was had resulting in a verdict in favor of the plaintiff, this judgment was reversed by the Circuit Court of Appeals for the Third Circuit, and a writ of error was allowed from this court. The writ of error was dismissed as being within the rule which made the judgments of the Circuit Courts of Appeals final when the jurisdiction of the trial court depended entirely upon diversity of citizenship. Mr. Chief Justice Fuller, speaking for the court, in the course of the opinion reached the conclusion that the case was not to be treated as one commenced in the federal court by consent of the defendant under § 23 of the Bankruptcy Act. In concluding the discussion of the subject, the Chief Justice said: "Plaintiff brought his action in the state court, and its removal on the ground of diverse citizenship placed it in the Circuit Court as if it had been commenced there on that ground of jurisdiction, and not as if it had been commenced there by consent of defendant under section 23 of the bankruptcy act. The right to removal is absolute and cannot be trammeled by such a consequence." It may be conceded, for the sake of the argument, that the grounds of removal might have been amended by including in the petition the federal ground of action set up in the complaint, but no attempt at amendment was made, and the removal to the District Court of the United States was upon a petition resting solely on the ground of diverse citizenship. We are of opinion that it follows that the jurisdiction of the federal court was invoked solely on that ground, and that fact determines the right to a review in this court of the judgment of the United States Circuit Court of Appeals against the contention of the plaintiff in error. It follows that the writ of error must be dismissed. THE CHIEF JUSTICE dissents. Dismissed. Syllabus. 245 U.S. SELECTIVE DRAFT LAW CASES.1 ERROR TO THE DISTRICT COURTS OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA AND THE SOUTHERN DISTRICT, OF NEW YORK. Nos. 663, 664, 665, 666, 681, 769. Argued December 13, 14, 1917.-Decided January 7, 1918. The grant to Congress of power to raise and support armies, considered in conjunction with the grants of the powers to declare war, to make rules for the government and regulation of the land and naval forces, and to make laws necessary and proper for executing granted powers (Constitution, Art. I, §8), includes the power to compel military service, exercised by the Selective Draft Law of May 18, 1917, c. 15, 40 Stat. 76. This conclusion, obvious upon the face of the Constitution, is confirmed by an historical examination of the subject. The army power, combining the powers vested in the Congress and the States under the Confederation, embraces the complete military power of government, as is manifested not only by the grant made but by the express limitation of Art. I, § 10, prohibiting the States, without the consent of Congress, from keeping troops in time of peace or engaging in war. The militia power reserved to the States by the militia clause (Art. I, §8), while separate and distinct in its field, and while serving to diminish occasion for exercising the army power, is subject to be restricted in, or even deprived of, its area of operation through the army power, according to the extent to which Congress, in its discretion, finds necessity for calling the latter into play. The service which may be exacted of the citizen under the army power is not limited to the specific purposes for which Congress is 1 The docket titles of these cases are: Arver v. United States, No. 663, Grahl v. United States, No. 664, Otto Wangerin v. United States, No. 665, Walter Wangerin v. United States, No. 666, in error to the District Court of the United States for the District of Minnesota; Kramer v. United States, No. 681, Graubard v. United States, No. 769, in error to the District Court of the United States for the Southern District of New York. expressly authorized, by the militia clause, to call the militia; the presence in the Constitution of such express regulations affords no basis for an inference that the army power, when exerted, is not complete and dominant to the extent of its exertion. Compelled military service is neither repugnant to a free government nor in conflict with the constitutional guaranties of individual liberty. Indeed, it may not be doubted that the very conception of a just government and its duty to the citizen includes the duty of the citizen to render military service in case of need and the right of the government to compel it. The power of Congress to compel military service as in the Selective Draft Law, clearly sustained by the original Constitution, is even more manifest under the Fourteenth Amendment, which, as frequently has been pointed out, broadened the national scope of the government by causing citizenship of the United States to be paramount and dominant instead of being