New-York tribune., 1917-12-10
Government Declares Argu-
ment Against Selective
Service Is Frivolous"
Conscription Long
Approved Method
Brief Declares President
Has Right to Send
Militia Abroad

WASHINGTON, Dec 9.--ln brief
made public tonight asking the Su-
preme Court to dismiss cases attacking
the eonstitutionality Of the selective
draft law the government asserts that
power conferred upon Congress to de-
dare war carries with it authority 20
compel military service either at home
or abroad.
Compulsory draft is declared 10 have
been a normal method Of raising armies
ever since the government was estab-
lished, the legality OF which has been
repeatedly upheld by the courts. The
situation IN Russia is pointed to, with
out mentioning the name. as demon
stration that there can with safety be
no absolute freedom in civilized soci-
cites.
"lf the argument against this law
upon constitutional grounds be not friv-
olous,' says the brief, then that ad-
ject.yc has lost its legal significance
Nine Cases Before Court
The cases now before the court in
cluded nine appeals from Minnesota,
Georgia and Onio, in which persons
were convicted Of either failing 10 reg
lister on June or of attempting 20
block the operations Of the act by
urging others Of draft age not 10 com
p.y with il. Among the cases are
those Of Emma Goldman and AleXsn-
der Berkman, convicted in New York
after having made speeches opposing
The law. Argument on them probably
will begin Tuesday.
1T is true that the law provides for
the restraint of the liberty OF the clti-
zen to a certain extent" the brief sets
forth, "yet 20 protect most truly the
liberties OF people who live together
in communities it is plain that some
governmental organization and some
exercise Of governmental powers are
necessary.
There is no absolute freedom in
civilized societies. Our own history
prior to the adoption of the COnstitu-
tion and the present experience Of one
Of the Allies vividly show, moreover,
that the government which exercises
least powers may be the instrument
OF tyranny in the hands Of domestic
disturbers as we'll as the facile tool
Of foreign conquer1rs.
.r illustrations may be cited without
number 20 show that in order to pro-
tect the liberties Of the people as
whole the individual citizen may Incl
dentally or temporarily be restrained
of his liberties.
"Yet military service. cited as an OK
treme example Of restriction OF per
sonal liberty. is only temporary, incl
dental 20 the security of the citizens as
a whole and only so far imposed as Is
necessary for the purpose. The few
who are compelled 20 serve do go that
the many who remain at nome at the
present time and the generations VINO
come in the future may enjoy those
blessings Of freedom which this gov
ernment was established TO secure
Draft Long Resorted To
The brief characterizes as "unfound-
ed" the contention that compulsory
military service is contrary TO the
spirit Of democracy and says that while
occasions for the draft in this country
have been infrequent at has been re-
sorted 90 without finching when the
er1erpcucv arose" II was largely
through this method that the Revolu-
tionary War was successfully conclud-
ed. the government declares, and under
the conditions OF modern warfare TINS
means Of raising an army is the most
prudent, just and equitable mcthou
which can be employed"
war is now not a matter OF men,
but of nations" it adds. "All Of the
resources OF the combatants. human
and material. are thrown into the scale.
A. il is in The power OF the government
70 compel. so ii is the duty OF all It's
citizens to give, regardless Of personal
nreference, the service which they can
most efficiently render. Those VINO bear
Tho responsibility Of leadership must
have also the power TO assign every CIT
izen 10 the station he is best qualihed
70 FIN. Nor is it any longer just to leave
tho performance Of military duties only
20 the most ardent and patriotic M
stead Of distributing them with equity
over the population as whole.
Renlyine 10 the contention that the
militia cannot be ordered out by the
president or sent abroad for duty, the
government says:
In TO the President
at has long been settled under our
cchpmp oil COnSllNuNlpidi SN''''
IA Tho statutes that the power resides
in oniv one person TO decide when the
emergency arises WHICH justihes the
cail;ng out Of the militia. That person
IL tbe commander in chief. the Presi-
cont II is not even for the Governor
~ t5a state. much less private militia
man. to say that the President has
wrongly decided. .,o,,,a he
"Tho President, of course snouiu pe
scr,Ipulously careful not TO exceed the
tonnds OF his constitutional authority.
But the matter is solely within his dis
cretion. and from decision made IN
cxcrcise thereof no appeal lies to the
courts. Correction for possible abuse
ia in the power Of impeachment and
frequent elections. .
con the facts in the present cases,
moreover, IL certainly could nov DC s1iu
~ tbc commander in chief has eNer-
eta -. diecretion unwisely. Evidence