The limitations on civil conscription which are peculiar to the United States are likewise few. The sixth amendment to the Constitution of the United States expressly provides for compulsory witness service in certain cases. Conscription to serve the State's needs is neither slavery nor involuntary servitude, within the meaning of the thirteenth amendment.3 Ånd although a citizen's right to dispose of his own labor as he desires as has been construed to be included both in “liberty and in "property," as used in the fourteenth amendment, yet conscription by the State has never been regarded as a deprivation of either liberty or property (since it is a general burden, and inures to the general welfare). A more intricate question than these is raised by the possibility of conscription by a State for a purpose not in harmony with the interests of the United States. The most incisive example of such a State conscription is the military conscription instituted by Alabama, Mississippi, and other States in the course of the Civil War. Such a conscription is, of course, unconstitutional. The converse of this situation is presented when the United States conscripts to the injury of a State. In such a case, if the conscription is for the national welfare (as it would have to be to be otherwise lawful), it should be lawful notwithstanding the injury to the State. 10 Even in the United States, the certain limit to the individual's liberty is the State's necessity. And "necessity”. may be in the future, as it has been in the past, translated into terms of policy.

8

Senator BRANDEGEE. Mr. Chairman, I would like to hear from Solicitor General Davis as to his views. Mr. Davis has heard the questions we have been asking Gen. Crowder, and I would be glad to hear from him, if he will favor us.

The CHAIRMAN. Mr. Davis, we shall be glad to hear from you.

STATEMENT OF HON. JOHN W. DAVIS, SOLICITOR GENERAL OF THE UNITED STATES.

Solicitor General DAVIS. Mr. Chairman, my views on the matter are even more fragmentary, perhaps, than those of Gen. Crowder. I heartily concur myself with everything the General has said as to the legal principles involved. The bill does not, to my mind, present any serious constitutional difficulties. I think the bill is bottomed largely on the power of eminent domain, but I do not abandon entirely the power to raise and support armies as giving additional sanction for the bill.

1 Perhaps here it should be observed that the institution of a system of probation in criminal proceedings may permit, and in some cases already has permitted, trial courts to enforce conscription, both military and civil. The constitutionality of such judge-imposed compulsions has not yet been attacked, although the policy of the military conscriptions has been vehemently assailed. See frequent comment in the issues of the Army and Navy Journal, 1915 and 1916. It should be noted that although the probation may be both cruel and unusual (cf. Boston Evening Transcript, November 24, 1916, for a court order to hear Billy Sunday preach), it is not a punishment, but merely the condition of withholding punishment. Conscription though a probation order thus differs from other conscriptions in that it is made effective through an independent threat.

2 See note 17, supra.

3 But er t. Perry, supra. In this case a Florida statute requiring labor for two days in each year upon the public roads was held constitutional. The court said (p. 333) that the thirteenth amendment introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the Army, militia, or on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of its essential powers." See also Robertson v. Baldwin, 165 U. S., 275, especially the dissenting opinion of Harlan, J., at p. 298. Cf. Dennis v. Simon, supra, where conscription to build the public roads was he'd not to be such involuntary servitude as the State Bill of Rights prohibited.

4 Allgever v. Louisiana, 165 U. S., 578.

Adair &. United States, 208 U. S., 161, 172. See Coppage v. Kansas, 236 U. S., 1, 14; 2 Willoughby, Constitutional Law of the United States, § 474.

Butler. Perry, supra. at p. 333: Freund, The Police Power, § 614.

7 A State is certainly enough of a sovereign to conscript for a proper purpose. See Lanahan v. Birge, note 3, supra.

Although no position was consistently taken by the Supreme Court of the United States, the view whose soundness force has warranted is that the States of the South, having no power to secede, were at all times members of the United States. Texas. White, 7 Wall. (U. S.), 700; Keith v. Clark, 97 U. S., 454. 9 See 1 Davis, The Rise and Fall of the Confederate Government, c. xiv, p. 519.

