in the actual military service of the United States. As I say, I have not had an opportunity to investigate this question carefully; but I have concluded, from reading these laws and from considering the purpose of the laws, that the military forces of the United States are, at any particular time, what Congress declares them to be. By the Act of April 22, 1898 (30 Stat., p. 361), the national forces were declared to be male persons, citizens and certain others, between the ages of 18 and 45. By the Act of May 18, 1917, the selective-draft act, Congress designated a class of persons. between the ages of 21 and 31 from whom should be drawn an army for active military service. Registration was the first step in the organizing of the army, the first step in bringing this class of men, or certain members of it, into active military service, and the drawing of the numbers at Washington on July 20 was a second step, and other steps, of course, would be those taken by the local boards and the district boards, until finally a man would either be excused or rejected or become a member of the army in active military service. Considering, therefore; the broad purposes of this act of May 18, 1917, considering the evils that were intended to be met by section 3 thereof, considering the language of the section, I am of the opinion that the words "military forces" therein should be given at broad, rather than a narrow, meaning and should be held to mean not merely the men that are in active military service but also men who had registered and had received their serial numbers from Washington; and that is as far as is necessary to hold in this particular case. If that construction is the proper one, then the indictment in that respect is sufficient, inasmuch as these men named in the indictment were within the class of persons constituting "the military forces of the United States" at the time and place in question. And the evidence supports the allegation of the indictment that these men named had in fact registered, and also shows that they had in fact received their serial numbers.

It seems to me, therefore, under the circumstances, that the indictment is sufficient, and that the evidence is of such character and amount as requires the submission of the case to the jury; therefore the motion for a directed verdict will be denied.

6. In re GERLACH.

(District Court of the United States, Southern District of New York, 1917. 247 Fed. 616.)

AUGUSTUS N. HAND, District Judge. Charles E. Gerlach, an employé of the United States Shipping Board, went to Europe as mate on the steamship McClellan, a vessel apparently in use as a military. transport, though this fact was not definitely proved. He was there discharged and sent back on the El Occidente, an army transport, to New York. He volunteered to stand watch, and for several days

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did this, but finally refused to continue. For this disobedience to the military order of an army officer he was tried by a court-martial and sentenced to five years imprisonment.

The second article of war (R. S., 1342, as amended by the act of Aug. 29, 1916, 39 Stat. 651 [Comp. St. 1916, § 2308a]), reads as follows:

"The following persons are subject to the Articles of War:

"(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to the Articles of War."

I think Gerlach was a person accompanying the Army of the United States, and also voluntarily serving with the armies of the United States at the time he disobeyed the order. I further hold that he was "in the field" and without the territorial jurisdiction of the United States within the meaning of the article. The words "in the field" do not refer to land only, but to any place, whether on land or water apart from permanent cantonments or fortifications, where military operations are being conducted. In this case he was on an army transport and peril from submarines existed when he refused to stand watch. The captain in charge of the vessel had, in my opinion, the right to call upon all persons on board to protect the transport in any way that seemed best in view of the danger. The section of the Articles of War subjecting persons accompanying armies to military authority not only enables military officers to preserve order on the part of such persons, but also in the cases that it covers to call on them for assistance and direct their action while they are properly in the field of military operations. The court-martial, therefore, had exclusive jurisdiction by the terms of the Articles of War over this man, who not only accompanied the Army but volunteered to serve, unless the act of Congress which adopted the Articles of War is unconstitutional.

Section 8 of Article 1 of the Constitution is the source of authority for the Articles of War. Congress is thereby given power to raise and support armies, to make rules for the government of land and naval forces, and to make all laws which shall be necessary for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States. This is in aid of the general war power and ought to be given a broad scope in order to give the fullest protection to the Nation. That an officer should be able to call upon a person accompanying the military forces, who had volunteered and indeed asked to stand watch as Gerlach had, to protect a transport and its occupants in time of danger by standing watch, is certainly within the fair object of the Articles of War, and is a reasonable power for carrying into execution the government of military forces. The act is, therefore, in my opinion, constitutional.

The writ was properly dismissed and the prisoner remanded to the custody of the military authorities.

7. Ex parte GRABER.

(District Court of the United States, Northern District of Alabama, Southern Division, 1918. 247 Fed. 882.)

CLAYTON, District Judge. This application for habeas corpus is filed by Oscar Graber, who alleges that he is unlawfully restrained of his liberty by the United States marshal for the northern district of Alabama. Petitioner avers that he was "formerly a citizen of Croatia, a subject State of the Kingdom of Hungary, a part of the Imperial Austro-Hungarian Government"; that about 15 years ago the petitioner came to the United States and upon reaching the age of 21 years declared his intention of becoming a citizen of the United States and later filed a petition for naturalization. Graber further avers that since the issuance of the proclamation of the President of the United States on December 11, 1917, he has been held in confinement by the United States marshal, and it appears that he is confined as an alien Austrian enemy under authority from the President.

Under the provisioins of the President's proclamation, all natives, citizens, denizens, or subjects of Austria-Hungary, being males of the age of 14 years and upward, who shall be within the United States and not actually naturalized and "of whom there may be reasonable cause to believe that he is aiding or about to aid the enemy, or who may be at large to the danger of the public peace or safety, or who violates or attempts to violate, or of whom there is reasonable ground to believe that he is about to violate any regulation duly promulgated by the President, or any criminal law of the United States, or of the States or Territories thereof, will be subject to summary arrest by the United States marshal, or his deputy, or such other officer as the President shall designate, and to confinement in such penitentiary, prison, jail, military camp, or other place of detention as may be directed by the President."

