1. THE ORIGIN AND PURPOSE OF THE POWER TO SEIZE AND POSSIBLY CONFISCATE ENEMY PROPERTY IN TIME OF WAR.

The right to confiscate property of enemy subjects in time of war is as old as war itself. It rests in the last analysis on power. The savage spares neither the right of the property nor the life of his enemies. Even the Old Testament records the history of wars waged almost without mercy. Joshua in supposed obedience to divine command smote his enemies with the sword and destroyed their property as a thing accursed. But even before the time of Christ the human impulse toward mercy slowly asserted itself. Nebuchadnezzar plundered and destroyed Jerusalem, but, generally speaking, spared the lives of the conquered, whom he deported to Babylon. Alexander the Great respected the lives and to a considerable extent the property of the conquered Persians. When Rome conquered Italy she consolidated her power by the humane terms which she accorded. It is true that her deadly enemy, Carthage, was ultimately destroyed without mercy. In other wars Rome often permitted plunder (as in the case of Greece) immediately after victory. Yet the Roman policy, especially in the time of the Empire, tended more and more toward political subjection without general confiscation.

The barbarian invasions, which finally overthrew the Roman Empire, marked a setback of this more humane policy. The vandals have passed into a byword because of their wanton destruction, both of life and property. Attila and his huns set a precedent of savage warfare. Yet the humane tendency reasserted itself anew. In the middle ages a captured enemy was usually spared and admitted to ransom. In early days systematic pillage gradually fell into disrepute, though the custom of private plunder was slower to yield. In this respect different nations advanced with varying degrees of rapidity. The wars of conquest waged by Spain in Europe and in the New World were consistently rapacious and cruel. The horrors of the Thirty Years' War in Germany blot one of the darkest pages of history, yet the long wars between England and France were by no means marked by ferocity even when tried by modern standards. The same is true of the wars waged by Louis XIV; while the Napoleonic wars may fairly be said (with occasional exceptions) to have been fought according to the modern laws of war. More and more civilized nations (this term does not, of course, include the present Germany) have advanced to the conception that even in war noncombatant private property on land is to be spared so far as national exigency and public policy will permit.

To the everlasting glory of the United States no nation has, I think, taken a more advanced and humane position than this country. It is true that the war powers conferred by the Constitution authorize the confiscation of enemy property within our borders in time of war.

Brown v. United States, 8 Cranch, 110.

Miller v. United States, 11 Wall., 268.

But a mere declaration of war does not ipso facto subject such property to confiscation by the fiat of the Executive; it merely authorizes Congress to provide for such confiscation by statute. Thus in Brown v. United States, 8 Cranch, 110, the question was whether a declaration of war authorized a proceeding to seize and forfeit enemy property on land in the absence of any statute authorizing such confiscation. The Supreme Court held that it did not, saying by Chief Justice Marshall, at page 129: "It appears to the court that the power of confiscating enemy property is in the legislature * * *. It is therefore a fundamental principle laid down by our Constitution that even in time of war enemy property within our borders is not to be forfeite save by some statute duly enacted by Congress. Yet even the undoubted power of Congress in time of war to provide for the confiscation of enemy property by statute has generally been further limited by reasons of policy and the dictates of humanity. Even conquest has been held not to work confiscation of the property of the conquered. As was said by Chief Justice Marshall, in United States v. Percheman (7 Pet. 71, 86):

"It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and to assume dominion over the country. The modern usage of nations, which has become law would be violated; that sense of justice and right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled.” 178028-20-3

The American policy has been to spare private property which is not of military value to the enemy, unless some military or political necessity specially requires its seizure as a war measure. For example, debts due from our own citizens to enemy creditors are suspended during the period of the war, but are not confiscated. Thus, in Brown v. United States, 8 Branch, 110. Chief Justice Marshall said, at page 123:

"The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war was not an absolute confiscation of this property, but simply confers the right of confiscation." So also in Hanger . Abbott, 6 Wall., 531, the court said, by Mr. Justice Clifford, at page 536:

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"In former times the right to confiscate debts was admitted as an knowledged doctrine of the law of nations, and in strictness may still be said to exist, but it may well be considered as a naked and unpolitic right, condemned by the enlightened conscience and judgment of modern times."

