States v. Hitt, Bulletin No. 53 (D. C. Colo.). While the only report of that case which I have seen is the charge of Judge Lewis to the jury, he not only specifically charged that an obstruction to the draft was a violation of the act, but later, when the question was specifically raised by counsel, so held. The charges in United States v. Capo, Bulletin No. 37 (D. C. Porto Rico); United States v. Schenck, Bulletin No. 43 (D. C. E. D. Pa.); United States v. Doe, Bulletin No. 55 (D. C. Colo.); United States v. Wolf, Bulletin No. 81 (D. C. S. D.); United States v. Rhuberg, Bulletin No. 107 (D. C. Or.); United States v. Taubert, Bulletin No. 108 (D. C. N. H.); United States v. Rutherford (D. C. E. N. Y.)-all contain expressions which indicate that the several judges who delivered them were of the opinion that an obstruction of the draft was a violation of the provision in question of the Espionage Act. On the other hand, in several jury charges, although there are no expressions indicating that the judges expressly considered that an obstruction of the draft was not within the statute, the only obstruction seemingly dealt with was that which was aimed at voluntary enlistments. United States v. Frerichs, Bulletin No. 85 (D. C. Neb.); United States v. Hendricksen, Bulletin No. 86 (D. C. Neb., same judge as in United States v. Frerichs); United States v. Stokes, Bulletin No. 106 (D. C. Mo.). See also remarks in United States v. Pierce, 245 Fed. 878, 887 (D. C. N. D. N. Y.).

Those cases, however, shed very little light on the question, because it does not appear that the indictments were so framed as to permit the consideration of it, but on the contrary it would seem that the indictments covered only obstructions to voluntary enlistments. The remarks in Franke v. Murray (C. C. A.) 248 Fed. 865, 868, to which counsel refer in support of their contention are in no respect applicable. They had reference only to the fact that the decision in In re Grimley, 137 U. S. 47, 11 Sup. Ct. 54, 34 L. Ed. 636, did not apply to the situation which was then before the court and which arose under the Selective Service Act, a different act than was considered in the Grimley Case. My conclusion, therefore, is that the clause in question of the Espionage Act covers the obstructing of the operation of the Selective Service Act, except as to such acts as are specifically provided for in that act and which might possibly be said to be obstructions as well as that branch of the military service, strictly speaking, which is charged with the procuring of recruits by voluntary enlistment. * * * My conclusion, therefore, is that the demurrer should be overruled.

16. In re HENRY.

(District Court of the United States, Eastern District of Wisconsin, 1918. 253 Fed..)

GEIGER, District Judge. The facts as presented by the petition in this matter are in brief these:

The applicant, a registrant under the selective service law, was informed against in the criminal court for Milwaukee County, charged, I believe, with the crime of grand larceny. He was taken into custody and thereafter such proceedings were had in such court result

ing in his offer and its acceptance of a plea of guilty. On the day of the reception of the plea the municipal judge deferred sentence, I believe, until the second day thereafter. At the time or shortly after reception of the plea the local board having jurisdiction over the petitioner served him with a notice, in the ordinary form, requiring him to report for military duty, I believe, on the following day, fixing the hour for his report under the law prior to the time to which the court had deferred the matter of sentencing him. On the following day the petitioner appeared in court, and, in connection with the further proceedings to which the case had been adjourned, advised the court of what had transpired in the meantime, necessarily thereby advising the court of the status which he claimed to have received by virtue of the occurrences in the interim. The court thereupon imposed a sentence, I believe, of two years' imprisonment, which, being done, a motion in arrest of judgment was made, which was denied. Thereupon application is made to this court for a writ of habeas corpus, seeking to discharge the custody which necessarily ensues upon the enforcement of the conviction in the criminal court of Milwaukee County.

Petitioner takes the broad view-asserts, rather-that because of the happening of the contingency under the selective service law, through which he is inducted into the military service, the criminal court lost power to impose sentence. Counsel for the petitioner thus states the contention in a brief, after quoting from service law and its regulations, namely:

"From and after the hour just named (quoting from the notice served) you will be a soldier in the military service of the United. States.