10 Thus, the State courts under the Confederacy held repeatedly that the conscription of the Confederacy prevailed over even a prior conscription of the same citizen by his State. State ex rel. Graham, in re Emerson, 39 Ala., 437: ex parte Bolling, in re Watts, 39 Ala., 609; Simmons v. Miller, 40 Miss. 19. In Simmons. Miller (at p. 24) the Confederate constitution is construed in terms of the Constitution of the United States, which it closely followed.

I think the primary purpose of the bill probably is embodied in the power to raise and support armies and in the exercise of the power to raise and support armies the Government may avail itself of the auxiliary power-and it is always an auxiliary power-of eminent domain. In the exercise of that power of eminent domain it may commandeer property, and I myself have no question that it could also commandeer service.

Among the other illustrations which have been presented by Gen. Crowder of compulsory civil service, of course we are familiar with jury service, grand jury service, work on the roads, compulsory attendance as witnesses, service in a posse comitatus, service in compulsory fire departments, and two very recent instances of recent congressional legislation occur to me, one of which is the provision in the last post-office bill which compels the railroads, for the first time in the history of this country, to carry the mails, and the other in the income tax bill which compels the debtor to make payment of the tax at the source. That broad provision of the income tax bill was very bitterly assailed before the Supreme Court on the ground that it was compulsory service without compensation. It was defended by the Government on the ground that it was compulsory civil service, but was a burden of citizenship exactly similar in fundamental quality to the burden of citizenship involved in jury service and all these other civil services.

I think the Government can, even for its own protection, require its citizens to serve it either in war or in peace. It seems to me also perfectly clear that the Government may constitute its military forces, if it chooses, and it may man that military force either in war or peace by draft, and for the service of its military purposes it may draft men either into the regular line or into the auxiliary service that it chooses to create to serve the regular line, and may, as proposed by this bill, add to its Army pro tempore these civil employees of the railroads for the transportation of the Army and its supplies. Senator TOWNSEND. Why pro tempore?

Solicitor General DAVIS. Simply because that is a matter of policy only and not a matter of principle. Of course it is easy enough, when any power is conferred, to argue against either the existence of the power in the first instance or the conferring and creation of power in the second instance, by putting cases of possible abuse. There is no power that I know of in the Government that can not be argued against in that fashion.

Senator CUMMINS. That is a question of the war power. Put that out of it entirely, and leave that out of the question entirely. Assume there is no military necessity for the use of the railroad. Let us assume that any given railroad carrying on interstate commerce-and let us leave the question of a strike out of it also-should decide that it will no longer continue in the operation of its road. Do you believe that we can confer power upon the President to take possession of that road and draft its former employees into the service simply to transact business?

Solicitor General DAVIS. I should not want to say so, and yet there is an analogous power in the Government, if the owner of a road refuses to continue service as a common carrier, to appoint a receiver to perform the franchises of the road.

Senator CUMMINS. I have no doubt about that power to appoint a receiver.

Solicitor General DAVIS. That is, the Government acting, not through the executive branch, of course, but through the judicial branch, to compel the performance of an obligation assumed by the carrier when it entered upon its business. Having entered upon the business affected with the public interest, it may be compelled to perform the engagements with the public that it has entered into, and compelled by the judicial branch in the form of a receivership. I am not prepared, without more consideration, to say that that power could not be compelled by the Government through the use of the executive branch. But certainly that is not approximated, I take it, in this bill.

Senator CUMMINS. I am not asserting that it is, but it has some features in it that suggest that question to me. Do you believe we could confer the power on a court to compel or draft into the service the employees in the case of a receivership?

Solicitor General DAVIS. Probably not.

Senator CUMMINS. That is the point about this legislation that bothers me. It is not so far as war powers are concerned.

Solicitor General DAVIS. I think the case which you put differs from this case in this respect: The receiver, of course, stands in the room and stead of the private owner.

Senator CUMMINS. Certainly.

Solicitor General DAVIS. In this particular instance it is no longer the private owner, but the Government itself; and if the Government as a government is conducting the operation, it may, without the violation of the thirteenth amendment, call on its citizens to assist it in that operation, although it might not be able to empower either the private owner or the receiver acting in his stead to demand a similar service.