The reason for this view is stated by Mr. Justice Clifford at the bottom of the same page (536):

"We suspend the right of the enemy to debts which our traders owe him, but we do not annul the right. We preclude him * * * during war from suing to recover his due, for we do not send treasure abroad for the direct supply of our enemies in their attempt to destroy us, but with the return of peace we return the right and the remedy."

Another exception based on principles of humanity is declared in The Paquete Habana, 175 United States 677, which held that under international law enemy fishing vessels are exempt from capture and condemnation if they are unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish. The exemption, of course, yields to special necessities of war, for, as Mr. Justice Gray said in that case at page 708:

"The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way."

In view of the far greater severity of the rules of international law in regard to seizure and condemnation of private property at sea, as compared with seizure and confiscation on land, this case is a very striking example of the humane doctrine that where the hardship to individuals is great and the effect of seizure and confiscation upon the outcome of the war is negligible. enemy private property should not be forfeited simply because it is enemy property, unless it is actually being devoted to a hostile purpose or military or naval operations create some special necessity in the particular case.

This liberal policy was developed and crystallized by the statutes and decisions at the time of the Civil War. These decisions and statutes are of great significance as showing the moderation with which our country exercises the undoubted right of seizure and confiscation of private property on land in time of war. They related to a war fought in our own country between citizens of that country to determine a fundamental constitutional question as to which the arguments were by no means all upon one side. As the temporary hatred which at times arises between brother and brother is often all the deeper because of the love which has previously existed between them, so the temporary passions engendered by civil war are fiercer than the passions born of a war between nations. Those passions have long since passed away. Lincoln and Lee are revered both in the North and the South. In the late World War North and South alike sprang to the defense of the Stars and Stripes and served with equal fidelity and devotion. We are, thank God, a united country. Yet, if in that time of national travail, when our national existence itself was immediately at stake, this Government did not resort to a policy of universal confiscation for purposes of gain, that moderation in the exercise of an undoubted right furnishes a precedent which may well be considered in determining what treatment shall be accorded to the daughters of our own land, who, before the war, was even dreamed of, married subjects of Germany or Austria. The so-called confiscation acts of August 6, 1861 and July 17, 1862, may be considered together. The act of August 6, 1861, provided in substance that if any person should employ any property in aiding or promoting the insurrec tion, or should consent to such use, such property should "be lawful subject of prize and capture wherever found." The act of July 17, 1862, in substance declared that all the estate and property of persons in rebellion, who

did not after 60 days' public warning return to their allegiance should be liable to seizure and condemnation by judicial proceedings. But both these acts were passed to aid the successful prosecution of the war and not for purposes of gain. Thus in Miller v. United States, 11 Wall. 268, the Supreme Court in holding that both statutes were a constitutional exertion of the war power, said by Mr. Justice Swayne at page 306:

"War existing, the United States were invested with belligerent rights in addition to the sovereign powers previously held. Congress then had full power to provide for the seizure and confiscation of any property which the enemy or adherents of the enemy could use for the purpose of maintaining the war against the Government."

Taking the decisions together, however, it is plain that the primary purpose of the so-called confiscation acts was to further the successful prosecution of the war by deterring voluntary aid to the seceding States.

A series of amnesty and pardon proclamations issued between March, 1864, and September, 1867, relieved large classes of persons who had actually aided in the insurrection from the operation of the act upon taking an oath thereafter to support the Constitution. Finally on December 25, 1868, a full pardon, without exception, unconditionally and without reservation was granted to all who had participated in the rebellion, with restoration of rights of property except as to slaves. No oath was required.

In other words the Government, instead of prosecuting its undoubted rights of confiscation for purposes of gain, released those rights, even as against those who had actually fought against it.

II. THE SCOPE AND PURPOSE OF THE ACT OF OCTOBER 6, 1917.

The act of October 6, 1917, entitled "An act to define, regulate, and punish trading with the enemy, and for other purposes was adopted as a war measure and is an exertion of the war powers conferred upon Congress by the Constitution. War had been declared on Germany on April 6, 1917. Our experience during the preceding two years had created a firm belief that both Germany and Austria had placed large amounts of property in this country to be used in prosecuting the war in which they were then engaged. Even while we were nominally at peace with those nations official and unofficial agents of both Governments had not hesitated to use every legal and illegal means at their disposal to hinder the production and transmission of goods to France and England. In this connection it is only necessary to refer to the submarine campaign which resulted in such outrages as the sinking of the Lusitania and the Sussex; the attempt of Robert Scholz to attach infernal machines, designed to explode at sea, to outgoing vessels; the attempt by Werner Horn to destroy the Grand Trunk bridge into Canada; the attempt of Ambassador Dumbar to foment strikes in munition plants; and the Wolf von Igel disclosures. There was no reason to doubt that when we entered the war the injury which would be inflicted upon us would be in direct proportion to their German and Austrian resources available in this country and the opportunity to use them. A primary purpose of the act of October 6, 1917, was to deprive Austria and Germany of these resources and to make these resources available so far as they had military value for our own prosecution of the war.

