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and we certainly hope that, with such changes or additions as the wisdom of this committee may see fit to make in it, that it will pass, so as to give relief to women who prior to their marriage to the alien enemy (and prior to the war, April 6, 1917) were nativeborn American citizens. I thank the committee for hearing me.
(A brief filed by Mr. Frisbee is as follows:)
BRIEF IN SUPPORT OF ORAL STATEMENT OF MR. E. L. FRISBEE, AT HEARING OF MARCH
23, 1920, IN BEHALF OF CLAIRE S. SCHLI'BECK, FILED BY LEAVE OF COMMITTEE.
In approaching the questions to be settled by the bill proposed, while the world is still shaking to its very foundations, it seems that not only for the present exigencies, but, at this most critical time in our history, for the future of our country, it is the part of statesmanship to square the proposed legislation with the great basic laws and facts which, like the law of gravity, will remain regardless of any human attempt at controversion.
This bill has to do with American women who have married certain aliens.
We respectfully submit the well-known natural law, that the female of all the higher orders of living creatures (man or beast) by nature exercises the innate right to choose and select her mate. As the human race progresses from savagery to highest civilization, it proceeds along this ascending line from almost the zero point to the complete recognition of this rule in the highest plane.
All laws and customs to the contrary fade away with advancing sun of enlightenment.
Therefore it is now the fundamental right legally established that an unmarried woman in any part of the civilized world may marry an eligible man of her choice, though a citizen of any other country, without legally suffering from ignorant prejudice or being penalized for the act itself, even though it turn outunfortunate or injudicious.
The very soundness of our own civilization is generally ascribed to the blending together by marriage of those coming here from all the races of the earth..
This Nation has been distinguished especially by one great characteristic; viz, an almost sacred care and protection of all female members of the family unit physically, morally, financially. All the marriages in the world between our sisters, daughters, or mothers with other nationals, can not change these American ideals and affections or the great laws with which they conform. No eventuality unforseen at the time of the marriage can be used to penalize them therefor without being a moral shock to all fair-minded citizens.
We have orally called general attention to the question of taking private property of any of these women to pay enemy debts.
We further submit, for such consideration as it may invite, certain principles of the law of nations as are to be found in the works of leading authorities on the subject, and as are set forth, in some instances, in specific cases.
The purpose of our memorandum is in no way directed against the complete justification of the trading-with the enemy act, which was so invaluable during the World War. Our purpose is rather to direct the attention of the committee to the law which existed and was recognized by all nations prior to the World War, and which may again be recognized by us when our technical state of war becomes an actual state of peace.
The enemy State and not the private enemy individuals should be made to pay war claims.
Modern International Law does not sanction the confiscation of private enemy property to pay debts of the enemy State.
“ The War of the Revolution has been sometimes appealed to as countenancing the sequestration of debts and the confiscation of property. This was denied by Alexander Hamilton in his argument on the tenth article of the British treaty of 1794. He said (in reply to those who represented the confiscation or sequestration of debts as our best means of retaliation and coercion) : 'So degrading an idea will be rejected with disdain by every man who feels a true and wellinformed national pride; by every man who recollects and glories that in a state of still greater immaturity we achieved independence without the aid of this dishonorable expedient.' (Hamilton's Works, Vol. VIII. p. 329.)
Article 46 of The Hague Regulations expressly enacts that “private property may not be confiscated.” Confiscation is distinguished from the temporary use of private land and buildings for all kinds of purposes demanded by the
necessities of war. As great an authority on international law as Oppenheim states:
“ In former times all private and public enemy property, immovable or movable, on each other's territory could be confiscated by the belligerents at the outbreak of war, as could also enemy debts, and the treaties concluded between many States with regard to the withdrawal of each other's subjects at the outbreak of the war stipulated likewise the unrestrained withdrawal of the private property of their subjects. Through the influence of such treaties, as well as of municipal laws and decrees enacting the same, an international usage and practice grew up that belligerents should neither confiscate private property nor annul enemy debts on their territory. The last case of confiscation of private property is that of 1793, at the outbreak of the war between France and Great Britain. No case of confiscation occurred during the nineteenth century. There is now a customary rule of international law in existence prohibiting the confiscation of private enemy property and the annulment of enemy debts on the territory of a belligerent. Private enemy property, which may be made use of by the enemy, may be withdrawn. All appliances for the transmission of news may be confiscated, although they are private enemy property, provided they are restored and indemnities paid for them after the conclusion of peace.” (Oppenheim on International Law, Vol. II.)
