Mr. SARGEANT. It has been recognized by our Government. Mr. BARKLEY. But there has been no treaty so far as our Government is concerned fixing the status of that nation and fixing the status of its citizens?

Mr. SARGEANT. No.

Mr. BARKLEY. The alien property act does not contemplate the transformation of a man from one citizenship to another by an act of revolution to bring relief?

Mr. SARGEANT. That is the ruling of the Attorney General, that any transfer of citizenship caused by the present war and treaty is not going to take that claimant out of the classification of aliens.

Now, so far as my brother-in-law's property is concerned, which consisted of some real estate, including a farm, they have no income from it at all. They are cutting lumber down and raising animals for exchange; exchanging lumber for sheep or for something else to eat. Since the war I have myself supported my sister; I have sent her ali the money she has had to spend. I believe they would have been in want otherwise. I could not use any of her collateral because that is held by the Alien Property Custodian. I have used my own collateral and borrowed money and sent it to her. As far as Mrs. Rittler's voluntary acts count, she did nothing except in 1907 to marry the man she loved and go to his country to live, leaving her property here in my care and trusted this country to preserve it for her. I do not see why she should be placed in the same class as a man who abandons this country and takes up citizenship in another country, and yet by the mere fact of her marriage to a citizen of Austria you gentlemen place her in the same position I would be in if I were to say I would have nothing more to do with this country and that I was going to become a German citizen.

Mr. MONTAGUE. We did not do that.

Mr. SARGEANT. I understand that, but that is the situation if you do not report this bill.

Mr. MONTAGUE. We did not bring about that status. That has been the time-age law of nations and the United States simply recognized it in the act.

Mr. SARGEANT. There is this difference, as I understand it. If I should go to Germany and take out naturalization papers and then want to come back to this country, I could not get back as easy as she could. If her marital relation ceases and she writes to an American consul and says she was an American citizen before her marriage and wants to come back here, she can get back. But I could not do that. I could not get back in the country without taking out other papers. Mr. MONTAGUE. That was not what was in my mind. The thought in my mind was this: The implication of your remark was that this statute, this trading-with-the-enemy act

Mr. SARGEANT (interposing). I will apologize for that. I did not mean quite that.

Mr. MONTAGUE. What I wish to call your attention to is this, that the general law of nations practically fixed that, and it is simply recognized by our statute.

Mr. JONES. You stated that she desires to return here with her four boys. Is that temporary?

Mr. SARGEANT. No; she is sick of that country.

Mr. JONES. Is her husband coming back with her?

Mr. SARGEANT. I do not know. I believe he is or was ill and in a sanitarium.

Mr. JONES. You do not mean she will come to this country and leave her husband over there?

Mr. SARGEANT. She has got to do it, with or without him, or starve to death.

Mr. JONES. I wondered what her idea was in coming to this country?

Mr. SARGEANT. I can say unauthoritatively that she wants to come back here and live in the old homestead and bring her boys up as American boys are brought up.

I would like to have the statement which I have compiled placed in the record.

The CHAIRMAN. Very well.

(The statement submitted by Mr. Sargeant is as follows:)

ARGUMENT IN FAVOR OF HOUSE BILL 12884, ENTITLED "A BILL RELATING TO NEUTRAL AND AMERICAN WOMEN INTERMARRIED WITH ALIENS.

House bill 12884 is entitled "A bill relating to neutral and American women intermarried with aliens." It is designed to relieve a very limited part of alien enemies, who are alien enemies only in the most technical sense from the operation of those provisions of the trading with the enemy act approved October 6, 1917, which authorizes the President. the Alien Property Custodian, or any other officer or agent of the United States to take or hold possession of the property of alien enemies.

Clause 1 of House bill 12884 provides as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no woman, prior to her marriage the subject of a country which remained neutral in the recent war commonly known as the World War, or born in the United States of American parents, who, prior to July 28, 1914, intermarried with a subject of the German Empire or of the Empire of Austria-Hungary, shall be determined or held to be an alien enemy as a result of or by reason of the war between the United States and the German Empire or between the United States and the Empire of Austria-Hungary and the act of Congress known as the trading with the enemy act, approved October 6, 1917, and the amendments thereto and the proclamations and the Executive orders issued in pursuance thereof."

Clause 2 provides in substance that except as provided by section 5 of this act no provision in this act of October 6, 1917, shall authorize the President or the Alien Property Custodian, or any other department, officer, or agent of the United States to take possession of or continue to hold custody or possession of any property of such married women, unless such property was derived from some citizen of the German Empire or of the Austrian Empire or their allies. Clauses 3 and 4 provide machinery by which such married women may reclaim their property. Clause 5 provides that until such claim is made and duly established such property shall be held under the provisions of the act of October 6, 1917, except that it shall not be sold or otherwise disposed of. Clause 5 further provides that in case any claimant shall die either before or after the claim is presented, the claim shall descend to her children by right of representation thus barring any possible claim by the husband. Clauses 6 and 7 provide machinery for turning over the property claimed when the claim has been duly established.

To determine whether Congress should turn a deaf ear to these daughters of our own and neutral countries and should, in effect, declare that their confidence in our justice, generosity, and chivalry was a mistake, it becomes necessary to consider three questions:

1. What is the origin and purpose of the right in time of war to seize and possibly to confiscate the property of alien enemies which is in this country. 2. What was the purpose of the act of October 6, 1917, with respect to such property?

3. Is this bill in any way inconsistent with the purposes which the act of October 6, 1917, was intended to accomplish?

I. 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.

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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 forfeited 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 v. Abbott, 6 Wall., 531, the court said, by Mr. Justice Clifford, at page 536:

"In former times the right to confiscate debts was admitted as an acknowledged 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 insurrection, 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