248 F. 992 | E.D.N.Y | 1918
The relator, Pfefer, is in the National Army at Camp Upton, in this district. He is a subject of Russia, who has taken out his first papers and has been drafted as a declarant. The facts shown by the petition and the return are not disputed.
The relator stated before the local board that he was an alien who had filed a declaration of intention. The board on these facts included him within the eligible class, and he was drafted in accordance with the procedure of the law. Upon this application the only question is based upon a general claim that the local board had no jurisdiction over the relator under the Dralt Uaw. The law is alleged to be unconstitutional in those provisions which include aliens who have filed declarations of intention to become citizens.
The last question has been disposed of by the Supreme Court in -the case of Arver v. United States, 245 U. S. 366, 38 Sup. Ct. 159, 62 L. Ed. --, decided January 7, 1918, in so far as citizens are concern
The relator has cited a number of cases and opinions promulgated during the last century, in which i t has been stated that it was contrary to the policy of the United Stairs government to recognize the right of any nation to impress into military service subjects of another nation. See 4 Moore’s International Law, p. 51. It is not doubted that
But under present conditions the arguments which have been heretofore urged against impressing the citizens of a neutral into military service do not apply with the same force and scope in this war, where the various nations whose treaties have been repealed in this respect by the Selective Draft I,aw are engaged in military service for their own existence, as allies or friends of the United States. Such a question can be determined only by agreement between the nations as to whether one country shall be allowed to draft the men of other nationalities within its borders. In a common cause, the act of one nation, in the favor of all, is not an act of aggression against the United States, nor against any other country, and is not analogous to capture of citizens by a foreign country in time of peace, or by a belligerent, for its own military purposes, in war against another country. But the rules of international law, like those of existing treaties or conventions, are subject to the express acts of Congress, and the courts of the United States have not the power to declare a law unconstitutional, if it be within the authority given to Congress as to legislation, even though the law itself be in contravention of the so-called law of nations. The Nereide, supra; Respublica v. De Longchamps, 1 Dall. (1 U. S.) 111, 1 L. Ed. 59; The Scotia, 14 Wall. (81 U. S.) 170, 20 L. Ed. 822; Opinions of the Attorney General, vol. 10, at page 521, and also the cases hereinbefore cited.
No other point being made out as to which the decision of the authorities under the draft law was not after fair hearing and as to which their decision was not final (Angelus v. Sullivan, 246 Fed. 54, —— C. C. A. -), the writ will be dismissed, and the relator remanded to the military authorities.