vindicate infractions of its criminal law, it should not be said that Congress intended that that status should be superseded; and the courts ought to say, as I do in this case, that in view of the relations subsisting between the Federal and the State government, each recognizing the continued existence of the civil authority of the other, a person having this sort of a status under the State authority is not a person liable to be called. And the application for a writ will be denied.

17. U. S. v. FONTANA.

(District Court of the United States, District of North Dakota, 1918. Congressional Record, Oct. 3, 1918.)

Mr. Jones of Washington: Mr. President, it is not in the nature of a petition, but I have just had called to my attention a short statement entitled "A judicial definition of allegiance."

It is a statement made by Federal Judge Charles F. Amidon, of the United States District Court, District of North Dakota, in his decision sentencing Rev. J. Fontana who was convicted of violating the espionage law. This opinion is so clear, so concise a statement of what is due, not only from the citizen to his country but also what is due from the man who asks to be made a citizen, that I think it ought to be placed in the Record. I ask that it may be inserted in the Record. It is found in the Outlook of September 18, 1918.

There being no objection, the matter referred to was ordered to be printed in the Record, as follows:

"A Judicial Definition of 'Allegiance.'

"The Rev. J. Fontana, pastor of the German Evangelical Church, New Salem, N. Dak., was recently tried at Bismarck, in that State. He was charged with having uttered from time to time seditious language for the purpose of interfering with the military activities. of the Government. The presiding judge was Charles F. Amidon, of the United States District Court, District of North Dakota. The jury returned a verdict of guilty against Mr. Fontana on August 15. United States Attorney Hildreth moved for sentence on August 19. In passing sentence Judge Amidon said in part what follows. (The Editors.)

"You received your final papers as a citizen in 1898. By the oath which you then took you renounced and abjured all allegiance to Germany and to the Emperor of Germany, and swore that you would bear true faith and allegiance to the United States. What did that mean? That you would set about earnestly growing an American soul and put away your German soul. That is what your oath of allegiance meant. Have you done that? I do not think you have. You have cherished everything German, prayed German, read German, sung German. Every thought of your mind and every emotion of your heart through all these years has been German. Your body has been in America, but your life has been in Germany. If you were set down in Prussia to-day you would be in harmony with your envi

ronment.

It would fit you just as a flower fits the leaf and stem of the plant on which it grows. You have influenced others who have been under your ministry to do the same thing. You said you would cease to cherish your German soul. That meant that you would begin the study of American life and history; that you would open your mind and heart to all of its influences; that you would try to understand its ideals and purposes and love them; that you would try to build up inside of yourself a whole group of feelings for the United States the same as you felt toward the fatherland when you left Germany. There have been a good many Germans before me in the last month. It has been an impressive part of the trial. They have lived in this country, like yourself, 10, 20, 30, 40 years, and they had to give their evidence through an interpreter. And as I looked at them and tried as best I could to understand them, there was written all over every one of them, 'Made in Germany.' American life had not dimmed that mark in the least. It stood there as bright and fresh as the inscription upon a new coin. I do not blame you and these men alone. I blame myself. I blame my country. We urged you to come. We welcomed you; we gave you opportunity; we gave you land; we conferred upon you the diadem of American citizenship, and then we left you. We paid no attention to what you have been doing.

"And now the world war has thrown a searchlight upon our national life, and what have we discovered? We find all over these United States, in groups, little Germanies, little Italies, little Austrias, little Norways, little Russias. These foreign people have thrown a circle about themselves, and, instead of keeping the oath they took that they would try to grow American souls inside of them, they have studiously striven to exclude everything American and to cherish. everything foreign. A clever gentleman wrote a romance called America, the Melting Pot. It appealed to our vanity, and through all these years we have been seeing romance instead of fact. That is the awful truth. The figure of my country stands beside you to-day. It says to me: Do not blame this man alone. I am partly to blame. Punish him for his offense, but let him know that I see things in a new light; that a new era has come here. Punish him to teach him, and the like of him, and all those who have been misled by him and his like, that a change has come; that there must be an interpretation anew of the oath of allegiance. It has been in the past nothing but a formula of words. From this time on it must be translated into living characters incarnate in the life of every foreigner who has his dwelling-place in our midst. If they have been cherishing foreign history, foreign ideals, foreign loyalty, it must be stopped, and they must begin at once, all over again, to cherish American thought, American history, American ideals. That means something that is to be done in your daily life. It does not mean simply that you will not take up arms against the United States. It goes deeper far than that. It means that you will live for the United States, and that you will cherish and grow American souls inside of you. It means that you will take down from the walls of your homes the picture of the Kaiser and put up the picture of Washington; that you will take down the picture of Bismarck and hang up the picture of Lin

coln. It means that you will begin to sing American songs; that you will begin earnestly to study American history; that you will begin to open your lives through every avenue to the influence of American life. It means that you will begin first of all to learn English, the language of this country, so that there may be a door into your souls through which American life may enter.

