to. Could I go so far as to suggest that you read that and see whether we have an element of something?

Mr. BLAISDELL. I will be very happy to read it, Senator.

Senator THOMAS of Utah. There are two pieces, one on Jefferson. It is not that piece. It is the other one.

COMPULSORY MILITARY SERVICE

Article XIII deals with military service of the Italian and American nationals. I think this is similar to the China treaty provision, but since it sets a pattern for Europe, it might be well to ask about it, and I would like to ask whether we are not running again into a conflict with our National Selective Service Act as it existed.

Mr. BROWN. Senator, I do not think there is any conflict. The provision is the same as the provision in the China treaty, namely, that nationals of the other country are exempt.

I think I see what you are driving at-that if you had a situation such as we have here now, where there is no common conflict, and we should impose or have a draft, the provision of the treaty which exempted an Italian national who is recently in this country from the draft might be in conflict with our Selective Service Act.

Senator THOMAS of Utah. I am afraid that if the law were reenacted today as we enacted it in 1940, and then this treaty became the supreme law of the land, it would actually, because of most-favorednation treatment and the rest, modify our Selective Service Act, because we extended registration-and the implication of registration was the call of the draft-to everybody. We paid no attention to citizen or noncitizen. And I think that it would be well before we consider either of these two treaties in the Senate for us to be primed on this situation, and I think it would be well for you to talk to the armed services representatives.

Mr. BROWN. This provision has been checked with Selective Service and with the National Military Establishment, and it was based on the draft provisions which were in effect during the war, in 1940.

Senator THOMAS of Utah. But you still have not answered that question about what becomes the law of the land when you allow a treaty to modify it. In practice we were all right, because there were not very many involuntary hardship cases, especially of Europeans. There were so far as the Japanese were concerned, and there were so far as the Chinese were concerned, and there is a provision which made it possible for the Army to judge of its own members, and therefore it avoided some of these questions. But we would not enlist foreigners for guard duty in Europe who were actually drafted if they happened to be in the United States.

Mr. BROWN. I will have to give you a memorandum on that, but I know we have checked that carefully with both Selective Service and with the military.

Senator THOMAS of Utah. I am more interested in the theory than in the practice. In practice I do not think you have any problem at all, and you would not have a problem unless we had general mobilization here, because there are plenty of outs and plenty of ways of making different arrangements. But as you pyramid laws within the United States, I would hate to have to tell the Senate that this law will modify

the theory of the national draft if it becomes the supreme law of the land.

Mr. BROWN. You have particularly in mind a situation where in peacetime there is no common effort between the two countries, if you had a draft and you might want to include a national of another country resident in this country?

Senator THOMAS of Utah. That is right. It is important for a number of reasons. If we ever got to the place where manpower was a problem, as it seemed to be a problem just before the end of the last war, and we were discussing mobilization of manpower, then it would be important even in fields that are nonmilitary. We went so far, you see, as to almost draft nurses.

Mr. THORP. Senator, I want to suggest at this point that this has to be looked at from the other direction, too. In other words, on the mutual basis we might get into a situation where an American living in Italy might be drafted by the Italian Government to serve in the Italian Army, and I am not quite sure where one comes out if you start this.

Senator THOMAS of Utah. And that is the power of the treaty in the United States, and we will live up to the mutual aspect of it, and if you give to Italy powers that we do not want to give to Italy, we of course have done something we do not want to do.

I cannot help but feel that that article is one that we ought to seriously go into before we bring the treaties to the Senate. That is my feeling.

Mr. THORP. We will be very glad to give you a full memorandum about it.

(The matter referred to is as follows:)

LEGAL BACKGROUND OF THE MILITARY SERVICE ARTICLE IN THE COMMERCIAL TREATIES WITH CHINA AND ITALY

Pre-World War I treaties

A number of United States treaties concluded prior to World War I contained broad provisions for exemption from military service without any qualification as to (1) whether or not the nationals of one contracting party claiming exemption under the treaty within the other contracting party had declared their intention to become citizens of such other contracting party or (2) whether or not the two contracting parties were both at war with the same third country. For example, the first paragraph of article II of the treaty of November 25, 1850, with Switzerland provides on this point:

"The citizens of one of the two countries, residing or established in the other, shall be free from personal military service, but they shall be liable to the pecuniary or material contributions, which may be required, by way of compensation, from citizens of the country where they reside, who are exempt from the said service.' World War I draft

The Selective Service Act of 1917, enacted soon after this country became a belligerent in World War I, made liable for military service "male citizens, or male persons not alien enemies who have declared their intention to become citizens" (sec. 2, 40 Stat. 77 and 78).

Thus all aliens who had not declared their intention to become citizens, that is, nondeclarants, were exempt. This legislation was amended in 1918 by the addition of the following proviso:

"Provided, That a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service upon his making a declaration, in accordance with such regulations as the President may prescribe, withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen and he shall forever be debarred from becoming a citizen of the United States" (40 Stat. 885).

Under this amendment neutral declarants also were exempt from military service provided they gave up the privilege of becoming citizens.

Following World War I a number of commercial treaties were concluded containing military-service provisions generally comparable to the following in the 1928 treaty with Norway:

"Article VI

"In the event of war between either High Contracting Party and a third State, such Party may draft for compulsory military service nationals of the other having a permanent residence within its territories and who have formally, according to its laws, declared an intention to adopt its nationality by naturalization, unless such individuals depart from the territories of said belligerent Party within sixty days after a declaration of war."

