coln. It means that you will begin to sing American songs; that you will begin earnestly to study American history; that you will begin to open your lives through every avenue to the influence of American life. It means that you will begin first of all to learn English, the language of this country, so that there may be a door into your souls through which American life may enter. "I am not so simple as to entertain the idea that racial habits and qualities can be put aside by the will in a day, in a year, in a generation; but because that is difficult is all the more reason why you should get about it and quit cherishing a foreign life. If half the effort had been put forth in these foreign communities to build up an American life in the hearts of these foreign-born citizens that has been put forth to perpetuate a foreign life, our situation would have been entirely different from what it is to-day. You have violated your oath of allegiance in this: You have cherished foreign ideals and tried to make them everlasting. That is the basic wrong of these thousands of little islands of foreigners that have been formed through our whole limits, that, instead of trying to remove the foreign life out of their souls and to build up an American life in them, they have striven studiously from year to year to stifle American life and to make foreignness perpetual. That is disloyalty. And the object, one of the big objects, of this serious proceeding in this court, and other like proceedings in other courts, is to give notice that that must be stopped. "I have seen before my eyes another day of judgment. When we get through with this war and civil liberty is made safe once more upon this earth, there is going to be a day of judgment in these United States. Foreign-born citizens and the institutions which have cherished foreignness are going to be brought to the judgment bar of this Republic. That day of judgment looks more to me to-day like the great Day of Judgment than anything that I have thought of for many years. There is going to be a separation on that day of the sheep from the goats. Every institution that has been engaged in this business of making foreignness perpetual in the United States will have to change or cease. That is going to cut deep, but it is coming. "I recognize the right of foreign-born citizens to hear their religion, if they can not understand it in English, spoken to them in the tongue that they can understand. If they have not yet acquired enough English to read, they are entitled to have a paper that shall speak to them the language that they can understand. I can not go further than that. And this is the capital thing that is going to be settled on that day of judgment, namely, that the right to those things is temporary, and it can not be enjoyed by anybody who is not willing to regard it as temporary and to set about earnestly making the time of that enjoyment as short as possible, That means a fundamental revision of these foreign churches. No freedom of the press will protect a perpetual foreign press in these United States. It won't protect any press or any church which, while it is trying to meet a temporary need, does not set itself earnestly about the business of making that temporary situation just as temporary as possible, and not making it, as has been true in the past, just as near per petual as possible. Men who are not willing to do that will have to choose. If they prefer to cherish foreign ideals, they will have to go to their own. If it is necessary, we will cancel every certificate of citizenship in these United States. The Federal Government has power to deal with that subject, and it is going to deal with it. Nothing else than that surely can be possible. And the object of the sentence which I pronounce upon you to-day is not alone to punish you for the disloyalty of which you have been guilty, but to serve notice upon you, and the like of you, and all of the groups of people in this district who have been cherishing foreignness, that the end of that régime has come. It is a call to every one of you to set about earnestly the growing of an American soul inside of you. "The court finds and adjudges that you are guilty under each count of the indictment, and as a punishment therefor it is further adjudged that you be imprisoned in the Federal penitentiary at Leavenworth for the term of three years. The sentences under the three counts of the indictment are to run concurrently and not successively." D. JUDGE ADVOCATE GENERAL'S OPINIONS 1 (I) MISCELLANEOUS TOPICS 1 1. NATURALIZATION OF ALIEN DISCHARGED FROM NATIONAL GUARD Mr. Howard I. Marshall, Buffalo, New York. October 4, 1917. Sir: I have the honor to reply to your inquiry of September 20, 1917. The question presented is whether or not an alien who has been honorably discharged from the National Guard, after having been actually in the service of the United States of America, is entitled to be naturalized on proof of one year's residence in the United States, under the provisions of section 2166 of the Revised Statutes of the United States. The Constitution of the United States, article 1, section 8, paragraphs 15 and 16, provides Congress shall have power "15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. "16. To provide for organizing, arming, and disciplining, the Militia and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." Under paragraph 15, power is given to call the militia into the service of the United States only as therein enumerated, and it must follow that it must be within the United States. Section 111 of the National Defense Act contemplated a necessity the using of the men comprising these forces for other purposes and provided that the President may draft into the military service of the United States any or all members of the National Guard. All previous laws in reference to military service of the National Guard provided for the call by the President of the organized militia. As thus constituted, the President had no power to appoint officers, that power being specifically reserved to the several States by the Constitution. Under the provisions of section 111 of the National Defense Act only the individuals were called, and after they were called the President alone was given power to officer new organizations by appointment of officers to the rank of colonel, and above that rank by appointment by and with the consent of the Senate. A new oath was prescribed and the men were specifically discharged from the National Guard and stood subject