It is unnecessary to consider the provision of the act of October 6, 1917, in detail. Broadly speaking it authorized the seizure and sequestration of all property in this country directly or indirectly owned by subjects of or residents in any country with which the United States was at war, and of the allies of such country and of territory occupied by the military powers of such country. In other words it authorized the seizure and sequestration of all property in this country directly or indirectly owned by subjects of or residents in Germany, Austria, Turkey, Bulgaria, and even in Luxemburg and such portions of Serbia, Montenegro, Roumania, and even Russia as were occupied by the German or Austrian military forces. The manifest purpose of so broad an enactment was to insure that no enemy property which might be used to injure this country should by any device be left in a situation where it might be so used.

It is, however, significant that the act of October 6, 1917. did not provide for the confiscation of the property which it subjected to seizure. On the contrary section 12, provides in part: "After the end of the war any claim of any enemy or of an ally of an enemy to any money or other property received and

held by the Alien Property Custodian or deposited in the United States Treasury shall be settled as Congress shall direct."

It is evident therefore that Congress considered that the national emergency would be sufficiently met by seizure without confiscation, leaving the ultimate disposition of the property to be later determined as Congress should provide. In this respect there is a close resemblance to the captured and abandoned property act of March 12, 1863, to which reference has already been made. The act has fully served its primary purpose. The Alien Property Custodian has seized enemy property of German and Austrian ownership which he estimates to be worth $700,000,000. (Report, p. 9.) This property has been placed in 32,296 trusts. Actual valuations already made show a value of over $502.000,000 with some 9,000 cases still to be valued, which as before stated are expected to swell the total to $700,000,000. In regard to this seizure the Alien

Property Custodian says on page 13 of his report:

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"The legislative intent was plainly that all enemy property, concealed as well as disclosed, should be placed entirely beyond the control or influences of its former owners where it can not eventually yield aid and comfort to the enemy, directly or indirectly Property in his (the Alien Property Custodian's) hands is in custodia legis in a large sense and the Government can be relied upon at the conclusion of the war to make adequate provisions for the just disposition nd distribution of all this property."

The Alien Property Custodian makes a most significant division of the property seized into two classes, one friendly and one hostile. Thus he says at pages 13 and 14 of his report:

"The enemy investments in America divide themselves into two classes. In the first are the private investments of individual German subjects who, attracted by the possibilities in America, invested their funds in a small way in this country in real estate, in mortgages, and in securities chiefly of industrial and transportation companies. In the second class are the investments which have been made by combined capital in Germany having close ffiliations with the great political and financial powers of the Empire. These latter investments sought dominance and frequently secured control of great industrial establishments of the United States. It seemed to me from the beginning that these two classes of property should be treated differently when they came into the possession of the Alien Property Custodian. Speaking in a general way investments in the first class were friendly. As to them the Alien Property Custodian is constituted a sort of trustee or guardian to see that they are conserved and protected as against the time when the treaty of peace or the act of Congress shall make final disposition of them in kind. Investments in the second class were in a sense hostile. They constituted Germany's great industrial army on American soil. In many cases the factories, warehouses, and offices of these enemy-owned concerns were spy centers before America entered the World War, and would have been nests of sedition if the Alien Property Cutodian had not acted promptly in their seizure. As to these no obligation is owed to their private owners to conserve or care for them with a view of ever returning them in kind. The purpose of Germany in maintaining many of them here was such as to justify their complete eradication as German enterprises and their thorough nationalization into an American character."

