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 I 
 
 VI 
 
 MILITARY SERVICE 
 
 AN ADDRESS 
 
 DELIVERED 
 
 BEFORE THE YOUNG MEN'S CHRISTIAN ASSOCIATION 
 OF HONOLULU, HAWAII, ON JANUARY 7, 1916 
 RELATIVE TO THE LEGAL OBLIGA- 
 TION OF THE CITIZEN 
 
 BY 
 
 HON, SANFORD B. DOLE 
 
 PRESENTED BY MR. WARREN 
 March 14, 1916. — Ordered to be printed 
 
 WASHINGTON 
 GOVKRNMliNT PRINTING OFKICK 
 
 1916 
 

 D. of D. 
 MAR 28 I9I6 
 
MILITARY SERVICE. 
 
 AN ADDRESS DELIVERED BEFORE THE Y. M. C. A. OF HONOLULU. HAWAII. JANUARY 7, 1916. 
 
 By HON. SANFORD B. DOLE. 
 
 Let me, in opening this subject, quote briefly from the Constitution 
 and Statutes of the United States. 
 
 CONSTITUTION. 
 
 Article 1. Sec. 8. The Congress shall have power to * * * provide for the 
 common defense; * * * to raise and support armies; * * * to provide and 
 maintain a navy; * * * to make rules for the Government and regulation of the 
 land and naval forces; to provide for calling forth the militia to execute the laws of 
 the Union, suppress insurrections, and repel invasions; to provide for organizing, 
 arming, and disciplining the militia, and for governing such part of them as may 
 be employed in the service of the United States; reserving to the States respectively 
 the appointment of the officers anl the authority of training the militia according to 
 the discipline prescribed by Congress. 
 
 Art. 2 of amendments. A well regulated militia being necessary to the security 
 of a free state, the right of the people to keep and bear arms shall not be infringed. 
 
 Art. 3 of amendments. No soldier shall in time of peace be quartered in any 
 house without the consent of the owner, nor in time of war but in a manner to be pre- 
 scribed by law. 
 
 REVISED ST.\TUTES. 
 
 Sec. 1(j25. Every able-bodied male citizen of tlxe respective States, resident therein, 
 who is of the age of eighteen years, and under the age of forty-five years shall be en- 
 rolled in the militia. 
 
 Sec 1642. WTienever the United States are invaded, or are in imminent danger of 
 invasion from any foreign nation or Indian tribe, or of rebellion against the authority 
 of the Government of the United States, it shall be lawful for the President tn call 
 forth such number of the militia of the State or States most convenient to the place 
 of danger or scene of action, as he may deem necessary to repel such invasion or 
 to suppress such rebellion and to issue his orders for that purpose to such officers 
 of the militia as he may think proper. 
 
 Sec. 1644. The militia, when called into the actual service of the United States 
 for the suppression of rebellion against and resistance to the laws of the United States, 
 ehall be subject to the same rules and articles of war as the regular troops of the United 
 States. 
 
 Let me quote further from Secretary Garrison's recent report to 
 the President upon the necessity of increasing the national miUtary 
 power for the resistance of possible attacks from other nations: 
 
 The necessity of a nation having force commensurate with its responsibility is 
 demonstrated by every correct process of reasoning founded upon fact. This is so 
 whether the subject is considered in the light of the philosophy of government or of 
 history. The use of force is the inherent essence of government. The very term itself 
 is explicit — government — the right or power to compel obedience to law. When 
 there is no force to compel such obedience — that is, to govern — there is anarchy. 
 Individuals give up the right of unregulated action when they form themselves into 
 or become subject to a government. The progress and advancement of that which 
 is summed up in the word 'civilization" have been made possible solely because of 
 government. Unless the individual is secure in his person and his property, he has 
 
4 MITJTARY SF.HVUK. 
 
 neither time nor inclination to devote himself to the cultivatimi of the mental, moral, 
 or spiiitual side of his nature. That security is assured to him by government, and 
 goverinnent can only meet its responsibility of assurance by the possession of suffi- 
 cient force to secure and preserve it. 
 