subordinate and derivative, thus operating generally upon the powers conferred by the Constitution. The constitutionality of the Selective Draft Law also is upheld against the following objections: (1) That by some of its administrative features it delegates federal power to state officials; (2) that it vests both legislative and judicial power in administrative officers; (3) that, by exempting ministers of religion and theological students under certain conditions and by relieving from strictly military service members of certain religious sects whose tenets deny the moral right to engage in war, it is repugnant to the First Amendment, as establishing or interfering with religion; and (4) that it creates involuntary servitude in violation of the Thirteenth Amendment. Affirmed. THE cases are stated in the opinion. Mr. T. E. Latimer, with whom Mr. Herbert L. Dunn and Mr. Frank Healy were on the briefs, for plaintiffs in error in Nos. 663, 664, 665 and 666. Mr. Harry Weinberger for plaintiff in error in No. 681. Mr. Edwin T. Taliferro, with whom Mr. I. M. Sackin was on the brief, for plaintiff in error in No. 769. Argument for the United States. 245 U.S. Mr. Hannis Taylor and Mr. Joseph E. Black, by leave of court, filed a brief as amici curiæ. Mr. Walter Nelles, by leave of court, filed a brief as amicus curiæ. The Solicitor General, with whom Mr. Robert Szold was on the brief, for the United States. These cases were argued and submitted together with Jones v. Perkins, infra, 390; Goldman v. United States, infra, 474; Kramer v. United States, infra, 478; and Ruthenberg v. United States, infra, 480. The briefs filed by the parties and amici curiæ opposed to the Government attack the constitutionality of the statute from every standpoint. As it is manifestly impracticable to restate these arguments separately, perhaps the best recourse available is to exhibit their leading features reflexly, by summarizing the answers to them contained in the single brief of the United States, viz: The highest duty of the citizen is to bear arms at the call of the nation. This duty is inherent in citizenship; without it and the correlative power of the State to compel its performance society could not be maintained. Vattel, Law of Nations, Book III, c. 2, §§ 8, 10. It is a contradiction in terms to say that the United States is a sovereign and yet lacks this power of self-defense. Hence, the power was expressly granted by the Constitution. Art. I, § 8. It is found in the power to declare war, which means a power to carry on war successfully, i. e., with the means necessary. Vattel, Book III, c. 2, §7; United States v. Sugar, 243 Fed. Rep. 423, 436; Kneedler v. Lane, 45 Pa. St. 238. Also in the power to raise and support armies, which is conferred broadly, and without limitation, other than the restriction that appropriations to support armies shall not exceed two years. There is no provision 366. Argument for the United States. On the limiting the means to voluntary enlistment. contrary, Congress is expressly empowered to use all means necessary and proper to carry out the express grant. Hence, the power to resort either to voluntary enlistment or to enforced draft is express. Selective draft is not only an appropriate means but under the conditions of modern warfare the most prudent, just, and equitable method which can be employed. That the power to compel military service is an incident of sovereignty appears from the custom of nations. Compulsory service is now exacted by practically all the nations of the globe. The compulsory draft was a normal method of raising armies in the United States in 1787 when the Constitution was adopted. It was expressly, recognized in many state constitutions, was enforced by the States for local purposes in calling out the militia, and also for obtaining levies to fill the ranks of the Continental Army. The constitutions of five States during the Revolutionary War period express the principle of universal military service. Militia duty was imposed upon all arms-bearing citizens of the original thirteen States during the eighteenth century. The Continental Congress recommended it to the States as a means of recruiting the Continental Army; and the numerous statutes enacted pursuant to those recommendations [space will not permit of their citation here] conclusively determine the meaning which the framers of the Constitution attached to the power to raise armies. The history of this clause in the Convention shows a definite intent not to limit the nation to voluntary enlistments. Supp. Elliot's Debates, vol. 5, pp. 378, 379, 443, 510, 511, 553; Farrand's Records of the Federal Convention, vol. 2, pp. 323, 330, 505, 509, 570, 595. Several of the States, in ratifying the Constitution, proposed amendments to limit the power of Congress to raise armies by draft, Journals of Congress, vol. 13, appendix, pp. 176, 184, Folwell's Press, 1801; |