The trading with the enemy act as originally passed contained but limited powers of sale. (Report, p. 14.) It made the Alien Property Custodian little more than a conservator. But where investigation demonstrated the existence of this great group of hostile industrial investments, fitly called by the Alien Property Custodian "the German industrial army on American soil," Congress passed an amendment giving to the Alien Property Custodian a general power of sale, intended to destroy this army forever (report, p. 15). In the case of hostile investments this power has been exercised to the full. The chemical, metal, magneto, textile, and numerous other industries have been by sale purged of the German character and thoroughly Americanized. In this way resources valuable for the prosecution of the war were rendered availablesuch as magnetos, cloth, acids, dyes, medicines, and surgical supplies (report, p. 10). The Alien Property Custodian well suggests that the proceeds of these sales constitute a fund which seems ample to pay the claims of our own citizens for losses inflicted by Germany. (Report, p. 18.)

It thus appears that the trading with the enemy act of October 6, 1917, and amendments thereof had in this aspect a fourfold purpose:

First and most important, it provided for the seizure (but not the confisca tion) of enemy property in order to prevent any use of it to aid Germany in the prosecution of the war.

Second, by sale of hostile investments it provided for the destruction of the German industrial army on American soil, and thereby ended the German threat to our national economic and industrial prosperity.

Third, it made possible the use of the German industrial army against Germany herself..

III.—THE PROPOSED BILL FOR THE RELIEF OF AMERICAN AND NEUTRAL WOMEN WHO HAVE INTERMARRIED WITH ALIENS IS INCONSISTENT WITH NONE OF THESE PURPOSES OF THE ACT OF OCTOBER, 1917.

Your petitioners certainly hold no brief for the German industrial army. On the contrary, they rejoice in its destruction. They do not urge that any part of the proceeds of these hostile investments should be repaid to Germany or German citizens. On the contrary, those proceeds should be used for the relief of our own citizens from losses caused by Germany. The Alien Property Custodian apparently contemplates that German private investments may be restored. He has apparently withheld them from sale, in order to keep this possibility open.

Your petitioners, however, believe and urge that justice, generosity, and chivalry, as well as the humane practice of this country in former wars, require that a small class of property should be restored intact to its former owners, even though they are technically regarded as alien enemies.

The consequences of the rule that an American woman loses her citizenship by marriage with a foreigner should not be pressed beyond the reason of the rule itself. It is quite another thing to press the rule to the extent that if her husband becomes an alien enemy her property should be forfeited. Doubtless her property is subject to seizure. In time of war we necessarily seize first and inquire afterwards as to the propriety of confiscation. But if the private property of alien enemies should not be forfeited save in the most special circumstances, she is entitled to peculiar consideration.

But this bill does not protect even all American women. It is restricted to those who married Germans or Austrians prior to July 28, 1914. At that date this country was not at war. We did not come in until April 6, 1917, nearly three years later. Even Belgium was not invaded until August 4, 1914. It was that act which stamped once and for all the character of the war which Germany began. She who married a German or an Austrian on the eve of the struggle or after it began is left to bear the full consequences of her choice. Only she who married an Austrian or a German while those countries were ranked as civilized nations is protected by this bill.

Even a member of the very limited class who may claim the protection of this bill is not protected as to all her property. It does not affect any property which she received from her husband or from any citizen of Austria or of Germany or their allies. With few exceptions it will cover only property which she received or inherited from her American parents-property doubtless made in this country and which her affection and trust in our justice and generosity induced her to leave in this country. If the public opinion of civilized rations usually protects the friendly private investments even of alien enemies, how much more should we accord mercy-nay, justice-to the American property of American women who are only alien enemies in a technical sense.

It appears from the report of the Alien Property Custodian (p. 8) that the property of Turks and Bulgarians has not even been seized save in a few isolated cases. Surely it can not be the intention of Cor gress that the property of American origin belonging to American women should receive harsher treatment than the property of the Bulgarian and the Turk, simply because she married a German or an Austrian in time of profound peace and then relied upon our chivalry and honor.

Finally it can not be used that to accord such justice would in any way defeat the purposes of the trading with the enemy act of October 6, 1917. This property was in no sense a unit in the German industrial army. It was in no sense a hostile investment. It has not been used for enemy purposes. It is still awaiting the action of Congress. The usage of civilized nations, our own previous war policy, and reasons of wise public policy all require that it be restored. Friendly investments in American securities should be regarded the world over as safe as the traditional investment in the Bank of England. If we protect these investments now it will repay us a thousand times over in the years ahead when we seek foreign markets to sell our securities during times of peace. And on the contrary, for us now to create a precedent of not returning