Story v. Perkins

• Decision Date: 20 August 1917
• Citation: 243 F. 997
• Parties: STORY v. PERKINS, Deputy U.S. Marshal, et al. JONES v. SAME.
• Court: U.S. District Court — Southern District of Georgia

243 F. 997

STORY v. PERKINS, Deputy U.S. Marshal, et al.

JONES v. SAME.

United States District Court, S.D. Georgia.

August 20, 1917

L. D McGregor, of Warrenton, Ga., Thomas E. Watson, of Thomson Ga., and J. Gordon Jones, of Cordele, Ga., for John Story and Albert Jones.

Erle M Donalson, U.S. Atty., of Macon, Ga., for defendants.

SPEER District Judge.

Albert Jones and John Story imprisoned in the Richmond county jail under commitment for unlawfully failing to register for military duty as required by the act of Congress of May 18 1917, known popularly as the selective draft law, have made application for writs of habeas corpus. They allege that their imprisonment is unlawful. They charge that the enactment, made to raise a national army, is violative of the Constitution of the United States. It is insisted that the authority exercised by the United States under this legislation is void, because the act contravenes the Thirteenth Amendment. This provides that:

'Neither slavery nor involuntary servitude, except as punishment for crime whereof the parties shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.'

To agree to this contention we must conclude that a soldier is a slave. Nothing could be more abhorrent to the truth, nothing more degrading to that indispensable and gallant 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 all 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 charge their names to the sweet lyre'; nor does 'sculpture in her turn give bond in stone and ever during brass to guard and to immortalize the trust.'

The sole additional ground of the petition is that by the common law it was the right of petitioners to 'remain 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 reply is that the common law, that is, the immemorial English law, cannot prevail as to the United States or its people against the explicit 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. It remains to be determined whether the Constitution has conferred authority on Congress to enact this law. Clause 12 of article 1, Sec. 8, of the Constitution empowers Congress 'to raise and support armies.' This power is plenary. It is not restricted in any manner. Congress may summon to its army thus authorized every citizen of the United States. Since it may summon all, it may summon any. Said the Supreme Court in the case of United States v. Tarble, 13 Wall. 408, 20 L.Ed. 597:

'Among the powers assigned to the national government is the power 'to raise and support armies.' * * * Its control over the subject is plenary and exclusive. It can determine, without question from any 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 be 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. It is contended under clause 15 of the article and section above quoted that such militia can be used only to execute the laws of the Union...