Oppenheim further states :
“That war must support war remains a principle under these (The Hague) regulations also. But they are widely influenced by the demand that the enemy State as such, and not the private enemy individuals, should be made to support the war." (Vol. II, p. 184.)
The authorities are practically in accord that while under international law contributions and requisitions are permissible, confiscation is not.
Article X of the treaty between the United States and Great Britain, 1795, provided that in no case should "debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public funds, or in the public or private banks, be sequestered.” (Hall on International Law, note, p. 433.)
Sequestration and confiscation have been expressly forbidden by a convention between the United States and France in 1800 (De Martens, Rec. VII, 484) and by a number of treaties during the last century, to which, with scarcely an exception, one of the parties is a South American State. It might be argued not unfairly that if treaties like these do not exist between European countries and between them and the United States it is because there has been for a long time little fear that the right guarded against would be exercised by wellregulated States." (Note to Hall, International Law, p. 435.)
Alexander Hamilton, in defense of Jay's treaty (Works VII, letters 18, 19, 20), argues that the public faith is pledged to the foreigner who leaves his property or debt in this country.
In our treaty - with Great Britain, 1794, . article 10, “ confiscation” is pronounced as “unjust and impolitic.”
Such an eminent authority as Kent considers the impolicy of confiscation to be so clear and its bad faith so palpable as to remove it from the permitted acts of war.
“ During the Civil War in the United States the Congress of the Confederacy confiscated all property movable or unmovable
held by or for an alien enemy. Earl Russell reinonstrated against this proceeing as discountenanced, if not disallowed, by the modern law of nations.” (Dana's Notes to Wheaton on International Law, p. 393.)
" Kent (165) states the law of nations to be, at the time of his writing, that it rests in the discretion of the legislative authority of a nation to confiscate private debts or not, at its discretion ; but, as the exercise of the right is contrary to universal practice, it may be considered as a wicked and impolitic right, condemned by the enlightened conscience of modern times.'” . (Dana's Notes on Wheaton, p. 392.)
In the light of our statements made orally at the hearing of this committee on March 23 last, supported by the necessarily brief citations herein contained, we have full faith that this committee will report a bill in conformance with tradition, precedent, and justice. But the greatest argument and perhaps the only one convincing to a small number of those who may appear in opposition to such a bill, has remained untouched in the space allowed, and can only be inadequately alluded to, to wit, the incalculable value in the years, even centuries, to come of our national reputation for saving harmless and returning to its American-born women owners property (especially that classified as “not unfriendly”) left here in faith and trust when they gave up domicile and followed their natural instincts matrimonially. The value of a world-wide trust and confidence in us and our institutions as a safe depository for the surplus and active funds of all the peoples of the world and the commercial relations established thereby is demonstrable by only a thought as being so stupendous that all questions as to many details which may first arise in minds not awakened to the comparison, that practically all questions which have seemed to present subjects for argument sink into insignificance. Our thought in closing is, Why not act as the great insurance companies successfully do in case of loss, pay promptly all claims of all these women who were natural-born American citizens before the marriage (be they rich or poor), without cavil and without laying our Nation open to the accusation of hesitating about its relation as trustee for its own daughters, even though the temptation to consider and differentiate between thousands of specific cases may for various reasons be presented. Respectfully submitted.
ERNEST L. FRISBEE, Counsel, 925 Fidelity Building, Buffalo, N. Y.
RUFUS S. DAY, Associate Counsel, Westory Building, Washington, D. C. The CHAIRMAN. Is there a representative of the office of the Alien Property Custodian present?
Mr. S. M. STELLWAGEN. Mr. Chairman, Mr. Boggs, the general counsel of the Alien Property Custodian, merely asked me to come here this morning and to report what happened at this hearing, and he was of the impression that an extension of time would be granted to Mr. Garvan, the Alien Property Custodian, to appear before the committee.
The CHAIRMAN. I gave him notice that we would have hearings on March 23—that is to-day. But we can not conclude this matter now because the Alien Property Custodian should be heard before it is concluded. What day would be convenient for him?
Mr. STELLWAGEN. I would have no authority to speak for him in that matter, Mr. Chairman.
The CHAIRMAX. Then I will have to communicate with him.
Mr. THURSTON. Mr. Chairman, there is a young man here from New York, whose mother has some property which is in a situation, I think, that is typical of that of a great many of the people in Germany; and if this committee will give him just a few minutes, to permit him to put his case on the record, I think it will be worth while.
The CHAIRMAN. We can hear him for a few minutes.
STATEMENT OF MR. RALPH M. LANE, PARK AVENUE HOTEL,
NEW YORK CITY.
