Opinion
No. 6886.
February 18, 1941.
Lester Luther, Asst. U.S. Atty., of Topeka, Kan., for the Government.
W.E. Atchison and Hugh MacFarland, both of Topeka, Kan., for the defendant.
Alexander Harlow Dewey was indicted for knowingly, unlawfully, wilfully and feloniously failing, neglecting and refusing to register under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., and he entered a plea of guilty.
Judgment in accordance with opinion.
The indictment in this case charges substantially that Alexander Dewey, being a male citizen of the United States more than 21 years of age and less than 36, that it was your duty to register under the Selective Training and Service Act of 1940. 50 U.S.C.A.Appendix. § 301 et seq., and the rules and regulations passed in pursuance thereof, and that on or about the 16th of October, and within three years prior to the return of the indictment in the District Court of Kansas, and within the jurisdiction of this Court, you then and there did knowingly, unlawfully, wilfully and feloniously fail, neglect and refuse so to register, all contrary to the form of the statute and against the peace and dignity of the United States.
To this charge you have entered a plea of guilty. And so it becomes my duty to pass judgment upon you.
From what has been said here, and from the report of the Probation Agent, who was directed to make a thorough investigation of your case, it appears that shortly after this Selective Service Act was passed, you took the position that you were a pacifist and because of your convictions, you refused to register for military service. The report shows that you come from a highly educated family; that your father spent a number of years in literary work, and assisted in making a translation for a new Webster's dictionary; that your mother is highly educated and that under your father's tutelage, you advanced more rapidly than other boys of your age. Suggestions also are made by the Probation Agent from his investigation that you take the position of being a martyr and desire to make of yourself a sacrifice to a cause. This report shows that you do a great deal of reading, especially along the lines of political science, and that you hold a firm conviction against war; that at the time of your arrest, you were an outstanding student at the University of Kansas; that your home is in Connecticut, and from these things and from what you now say and what your counsel says in your behalf, I conclude that you are much above the average in intelligence. You have had the benefit of the advice of eminent counsel, and now you come before the court and openly and without hesitation say that you refuse to be bound by the laws of your land. You refuse to obey one of the solemn mandates of your country at a time when all of us believe and understand that our country is in great danger — when perhaps its very existence is threatened.
In times like these when the whole current of civilized life appears to be unsettled, it is well not only that we reflect upon the foundation principles of our American system of government, but that we do all we can to sustain those principles. Upon those principles rests the very fabric of our republic. We should realize more than ever before that upon those same principles depends the career of human liberty. I sometimes wonder if the great majority of our people actually think about or have any real conception of the liberties that we enjoy. Our forefathers established here a government in which there was no aristocracy of either birth or wealth. It was conceived in liberty and dedicated to the rule of equality. Our American system represents the collective wisdom, the collective industry, the collective common sense of people who for centuries had been seeking freedom, freedom from the tyranny of government actuated or controlled by the personal whims and prejudices of kings and dictators. The result is a government founded upon principles of reason and justice, a government of laws and not of men. Our Bill of Rights provides that all political power is inherent in the people and all free governments are founded on their authority and instituted for their equal protection and benefit. The American character, following the motives and ideals of our forefathers, is attuned to an understanding and appreciation of these fundamental ideas of free government.
One isolated in the wilderness may do largely as he pleases because his conduct affects no one else, but not so under our complex civilization. Adherence to the principles of our system, which amounts to respect for and observance of law, is the cornerstone of government. It is the only guarantee of the rights of the individual, — therefore, respect for all laws should be maintained. Therein lies the safety of society. Disregard for and violation of one law makes it difficult to observe and enforce others. If one citizen claims the right to disregard some law, his neighbor may claim a similar right to select others which he may disregard. Neither has such a right, and such a course, if carried to the extreme, would mean universal chaos. It would mean removal of the foundations of all government.
It was Abraham Lincoln who said, "Let reverence for the law be breathed by every American mother to the lisping babe that prattles on her lap. Let it be taught in the schools, in seminaries, in colleges. Let it be written in primers, spelling books and in almanacs. Let it be preached from the pulpit, proclaimed in legislative halls, enforced in courts of justice, and, in short, let it become the political religion of the nation." The rights and privileges preserved by the Constitution may not continue unless every one of us shall recognize his responsibilities and duties under the Constitution.