to the laws and regulations governing the Army of the United States; for example, they could be subject to court-martial by army officers only, and not as before by 1 The Roman numerals and letters appended to the first catchword of the topical heading to each opinion refer to the Topical analysis used in the "Digest of Opinions of Judge Advocates General of the Army," Washington, 1912. a court-martial composed in a majority by members who were National Guard officers. The President, however, had never exercised the powers given him by the National Defense Act until the draft of 1917. Your service being under the constitutional provision for calling the body of the National Guard into the military service of the United States did not bring you into the provisions of section 2166 of the Revised Statutes of the United States. It is, therefore, the opinion of this office that not having been in contemplation of the Constitution and laws a part of the Army of the United States, your case does not come under the provisions of section 2166 and that you cannot be naturalized without following the ordinary provisions of the Naturalization Laws. We appreciate your position and the high spirit of patriotism that prompts your inquiry but we do not at this time see a way to relieve the situation. Memorandum for the Chief, Bureau of Militia Affairs. * * * 1. In various ways the question is arising whether during the present war a State may lawfully raise and maintain troops, which resemble in all or almost all respects the well-known militia of the several States as it hitherto existed, for service within its own boundaries exclusively. 2. By the Constitution "no State shall without the consent of Congress keep troops or ships of war in time of peace." Art. 1, § 10, cl. 3. In time of war, therefore, a State has the constitutional right to maintain "troops." Doubtless the prohibition in the National Defense Act (section 61 [Comp. St. 1916, § 3044b]) that "no State shall maintain troops in time of peace other than under this acı," is but an allusion to the constitutional prohibition. In time of war, then, a State may keep "troops." It must be confessed that such troops are something of a novelty, and whatever is said about them must be said. with caution. The words "militia" and "troops" are contrasted much as in the Constitution (Art. 1, § 8, cls. 12, 14, 15 and 16) the word "militia" is contrasted with "army" and "forces." The distinction is historical in its nature. Militia were well known in the colonies and in Great Britain and had as their distinguishing characteristics the voluntary enrollment of all men of certain ages and the absence of technical training and of habitual service. "Armies," "forces," and "troops," on the other hand, are words designating specialists, trained soldiers, continuously under military control and discipline, whose primary purpose is to fight and whose activities are continuously directed to military training and readiness. Dunne v. People, 94 Ill. 120, 34 Am. Rep. 213 (1879); Presser v. Ill., 116 U. S. 252, 6 Sup. MIL.L.-44 Ct. 580, 29 L. Ed. 615 (1886); State v. Wagener, 74 Minn. 518, 77 N. W. 424, 42 L. R. A. 749, 73 Am. St. Rep. 369 (1898); Smith v. Wanser, 68 N. J. Law, 249, 52 Atl. 309 (1902); City of Salina v. Blaksley, 72 Kan. 239, 83 Pac. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925 (1905); and Alabama Great Southern R. Co. v. U. S., 49 Ct. Cl. 522 (1914). A state may, then, in time of war maintain forces resembling the army of the United States, whose functions, however, are much more restricted, for as a State, unlike the United States, "cannot engage in war unless actually invaded or in imminent danger as will not admit of delay," it seems to follow that a State, even in time of war, cannot act otherwise than defensively, although, to be sure, defense must include in an emergency preventive expeditions outside the boundaries. To attempt to cover all possible peculiarities of State troops as distinguished from militia seems unnecessary, for I think it is obvious that the forces whose maintenance is now contemplated by the several States do not constitute "troops" within the meaning of that clause of the Constitution which has just been discussed; but that, on the other hand, they are in fact similar to, if not the same as, the militia as it existed prior to the Dick Bill, or, it may be, as it existed prior to the enactment of the recent National Defense Act, the primary purpose of which is to maintain local order when occasion shall arise for their use. The forces contemplated are, in my opinion, in law and legal effect militia. 3. Congress has provided in the National Defense Act for the organization of the militia of the several States under the name of “National Guard," and in the absence of other and modifying legislation I should have been disposed to hold that the organization prescribed by Congress was an exclusive one, and that when Congress has entered upon this field of organization, the States may not enter it; and that, therefore, assuming the constitutionality of the National Defense Act, the States would have to content themselves with the maintenance of "troops" defined as hereinbefore indicated, or the militia organized. as required by the National Defense Act and subject to all the liabilities and obligations provided by that act, or to the maintenance of state police or constabulary. But while I think such would have been the necessary holding in the absence of other legislation, the recent act of June 14, 1917 (40 Stat. 181), requires a different conclusion. That act, entitled "An Act to authorize the issue to States and Territories and the District of Columbia of rifles and other property for the equipment of organizations of home guards," authorizes the Secretary of War during the existing emergency to issue from time to time to the several States and Territories and the District of Columbia certain equipment for "home guards having the character of State police or constabulary * and such other home guards as may be organized under the direction of the governors of the several States * or other State troops or militia." The forces contemplated fall, I think, within the purview of this Act. I must, therefore, hold that the states have the authority to maintain such organizations for local service as seem to be contemplated by the papers presented me. * * * * 4. Whatever the character of such forces, however, they are capable of being called by the Nation into the service of the United States |