 The coiistitutioiial grant of power to Coiigre.>s to jnovide for the 
 coniiiioii defence and to rai^e and nuiintani armies and provide a 
 navy therefor was a matter of course. This inherent power of the 
 State in the matter of the common defense had to be in the hands 
 of some division of tiie Government, and what so obviously appro- 
 priate for its exercise in a republican Government as its legislative 
 authority ? 
 
 After this constitutional recognition of tlie riglil and duty of the 
 State to provide for the common defense, the most important legis- 
 lation bearing on the subject is to be found in section 1625 of the 
 Revised Statutes of the IJrrited vStntes, quoted above, })ut wdiich I 
 will repeat : 
 
 Every able-bodied male citizen of the respective States, resident therein, who is 
 of the age of eighteen years, and under the age of forty-five years, shall be eni'olled 
 •in the ndlitia. 
 
 •, Giverr the right and duty of national self-defense, upon W'hom does 
 the burden fall '^ I pon a class of citizens, those, for instance, wdro may 
 he w^age earners, those who may be un{)rofessional men, the bachelors, 
 .perhaps. This is a republicarr government, founded upon the 
 equality of its citizens in rights and privileges. No aristocracy in the 
 ordinary meanirrg of the word is possible wdthin its boundaries; there 
 is no privileged class; the law^s recognize rrone. The words "every 
 able-bodied rrrale citizen" are simple and clear; they need rro con- 
 struction. No exception to them can be devised which would be 
 legal. The able-bodied m.nii betweeir 18 and 45 years of age is pro- 
 claimed ])y this statute to be one of the defenders of the United States, 
 ;and this regardless of his status as to material prosperity, as to busi- 
 ness engagements, as to professiorral duties. He niay be a busy 
 sirrgeon, a distinguished lawyer, a clergyman, a mechanic, a day 
 laboier baiely supporting his family by his wages, a luxurious bil- 
 lionaire with his motor cars, his army of servants, Iris city and country 
 houses and estates, it nrakes no difference; one and all, they are the 
 rank and file of the army of defense, w^hich, or any part of which, 
 could l)e called into service by the President at any time when 
 threatened invasion or insurrection justified such action. The law 
 provided for no excuses. A citizen who w^^s sick, referring to chronic 
 ailments, was not excused; he had simply ceased to be able-bodied, 
 and so was not w'ithin the law\ The official was already at work 
 serving the country and might be regarded in war time as essential 
 to the efficiency of the army. The same thing may be said of an 
 occasional physician or surgeorr, whose juiblic service at home might 
 be more imj^ortant than his presence in the army — serving the public 
 as a physician being akin to serving the State. Wealth conferred no 
 privileges uirder this law; the rich man could not buy his release from 
 military service as a member of the militia, and he could be punished 
 for refusing to respond to the call of the President (sec. 1649 of the 
 Revised Statutes). 
 
 During the Civil War it beca.me necessary to put this statute in 
 forc(\ and a new act was passed in 1863 which affirmed the earlier 
 law in lite main but carried it further in its application, making it 
 
MILITARY SERVICE. 5 
 
 include, in addition to able-bodied citizens, snch able-bodied for- 
 eigners who have declared on oath their intention to become citizens, 
 and the age limit was changed to include those between the ages of 
 20 and 45, instead of 18 and 45, as before. 
 
 Some exceptions to liability for service were made, which were: 
 
 The Vice President of the United States, the heads of the various 
 executive departments of the Government, and the governors of the 
 several States; the only son liable to military duty of a widow depend- 
 ent upon his labor for support; the only son of aged or infir.'n parent 
 or parents dependent upon his labor for support. Wliere there are 
 two or n^t.ore sons of aged or infirjn parents subject to draft, the 
 father, or, if he be dead, the mother, may elect which son shall be 
 exempt; the only brother of children not 12 years old, having neither 
 lather nor mother dej^endent upon his h.hor for support; the father 
 of motherless childrtni under 12 years of age dependent upon his 
 labor for support. Where tliere are father and sons in the same 
 family and hous(>hold. and two of them are in the military service 
 of the United States as noncom.missioned officers, musicians, or 
 privates, tlie residue of sueli family and houseliold, not exceeding 
 two, shad be exempt. 
 