"This order of induction (says counsel) is to be found on page 177, section 301, of the selective service regulations and is a part of the law."

The contention is further thus stated:

"The chapter on mobilization, section 157, provides with reference to this matter as follows:

"From and after the day and hour thus specified each such registrant shall be in the military service of the United States.' Further, section 140, page 72, of the selective service rules provides as follows: 'Persons inducted into military service who absent themselves therefrom with the intent to evade military service are deserters,' and further points out the steps to be taken in cases where such registrants fail to report."

Whereupon it is asserted on behalf of the petitioner:

"From these provisions it is apparent that the military jurisdiction attaches wholly, completely, and entirely from the date named in. this order, if not from the date of the making of this order. No other or subsequent time is named as fixing or establishing his status as a soldier. If this be true, then petitioner's personal right to his liberty within this new status as a soldier and under the military jurisdiction is absolute, subject, of course, to military law. In addition to this there is also involved the right of the Federal Government to the jurisdiction of his person, because that jurisdiction has never been surrendered to the civil authorities of the State."

Counsel proceeds:

"It seems to me that in a broad sense there can be no conflict between State and National jurisdiction in cases of this kind, because, immediately upon declaring a state of war, all States and municipalities within the State, and all sworn officers of such organizations become agencies and instrumentalities of the National Government in the prosecution of such war and the marshaling of all of our resources for the purpose."

It may be said that if the premise advanced is conceded, if the selective service law be given the effect claimed for it in what I have read, the conclusion is or may be quite inescapable. I am unwilling to accept the premise. The selective service law is just what it professes to be a law to enable the raising of an army; and, as I shall say in another case to be determined this morning, the law in and of itself does not effect a change of status. There will be no disagreement upon that point. And, certainly, it is the duty of every agency of the State and of the National Government and of every municipality to give the fullest possible force and effect to that law in order to accomplish the broad purpose. But that is quite a different proposition from giving it an effect which must ascribe to Congress an absurd intention. The mere fact that Congress has stated in the law that certain persons within certain ages shall be liable to be called does not lead to the result upon the terms of this law that everyone of an age, within prescribed limits, merely by virtue of the possession of an age between those limits, must go.

Now, that is said for the purpose of getting to this point, that the law contemplates continued existence of civil authority in all of the States until such time when it shall unmistakably be indicated that ordinary civil authority is superseded. And it is not incumbent upon the courts to ascribe to Congress an intention by this law to supersede a status which attached to an individual prior to the time of its attempted application to that individual, which status involved his incarceration for a violation of the public law of the State. Putting it in a more homely way, it is not fair, at this time at least, to ascribe to Congress an intention to allow the selective service law to operate as a jail delivery measure. In that connection counsel for the applicant was asked a question during the presentation of the matter, whether, if a man who is incarcerated in a State or Federal penitentiary for a long term had that status at the time of his call, it would be the duty of the warden of the penitentiary, as custodian, to surrender him? I think counsel made the only answer possible consistently with his contention in this case-namely, in the affirmative. I am unwilling to give the law that effect, because it ascribes to Congress an intention which it would have effectuated other than through legislation disclosing merely the ranges of ages and the additional direction that those within those ages shall be liable to be drawn. Congress intended to recognize the continued existence of the civil authority of the States and the Nation, and, necessarily, to recognize the continued status which individuals might have acquired by virtue of the exertion of such continued civil authority; and when it appears, as it appears here, that the individual called was lawfully in the custody of the State in the exercise of its civil authority to prevent or to

vindicate infractions of its criminal law, it should not be said that Congress intended that that status should be superseded; and the courts ought to say, as I do in this case, that in view of the relations subsisting between the Federal and the State government, each recognizing the continued existence of the civil authority of the other, a person having this sort of a status under the State authority is not a person liable to be called. And the application for a writ will be denied,

17. U. S. v. FONTANA.

(District Court of the United States, District of North Dakota, 1918. Congressional Record, Oct. 3, 1918.)

Mr. Jones of Washington: Mr. President, it is not in the nature of a petition, but I have just had called to my attention a short statement entitled "A judicial definition of allegiance."

