Evening star. [volume] (Washington, D.C.) 1854-1972, 1917-08-21
Text of Draft Decision.

Following is he text of Judge Speer's
decision:
Albert Jones and John Story, impris-
oned in the Richmond county Jail under
commitment for unlawfully failing to
register for military duty as required
by the act of Congress of MAY is, 1917.
known popularity as the selective draft
law. have made application for writs of
habeas corpus They alleged that their
Imprisonment is unlawful They charge
that the enactment, made to raise
National Army. is violative of the Con-
0titution of the United States. 1t is in
the United States under this legislation
- void because the act contrayeneS the
thirteenth amendment. This provides
that neither slavery nor involuntary
crime whereof the parties shall have
been duly convicted. shall exist within
the United States or any place subject
10 their Jurisdiction. To agree to this
contention we must conclude that a SOL
der is a slave. Nothing could be more
abhorrent to the truth, nothing more de-
grading to that indispensable and gall
liant body of citizens trained in arms to
whose manhood. skill and courage is
and must be committed the task of
maintaining the very existence of the
nation. and ali that its people hold dear
The Grand Army of the Republic the
Confederate Veterans and the Sons of
Veterans are not maintained to preserve
the traditions of slavery Nations do
not pension slaves, to commemorate
their valor They do not Give in
charee their names to the sweet Tyre"
NOR does
Sculpture in her turn
Give bond in stone and ever during brass
To guard and to immortalize the trust
Common Law Invoked.
The sole additional ground of the
petition is that by the common law
III nf
main within the realm" and that this
right should now be held to relieve
them from military service beyond the
borders of the United States The re-
ply is. that the common law-that is
the immemorial English law-cannot
prevail as to the United States or its
people against the expIicit provision
OF an act of Congress Nor has a court
of the United States power TO declare
an act of Congress invalid because it
Is inimical to the common law The
touchstone for such judicial power is
the Constitution. and nothing else 1t
remains TO be determined whether the
constitution has conferred authority
on congress to enact this law Clause
IL OF article I. section g. Of the Con-
stitution empowers Congress ito raise
and support armies" This mower is
nlenary- IT is not restricted in any
manner. Congress may summon to it's
army thus authorized every citizen of
the United States. Since ii NAV sum
supreme Court in the case of the United
States agt- Tarble. 18th Wallace 40s
among the powers assigned to the
national government is the power to
raise and support armies It's
control over the subject is plenary and
exclusive. 1t can determine without
question from AIRY state authority how
the army shall be raised whether by
voluntary enlistment or forced draft
the age at which the soldiers shall be
received and the period for which they
shall be taken: the compensation he
shall be allowed and the service to
which he shall he assigned"
IT is urged that by this legislation
Congress has taken over and in this
way conscripted the National Guard
This. it is said. is the state militia. II
Is commended under clause "a of the
article end section above quoted that
such militia can be used only TO execute
the laws of the Union. TO suppress in
surrection and repel invasion. Since
these petitioners are not members of
the National Guard. in no event could
their rights in this way be affected
But the National Army is not the mill
tia An army Is a body of men whose
business is war. Burroughs VS.. Peytor,
is Graft. Virginia. AS. The militia is
"a body of men composed of citizens
occupied temporarily in the pursuits of
civil life. but organized by discipline
and drill. and called into the field for
temporary military service when the
exigencies of the country require il -
Idem.