 The enrollment Wivs made by officers whose duty it was to m.ake 
 lists of all persons subject to military duty. As men wc^re needed 
 for the Army, the enrolling officers were required to draft from such 
 lists of names, probably by lot, the required nuraber according to the 
 order of the President for each enrolling disti'ict. The men so 
 drawn were to be notified thereof, within 10 days, to appear at a 
 designated rendezvous to report for duty. 
 
 The incUviduals so drafted were allowed to furnish substitutes, 
 the acceptance of whom by the military authorities exempted those 
 furnishing them. Those also who paid $300 for procuring a substi- 
 tute were exempted. 
 
 This statute was furth<^r revised in 1S64-65, but the main principle 
 remained untouched — the authority of the Government to require 
 military service from aU of its able-bodied male citizens, with excep- 
 tions as to officials and those foreigners who have taken the ffi'st step 
 toward becoming citizens. The new legislation msuie some restric- 
 tions on the exemption granted to those who furnished substitutes,' 
 limiting their exemptions from liability to military service to the 
 period of enlistment of their respective substitutes. 
 
 This American legislation, recogiizing the liability of able-bodied 
 male citizens to serve the country as soldiers wlieriever necessity 
 required, and providing methods for compelling such service, wiis no 
 new thing in history. The principle and practice came to us direct 
 from the mother country, where for many centuries it has been 
 recogiuzed and curried out in the conduct of public affairs. 
 
 The development of the principle of universal service in time of stress is interesting, 
 and, whatever changes may have taken place in details, the continuity of the principle 
 is persistent. The landfyrd was the ancient militia of the shires, settled by the body 
 that had its origin in the folk-moot or village meeting of free men, whose representa- 
 tives attended the meeting of the mark, the gemot of the shire, or the witanageraot 
 of assembly of the wise men of the tribe, division, or kingdom. These communitiea 
 were ruled by leaders elected by the people. The body so elected was charged with 
 the duty of protecting the community, for which purpose they were invested with the 
 power to compel the attendance of every man in the defense of the coxmtry. (Com- 
 pulsory Service. Blake, Nineteenth Century, October, 1915, p. 80c).) 
 
6 MILITARY SERVICE. 
 
 It is obvious that the right ol a government to exact military 
 service from its able-bodied men for purposes of defense from out- 
 ward attack and internal dis ift'ection is inherent to the maintenance 
 of civil government under world conditions as they now exist and 
 have existed ever since the development of governments. But it has 
 not always l)een reg; rded as necessary to use this power. The 
 patriotism of some national popuh^tions has been sufficient in many 
 cases for the pul^lic ]u-otection. With a small standing army as a 
 nucleus for the development of a larger army through the addition 
 of volunteers actuated b}^ patriotism, very considerable nations have 
 felt secure. The weakness of such a situation was shown in the 
 United States when, after conducting the war against the Confeder- 
 ate States for a consideraljle period, by its small Regular Army and 
 its large force of Volunteers, it beeime necessary to resort to the 
 draft. A somewhat simdar dilllculty is now confronting kngland in 
 the present 1' uropean war, in whi( h the necessity of compelling mili- 
 tary service is apjnirent slioidd the duration of the war l^e greatly 
 extended. Smh governments are handicapped in case of war, re- 
 quiring large reinforcemtuits to their standing armies, inasmuch as 
 volunteers usunlly rcxjuire mditary training for months before they 
 can be trusted to meet veteran troops, and even then they are at 
 some dii'.advant; ge i s compared with those who have hf-d the benefit 
 of severe and long-continued experience in cam]) and on the held. 
 
 It may l)e said in favor of compulsory service that it is fair; whereas 
 the system of voluntary enlistment ]ilaces the burden of fighting 
 upon that iine element of citizenship that stands ready at tlu^ call of 
 daiiger to }>r(miptly respond. After making «lue allowance for the 
 proha])ly correct diagnosis that this res]X)nse is largely from young 
 men and is due ]iartly to the exuberant impetuosity of youth as well 
 as to [)atriotism, it yet is true that tlii.^ element largely represents 
 the nation's manhood at its best; and it follows that such a system 
 tends, through the fatalities of war, to reduce, undidy and dis]-)ro]ior- 
 tionately, this mor.t valuable a^sset of the l)ody politic. 
 