"I am not so simple as to entertain the idea that racial habits and qualities can be put aside by the will in a day, in a year, in a generation; but because that is difficult is all the more reason why you should get about it and quit cherishing a foreign life. If half the effort had been put forth in these foreign communities to build up an American life in the hearts of these foreign-born citizens that has been put forth to perpetuate a foreign life, our situation would have been entirely different from what it is to-day. You have violated your oath of allegiance in this: You have cherished foreign ideals and tried to make them everlasting. That is the basic wrong of these thousands of little islands of foreigners that have been formed through our whole limits, that, instead of trying to remove the foreign life out of their souls and to build up an American life in them, they have striven studiously from year to year to stifle American life and to make foreignness perpetual. That is disloyalty. And the object, one of the big objects, of this serious proceeding in this court, and other like proceedings in other courts, is to give notice that that must be stopped.

"I have seen before my eyes another day of judgment. When we get through with this war and civil liberty is made safe once more upon this earth, there is going to be a day of judgment in these United States. Foreign-born citizens and the institutions which have cherished foreignness are going to be brought to the judgment bar of this Republic. That day of judgment looks more to me to-day like the great Day of Judgment than anything that I have thought of for many years. There is going to be a separation on that day of the sheep from the goats. Every institution that has been engaged in this business of making foreignness perpetual in the United States will have to change or cease. That is going to cut deep, but it is coming.

"I recognize the right of foreign-born citizens to hear their religion, if they can not understand it in English, spoken to them in the tongue that they can understand. If they have not yet acquired enough English to read, they are entitled to have a paper that shall speak to them the language that they can understand. I can not go further than that. And this is the capital thing that is going to be settled on that day of judgment, namely, that the right to those things is temporary, and it can not be enjoyed by anybody who is not willing to regard it as temporary and to set about earnestly making the time of that enjoyment as short as possible. That means a fundamental revision of these foreign churches. No freedom of the press will protect a perpetual foreign press in these United States. It won't protect any press or any church which, while it is trying to meet a temporary need, does not set itself earnestly about the business of making that temporary situation just as temporary as possible, and not making it, as has been true in the past, just as near per

petual as possible. Men who are not willing to do that will have to choose. If they prefer to cherish foreign ideals, they will have to go to their own. If it is necessary, we will cancel every certificate of citizenship in these United States. The Federal Government has power to deal with that subject, and it is going to deal with it. Nothing else than that surely can be possible. And the object of the sentence which I pronounce upon you to-day is not alone to punish you for the disloyalty of which you have been guilty, but to serve notice upon you, and the like of you, and all of the groups of people in this district who have been cherishing foreignness, that the end of that régime has come. It is a call to every one of you to set about earnestly the growing of an American soul inside of you.

"The court finds and adjudges that you are guilty under each count of the indictment, and as a punishment therefor it is further adjudged that you be imprisoned in the Federal penitentiary at Leavenworth for the term of three years. The sentences under the three counts of the indictment are to run concurrently and not successively."

D. JUDGE ADVOCATE GENERAL'S OPINIONS 1

(I) MISCELLANEOUS TOPICS

1. NATURALIZATION OF ALIEN DISCHARGED FROM NATIONAL GUARD

Mr. Howard I. Marshall, Buffalo, New York.

October 4, 1917.

Sir: I have the honor to reply to your inquiry. of September 20,

1917.

The question presented is whether or not an alien who has been honorably discharged from the National Guard, after having been actually in the service of the United States of America, is entitled to be naturalized on proof of one year's residence in the United States, under the provisions of section 2166 of the Revised Statutes of the United States. The Constitution of the United States, article 1, section 8, paragraphs 15 and 16, provides Congress shall have power

"15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

"16. 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, and the Authority of training the Militia according to the discipline prescribed by Congress."

Under paragraph 15, power is given to call the militia into the service of the United States only as therein enumerated, and it must follow that it must be within the United States.

Section 111 of the National Defense Act contemplated a necessity the using of the men comprising these forces for other purposes and provided that the President may draft into the military service of the United States any or all members of the National Guard. All previous laws in reference to military service of the National Guard provided for the call by the President of the organized militia. As thus constituted, the President had no power to appoint officers, that power being specifically reserved to the several States by the Constitution. Under the provisions of section 111 of the National Defense Act only the individuals were called, and after they were called the President alone was given power to officer new organizations by appointment of officers to the rank of colonel, and above that rank by appointment by and with the consent of the Senate.

A new oath was prescribed and the men were specifically discharged from the National Guard and stood subject to the laws and regulations governing the Army of the United States; for example, they could be subject to court-martial by army officers only, and not as before by

1 The Roman numerals and letters appended to the first catchword of the topical heading to each opinion refer to the Topical analysis used in the "Digest of Opinions of Judge Advocates General of the Army," Washington, 1912.