World War II draft

The Selective Service Act of 1940, enacted before the United States became a belligerent in World War II, made liable for training and service "every male citizen of the United States, and every male alien residing in the United States who has declared his intention to become such a citizen" (sec. 3, 54 Stat. 885.) This was comparable to the 1917 law before its amendment.

A few days after the United States became a belligerent in World War II this 1940 act was amended so as to make subject to training and service "every male citizen of the United States, and every other male person residing in the United States * * *, Provided That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States" (55 Stat. 845).

Thus the basis for exemption was changed, and throughout the war it remained whether the alien was a national of a neutral rather than a cobelligerent country. In fact, the final wartime draft legislation during both World War I and World War II permitted the complete exemption of neutral aliens, provided they gave up the privilege of becoming citizens of the United States (in the case of neutral declarants only in World War I legislation; in the case of all neutrals in the World War II legislation).

Chinese and Italian treaties

This background of wartime legislation was considered as indicative of the policy of this Government as to the liability of aliens to military service, and for this reason was written into both the Chinese (art. XIV) and the Italian (art. XIII) treaties. These both contain a general statement as to exemption, followed by a qualification that this exemption shall not apply in cases of cobelligerency. The Chinese treaty adds a specific reference to possible loss of the privilege subsequently to acquire the citizenship of the contracting party from which the exemption is claimed. This latter clause was omitted from specific mention in the Italian treaty on the clearly expressed understanding that it was superfluous since nothing in the treaty would prevent the denial by the United States of this privilege to Italians claiming exemption from military service.

The provisions of the two treaties as to the right of nationals of a cobelligerent contracting party to elect to serve with the forces of the contracting party of which they are nationals is in accord with the practice of this country in both World War I and World War II.

These provisions have been drafted in collaboration with the appropriate officials of the War and Navy Departments and the Office of Selective Service Records.

POLICY CONSIDERATIONS RELATING TO THE MILITARY SERVICE ARTICLE IN THE TREATIES WITH CHINA AND ITALY

Among the purposes of treaties of friendship, commerce and navigation, such as those under discussion, are (a) the establishment of a formal basis on which American citizens may freely move about the world in pursuit of their lawful affairs without fear of detention or abuse of their persons, and (b) the building of a legal environment in which interchange of personal skills and knowledge, as well as goods, services, and capital, can thrive. Some guaranty against impressment by the foreign military is thus one of the elements of the foundation on which this Government's commercial foreign policy is built. The treaty

rule against the conscription of aliens is, therefore, directed toward the same objectives as the rules for the protection of persons and property, for the payment of compensation for property taken for public use, and for the humane treatment of persons taken into custody by the police authorities.

It is held by many authorities that it is contrary to international law for a government to compel aliens to serve in its military forces. It is thought that it would not be good policy for the United States to appear to repudiate a tenet of international law to which it has adhered in its treaty policy for many decades past. Under the municipal law of Italy and many other countries, aliens are not subject to compulsory military service. A decision by the United States to adopt a contrary policy would establish a precedent which other governments could be expected to follow.

It is important to regard this problem from the viewpoint of Americans abroad. Forced service in certain armies of the world would be tantamount to cruel and unusual punishment for American citizens. The obligation of military service is especially closely associated with the idea of national loyalty. The American who goes abroad in the interest of American foreign trade, of world economic development, of international cultural cooperation should not be obliged by any policy of this Government to abandon his primary loyalty to the United States. If foreign governments follow the practice of requiring an oath of allegiance from conscripts (as in the United States, under pain of severe penalties), a policy of allowing Americans to be conscripted abroad would be a policy of sanctioning the involuntary expatriation of American citizens. It is not believed that the United States should, through a policy of impressment, in effect force citizens of any country to divest themselves of their nationality.

Senator THOMAS of Utah. You remember that in the First World War every Japanese in the United States answered our registration questions the same. There was in the United States Supreme Court at that time the case of Osawa, I think it was, a case on nationality, citizenship, and the rest of it. And when we registered the Japanese, the Japanese answered in such a way as to stand for their right, as their attorneys were arguing their case, before the Supreme Court. Nothing came of it excepting that. But at the same time, if there had been a situation of this kind, it might have done some damage to some Americans in any country where they have compulsory universal training at all times.

Mr. BROWN. I think we were thinking primarily of the point that Mr. Thorp raised, that we did not want to be in a position where any American citizen would have been compelled to serve military training in Italy.

Senator THOMAS of Utah. And I do not want to be in that position either. If, for instance, our practice becomes universal military service, I surely do not want to have a treaty that if we happen to go somewhere else, military service in some other countries would be ours. Mr. BROWN. This treaty would protect us against that.

Senator THOMAS of Utah. I do not know whether it will or not. Mr. BROWN. It specifically says

Senator THOMAS of Utah. It says that; I know. I am just frightened that it brings complications into the even tenor of our ways, where we have never had any problems until that one came up.

Is there anything else?

Dr. WILCOx. That is all.

Senator THOMAS of Utah. Thank you all for coming. We will bring the hearings to an end.

(Whereupon the subcommittee hearings were closed.)