 If it is tlie inhere nt right of governments to compel military service, 
 it follows that it is the duty of the citizen to respond cheerfully to the 
 demand. It is not only his duty but it is his privilege; a privilege 
 from which those unfortunate persons who have been convicted of a 
 felony are excluded by statute in the United States, and it follows 
 further that, with this vast power over the freedom of the citizens, 
 the responsibihty is upon the government to see to it that the citizen 
 shall not be calked out to exercise the duties of a soldier in any cause 
 that is not a just and honorable one. Congress is given the power by 
 the Constitution to raise armies and provide navies for the common 
 defense from invasion from without and insurrections from withm. 
 It is also given the "power * * * to declare war," and from 
 this brief sentence the Supreme Court of the UnitcKl States has 
 announced in its dc^cision in the case of the American Insurance Co. 
 V. Canter (26 U. S., 388, 411), that "the Constitution e-.onfers abso- 
 lutely on the Government of the Union, the power of making war 
 and of making treaties; consequently that Government possesses the 
 power of accpiiring territory, either by conquest or by treaty." 
 
 Inasmuch as that case was concerned with the rights of property 
 under the new territorial government of Florida, which hael just been 
 peacefully ceded to the United vStates under a treaty of sale and 
 
MILITARY SEKVICE. 7 
 
 purchase, the dedaration that the Government of the United States 
 possesses the power of acquiring territory by conqu(^st, may be set 
 aside as an obiter dictum, that is an opinion of a judge expressed 
 by the way or in passing, and not upon the point in question before 
 him. If we may construe those words, "power to dechire war," by 
 the context, we find that they are preceded by the words, "provide 
 for the common defense," and immediately followed by the provi- 
 sions granting powers "to raise armies" and "provide * * * a 
 navy," and make rules for the government of the land and naval 
 forces and calling out the militia, for what? Not for wars of con- 
 quest, but "to execute the laws of the Union, suppress insurrections, 
 and repel invasions." Does not the context limit the power to 
 declare war to such circumstances that make war necessary to execute 
 the laws of the Union, suppress insurrections, and repel invasions, 
 and to those alone ? 
 
 These references are all to be found in the eighth section of Article 
 I of the Constitution and are included in a single paragraph. I find 
 no authority in the Constitution giving to Congress or to any other 
 division of the United States Government power to inaugurate a war 
 of conquest; and the only justification for an invasion of the territory 
 of a foreign power which can arise is when such invasion becomes 
 necessary pending a war of defense against such power, as a strategic 
 operation for the defense and safety of the United States. 
 
 It has been necessary for me thus to discuss the authority of the 
 United States in the matter of levying war in order to deal more 
 clearly with the obligations of the citizen when called upon by the 
 Government of the United States to assume the duties of a soldier 
 in actual war. We hear now and then the expression confidently 
 and patriotically uttered, "My country, right or wrong." If this is 
 intended to mean that a citizen should indorse and support any 
 measure or policy of his government which may be founded upon 
 miju?t or vicious principles, as, for instance, one inaugurating a war 
 of conquest pure and simple, then the adage is radically and ethically 
 defective, and no citizen is bound to respond to it. In the forum of 
 conscience there exists a jurisdiction that is paramount to all other 
 authorities, and no one need listen to the voice which would call 
 upon Inm to be disloyal to its sanctions. 
 
 The Government of the United States is republican in its system 
 and democratic in its spirit. Its foundation principles are ideal. It 
 was a step in advance of all precedents. Let us read the preamble 
 to its Constitution: 
 
 We the people of the United States, in order to form a more perfect union, estab- 
 lish justice, insure domestic tranquility, provide for the common defense, promote 
 the general welfare, and s?cure the bl3S3in<?s of liberty to oursalves and our posterity, 
 do ordain and establish 1-his Constitution for the United States of America. 
 
 We do not find here a word of jealousy of other nations, not a word 
 of hostility to other governments; there are no phrases which by any 
 possibility can be found to conceal an inclination for conquest or in- 
 terference in the private affairs of other communities. The United 
 States is organized for the common good of its citizens ; it is Uterally 
 a commonwealth. The blessings of freedom and security which it 
 provides, logically makes clear the duty of tlie citizen to support it 
 m its enterpi-ises'for the maintenance of such blessings. 
 