This proclamation was issued shortly after the passage of the joint resolution of the Senate and House of Representatives, dated December 7, 1917, declaring a state of war to exist between the United States and the Imperial and Royal Austro-Hungarian Government, and authorizing the President to employ the entire naval and military forces of the United States and the resources of the Government to carry on the war and to bring the conflict to a successful termination.

Section 4067, Revised Statutes (Comp. Stat. 1916, § 7615), is as follows:

"Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory. of the United States, by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of 14 years and upward, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed, as alien enemies. The President is authorized, in any such event, by his proclamation.

thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable, the manner and degrees of restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom, and to establish any other regulations which are found necessary in the premises and for the public safety."

1. From what has been said above, it will be observed that Graber, the petitioner, has never actually been naturalized. Of course, his mere declaration of intention to become a citizen of the United States, such declaration never having been carried into effect, did not confer citizenship upon him; and such declaration of intention did not absolve Graber from the allegiance which he owes to the AustroHungarian Government. He did not by his declaration of intention renounce his allegiance; but merely declared that it was his intention to do so at some future time; and so long as his foreign allegiance continues he remains an alien. Minneapolis v. Reum, 56. Fed. 576, 6 C. C. A. 331; In re Moses (C. C.) 83 Fed. 995. Graber has not divested himself of his alienage and can not do so until he becomes an American citizen by naturalization. It can not be doubted that by the declaration of war he became in law an alien enemy, one who owes allegiance to an adverse belligerent. Lamar v. Browne, 92 U. S. 187, 23 L. Ed. 650.

2. The statutes of the United States provide two methods by which alien enemies may be restrained or removed. Under section 4067, Revised Statutes (U. S. Comp. Stat. 1916, § 7615), quoted above, the President may direct the manner and degree of the restraint to which alien enemies shall be subject and he is authorized to provide for the removal from the country of those who, not being permitted to reside within the United States, neglect or refuse to depart therefrom. Under section 4069, Revised Statutes United States (U. S. Comp. Stat. 1916, § 7617), courts of the United States having criminal jurisdiction are authorized after complaint and upon hearing to cause alien enemies to be apprehended and confined or removed. This last section, however, is not a limitation or restriction upon the power given the President by section 4067, Revised Statutes, but provides an additional method of dealing with alien enemies. It is clear that Congress did not intend that the power conferred on the President by section 4067, Revised Statutes, to remove alien enemies, should be exercised only as provided in section 4069, Revised Statutes, which requires a complaint against an alien enemy and a hearing. This latter method, with its attendant public trial, would oftentimes prove inadequate and ineffective, and the inevitable disclosing of facts would not always be best for the safety of the peace and security of the Government. Congress recognized this and by the provisions of section 4067, Revised Statutes, vested the President with summary power to direct the confinement or removal of alien enemies.

3. Graber, in his petition for the writ, says that he has done nothing and contemplates doing nothing forbidden by the President's proclamation. His petition, then, in its last analysis is reduced to a peti

tion asking the court to review a disputed question of fact. Graber, as an alien enemy and admittedly such by his own petition, confined by direction of the Executive, through the appropriate officers of the Government, on the ground that he is about to violate a regulation duly promulgated by the President under the authority of Congress, can not be permitted to negative the fact or the intention by the application of habeas corpus. Disputed questions of fact can not be reviewed on habeas corpus. In re Strauss, 126 Fed. 327, 63 C. C. A. 99. 4. The President, acting in the manner and under the powers vested in him by law, has determined that the petitioner is a person who, either for the safety of the United States or for the petitioner's own protection, should be restrained or interned. He has further decided that this alien enemy should be restrained as prescribed in section 4067, Revised Statutes. The officers of the law have taken the summary action authorized by that section and the question is presented by petitioner whether this action of the President is subject to judicial review. The court thinks not.

The case of In re Moyer, 35 Colo. 159, 85 Pac. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189, holds, and it is sound in principle and applicable here, that the decision of the chief executive of a State in suppressing insurrection is not subject to review in the courts. In that case Moyer, the petitioner, was arrested by authority of the commanding officer of the Colorado National Guard to prevent Moyer from taking part in an insurrection which the civil authorities have been unable to put down. The governor of Colorado, acting under the authority conferred upon him by law, called out the militia to suppress the insurrection and restore law and order. The court said:

"By the reply it is alleged that, notwithstanding the proclamation and determination of the governor that a state of insurrection existed in the county of San Miguel, as a matter of fact these conditions did not exist at the time of such proclamation or the arrest of the petitioner, or at any other time. By section 5, article 4, of our constitution the governor is the commander in chief of the military forces of the State * * * and he is thereby empowered to call out the militia to suppress insurrection. It must therefore become his duty to determine as a fact when conditions exist in a given locality which demand that, in the discharge of his duties as chief executive of the State, he shall employ the militia to suppress. This being true, the recitals in the proclamation to the effect that a state of insurrection existed in the county of San Miguel can not be controverted. Otherwise the legality of the orders of the executive would not depend upon his judgment, but the judgment of another coordinate branch of the State government. In re Boyle, 6 Idaho, 609, 57 Pac. 706, 45 L. R. A. 832, 96 Am. St. Rep. 286; Luther v. Borden, 7 How. 1, 12 L. Ed. 581; Ex parte Moore, 64 N. C. 802; Martin v. Mott, 12 Wheat, 19, 6 L. Ed. 537.

And further in the additional opinion of the Chief Justice (35 Colo. 218, 85 Pac. 209, 12 L. R. A. [N. S.] 979, 117 Am. St. Rep. 189) it is said:

"If the judicial department should undertake to review the facts upon which the governor acted, it would be a direct interference with