Senator CUMMINS. I will have to be persuaded my instinct is against it that we could confer, in the case that I put, upon the President or any other executive officer, the authority to take possession of a road and to operate it. I do not believe that as a matter largely of inference rather than examination, because I have not examined the subject. That seems the crux of the whole thing.

Solicitor General DAVIS. I confess, as you stated it, I rather receded from the proposition myself, and if this bill were that I should say it was much more seriously debatable.

The CHAIRMAN. My instinct has run in the same direction yours does, but my reasoning runs in the direction that the purpose of giving these extraordinary powers in the case of war is because the public safety requires it. I can imagine other contingencies occurring that would present even more serious emergencies, and I do not see, as a matter of reasoning, why a law could not be put into effect in such emergency affecting public safety and public necessity.

Senator TOWNSEND. I do not know that this question ought to be asked of you, and you need not answer it if you do not wish to do so; but I am wondering if the same object, in your opinion, could not be accomplished, namely, the movement of trains, if we provided a similar law to the one we now have relative to the movement of mails, affecting interstate commerce, so that the President could use the troops to oppose obstruction to the movement of trains.

Solicitor General DAVIS. Of course, that is a question entirely of policy.

I think I know what was in the mind of the draftsman when this bill was prepared. Of course, it was written in the light of the emergency we have just been confronted with. Here was a proposition to tie up all the roads of the country and stop every wheel, practically. Here was the entire Military Establishment, both Regular and militia, located down on the Texas border. There was a possibility that that establishment might find itself down there cut off entirely from the rest of the country, both as to the possibility of returning the men there, if occasion demanded it, and as to the possibility of reprovisioning them. It would not be enough, in as acute a situation as that threatened to become, to simply have the penal law which would penalize the railroads for refusing to carry, or would penalize the men for refusing to run the trains in a crisis of that sort. If it went to extremes and, of course, we are dealing with an extreme situation-there must be some machinery by which both the physical property and the human agencies could be secured to unloose that deadlock.

The bill says "in case of actual or threatened war, insurrection, or invasion." Of course, these troops were on the border and might be fairly said to be there in time of actual or threatened war or insurrection; but assuming that in the interim the situation in Mexico had entirely ironed out and the relations had become of the most cordial and the Government in Mexico had become the most stable and there was no longer any necessity whatever for keeping these militiamen on the border. Certainly the Government should not be compelled, by the mere suspension of the operations of railroads, to keep those men there indefinitely, when there is nothing in necessity for it, and it ought to have just as much power to bring them back home when the emergency is over as it would have to take them there when the emergency arises. It was in the light of that thought that the clause was added here, "or other emergency requiring the transportation of troops, military equipment, and supplies of the United States." In bringing these men from the border back home after that situation had all subsided, they were not being brought back home to a war or threatened insurrection or invasion. It was just simply the reverse of that proposition. You can easily enough imagine a situation where there is no imminent military danger, and yet where the movement of troops of that sort would be imperative. Suppose we had had a military maneuver on and had all the troops collected for the maneuver, and the maneuver was ended. Suppose a strike of this sort came. It would be necessary to disperse those troops to their homes or their military posts. I think this general clause here would authorize the President to take such trains and men as were necessary to disperse that encampment and to send those men back home."

Senator BRANDEGEE. Would it authorize him to continue the operation of all the cars in commerce, aside from those required for the military use?

Solicitor General DAVIS. I am frank to say I do not think the bill fairly bears that construction. I think, with the bill properly administered, the President would take so much and only so much of the railroad trains or the men on them as were needed for the legitimate

movement he was trying to conduct, and I agree with Senator Cummins that if he took more than was legitimately required for the movement he sought to conduct, it would be a subterfuge, and I am inclined to think the courts would penetrate it as such.

The CHAIRMAN. We are very much obliged to you both, Mr. Davis and Gen. Crowder.