8 MILITARY SERVICE. 
 
 This conclusion raises incidentally the ditticult question as to the 
 reasonable treatment of Quakers and others to whom the doctrine of 
 nonresistance is regarded as a moral prirsciple to be observed at all 
 costs. The~e people have made the Government of the United States 
 considerable trouble at one time and another from their refusal to 
 perform their share of the hazardous work of supporting their Gov- 
 ernment as soldiers. My impression is that this sentiment is dying 
 out. Let us hope tliat this is the case for their own credit, for surely 
 it is a thing to be taken for granted that those men who are imbued 
 with the principles of good citizenship would be unwilling to accept 
 and enjoy the great assets of freedom and security which have been 
 gained through great personal sacrifices ol others, and then stand 
 aside when these assets are assailed and leave it to others to defend 
 and protect them at their personal risk. Probablv the trouble with 
 these people is that they have made the mistake of adopting the idea 
 of nonresistance as a moral principle instead of making it a rule of 
 practice as a policy, which it really is; for certainly there are or might 
 be occasions when one wlio has conscientiously adopted the doctrine 
 of nonresistance would, if there was the average manhood in his 
 make-up, throw the theory of nonresistance to the winds, and assert 
 his real self; and would be morally justified in so doing. 
 
 If these conclusions are correct, it follows that the practice of 
 nonresistance as a moral principle is defective and that no citizen 
 has the right to say that he will enjoy the protection of his govern- 
 ment, but will decline to aid that government in the maintenance 
 of its sway. The relation between a government and its citiziais is a 
 contract, and th(^ refusal of a citizen to perform the obvious duties 
 on his side is a breach of contract and should tend to weaken the 
 force of the obligations of the government toward such citizen. 
 There is an exception, however, made to the rule of universal obliga- 
 tion on the part of citizens to respond to the call of the Government 
 to military service; and this is to be found in the proviso sot forth in 
 section 2 of an act of Congress api)rove<l January 21, 1903 (32 Stat., 
 775), which is as follows: 
 
 Provkkd, That nothing in this act shall be construed to require or compel any 
 member of any well-recognized religious sect or organization at present organized and 
 existing whose creed forbids its members to particij ate in war in any form, and whose 
 religious convictions are against war or particij ation therein, in accordance with the 
 creed of said religious organization, to serve in the militia or any other armed or vol- 
 unteer force under the jurisdiction and authority of the United States. 
 
 This provision only exempts meml)ers of (existing religious organi- 
 zations, whose creed and religious convictions are opposed to the 
 participation in war by their members, from serving in the militia. 
 It does not recognize the right of any citizen who is not a member 
 of such an organization to refuse service on the ground of con- 
 scientious scruples against war. Nor does it recognize the right of 
 exiiinption by the meml)ers of any religious organization opposed to 
 war, which may l)e organized at any time aftcn- the passage of the said 
 statute. This proviso is evidently a piece of thoughtless and good- 
 natured legishition — a concession to certain religious ideas wliich are 
 exceptional to the prevalent religious sentiment of the nation. 
 
 If such a concession is justifiable it should have been carried out 
 to the logical conclusion, which surely is that the men whose principles 
 will not allow them to tight for the sui)])ort of their government, are 
 
MJLITAKY SERVICE. 9 
 
 defective as citizens and sliould be so recognized by being deprived 
 of the franchise, or some ec[nally important element of public service, 
 or privilege of citizenship. 
 
 To prevent confusion as to the rights of the citizen wIk^i called 
 to arms for national defense, and when called to arms for a war of 
 conquest pure and simple, let me repeat briefly the standpoint of 
 the citizen as affectc^l by these two widely different demands from 
 his govei-nment. 
 
 In the one cas?, the call to arms foi- national defense: This is a call 
 to duty of the highest character which all able-bodied, intelligent, 
 normal, and patriotic citizens should respond to as a matter of 
 course. If they do not, from religious scruples, which is their right, 
 or from any other reason, they are not entitled to all the rights, 
 powers, and privileges of citizenship. The call to aims for a war of 
 conquest: As there is no provision in the (Constitution authorizing 
 such a war, the United States Government has no authority for 
 compehing military service therefor; consequently the citizen is 
 justiiied in refusing to serve in such a war, should the demand bo 
 made upon him. 
 
 o 
 
1 TRRARY OF CONGRESS 
 
 Hi