Mr. LANE. My name is Ralph M. Lane. I am now a resident of New York City.
I am appearing in behalf of my mother, Mrs. Julia Lane Wackwitz, an American-born woman now married to a German citizen. My mother has been married for about 16 years to her present husband and has lived more or less continuously in Germany ever since her second marriage. She owns certain property which has been held for her through the St. Louis Union Trust Co. of St. Louis, Mo. At the time of the outbreak of the war this property was delivered to the Alien Property Custodian by the St. Louis Union Trust Co., and has been held by him ever since.
I personally have not been in communication with my mother for about five years, until last December, when I had my first letter from her. In that letter, my mother states the tremendous hardships which she has had to undergo owing to the fact that she has been living in Germany. She has practically been reduced to a penniless state, and has asked me to petition for her that the income which she had been receiving from the properties owned by her should be paid to her again. I feel from the way she has written me that hers is a very urgent case, and that she needs financial support very badly.
I personally, since I have reestablished communication with her, have been able to do a little for her myself. I have not been able to to do very much for her, owing to the fact that I served in the United States Army, and have just recently gotten back into business.
I wanted to bring this case to your particular attention, as I thought it was a very worthy one; and I hope that you gentlemen will consider it as such.
Mr. JONES. What is the character of this property?
Mr. LANE. The greater part of it is real estate in and around St. Louis, Mo.; there are also certain shares of industrial stock.
Mr. JONES. How did she acquire title to it!
Mr. LANE. My mother received this property through her mother, and through my father.
Mr. Jones. They were Americans, were they?
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,
HOUSE OF REPRESENTATIVES,
Friday, April 2, 1920. The committee met at 10.30 o'clock a. m., Hon. John J. Esch (chairman), presiding
The CHAIRMAN. The committee will come to order.
We have for further consideration this morning the bill introduced by Congressman Butler, H. R. 12651, and the bill introduced by Congressman Winslow, H. R. 12884, these being bills relating to married women, intermarried with aliens, and effecting the alien property custodian act.
Mr. Garvan is present and the committe will be glad to hear him this morning. STATEMENT OF FRANCIS P. GARVAN, ALIEN PROPERTY
Mr. GARVAN. Mr. Chairman, I personally, or as alien property custodian, have no views to present to you with reference to the disposition of these bills. I am in the position of being a trustee without any interest in what becomes of the fund, and whatever is your purpose or intention, I am in perfect accord with it. If there are
any specific facts about specific cases, or if you intend to report the bill, why then I would like to make some suggestions as to details which would make it much more easily administered, but I am in hearty accord with any policy which your committee or which the Congress adopts.
The CHAIRMAN. Have you suggestions to make to either of these bills, in order to make them more workable?
Mr. GARVAN. I have.
Mr. GARVAN. As to both. And I can either have those placed in the record or I will read them.
The CHAIRMAN. You might read them and we will follow you.
Mr. GARVAN. The main one is to have the bill conform to section 9 of the present act. Under the present act nonenemies are able to reclaim their property under section 9. That has built up a procedure and rulings; forms have been decided upon and tested by a long series of claims. The expense to the Government would be much less and it would be much simpler to administer, with much less confusion to the people making the claims, if this act just extended the number of persons who could claim under the present section 9. Then it would allow them to be considered just as United States citizens returning to this country now are considered; the same forms would be adopted and the same rulings as to proofs, etc., would become applicable. Under the present act it would require the building up of a new system, new precedents, new forms, and new decisions. So that if you do decide to return this property I think that just enlarging the definition of the people who can claim under section 9 would much more easily and simply accomplish your purpose.
The CHAIRMAN. Are your suggestions based upon that plan?
In reference to House Bill 12651, I would suggest in section 1, line 9, the phrase "alien enemy” here used might be well changed to read enemy or ally of enemy as defined in the trading with the enemy act." This phrase would have a definite, unambiguous meaning because of the definition of those terms under the trading with the enemy act, which phrase "alien enemy” would not possess. Such a change would also render unnecessary the succeeding phrase as a result of the war,” etc.
Section 2, lines 4 to 9, inclusive: This phraseology beginning with the words " shall be held” might be construed as a legislative declaration that the holding of such property even prior to this enactment of legislation, was unlawful. Further, it would be necessary for the Custodian or Treasurer of the United States, as the case may be, to continue, in any event, to hold the property until application for its return has been filed and passed upon.
Section 2, line 20: It is to be noted that the proposed restoration of property is limited solely to the married woman or her authorized attorney. Your committee may also desire to consider the advisability of providing that if the woman in question be deceased, the property may be restored to any of her heirs or distributees,