With these principles in mind, let us look for a moment at the world situation which brings us eventually to the consideration of your case.
During the past few years the integrity and sanctity of treaties and agreements between nations have been next to abandoned; nations which keep their word have become the exception to the rule. High ideals, tolerance, morality in government have been repeatedly swept to the winds. Property has been confiscated, people driven from their homes, and the individual citizen's right to life and liberty imperiled by the will of the despot.
In 1929, fifty-five nations of the world had adopted the Kellogg-Briand treaty outlawing war. It was agreed among them that they would condemn recourse to war for the solution of international controversies. They renounced war as an instrument of national policy in their relations with one another. They agreed that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin which might arise among them, should never be sought except by pacific means. 46 Stat. 2343.
The treaty was ratified by the Senate of the United States in February, 1929. Notwithstanding its provisions, it has since been broken by Germany, Italy and Japan.
In September 18, 1931, Japan started the destruction of international organization by the conquest and seizure of Mukden. During 1931-32 she seized the whole of Manchuria with an area of 508,000 square miles, larger than Germany and France combined. She was the first nation to withdraw from the League of Nations and by such action to reject all peaceful methods of settlement.
Once started, aggression became contagious. In 1933, Mr. Hitler came to power in Germany and, in violation of treaty, began the rearmament of his country. Encouraged apparently by the non-interference of the Western Powers in the Manchurian Incident, Mussolini, in the fall of 1935, invaded Abyssinia.
On March 6, 1936, German troops without resistance from other powers, marched into the demilitarized Rhineland. In the same year the Spanish Civil War broke out, and the rebels were openly supported by Italy and Germany which had meanwhile formed the Axis.
In March, 1938, Hitler seized Austria, 32,000 square miles. By the Munich agreement, the Sudetan areas of Czechoslovakia were added to his domain in September. He seized the remainder of Czechoslovakia, 55,000 square miles, in March 1939, while Mussolini annexed his neighboring ally, Albania.
On September 1, 1939, Germany attacked and carried out her conquest of Poland.
In 1940, she effected the successful conquest of Denmark, Norway, Holland, Belgium, France and Rumania. No one knows what next may happen. If we can conceive England defeated, what next may we expect? Many fear for the very existence of our democratic institutions. The doctrines and aggressions of the dictator nations become every day more menacing to our republic. The bloody conflicts the dictators have imposed on the conquered countries evidence the fact that they do not propose to end until all freedom shall have been blasted from the earth. And so the conditions call for the immediate establishment by this country of a nucleus of armed forces properly equipped to meet any emergency. Practically everyone realizes the need of a constructive, practical national defense policy.
Considering all these things, the Congress in its wisdom, in order to protect the integrity and institutions of the United States, adopted a law providing a system of selective compulsory military training and service.
Under this act, while large numbers of men are subject to registration and are liable for military training and service, only comparatively few of those registered will actually be selected and inducted for military training and service.
The Congress thought it advisable that all men betwen the ages of 21 and 36 should be registered and classified in order to obtain information essential for the most efficient operation of the system of defense, such as, for example, information as to the particular type of work they are engaged in, and that for which they may be fitted.
The act is based on the principle that every citizen owes a duty to defend the nation. Under its terms, the burdens of military service will be borne equally by all classes regardless of economic means. We should remember that in order to have the privileges and benefits of citizenship in this country, we each must assume some burdens and discomforts. We should examine our own moral fiber and character and above all, do our duty. The times make it imperative that every one of us should realize that he owes everything he has, his life, his property, and everything else, to the cause of preserving the liberties we cherish. So far as is necessary, our Government has the right to call upon us to make that sacrifice.
Before our peace and liberty were threatened, everyone had a right to discuss in private and in public the question whether the United States should prepare for her defense. Everyone had a right to argue that there was no sufficient cause for alarm; that it would be wiser to wait until the aggressors actually were here. Everyone holding such views had the right to influence public opinion and, if possible, affect the action of the President and the Congress to whom the people of the country by their Constitution have entrusted the power to determine questions of this kind. However, that question has now been decided by those who had the sole right to decide it. The question is no longer open. Conscription has been ordered.