It is a statement made by Federal Judge Charles F. Amidon, of the United States District Court, District of North Dakota, in his decision sentencing Rev. J. Fontana who was convicted of violating the espionage law. This opinion is so clear, so concise a statement of what is due, not only from the citizen to his country but also what is due from the man who asks to be made a citizen, that I think it ought to be placed in the Record. I ask that it may be inserted in the Record. It is found in the Outlook of September 18, 1918.

There being no objection, the matter referred to was ordered to be printed in the Record, as follows:

"A Judicial Definition of 'Allegiance.'

"The Rev. J. Fontana, pastor of the German Evangelical Church, New Salem, N. Dak., was recently tried at Bismarck, in that State. He was charged with having uttered from time to time seditious language for the purpose of interfering with the military activities. of the Government. The presiding judge was Charles F. Amidon, of the United States District Court, District of North Dakota. The jury returned a verdict of guilty against Mr. Fontana on August 15. United States Attorney Hildreth moved for sentence on August 19. In passing sentence Judge Amidon said in part what follows. (The Editors.)

"You received your final papers as a citizen in 1898. By the oath which you then took you renounced and abjured all allegiance to Germany and to the Emperor of Germany, and swore that you would bear true faith and allegiance to the United States. What did that mean? That you would set about earnestly growing an American soul and put away your German soul. That is what your oath of allegiance meant. Have you done that? I do not think you have. You have cherished everything German, prayed German, read German, sung German. Every thought of your mind and every emotion of your heart through all these years has been German. Your body has been in America, but your life has been in Germany. If you were set down in Prussia to-day you would be in harmony with your envi

C. FEDERAL JUDICIAL OPINIONS

ronment. It would fit you just as a flower fits the leaf and stem of the plant on which it grows. You have influenced others who have been under your ministry to do the same thing. You said you would cease to cherish your German soul. That meant that you would begin the study of American life and history; that you would open your mind and heart to all of its influences; that you would try to understand its ideals and purposes and love them; that you would try to build up inside of yourself a whole group of feelings for the United States the same as you felt toward the fatherland when you left Germany. There have been a good many Germans before me in the last month. It has been an impressive part of the trial. They have lived in this country, like yourself, 10, 20, 30, 40 years, and they had to give their evidence through an interpreter. And as I looked at them and tried as best I could to understand them, there was written all over every one of them, 'Made in Germany.' American life had not dimmed that mark in the least. It stood there as bright and fresh as the inscription upon a new coin. I do not blame you and these I blame my country. We urged you men alone. I blame myself. to come. We welcomed you; we gave you opportunity; we gave you land; we conferred upon you the diadem of American citizenship, and then we left you. We paid no attention to what you have been doing.

"And now the world war has thrown a searchlight upon our national life, and what have we discovered? We find all over these United States, in groups, little Germanies, little Italies, little Austrias, little Norways, little Russias. These foreign people have thrown at circle about themselves, and, instead of keeping the oath they took that they would try to grow American souls inside of them, they have studiously striven to exclude everything American and to cherish everything foreign. A clever gentleman wrote a romance called America, the Melting Pot. It appealed to our vanity, and through all these years we have been seeing romance instead of fact. That is the awful truth. The figure of my country stands beside you to-day. It says to me: Do not blame this man alone. I am partly to blame. Punish him for his offense, but let him know that I see things in a new light; that a new era has come here. Punish him to teach him, and the like of him, and all those who have been misled by him and his like, that a change has come; that there must be an interpretation anew of the oath of allegiance. It has been in the past nothing but a formula of words. From this time on it must be translated into living characters incarnate in the life of every foreigner who If they have been cherishing has his dwelling-place in our midst. foreign history, foreign ideals, foreign loyalty, it must be stopped, and they must begin at once, all over again, to cherish American thought, American history, American ideals. That means something It does not mean simply that that is to be done in your daily life. It goes deeper you will not take up arms against the United States. far than that. It means that you will live for the United States, and that you will cherish and grow American souls inside of you. It means that you will take down from the walls of your homes the picture of the Kaiser and put up the picture of Washington; that you will take down the picture of Bismarck and hang up the picture of Lin