(Thereupon the committee adjourned until to-morrow, Friday, January 19, 1917, at 10 o'clock a. m.)

POST OFFICE DEPARTMENT,

OFFICE OF THE SOLICITOR,
Washington, January 16, 1917.

Hon. FRANCIS G. NEWLANDS,

Chairman Committee on Interstate Commerce, United States Senate.

MY DEAR SENATOR NEWLANDS: Complying with your request of to-day that I prepare for presentation to your committee at its session to-morrow morning a statement of the legal constructions that have been placed upon sections 3995 and 3996 of the Revised Statutes of the United States, I have to submit the following:

Sections 3995 and 3996 of the Revised Statutes were originally enacted on June 8, 1872, and on March 4, 1909 (35 Stat. 1088), they were embodied as sections 201 and 202 of the Penal Code with slight modifications, so that the law now reads:

"SEC. 201. Whoever shall knowingly and willfully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carrier, or car, steamboat, or other conveyance or vessel carrying the same, shall be fined not more than $100, or imprisoned not more than six months, or both.

"SEC. 202. Whoever, being a ferryman, shall delay the passage of the mail by willful neglect or refusal to transport the same across any ferry, shall be fined not more than $100."

So far as I am aware there have been no judicial constructions of section 202, but the courts have many times passed upon section 201, as will be seen from the following, which is taken from The Federal Penal Code of 1910, annotated by George F. Tucker and Charles W. Blood.

The

This section is founded on United States Revised Statutes, Section 3995. words 'or car, steamboat, or other conveyance or vessel,' and 'or imprisoned not more than six months, or both,' are inserted. (Clune v. United States, 159 U. S. 590, 594, 40 L. ed. 269). This provision has been held to apply only to the mail while in transitu, and not to the stopping of a horse when being taken from a stable for use in carrying the mail (United States v. McCracken, 3 Hughes, 544, 26 Fed. Cas. 1069, contra); in the case of an innholder, who, to enforce his lien for liverage, stopped stage horses in the public highway, while drawing a stage coach containing the mail. (United States v. Barney, 3 Hughes, 545, 24 Fed. Cas. 1014; 3 Hall's L. J. 128.) It applies to the stopping of a railway mail train by one who has a judgment and writ of possession from a State court against the railroad company in respect to the lands about to be crossed by such train (United States v. De Mott, 3 F. R. 478); to the stopping of such a train, although those guilty are willing to permit the mail car only to pass (United States v. Clark, 13 Phila. 476, 25 Fed. Cas. 443; In re grand jury, 62 F. R. 834, 840; 21 A. G. Op 9); or to the stopping of a train by discharged railway laborers, although their primary intention may be, not to obstruct the mail, but to obtain a return passage (United States v. Kane, 19 F. R. 42; United States v. Clark, supra); and to any case where those who perform the act complained of know that it will have the effect to retard the passage of the mail, and perform it with that intent. (United States v. Kirby, 7 Wall. 482, 19 L. ed. 278; United States v. Claypool, 14 F. R. 127.) It does not apply to a temporary detention of the mail caused by the carrier's arrest upon a charge of felony. (United States v. Kirby, supra.) And, in certain cases in other courts, it has even been held not to apply where the person carrying the mail is taken in custody by a qualified officer holding a warrant for his arrest for an offense which is not a felony, such as fast driving, in violation of a municipal ordinance. (United States v. Hart, Pet. C. C. 390, 3 Wheeler C. C. 304; 5 A. G. Op. 554; Penny v. Walker, 64 Maine 430. See United States v. Harvey, 1 Brunner, 540, 26 Fed. Cas. 206.)

"The United States Government has power in every portion of the country, under its control of interstate commerce and of the mails, to remove any obstruction to such commerce or to the postal service. (In re Debs, 158 U. S. 564, 39 L. ed. 1092.) This applies to obstructions to the most modern forms of conveyance upon railroads and electric railways, and includes employees who suddenly desert their work. (Id.; United States. Thomas, 55 F. R. 380; United States v. Sears, Id. 268; United States v.