Every intelligent person knows that the power to make such a decision is one of the most essential, vital, and momentous of all the powers of government. We cannot maintain our independence or protect our citizens against oppression or continue to be free, without such power being delegated to some authority, and one of the chief duties of citizenship in a time of great emergency like this is to recognize such authority. One of the essential and underlying objects of the union which formed this nation was to create a lawful authority whose decision and action upon questions of this kind should bind all the states and all the people of every state.
The Constitution under which we have lived more than a hundred and fifty years declares: "We The People of the United States, in Order to * * * provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution." The Constitution so ordained vests in Congress the power to raise and support armies, to provide and maintain a navy, and it vests in the President the power to command the army and navy. The law under which you are being prosecuted was enacted after long opportunity for reflection and discussion. When the decision had been made and the act adopted, the duties and the rights of every one of us had immediately to submit to change. It became our duty to stop discussion upon the question decided, and to proceed immediately to do everything in our power to enable the government to succeed in the preparation decided upon.
We all know that it is a fundamental necessity of government that it shall have the power to decide great questions of policy, and to act upon its decision. In order that there shall be action following a decision once made, the decision must be accepted by every one.
Your spirit is one of rebellion against the laws of the United States, against your government. The effect of your action and those like you is to hinder and lessen the preparation for the emergency which the government deems necessary to success. If a third or half of the people would decide to violate some law or refuse to abide by some rule of law which he disapproves, we would have anarchy. The purpose and effect of such an attitude would be so plain that it would be impossible not to conclude that such citizens are at heart traitors to their country.
When the Axis powers did actually apply their principles of action to other peaceful nations by invasion, they violated every solemn covenant they had made to observe the law of neutrality established for the protection of peaceful states. They ruthlessly sent their armed forces to do pillage and destruction to their peaceful neighbors. They committed wholesale murder of defenseless old men, women and children, without warning and in contempt of every law and the dictates of humanity. In the face of all these atrocities, you are one of the very few willing to violate the laws of your country and indirectly at least give aid and comfort to these world assassins.
What shall be done about it? What is the duty of this court? In this country we have a natural abhorrence of compulsion. We like to believe that the individual citizen will come forward immediately and voluntarily do his duty. When danger immediately threatens, we expect every man to do his duty.
The principles of selective service enunciated by this law under consideration are so fair, so just and so democratic that they should meet immediately the approval of all men. Frequently we hear in this court the oath made by the applicant for citizenship to the effect "That he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty; * * * that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same."
If there are in this country naturalized citizens who are taking part in obstruction of our government in the preparation for defense, they are false to their oaths. If they are repudiating their obligations of citizenship, they should be returned to the land from which they came. We might all appropriately repeat that little verse, written by Sir Walter Scott:
"Breathes there a man with soul so dead Who never to himself hath said This is my own, my native land; Whose heart has ne'er within him burned As home his footsteps he hath turned From wandering on a foreign strand. If such there be, go mark him well For him no minstrel's rapture swells. High though his title, proud his name Boundless his wealth as wish can claim, Despite his title, power and pelf The wretch concentered all in self Shall, living, forfeit fair renown And doubly dying, shall go down To the vile dust from whence he sprung Unwept, unsorrowed and unsung."
In the dictator nations one man can create war for all the people, at any time, for or without cause. He can give the command and bombs are rained on peaceful cities and villages. He gives the order and literally thousands of innocent men, women and children are put to death. This country will not follow such a path of blood and destruction. Those countries have no constitution such as ours to protect the rights of the people. The framers of our Constitution refused to delegate such power to any one man, no matter who he might be. They placed that power in the hands of many, into the hands of men of our own choosing, directly responsible to the people. Our representatives have enacted this rule now under consideration. The overwhelming majority of the people abide by it. You are among the few who reject it and refuse to obey. Laws to be effective must have penalties for their breach. Congress provided that the violator of this law might be required to serve a prison term not to exceed five years. I will be lenient with you. I had thought to assess a three-year sentence, but will give you credit for one year because of your having been some time in jail. If your record is such as to warrant it, the Parole Board may release you before the entire sentence is served. The judgment of this court is that you be delivered to the custody of the Attorney General for a period of two years, with the recommendation that you be sent to the Reformatory at El Reno, Oklahoma.